The Coastwatchers Association v NSW Minister for Planning and Infrastructure

[2012] NSWLEC 1025

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Coastwatchers Association and anor v NSW Minister for Planning and Infrastructure and anor [2012] NSWLEC 1025

Hearing dates:

7 February 2012

Decision date:

07 February 2012

Jurisdiction:

Class 1

Before:

Brown ASC and Adam AC

Decision:

1. The appeal is upheld

2. Approval is granted under section 75J of the Environmental Planning & Assessment Act 1979, to the project referred to in Schedule 1, and on the conditions referred to in Schedules 2 to 5, of the approval in Annexure A.

3. There is to be no order as to costs in these proceedings and each party is to bear their own costs in these proceedings.

4. The exhibits are returned.

Catchwords:

CONSENT ORDERS: establish and operate a gold mine - matters raised by objector

Legislation Cited:

Environmental Planning & Assessment Act 1979
Environmental Planning and Assessment (Part 3A Repeal) Act 2011
Practice Note - Classes 1, 2 and 3 Miscellaneous Appeals

Category:

Principal judgment

Parties:

The Coastwatchers Association Inc (First Applicant)

South East Region Conservation Alliance (Second Applicant)

NSW Minister for Planning and Infrastructure (First Respondent)

Big Island Mining Pty Ltd (Second Respondent)

Representation:

Mr C Ireland, barrister (Applicants)

Mr J Hutton, solicitor (First Respondent)

Mr A Galasso SC (Second Respondent)
Environmental Defenders Office (Applicants)

NSW Minister for Planning and Infrastructure (First Respondent)

Blake Dawson(Second Respondent)

File Number(s):

10911 of 2011

Judgment

1. COMMISSIONERS: This is an appeal by The Coastwatchers Association Inc and South East Region Conservation Alliance against the decision by the Planning Assessment Commission of New South Wales (as delegates for the Minister for Planning and Infrastructure) to approve, under s 75J of the Environmental Planning & Assessment Act 1979 (the EPA Act), the Dargues Reef Gold Project, for which the proponent is Big Island Mining Pty Ltd.

1. The right of appeal is conferred by s 75L of the EPA Act . Part 3A of the EPA Act, under which the application for the project and assessed , was repealed by the Environmental Planning and Assessment (Part 3A Repeal) Act 2011, however, the transitional provisions provide for Part 3A to continue to apply to "transitional Part 3A projects" including projects for which environmental assessment requirements were adopted before the repeal of Part 3A. The Dargues Reef Gold Project falls into this category, so that for purposes of this appeal, the provisions of Part 3A apply.

1. The proposal is to establish and operate a gold mine to the north of the Majors Creek township, within the Palerang local government area. The site encompasses Lot 102, DP755934, part Lot 210 DP755934, Lots 1, 2, 3, 4 and 5 DP986483, Lot 104 DP1100849 and Lot 1021 DP1127185. Big Island Mining Pty Ltd is the registered owner of the site except for part of Lot 210. The total area of the site is approximately 400 hectares, but the area, which would be directly affected by the mine and the associated facilities is 27.3 hectares.

1. The proposal involves mining and partial processing of ore, with concentrate to be exported off the site for final processing. The approval limits processing to not more than 355000 tonnes of ore per year, with a total extraction of not more than 1.2 million tonnes over the life of the project. Mining operations are to be completed by 31 August 2018. Mine tailings are to be used to backfill the completed stopes within the mine. No cyanide or mercury is to be used to process or extract gold. The proponent is required to rehabilitate the site and carry out monitoring and other works as required by the Director-General of the Department of Planning and Infrastructure and the Executive Director Mineral Resources. The approval continues to apply until the rehabilitation of the site and the additional works have been carried out satisfactorily.

1. The concerns of the applicants can be summarised as

• impacts of biodiversity (and in particular threatened species and endangered ecological communities) within the site,
• adequacy of the proposed biodiversity offset,
• impacts of drawdown of groundwater on biodiversity both within the site and more widely, and
• affects on water quality both within the site and off-site.

1. The proceedings, the subject of the consent order hearing, were initially to be heard concurrently with proceedings commenced by Eurobodalla Shire Council (No 10905 of 2011) over concerns about the potential impact of the mine on the water quality of the Deua/Moruya River, downstream from Majors Creek and the mine. However after consideration and discussion between the proponent of the mine and Eurobodalla Shire Council, the proceedings were discontinued after council was satisfied that the mining methods, technologies and structures, and additional monitoring, were the best available measures to avoid impacts on the river system.

1. The parties in these proceedings engaged a number of experts to address the contentions. Individual experts were qualified to address more than one of the issues, so that individuals participated in preparation of more than one joint report. Expert reports were prepared by:

Contention	Applicants	Second respondent
Hydrology/hydrogeology	Dr. Milne-Home	Mr. Briese Mr. Middlemis Mr. Macleod Mr. Morgan
TBF - bird species	Dr. Driscoll	Mr. Daly Dr Douglas
Groundwater and ecological communities	Dr. Merchant	Dr. Douglas Mr. Stone
Water Quality	Dr. Milne-Home	Mr. Rumble
Ecotoxicology/water quality	Dr. Hose	Dr. Smith Mr. Briese Mr. Middlemis Mr. Morgan Mr. Macleod
Impacts on bird species	Dr. Debus	Mr. Daly Mr. Smith

1. On 21 October orders were made for the experts to confer and prepare joint reports. These reports were filed on 25 January 2011. The individual reports from the second respondent's experts provided extra data and analysis relating to issues, which had earlier been raised by the applicants, particularly in relation to hydrology and possible toxicity of organic chemicals used in processing. Through joint conferencing the applicant's experts confirmed that this extra information addressed their concerns on a number of the issues, which had been in contention. In relation to other matters, the experts reached agreement on changes to the approval, which would improve the monitoring regime and environmental management processes. The parties therefore brought before the Court an application for final orders by consent.

1. In this regard, Practice Note - Classes 1, 2 and 3 Miscellaneous Appeals (the Practice Note) applies as it is a Class 1 appeal, but not under ss97 and 98 of the EPA Act. The Practice Note , at par 27, specifies that in an application for the Court's determination of consent orders that:

The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to make the consent final orders.

1. In order for the Court to be satisfied that it is appropriate for the consent orders to be made, it needs to determine whether the approval, as modified, is appropriate. To address the question of appropriateness, The Court needs to address the concerns raised by the applicant's and how the amendments address their concerns. The Court also needs to be satisfied that procedural fairness was afforded any person who objected to the proposed development. We understand that there was no issue in relation to the question of lawfulness.

1. Prior to the joint conferencing of experts, six members of the public had indicated that they wished to be provided with the opportunity of addressing the Court. Prior to the application for consent orders, the indicated schedule for the matter involved commencing on-site, at which time the six members of the public would have had opportunity to provide their evidence. Following the agreement, the on site inspection was not needed. Those six persons who had registered to give evidence on-site on the first day of the hearing were informed on 27 January 2012 that the parties had agreed on the form of consent final orders. The Court requested that the six persons be provided with the details of the proposed approval, and in particular that the changes between the original approval and the version for which consent was now sought be clearly identified. In response, Ms Christine James and Mr Peter McCormick provided further written submissions although none of the six persons who had registered to give evidence on-site expressed an interest in addressing the Court in person. Ms James supported the application and Mr McCormick raised the following concerns:

• the impact on the quality of water in local rivers,
• the level of input by NSW Office of Water on the preparation of the Water Management Plan,
• the integrity of the tailings storage facility including its ongoing oversight and maintenance, and
• air quality in terms of the chemical composition of particulates and the dust emissions from the tailings storage facility.

1. On those matters raised by Mr McCormick, we accept the submissions of the second respondent that:

• the impact on the quality of water in local rivers was addressed by Dr Hose, Dr Smith, Mr Briese, Mr Middlemis, Mr Macleod, Mr Rumble and Mr Morgan where it was agreed that there is unlikely to be adverse impacts due to the implementation of best practice water quality management. Similarly, the water quality within Majors Creek is unlikely to be adversely impacted. From a eco-toxicological perspective, there is no toxicity risk to aquatic biota in surface waters down stream of the tailings storage facility, even in the unlikely event that the tailings water enters surface water. Also there is no potential toxicity risk to the invertebrate fauna or birds, from drinking the tailings water or from ingestion of waters that may escape the tailings storage facility. Conditions that address water quantity and quality include conditions 21, 22, 23, 26-31, 6.1-6.12 in Schedule 3 and commitments in 7.1-7.21 in Appendix 5.
• The Water Management Plan was addressed by the experts and condition 26 of Schedule 3 of the approval requires the preparation and implementation of a Water Management Plan to the satisfaction of the Director-General in consultation with the Eurobodalla Shire Council, Palerang Council and the Office of Environment and Heritage and other suitably qualified and experienced persons approved by the Director-General prior to the commencement of construction. We are satisfied that condition 26 adequately addresses the provision of a Water Management Plan. The Water Management Plan is also addressed in commitment 15.14A in Appendix 5.
• the tailings storage facility was addressed in the joint report by Dr Milne-Home, Mr Briese, Mr Middlemis, Mr Macleod, and Mr Morgan where it was agreed that the risk of collapse is negligible, the seepage rate is expected to be very low and that the impermeable cap will prevent infiltration of rainfall. The tailings storage facility is addressed in conditions 7, 24-25, 25A in Schedule 3 and commitments 6.10-6.12, 7.16-7.21, 15.8, 15.12 and 15.13C in Appendix 5.
• air quality was not raised as a contention in the proceedings however general conditions on air quality are provided at conditions 1415, 16 and 17 in Schedule 3.

1. In the consideration of the consent orders, the Court raised a number of matters that required clarification in the agreed conditions of consent. Mr Galasso SC, for the second respondent, addressed each of the matters raised by the Court. With the agreement of the other parties, this resulted in some modification to the approved conditions, such as the inclusion of a definition of "the life of the project" that was referred to in the conditions and some clarification on the wording of some conditions. We accept the submissions of Mr Galasso on the conditions raised by the Court.

1. Given the agreement between the parties, there is no reason why approval should not be granted to the Dargues Reef Gold Project subject to the amendments to the conditions discussed above.

1. The Court orders, by consent, that:

1. The appeal is upheld.

2. Approval is granted under section 75J of the Environmental Planning & Assessment Act 1979, to the project referred to in Schedule 1, and on the conditions referred to in Schedules 2 to 5, of the approval in Annexure A.

3. There is to be no order as to costs in these proceedings and each party is to bear their own costs in these proceedings.

4. The exhibits are returned.

_________

G T Brown

Acting Senior Commissioner

____________

Paul Adam

Acting Commissioner

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Decision last updated: 10 February 2012