Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd

[2018] NSWLEC 92

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92
Hearing dates:	8, 9 and 12 February 2018; joint written submission 2 March 2018
Date of orders:	19 June 2018
Decision date:	19 June 2018
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	Summons dismissed, with costs reserved.
Catchwords:	JUDICIAL REVIEW: judicial review of a State Government approval – where Minister delegated approval to Planning Assessment Commission – alleged that the delegate failed to take into account a mandatory relevant consideration and/or failed to exercise jurisdiction by failing to consider the totality of the subject matter in the Development Application in exercising power under s 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW), and/or applying cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Coastal Protection Act 1979 Corporations Act 2001 (Cth) Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Regulation 2000 Migration Act 1958 (Cth) Threatened Species Conservation Act 1995
Cases Cited:	AMS v AIF (1999) 199 CLR 160 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor (2007) 153 LGERA 450; [2007] NSWCA 171 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 382 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; (2017) 220 LGERA 386; [2017] NSWCA 54 Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 Multicultural Affairs v Yusuf 206 CLR 323; [2001] HCA 30 Notaras v Waverley Council & Anor (2007) 161 LGERA 230; [2007] NSWCA 333 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Salahuddin v Minister for Immigration and Border Protection (2013) 229 FCR 290; [2013] FCAFC 141 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 Walsh v Parramatta City Council and Alam (2007) 161 LGERA 118; [2007] NSWLEC 255 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; 200 LGERA 375; [2014] NSWCA 105 Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88 Zhang v Canterbury City Council (2001) 51 NSWLR 589
Category:	Principal judgment
Parties:	Wollar Progress Association Incorporated (Applicant) Wilpinjong Coal Pty Ltd (First respondent) Minister for Planning (Second respondent)
Representation:	Counsel: Mr G Kennett SC, with Ms J Davidson, barrister (Applicant) Mr J Kirk SC, with Mr D Hume, barrister (First respondent) Submitting appearance (Second respondent)   Solicitors: Environmental Defenders Office NSW (Applicant) Ashurst (First respondent) Department of Planning and Environment (Second respondent)
File Number(s):	2017/247302

Judgment

A: An Introduction to the proceedings and this judgment

1. This is a judicial review challenge to a State Government approval, on conditions, of a coal mining project (“the Project”), that approval having come from the State’s “Planning Assessment Commission” (“PAC”) on 24 April 2017.

2. The Project involves continuation and extension of approved open cut mining operations in the Mudgee district, both in terms of time and areas.

3. The active parties to the proceedings, namely the applicant organisation and the respondent mining company, helpfully agreed upon a Court Book (“CB”), which includes the relevant consent (“DC” – tab 4), and a Statement of Agreed Facts, dated 1 February 2018 (“SAF” – tab 10).

4. They also agreed upon a schedule of relevant legislative provisions (CB tab 6), a bundle of relevant authorities, a list of “real issues” (CB tab 5), a chronology (CB tab 9), and a three-volume Evidence Book (“EB” – Exhibit A1).

5. In the end, there were two grounds of challenge, and possibly a discretion argument, to be dealt with in this judgment.

B: The Evidence Book and other exhibits

6. Items numbered 1 to 33 in the EB are said to be “documents before the PAC”.

7. Of particular significance are some EIS documents (items 2 to 5), some additional materials provided by the proponent (13, 14, 17, and 23), various submissions made (6 to 12, 18, 29, 31, 33, and 43), the Secretary’s Environmental Assessment Report of November 2016 (16), the PAC Review Report of 20 December 2016 (22), and the Secretary’s Final Assessment Report of March 2017 (25).

8. Items 34 and 35 in the EB are documents generated by the PAC – its Determination Report, and the DC.

9. Items 36 to 42 contain various other directions, requests etc. (items 36 and 41, having been the subject of objection by the company, were withdrawn by agreement).

10. Item 43 is a USB stick of submissions, made to the Department (“DPE”) or the PAC regarding the Project, which refer to the Paris Agreement or Australia’s commitments under it.

11. In addition, those active parties separately tendered, but without objection, a range of other documentary exhibits (see Tpp3-4):

• Exhibit A2 is a NSW government document entitled “NSW Climate Change Policy Framework” (“NSW CCPF”), dated November 2016.

• Exhibit A3 is a United Nations document entitled “Paris Agreement”, dated simply “2015”.

• Exhibit A4 is an Australian Government “Report under the United Nations Framework Convention on Climate Change”, dated December 2017.

• Exhibit A5 is an Australian-crested document headed “Australia’s Intended Nationally Determined Contribution to a new Climate Change Agreement/August 2015”.

• Exhibit R1 is a document said to have come (on 8 February 2018) from the NSW Department of Planning website, entitled “Legislative Updates to the Environmental Planning and Assessment Act ... 1979 commence on Thursday 1 March 2018”.

• Exhibit R2 is a document said to have come (also on 8 February 2018) from the website of the NSW PAC, entitled “Commission Members”.

12. The applicant contends that Exhibits A2 to A5 are relevant “applicable state or national policies, programs or guidelines”, regarding greenhouse gas emissions, which must be considered by a consent authority (Tp8, LL37-43).

13. The Court has closely considered all the agreed facts, and all the EB materials and other exhibits, but has, where appropriate, avoided repeating their contents in detail, given the nature of Class 4 proceedings.

C: The parties and the Project

14. The applicant association (“the association”) is a not-for-profit volunteer-based incorporated association (SAF1), concerned with the well-being of residents of, and visitors to, the village of Wollar, and surrounding district, approximately 40km north-east of Mudgee, NSW. It objected to the company’s Project proposal, made a submission on the EIS, and now seeks (summons in CB tab 1):

1    ...

a.   a declaration that the Consent is invalid and of no effect;

b.   an order quashing the decision of the Second Respondent to grant the Consent; and

c.   an order restraining the First Respondent from undertaking any development in reliance on the Consent.

2   An order that the First Respondent and Second Respondent pay the Applicant's costs of these proceedings.

3   Such further or other orders as the Court sees fit.

15. The first respondent company (“the company”) is a wholly owned subsidiary of Peabody Energy Australia Pty Ltd, and it owns and conducts an open cut coal mine (SAF2) near Wollar, pursuant to a “Part 3A” approval, dating from 1 February 2006 (“the first approval” – project approval 05-0021), as subsequently modified on five (or six) occasions, the last occurring on 21 November 2014 (see map at EB, fol 21, and summary of modifications at fols 83-84, but c.f. fol 2038).

16. The mine is located immediately south of, and adjacent to, the Sandy Hollow Gulgong Railway.

17. The approved life of the mine under that 2006 approval was 21 years from the date of mining lease 1573, i.e. until 8 February 2027 (SAF21). Open cut mining commences with clearance and removal of vegetation. So far, mining has commenced in only six of seven approved pits, pit No 6 being the one yet to be mined.

18. The 2006 approval also requires the company to lodge each year an Annual Review of the mine’s environmental performance. Claims in the company’s material that this mine enjoys a good environmental reputation were not disputed by the association in argument.

19. The mine presently supplies 70% of its coal to AGL Macquarie’s Bayswater and Liddell Power Stations, under a contract which expires in 2026. After 2026, the coal from the mine is likely to be mid ash thermal coal, sold on the export market (SAF40 and Tpp12-13).

20. The purported 2017 consent would permit the physical extension of the mine, and the continuation of its current and expanded operations until 31 December 2033 (SAF23).

21. More specifically, SAF23 and 24 record:

23.   The Project involves an extension of the existing open cut mine with a new open cut pit to the east of existing operations, extensions to various existing open cut pits, continued extraction of up to 16 million tonnes per annum of run-of-mine coal per year and prolonging the mine life by 7 years until 31 December 2033.

24. The Project is classified as State Significant Development. Accordingly, Part 4 Division 4.1 of the Environmental Planning and Assessment Act 1979 ... [(“the EPA Act”)] governed the assessment and approval of the Project at the time the Consent was granted. Condition 9 of schedule 2 of the Consent provides that within 6 months of the commencement of development under the consent, or as otherwise agreed by the Secretary, the Previous Approval is to be surrendered. On 21 September 2017, the Secretary extended the time for surrender of the Previous Approval to 31 December 2018.

[See also SAF54 and 57.]

22. The second respondent minister (“the minister”), who filed, on 18 October 2017, a submitting appearance, save as to costs, purported to delegate to the PAC (by instrument dated 14 September 2011), the responsibility for determining the subject State Significant Development application (“DA” – no. SSD 6764), lodged by the company on 8 January 2016, seeking approval of the Project.

23. The Project DA was accompanied by supporting documents, including an Environmental Impact Statement (“EIS”), with 12 attachments, dated November 2015 (EB item 2 – fols 9-578)). Three of the EIS’s seventeen appendices are included at items 3 to 5 of the EB:

• Appendix B (EB item 3 – fols 579-754) deals with air quality and greenhouse gas (sometimes “GHG”);

• Appendix C (EB item 4 – fols 755-1278) deals with biodiversity assessment and offset strategy (see also SAF7 to 20); and

• Appendix M (EB item 5 – fols 1279-1396) deals with the “economic assessment” of the Project, in terms of “Cost Benefit Analysis and Economic Impact Analysis”.

24. At the relevant date, s 79C(1) of the EPA Act (now replaced by s 4.15) provided a menu for the evaluation of development proposals:

Evaluation

(1)   Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a)   the provisions of:

(i)   any environmental planning instrument, and

(ii)   any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)   any development control plan, and

(iiia)   any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv)   the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v)   any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b)   the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)   the suitability of the site for the development,

(d)   any submissions made in accordance with this Act or the regulations,

(e)   the public interest.

D: The company’s EIS

25. The main text of the EIS is item 2 in the EB (fols 9-578), but much important supporting detail appears in the three appendices to it which were included in the EB (at items 3 to 5 – see [23] above).

26. The EIS contains (at EB fols 28-29) a helpful table (ES-1) summarising the already approved mine, and what was comprised in the “extension” Project as submitted. That table noted, e.g., the addition of an 8th open cut pit, projected increases in the production of waste rock and thermal coal, a seven year extension in mine life, and an increase in peak operational workforce from 550 to 625.

27. The EIS’s “Project Summary” (at EB fols 47 to 54) amplified some of those details – the “incremental extensions” to existing open cut pits amount to approximately 500 ha, and the area of the new open cut pit (No 8, east of the present 7) is approximately 300 ha.

28. The components and stages of the Project are described in yet more detail in Section 2 of the EIS (commencing at EB, fol 63). That section notes (fol 66) the company’s intention that the earlier consent be surrendered, “so that the mine operates under only one consent”, with (fol 71) ongoing review and revision, in consultation with regulators, of all its environmental “strategies, plans and programmes”.

29. The EIS contains many references to GHG emissions, climate change, and biodiversity matters (SAF28 to 35), and clearly addressed “cumulative impacts” of the Project (SAF35).

30. The EIS also relevantly adopted (at EB fols 279-281) an international protocol, which carefully defines three “scopes” of greenhouse gas emissions – “direct”, “electricity indirect”, and “other indirect” emissions (see also fols 639-643). It is acknowledged that scope 3 emissions, or “downstream” emissions, can be difficult to estimate (Tpp13-14).

31. Overall, the proponent relies upon a “conservative” estimate by Todoroski Air Sciences (at EB item 3, fol 582) that over the life of the Project it will emit 0.02% of Australian GHG emissions (see also SAF34). Todoroski states:

A conservative estimate of annual average greenhouse gas emissions over the life of the Project is 0.13 million tonnes of carbon dioxide equivalent (Mt CO2-e) material (Scope 1 and 2), which is approximately 0.02 per cent (%) of the Australian greenhouse emissions for the 2013 to 2014 period. When compared to a number of mining operations in New South Wales, the Project would have a relatively low greenhouse gas emission rate per tonne of run-of-mine coal extracted, producing approximately 0.01 tonnes of carbon dioxide equivalent material per tonne of run-of-mine coal (t CO2-e/t ROM).

32. Todoroski goes on to state (fols 639-641):

Scope 3 emissions can be a significant component of the total GHG emissions associated with a project; however, these emissions are usually not directly controlled by the Project and are considered as Scope 1 emissions from other organisations. The primary Scope 3 emissions related to the Project arise from off-site transportation of the product coal and the end use of the product coal. These emissions have been estimated in this study.

Other, less significant, Scope 3 emissions may also arise from a large range of other sources associated with the Project. Scope 3 emissions may include all of the emissions from the upstream and downstream activities associated with the Project (e.g. emissions due to commuting staff or electricity consumed by computers etc). These emissions cannot be reasonably quantified due to the large diversity of sources and the relatively minor individual contributions.

...

Scope 3 emissions for the transport and final use of the coal may have the potential to vary in the future depending on the market situation at the time. These assumptions include emission factors for the transport modes of rail and shipping and the associated average weighted distance travelled for the export coal.

...

To be conservative, all product coal is assumed to be transported to the Port of Newcastle by rail and then transferred to coal loaders before being shipped to its final destination. The approximate rail distance is taken to be 500km (return distance) to the Port of Newcastle. The approximate shipping distance to its final destination is taken to be 16,000km (return distance), which is based predominately on destinations in the Asian market.

The emissions generated from the end use of coal produced by the Project have assumed that all product coal is consumed as thermal coal in power generation. As it is difficult to estimate emissions from power stations in other countries, this assessment has assumed the emissions generated would be equivalent to those generated in NSW or Australian power stations.

33. Mr Kirk said during his submissions (Tp50, LL29-40):

What appendix B provides is a quantitative assessment of greenhouse gas emission including downstream emissions, complete of itself. It is a quantitative assessment which is not being criticised in terms of what it does mathematically of greenhouse gas emissions including downstream emissions.

My friend's main criticism in the end is twofold. It doesn’t discuss the policies. Answer, it doesn't need to. It's for the consent authority to consider the policies, and secondly, it doesn’t identify where the scope 3 emissions are going to be burnt, whether it's overseas or here. Answer, nothing in cl 14 says it needs to but if your Honour even took the view that it needs to, that is readily found in other materials and the PAC was fully cognisant of it.

34. He also noted (at Tp52) that the policy documents among the Exhibits are known to have been drawn to the PAC’s attention.

35. In the Secretary’s November 2016 Assessment Report (EB item 16), the DPE, in recommending a range of conditions, noted (fol 1700) that the Project:

... would be far less greenhouse gas intensive than extracting an equivalent volume of coal from a new coal mine.

While the Department notes that it is in WCPL’s financial interest to minimise GHG emissions, it has recommended a condition requiring WCPL to implement all reasonable and feasible measures to minimise GHG emissions from the site, and describe these measures in the Air Quality Management Plan for the project.

36. On the general topic of Biodiversity, the EIS identified three listed threatened (or endangered) ecological communities (“EECs”) among twelve communities identified in the Project areas (EB fols 36-37). The EIS noted (EB fol 37), inter alia:

A range of existing measures to avoid and minimise impacts on biodiversity are implemented at the Wilpinjong Coal Mine, including an existing Biodiversity Strategy. A Biodiversity Management Plan has been prepared for the Wilpinjong Coal Mine that provides a description of measures that will be implemented in the existing offset areas, such as grazing and stock management, habitat augmentation, revegetation, weed management, vertebrate pest management and bushfire management.

Potential Impacts

The Project would require clearance of approximately 354 hectares of native vegetation in the Project open cut extension and infrastructure areas. This would include the clearance of 9.5 hectares of Box-Gum Woodland listed as a threatened ecological community.

...

A number of measures to avoid and minimise impacts on biodiversity are currently implemented at the Wilpinjong Coal Mine and these would be continued for the Project (e.g. vegetation clearance protocols and weed management).

...

A Project Biodiversity Offset Strategy has been developed to address the potential residual impacts on biodiversity values associated with the proposal, such that biodiversity values of the region are maintained and improved in the medium to long-term.

This Biodiversity Offset Strategy addresses both Commonwealth and NSW biodiversity offset requirements.

(See also SAF28 to 30, and 35, and EB fols 77-83.)

37. More detailed information is contained in section 4.9 (fols 214-235). The threatened communities are mapped at fol 217, and the question of cumulative impacts is addressed at fols 228ff, which section includes the following (fol 228):

The approved Wilpinjong Coal Mine was established in a widely cleared landscape. At its full extent, the approved Wilpinjong Coal Mine will clear some 318 (sic 342) ha of native vegetation and, excluding the Nullo Mountain area, has an offset area of 691 ha (comprising 480 ha within the ECAs and 211 ha within the Biodiversity Offset Areas).

...

In addition to potential cumulative impacts, these approved or proposed mining operations also have potential cumulative benefits in the form of rehabilitation and biodiversity offset areas.

... The potential change in cumulative impacts on threatened species and communities arising from the Project is considered to be minimal.

The Project would result in the loss of 354 ha of native vegetation, though it includes an additional Biodiversity Offset Strategy to compensate for the loss (Section 4.9.4). The Project Biodiversity Offset Strategy would address the potential residual impacts on biodiversity values associated with the proposal, such that biodiversity values of the region are maintained and improved in the medium to long-term.

38. The Biodiversity report relied upon for the EIS is item 4 of the EB, and was authored by “Hunter Eco”. The study method is explained in detail in the Executive Summary (fols 762-765), and Hunter Eco noted (fol 788) that the flora and fauna of the site and surrounds had been “comprehensively surveyed over the past 10 years”.

39. In terms of threatened ecological communities, the focus fell on 9.5 ha of White Box-Yellow Box-Blakely’s Red Gum Woodland Endangered Ecological Community (referred to by Hunter Eco as “Box-Gum Woodland EEC”).

40. In terms of Impact Assessment, the Executive Summary says (at fol 763):

The likely direct, indirect and cumulative impacts on biodiversity have been assessed and impact avoidance and mitigation measures have been identified and described. A number of measures to avoid and minimise impacts on biodiversity are currently implemented at the Wilpinjong Coal Mine and these would be continued for the Project (e.g. vegetation clearance protocols, weed management and progressive rehabilitation). Additional measures to avoid and minimise impacts on biodiversity are proposed ... It is concluded that with the proposed measures to avoid, mitigate and offset it is appropriate for these impacts to occur without further modifications to the Project.

41. The avoidance, mitigation and monitoring measures already implemented are noted in s 3.1.1 to 3.1.3 (commencing at fol 812), and cumulative impacts are addressed in s 3.1.4 (fols 823-824). Hunter Eco says (at fol 824):

... The change in potential cumulative impacts on threatened species and communities arising from the Project is considered to be minimal because of the localised nature of the Project compared to the wider distribution of the species and communities.

The Project would result in the loss of 354 ha of native vegetation, though it includes an additional Biodiversity Offset Strategy to compensate for the loss (Section 4.2). The Biodiversity Offset Strategy would address the potential residual impacts on biodiversity values associated with the Project such that biodiversity values of the region are maintained and improved in the medium to long-term.

42. The 9.5 ha of Box Gum Woodland is found (at fol 888-889) to represent “less than 0.02 percent of the total Box-Gum Woodland community in the region”. Components of that EEC “to be cleared by the Project are highly fragmented and are not considered to contribute to the connectivity of this EEC throughout the region. ... With the implementation of management measures, the potential impacts to the Box-Gum Woodland EEC associated with weed and feral animals is likely to remain under control”.

43. The study concludes (fol 891) “that with the proposed measure to avoid, mitigate and offset it is appropriate for the impact on the Box-Gum Woodland EEC to occur without modifications to the Project or additional offsets. The Project would not cause the extinction of the Box-Gum Woodland EEC from the IBRA subregion or significantly reduce its viability”.

44. The Secretary’s November 2016 Assessment Report (EB item 16) notes (fol 1662):

Both the Department and the NSW Office of Environment and Heritage (OEH) consider that the overall offset strategy provides an appropriate balance between land based offsets, maximising the ecological benefits of mine rehabilitation, and targeted contributions towards maintaining populations of critically endangered species.

With proper governance, the Department considers that the strategy has the potential to substantially improve biodiversity values and habitat connectivity in the region, particularly by creating substantial habitat corridor between the Munghorn Gap Nature Reserve and Goulburn River National Park.

(The offsets are tabulated at fol 1667.)

45. That report went on to critique the Hunter Eco work in some detail (s 5.3, fols 1705-1721), including the negotiations regarding offsets (fols 1714-1720), concluding (fol 1721) that the DPE:

... is satisfied that the project has been designed to avoid, mitigate, manage and/or offset the residual impacts of the project in accordance with the NSW Offsets Policy, so that biodiversity values would be enhanced or maintained over the medium to long term.

In particular, the overall offset strategy for the project would include:

•   a further 996 ha of land based offsets, with the total offset area increased to 1,687 ha;

•   rehabilitation of the majority of the site to woodland for a biodiversity conservation outcome, with a total area of 2,906 ha to be rehabilitated to woodland, mainly to provide suitable forage habitat in vegetation communities preferred by Regent Honeyeater;

•   regeneration area of 148 ha to provide additional connectivity along the Ulan-Wollar Road corridor; and

•   funding of $660,000 towards recovery program for the Regent Honeyeater targeting release of captive birds into the wild.

The Department considers that the overall offset strategy provides an appropriate balance between land based offsets, maximising the ecological benefits of mine rehabilitation, and targeted contributions towards maintaining populations of critically endangered species.

With proper governance, the Department considers that the strategy has the potential to substantially improve biodiversity values and habitat connectivity in the region.

46. It was in the context of these biodiversity considerations that Mr Kirk (e.g. at Tp74) referred to the “natural process of evolution” which occurs in a consent authority’s consideration of a large project. In discussing the DPE’s March 2017 Assessment Report, he commented (Tp74, LL25-33):

Does this talk about the trees that are going to be knocked down anyway in pit 6? No, it doesn’t, but the issue is the failure to consider the impacts, relevantly on biodiversity including the trees and given the history I’ve outlined plainly it was on the table and being considered. Then narrowing down, unsurprisingly, to a concern about honeyeaters and bats and so forth and some details of the offset. Again, it’s a natural process of evolution. Then in its determination report, which is tab 34 - without going back over material - at p 1984 right at the top it says, “The applicant’s EIS…open cut coal mining.” The PAC obviously fully understood its continuation.

47. Later, in the context of offsets, he submitted (Tp75, LL10-19):

The nub of what the applicant complains about is that all this was forgotten; the effect on the trees from pit 6 and the fact that the existing mine was going to be continued under this consent or a consent was forgotten. In fact, it wasn’t forgotten at all, it was very much on the table. It was discussed ad nauseum and fiddled with in terms of what was required in the very terms of the consent.

Remembering that the applicant does not put its case as a failure to inquire but a failure to consider the natural impacts on the environment. Clearly, it was on the table and it was considered and altered.

48. Returning to the EIS itself, I note that, at fol 229, existing and additional “avoidance and mitigation measures” are dealt with, and proposed revision of the Biodiversity Management Plan to deal with the Project. It then adds:

The existing impact avoidance and mitigation measures for the Wilpinjong Coal Mine would continue to be implemented for the Project, and are listed in Section 4.9.1.

Additional impact avoidance and mitigation measures are summarised in Table 4-26.

The Biodiversity Management Plan would, as relevant, be revised for the Project (subject to the conditions of any Development Consent for the Project).

49. Interaction between the GHG and Diversity issues, in the context of ecological integrity and ESD, are dealt with in section 6.7.4 (commencing at fol 325; note especially fol 330).

50. The management, mitigation, monitoring, and reporting elements of the Project are summarized in section 7 (commencing at fol 340), with Biodiversity the focus of section 7.2.6 (on fol 346), and the Project offset areas identified in Figure 7-1 (fol 347). The text notes:

The Project offset areas (Figure 7-1) are strategically located next to the Goulburn River National Park and Munghorn Gap Nature Reserve, with the potential to increase the extent of these existing protected areas. The Project offset areas are 1,100 ha in size, comprising approximately 996 ha of native vegetation.

As a minimum, management of the existing and Project offset areas would include:

•   weed control;

•   feral animal control;

•   progressive removal of livestock grazing;

•   removal of disused infrastructure; and

•   revegetation of exotic pasture/cultivation.

Mine site rehabilitation would also satisfy part of the NSW offset requirements by progressively establishing some 610 ha of woodland vegetation.

51. For completeness on the EIS, I now note, finally, some elements of Deloitte’s Economic Analysis included with it (EB item 5), to which my attention was drawn during the hearing.

52. It is expected (fol 1312) that the mine will produce 78.8 Mt of saleable coal between 2016 and 2026.

53. This output will be predominantly thermal coal (73.0 Mt), to be sold to domestic customers as part of existing contracts. (The remaining 5.8 Mt will be high ash export coal.) If the Project is approved, the production profile will be expanded to enable production of mid ash thermal export coal, and some increased output of high ash thermal coal, in addition to the domestic coal. From 2027 to 2033, the Project is anticipated to produce only high ash thermal export coal. A total of 144.1 Mt of saleable coal will be produced between 2016 and 2033.

54. On the question of carbon emissions, Deloitte says (at fol 1329, drawing on Todoroski’s work):

It is estimated that, over the life of the Project, the Wilpinjong Coal Mine will generate an additional 1,087,694 tonnes of carbon dioxide equivalent (t CO2-e) of Scope 1 emissions during the continued operations from 2017 to 2033, and an additional 136,422 t CO2-e Scope 2 emissions. These figures have been calculated on the basis of the average emissions per tonne of ROM coal estimated in the Air Quality and Greenhouse Gas Assessment, applied to the annual ROM coal figures under the baseline and Project case. The average Scope 1 and Scope 2 t CO2-e per t ROM coal used was 0.013.

Next, these carbon emissions are valued at the forecast European Union Emission Allowance Units price provided in the Workbook accompanying the draft Guidelines for the economic assessment of mining and coal seam gas proposals (NSW Government, 2015). The alternative prices noted in these draft guidelines have also been considered in the sensitivity analysis presented in Section 5.4.

Overall, the cost of carbon emissions is valued at $6.12 million under the baseline case, and $12.78 million in the Project case, in present value terms (using a 7% discount rate). This implies that the additional cost of carbon emissions under the Project case is $6.66 million.

55. Such an increase in emission volumes was of some concern to the authors of some submissions, and, in its primary response to submissions (EB item 13), the company argued (fol 1529) that the expanded mine would remain “one of the most efficient mining operations in NSW in terms of greenhouse gas emissions intensity”, and that the mine’s “existing [GHG] abatement measures ... would continue ...”.

E: The “live” challenges remaining to be addressed

56. At the centre of Ground 1 of the challenge defined by the association’s summons is cl 14(2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries 2007 (“the Mining SEPP”). The association pleads that the PAC failed to consider matters required by that sub-clause.

57. The aims of that SEPP are set out in cl 2, in these terms:

Aims of Policy

The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries:

(a)   to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and

(b)   to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and

(b1)   to promote the development of significant mineral resources, and

(c)   to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources, and

(d)   to establish a gateway assessment process for certain mining and petroleum (oil and gas) development:

(i)   to recognise the importance of agricultural resources, and

(ii)   to ensure protection of strategic agricultural land and water resources, and

(iii)   to ensure a balanced use of land by potentially competing industries, and

(iv)   to provide for the sustainable growth of mining, petroleum and agricultural industries.

58. Clause 14 provides (emphasis added):

Natural resource management and environmental management

(1)   Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following:

(a)   that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,

(b)   that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,

(c)   that greenhouse gas emissions are minimised to the greatest extent practicable.

(2)   Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.

(3)   Without limiting subclause (1), in determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director-General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.

59. The EIS noted (EB fols 484-485) the requirements of cl 14, indicated how they were addressed in the documents, and commented that “the Minister can be satisfied as to these matters”.

60. Mr Kennett, senior counsel for the association, pointed out in his written submissions, and early in his oral opening submissions (Tp8, LL17-33):

... there's often a distinction made between the direct emissions resulting from a project, in this case for example the actual mining operations, driving trucks around and operating diggers and whatever else is involved in the process. On the one hand and on the other hand emissions which might arise from, as it's said, downstream from somebody here or somewhere else burning the coal in this case.

The actual use of the product by the end user here creates what can be taken to create greenhouse gas emissions. Those are downstream from the project itself. That's what the reference to downstream emissions means in our submission. And of course one can readily infer that the emissions of greenhouse gas from operating a coal mine might be not insubstantial, but it will pale into insignificance compared with the greenhouse gases emitted by the end users using the product. So, the downstream emissions just in practical terms are likely to be very much larger than the specific emissions resulting from the project itself.

61. As Mr Kirk, senior counsel for the company, points out, the objectives of cl 14 are not to “shut down mining in NSW”, but “to promote the development of mining and mineral resources albeit in a way encouraging ESD and no doubt so you can discourage so far as possible, GHG emissions. That’s the heart of the obligation” (Tp42, LL34-37).

62. As Mr Kirk also points out (Tp50, LL24-25), cl 14 requires an assessment to be made, and does not prescribe in any way what form it should take, and (LL29-30) Appendix B of the EIS “provides a quantitative assessment of greenhouse gas emissions including downstream emissions, complete of itself”.

63. Ground 2 of the challenge is concerned with biodiversity. The association alleges “Constructive failure to exercise jurisdiction by failing to consider the totality of the subject matter as described in the [DA]”, especially the environmental impacts of clearing in areas not yet mined under the first approval.

64. The company’s amended Response to the summons, filed on the first day of the hearing, drew to the Court’s attention some then pending amendments to the EPA Act, and relevantly added to par 29 of the original response (the company’s discretion point):

a.   granting relief in respect of ground 2 would lack utility and would be contrary to the effect or policy of the newly amended s 104A(3) of the [EPA Act], which amendment is likely to commence on or about 1 March 2018.

65. The new s 4.63 of the EPA Act replaced s 104A, as it stood at the date of the challenged approval. Both were headed “Voluntary surrender of development consent”.

66. Section 104A provided:

(1)   A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.

(2)   A development consent may be surrendered under this section even if, on the making of an appeal under section 97 or 98, the consent has ceased to be, or does not become, effective as referred to in section 83 (2).

67. Section 4.63 now provides:

(1)   A development consent may be surrendered, subject to and in accordance with the regulations, by any person entitled to act on the consent.

(2)   A development consent may be surrendered under this section even if, on an appeal under Part 8, the consent has ceased to be, or does not become, effective.

(3)   If a development consent is to be surrendered as a condition of a new development consent and the development to be authorised by that new development consent includes the continuation of any of the development authorised by the consent to be surrendered:

(a)   the consent authority is not required to re-assess the likely impact of the continued development to the extent that it could have been carried out but for the surrender of the consent, and

(b)   the consent authority is not required to re-determine whether to authorise that continued development under the new development consent (or the manner in which it is to be carried out), and

(c)   the consent authority may modify the manner in which that continued development is to be carried out for the purpose of the consolidation of the development consents applying to the land concerned.

In this subsection, a reference to a development consent that is to be surrendered includes a reference to the surrender of a development consent under section 4.17 (5) or the surrender of an approval given under Part 3A when that Part was in force or continued in operation.

68. Only at the reply stage of oral submissions, on 12 February 2018, did the Applicant inform the Respondents and the Court that a key paragraph of the summons, in respect of Ground 2 (par 37), was no longer pressed. That paragraph said:

The information before the PAC at the time it made its decision indicated that stands of the Yellow Box and Blakely’s Red Gum Woodland EEC were present in areas yet to be mined under the Previous Approval.

69. In his rejoinder (Tp102, LL28-32), Mr Kirk said:

Now that para 37 is withdrawn it does make it difficult to see how there could be an obligation to consider something which the applicant says it no longer seeks to prove still existed at the relevant time. It seems this ground seems to sort of fade into not just a lawyer’s point but a point without any connection to the real world.

70. It is important to record here that there were originally three grounds relied upon in the summons, Ground 3 alleging that:

“The PAC constituted for the purposes of determining the [DA] was improperly constituted”, notably by its comprising 4 members, contrary to cl 268P of the EPA Reg, in the context of cl 4(1) of Sch 3 of the [EPA Act].

71. On 2 March 2018, after this judgment had been reserved, but by arrangement among the Court and the active parties, the solicitor for the company, writing with the consent of the association, advised the Court of the following:

“• in respect of Ground 3 raised by the Applicant in the proceedings, clause 7(4) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 commenced yesterday, 1 March 2018; and

•   in respect of Ground 2 raised by the Applicant in the proceedings, s 4.63 of the [EPA Act] commenced, in its amended form, yesterday, 1 March 2018.”

72. The post-hearing commencement of cl 7(4) (item one of [71] above) meant that Ground 3 fell away entirely, as the Applicant conceded during argument (see Tpp99-100; SAF62 and 64 were specific to Ground 3).

73. Accordingly, this judgment need now address only Grounds 1 and 2 of the pleaded challenge.

74. The company’s original Response to the Applicant’s challenge included a prayer (par 29, already noted in [64] above) asking the Court to exercise its discretion in the company’s favour, on the basis of the “minor and/or trivial” nature of any breaches established.

75. Of the agreed list of nine “real issues for determination” (CB tab 5), those left in the wake of the collapse of Ground 3, are as follows:

As to Ground 1

1. Whether the [Minister], by his delegate the [PAC], considered the matters referred to in clause 14(2) of the Mining SEPP prior to granting [DC] ... to the Project.

2. If the PAC did not consider the matters referred to in clause 14(2) of the Mining SEPP, whether the Consent is invalid on the basis of its failure to consider those matters.

As to Ground 2

3. Whether the [Minister], by his delegate the PAC considered the likely impacts of the whole of the development the subject of the Development Application under section 79C(1) of the [EPA] Act, including consideration of likely impacts on the natural environment pursuant to s 79C(1)(b).

4.   If the PAC did not consider those matters in respect of the whole of the development, whether the Consent is invalid on the basis of its failure to consider those matters in respect of the whole of the development.

...

As to Grounds 1, 2 ...

9.   Whether the [association] should have the relief sought in the Summons should it succeed on any of the grounds, including whether the Court should exercise its discretion to grant the relief sought in the Summons.

76. The company complains (Tpp30-31) that, among the enormous range of complex issues which arise with the extension of a significant coal mine, the association, “employing ruthlessly the ‘retrospectroscope’”, had singled out only two for complaint, while many others are also not subject to detailed reference in the PAC materials (Tp33, LL17-26).

77. The company (subs par 71, and Tp75, LL44-47)) wishes an opportunity to be further heard on the questions of relief, and costs, if the Court were to uphold the association’s challenge in only some limited way.

F: A Chronology of major relevant events

78. I have, following my review of all the material, supplemented the agreed chronology (CB tab 9) to arrive at what is now contained in this section of the judgment.

79. The mine was approved by the then Minister for Planning, on 1 February 2006 (“05-0021” – SAF4 to 12), and mining operations apparently commenced in about September of that year.

80. On 14 September 2011, the then Minister for Planning and Infrastructure (Mr Hazzard) issued an instrument of delegation, under s 23 of the EPA Act, and a purported direction to the PAC, under sch 3 to the EPA Act, and cl 268P of the EPA Reg (SAF58 and 59).

81. On 23 October 2013, the then Minister for Planning and Infrastructure purported to issue a direction to the PAC that it be constituted by the same members, nominated by the chairperson, “in exercising review and determination functions in respect of the same proposal, including for Part 4 applications under the” EPA Act (SAF60, c.f. SAF59).

82. The fifth modification to the original consent was approved by the PAC, as delegate of the then Minister for Planning and Infrastructure, on 7 February 2014 (SAF13 to 20).

83. On 22 September 2014 (EB fols 569-570), the Division of Resources and Energy (“DRE”), in the NSW Department of Trade & Investment, Regional Infrastructure & Services, wrote to the DPE, expressing support for the Project, commenting (fol 570):

DRE supports the proposed Wilpinjong Mine Extension Project as a responsible utilisation of the State’s valuable coal resources and supports the project proceeding through the State’s comprehensive development assessment and approval process.

84. The consideration of the Project commenced in November/December 2014, with the “Secretary’s Environmental Assessment Requirements” (“SEARs”) being provided to the company on 9 December 2014 (SAF25, and EB item 1).

85. In August 2015, Australia expressed its desire for the UN climate change conference in Paris “to deliver a strong and effective new global climate change agreement, applicable to all UNFCC Parties” (Exhibit A5).

86. During January 2016, the company’s State Significant DA (dated 8th), and supporting EIS documents (some dated November 2015), were lodged (SAF26-27, and EB items 2 to 5).

87. The EIS went on public exhibition 27 January-10 March 2016 (SAF27), and attracted 752 submissions. (Some received after that period are also included in hard copy in the EB (see [7] and [10] above).

88. The company responded to submissions in May 2016 (SAF33, and EB item 13).

89. On 20 October 2016, the Minister for Planning (Mr Stokes) requested the PAC (under s 23D) to review the Project, hold a public meeting, and provide a report to the department (SAF36, 37, 61, and 62, and EB item 15, repeated at fol 2114).

90. On 4 November 2016, the Paris Agreement 2015 (Exhibit A3) came into force. It was ratified by Australia on 9 or 10 November 2016, and has applied here since 9 or 10 December 2016.

91. Also in November 2016, the Secretary of the DPE produced its (preliminary) Environmental Assessment Report, including a recommendation for approval of the Project “subject to stringent conditions”) (SAF39 to 41, and EB items 16 and 17). The department found (fol 1739) that “the benefits of the project outweigh its costs”. Among the appendices to this report, the DPE reviewed the Project’s observance of the requirements of s 79C, and of other statutory requirements, including cl 14(2) (see fols 1751-1755).

92. On 29 November 2016, the PAC held the mandated public meeting (SAF38, and EB items 19 and 20).

93. At about the same time, the NSW government published its NSW CCPF (Exhibit A2).

94. On or about 5 December 2016, the association raised concerns about the Project’s inconsistency with NSW targets to reduce greenhouse gas emissions, and its potentially cumulative impacts on endangered ecological communities (“EECs” – SAF31 and 32).

95. On 20 December 2016, the PAC published its Review Report (SAF42 to 44, and EB item 22). The PAC noted (fol 1829) that the major concerns raised in the community submissions included air quality, biodiversity, and climate change. It also made a number of recommendations (31) to “progress the assessment” of the proposal – the key issues upon which further information and agency consultation were required by the PAC included “biodiversity and offsets” (s 6.1, fols 1808-1812).

96. The company responded to that Review Report in February 2017 (EB item 23), dealing with each of the 31 recommendations in turn, and in some detail.

97. On 14 March 2017, the department, under its delegation from the Minister, referred the Project to the PAC for determination on the Minister’s behalf (SAF46 and 63, and EB item 26).

98. Also in March 2017, the DPE’s Final Assessment Report was published (SAF45, and EB item 25), addressing, in particular, the PAC Review Report and the company’s response (EB items 23 and 24). On biodiversity, the DPE agreed with the PAC’s relevant recommendations, including recommended conditions, noting (at fol 1907) that the conditions “include a range of measures to ensure the implementation of a long term biodiversity offset strategy that incorporates progressive regeneration and rehabilitation”. It concluded (executive summary at fol 1909, and conclusion at fol 1939) with:

... recommended conditions of consent [which] provide a comprehensive, strict and precautionary approach to ensuring the project can comply with relevant performance measures and standards and ensure the predicted residual impacts can be effectively minimised.

Consequently, the Department considers that the benefits of the project outweigh its costs, and that the project is approvable subject to stringent conditions.

99. On 11 April 2017, another PAC public meeting was held in Mudgee (SAF47, and see EB items 27 to 32). The PAC noted, in its agenda (at fol 1949), that it had before it all the written submissions made to DPE, and that it was not necessary for those views to be restated.

100. On 24 April 2017, the PAC issued the (purported) DC, subject to conditions, and published its Determination Report (EB items 34 and 35; SAF3, 22, 48 to 56, and 64; and CB tab 4). I will return to this report below (section G, commencing at [114]), but I note here that the PAC stated in its executive summary (at fol 1981):

The Commission found that both the Applicant and Department have given sufficient consideration to the issues raised in the Commission’s Review Report and all but one of the 31 recommendations have been adopted in full. The Commission is satisfied with the response and justification provided by both the Applicant and Department.

The Commission is satisfied that the impacts and mitigation methods have been appropriately assessed. The Commission finds that the Project would, subject to the mitigation measures proposed by the Applicant and conditions recommended by the Department, have acceptable impacts and that the proposed conditions of consent represent an appropriate reflection on contemporary and best practice management for an open cut coal mine.

The Commission notes that the Project will provide significant benefits to the locality, region and State, with minimal additional impacts beyond that of the existing approved Wilpinjong Coal Mine operations and that the Project is in the public interest.

101. On 12 May 2017, the DC was publicised in the “Mudgee Guardian”.

102. On 14 August 2017, these proceedings were commenced by summons.

103. On 15 September 2017, the hearing dates for the proceedings were set as 8-12 February 2018.

104. On 21 September 2017, the surrender time for the first approval was extended to 31 December 2018 (see SAF24 in [21] above, SAF57, and EB item 42).

105. On 6 October 2017, the company filed its Response to the summons.

106. On 18 October 2017, the bill to amend the EPA Act – the Environmental Planning and Assessment Amendment Bill 2017 (“the amending bill”) – was introduced into State Parliament, and the Minister filed his submitting appearance in these proceedings ([22] above).

107. On 15 November 2017, the amending bill passed through both Houses of State Parliament, without amendment, and, on 23 November 2017, it received assent, with much of its implementation scheduled to occur on 1 March 2018 (Exhibit R1).

108. In December 2017, the Commonwealth published “Australia’s 7th National Communication on Climate Change”, subtitled “A Report under the United Nations Framework Convention on Climate Change” (Exhibit A4 – no date is specified in the exhibit).

109. On 20 December 2017, the applicant filed its summary of argument.

110. On 1 February 2018, the company filed its summary of argument, and the SAF.

111. On 7 February 2018, the applicant filed written submissions in reply.

112. On 8, 9 and 12 February 2018, the proceedings were heard, and this judgment was reserved.

113. On 1 March 2018, key elements from the 2017 Amending Bill came into effect, as the parties notified the Court on 2 March 2018 (see [71] above).

G: The Determination Report Considered

114. I have already quoted (at [100]) from the Executive Summary of the PAC’s Determination Report of 24 April 2017, but some more of that crucial document must now be noted.

115. It specifically urges its readers (at fol 1987) to read it “in conjunction with” its December 2016 Review Report, and to do so is important. The Court cannot consider PAC’s Determination Report in isolation from all that preceded it, i.e. from the material which I have closely examined, and carefully summarized, above. For example, when dealing with “downstream omissions”, Mr Kirk commented (Tp50, LL2-5) that a particular point was “not picked up in the review report because the review report was the next step in the PAC process. Rather the PAC picked it up in its determination report indicating that it had carefully gone back and looked at the materials”.

116. The PAC records (e.g., at fol 1980) that it had (my emphasis):

... examined the documents referred to in the Terms of Reference set out by the Minister, including the [EIS], submissions and Response to Submissions. The Commission also received written submissions, held a public hearing, visited the site and surrounds, and met with the Applicant, the Department of Planning and Environment (the Department) and Office of Environment and Heritage (OEH).

The Commission notes that the preliminary Secretary's Environmental Assessment Report (SEAR) submitted as part of the review was a preliminary assessment of the merits of the project. The assessment considered the potential impacts of the project with regards to noise, blasting, air quality, social, biodiversity, water resources, heritage, final landform, rehabilitation and economic impacts. Other issues identified in the preliminary SEAR include traffic and transport and visual impacts.

117. It also records that it made 31 recommendations ([95] above) all but one of which (one concerning Aboriginal consultation) were accepted and adopted by both DPE and the company.

118. The DA, the EIS, the DPE’s work, and the PAC’s own work, and relevant interactions (e.g., at public meetings), are all comprehensively recorded (fols 1982-1986) before the PAC records its consideration (s 4, fols 1987-1994, and s 6, fols 1995-1996) of, and its response to, a range of community issues (s 5, fols 1994-1995). SAF50 to 52 state:

50.   In the PAC's Determination Report, the PAC stated (in section 4) that it had considered carefully all information submitted by the First Respondent, DPE's PAR and FAR, the PAC Review Report, advice and recommendations from government agencies, written and verbal submissions from public agencies and from the public, and relevant matters for consideration specified in section 79C of the [EPA Act] including any relevant environmental planning instruments.

51.   In Appendix 3 to the PAC's Determination Report, which is a summary of issues presented at the public meeting held on 11 April 2017 in Mudgee, the Project being contrary to the Paris Agreement and targets set by the NSW Government, and climate change impacts are listed as examples of comments made during the public meeting and in written submissions.

52.   The PAC was satisfied that the impacts and mitigation methods had been appropriately assessed, that the Project would, subject to the mitigation measures proposed by the First Respondent and conditions of consent recommended by DPE, have acceptable impacts, and accepted DPE's recommendation that the Project be approved.

119. As noted in s 4.2 (fols 1987-1988), the PAC adopted the DPE’s attitude that the Project should be conditioned to embrace the policy of “adaptive management”, which requires the Project to operate in a “state of constant monitoring and process improvement”, to “reduce uncertainty”, ensure maximum avoidance of “exceedances of criteria or standards”, and to liaise appropriately with regulators.

120. The operating conditions include, for example:

1. condition 19(b) which, with no time limitation, requires the proponent to “implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site”, and

2. (in accordance with the conclusion in s 4.4, at fol 1991) conditions 32 to 44 which deal comprehensively with Biodiversity and offsets. Condition 42 requires a Biodiversity Management Plan for “the development” (defined by reference to the EIS), found satisfactory by the Secretary, “to be put in place prior to carrying out any development under this consent”. It is to include detailed performance and completion criteria for performance evaluation and remedial action, and (condition 43) it is to be implemented. Schedule 5 (fols 2030-2033) deals in depth with “environmental management, reporting, and auditing”, and cl 2 of it requires “adaptive management”.

(See SAF55 and 56.)

H: The Arguments

Ground 1

121. At the centre of the Ground 1 challenge is the Mining SEPP, cls 2 and 14 of which I have already set out ([57]-[58]).

122. The association alleges that the PAC failed to consider matters required by cl 14(2).

The association’s case

123. The association claims (subs pars 3 and 4a) that, contrary to cl 14(2), “the PAC failed to consider an assessment of the [GHG] emissions of the development (including downstream emissions), including by having regard to any applicable State or national policies, programs or guidelines before it granted development consent”.

123. Section 79C(1)(a)(i), at the relevant time, required a consent authority (subs par 18) to have regard to the provisions of any environmental planning instrument that applies to the land to which a development application relates. Such provisions are required to be taken into account as fundamental elements in, or focal points of, the decision-making process and are "entitled to significant weight in the decision making process", even though they may not ultimately be determinative: Zhang v Canterbury City Council (“Zhang”) (2001) 51 NSWLR 589 at [75]; Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (“Warkworth v Bulga”) (2014) 86 NSWLR 527; 200 LGERA 375; [2014] NSWCA 105, at [215]-[216].

124. Accordingly, the PAC was required to have regard to the Mining SEPP.

125. The term “downstream emissions” is not defined, but is commonly understood to denote the greenhouse gas emissions relating to sold goods and services and thus caused by end-users' use of the product (e.g. coal) produced by a project (subs par 19).

126. Relevant to this consideration are the requirements of:

1. the Paris Agreement, in respect of which Australia adopted 2005 emissions as a baseline and a target reduction of 26-28% by 2030; and

2. the NSW CCPF’s “long term aspirational objective of net zero-emissions by 2050” (subs 20, and 22-23).

128. The association submits (pars 24 and 25):

24. The obligation imposed by cl 14(2) of the Mining SEPP is not limited to considering whether to attach conditions to a development consent but applies more broadly in determining a development application for the purposes of mining. Accordingly, the PAC was required under s 79C(1)(a)(i) to consider an assessment of greenhouse gas emissions (including downstream emissions) of the Project when assessing the development itself, not simply in deciding what conditions (if any) to attach to the consent in accordance with cl 14(1).

25. It was not sufficient for the purposes of s 79C(1)(a)(i) for the PAC to simply record that it had considered the provisions of "any relevant environmental planning instruments" (Determination Report p 9). In the case of an instrument which sets out a binding requirement for decision-making, such as cl 14(2) of the Mining SEPP, having proper regard to the instrument involves complying with that requirement. By force of s 79C(1)(a)(i) and cl 14(2) of the Mining SEPP, a relevant assessment of greenhouse gas emissions (including downstream emissions) was a mandatory relevant consideration.

and (par 26) that Zhang means that the requirements of the policy documents must “be treated as a ‘fundamental element in’ or a ‘focal point’ of the decision-making process”: Zhang, at [70]-[77], and Warkworth v Bulga, at [192]-[226].

129. The PAC has no obligation to state its reasons for decision, but in this case “voluntarily provided a detailed statement of reasons”.

130. The association submits (par 27) that such a voluntary statement “will provide a ‘central focus’ for determining whether or not a mandatory consideration was taken into account: Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 (Malek Fahd), at [40] per Griffiths J”.

131. In Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88, Giles JA said (and Priestley JA agreed) that:

... taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.

132. The requirement to “consider” has been expressed in a number of ways over time, but all formulations stress the need to “engage actively” with, and provide the relevant issue. As the High Court said, in Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8, at [43], "the term 'consider' imports an obligation to give proper, genuine and realistic consideration". (This formulation, as is clear from the above, is not free from controversy.)

133. Simple adoption of “assertions propounded by others” is not sufficient: Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; (2017) 220 LGERA 386; [2017] NSWCA 54, in which Macfarlan JA said, at [117]:

As Sackville AJA points out, in Bondelmonte v Bondelmonte [2017] HCA 8 at [43] the High Court recognised that the term “consider” when used in a statute concerned with administrative decision-making imports an obligation to give “proper, genuine and realistic consideration” to the matter required to be considered. As his Honour also points out, there has been controversy about the use of that phrase and concern expressed about its use encouraging courts to slide into impermissible merits reviews on judicial review applications (see [278]). Notwithstanding these cautionary observations, it can at least be concluded that an administrative decision-maker in a position analogous to that of the Delegate, who is required to “examine” a proposal, has a duty to form his or her own view about the matter to be examined and not adopt uncritically the view propounded in the document accompanying the referral of the matter to him or her.

134. The association submits (at 29):

There is no note or record of the PAC's consideration of an assessment of the greenhouse gas emissions (including downstream emissions) of the development, including by reference to any applicable State and national policies, programs or guidelines, in its Review Report or in its Determination Report (which provides a reasonably detailed statement of the written reasons for its decision: Evidence Book tab 22, 34).

135. Its submissions go on (in pars 29, 30, and 32-39) to identify and analyse such references as there are in the EB materials to emissions and climate change. That analysis need not be repeated here, but the association complains (32) that the materials provide “only a limited assessment of downstream [GHG] emissions” and (33) “no analysis of how [the Project’s] mitigation measures achieve or promote” the policies to be considered. “An assessment of downstream emissions was explicitly required to be considered” (36).

136. Those submissions culminate in the submission (at 39) that treating GHG as “simply one” area of public concern “to be weighed against the socio-economic benefits of the Project ... is not what cl 14(2) of the Mining SEPP requires”, and (at 40):

The Court can be satisfied that the PAC misunderstood the task required of it, in that it determined the merits of the development application without considering an assessment of the greenhouse gas emissions of the development (including downstream emissions), having regard to the Paris Agreement and the NSW CCPF in their capacity as applicable State or national policies, programs or guidelines under cl 14(2) of the Mining SEPP. The PAC failed to consider a mandatory relevant consideration and the decision to grant development consent is accordingly invalid.

137. In his oral submissions, Mr Kennett said (at Tp22) that the PAC never had “greenhouse emissions brought to its attention as a distinct issue requiring consideration” (LL34-35), nor did it acknowledge climate change as a relevant factor it ought consider (LL41-45). Hence, the Court “can comfortably infer ... that the PAC did not turn its mind to that issue”, nor regard it as “legally relevant” to its decision (Tp23, LL12-19). “There’s just no engagement with the issue” (LL23-24), nor “a consideration of the kind demanded by cl 14(2)” (Tp24, LL14-15).

The company’s response

138. The company’s submissions, in response, on Ground 1, emphasise that the PAC has no duty to give reasons, nor to explain the weight it attributes (c.f. the situation in Warkworth v Bulga – see Tpp30ff).

139. The company submits that the association “misconstrues” cl 14(2), saying (subs 5) that it does not require “a very detailed assessment of the kind envisaged” by par 34 of its submissions, “involving consideration of broad and aspirational policy targets for overall greenhouse gas (GHG) emissions over the coming decades”.

140. The policy documents adopt serious reduction targets, but do not yet prescribe policies as to how they are to be achieved, and a consent authority determining a project with a life to only 2033 cannot be expected to achieve “an aspiration for 2050” – “How is a PAC to make a decision about whether Australia's commitment to a 26 to 28% reduction by 2030 is best achieved by not allowing this coal mine in New South Wales, compared to all the other coal mines in Australia, compared to car policy, compared to electricity policy, compared to all the other issues which arise in relation to that target?” (see Mr Kirk SC, at Tp40, L10-p41, L5).

141. Mr Kirk submitted (Tp60, L48-p61, L18 – my emphasis):

We dispute that the two policies identified, the Paris Agreement and the New South Wales policy, can be applicable, that is picked up by the second part of cl 14(2), because they can't meaningfully guide the task of the consent authority. They raise fundamentally policy considerations. We say that cl 14(2), what it requires first is an assessment, the commission must have before it an assessment fundamentally quantitative of greenhouse gas emissions including downstream emissions. There plainly was such an assessment. That assessment is not required to discuss policies as the respondent suggests.

The applicant's three criticisms which really perhaps add up to saying it didn't discuss the policies enough, that is misguided. It didn't indicate where the coal was to be burnt, that is factually unsustainable. In any event, not required by cl 14(2).

The second part of cl 14(2) requires the consent authority to consider applicable policies. As I've said, we dispute Paris and the framework of New South Wales were relevant but even if they were, even if they are applicable policies, there is ample material explained better, with respect, than my learned friend explained it in the materials before the PAC, which they said they took into account.

142. The company’s second primary submission in response (subs 5(b)) was:

The PAC did have before it an assessment of the GHG emissions for the development of the kind referred to in cl 14(2) of the Mining SEPP, and that is so even if the Applicant's view of what had to be considered is accepted. The Applicant has failed to discharge its onus to establish that the PAC failed to consider that assessment, and its critique involves an inappropriate parsing of the PAC's Determination Report.

143. On the construction point, the company relies upon Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, in which the four judge majority judgment said (at [69]-[70] – emphasis added):

69.   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute ... The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ... In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390, at 397] ..., Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ...

70.   A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals ... Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions ... Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" ... Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

144. The company submits (par 6) that subclauses (1) and (2) of cl 14 “work together, with the required assessment aiding the consent authority to consider what relevant conditions might/should be imposed”.

145. Its submissions continue (par 7), relying on the stated aims of the Mining SEPP, which the company says, do not “manifest any intention ... to confine mining and related development as a matter of policy”:

“Clause 14(2) does not introduce a standalone requirement for consent authorities to consider whether to stop the development of coal mines or such like because, say, they might be seen to be contrary to whatever the federal government's policy is from time to time on energy and climate change. Such a construction is neither plausible nor supported by the text”.

146. Clause 14(2) requires an “assessment” of emissions. The company defines “assessment” as an “estimation” or “evaluation” (subs 8) – in other words, it is “not ... precise” – and submits that the association is “far too prescriptive in the level of detail said to be required” (c.f. association subs par 34). “Nothing in cl 14(2) suggests that, in order for a document to be ‘an assessment of the greenhouse gas emissions ... of the development’, it must refer to or address changeable government policies and aspirations, such as aspirations under the two polices relied upon” (company subs 9, c.f. association subs 33).

147. On the issue of whether the Paris Agreement and the NSW CCPF are “applicable State or national policies, programs or guidelines concerning greenhouse gas emissions”, as asserted by the association, the company submits (par 10):

... The obligation under cl 14(2) is to "consider an assessment [of GHG emissions] ... having regard to any applicable national policies [etc] concerning greenhouse gas emissions". That point gives guidance to what are "applicable" policies. Something is "applicable" if it is "capable of being applied; fit; suitable; relevant" (Macquarie Dictionary, 5th edn). Here, a policy should be understood to be "applicable" if and only if it is capable of being applied to the task undertaken by a consent authority, namely considering an assessment of GHG emissions in deciding whether to grant consent to a relevant development, in particular in the context of considering what conditions (if any) to impose under cl 14(1). The relevant policies/programs/guidelines would be ones relevant to the nature of the assessment, and capable of being applied by a consent authority. Neither of the targets relied on by the Applicant meet that criterion.

148. The CCPF refers repeatedly to an “aspirational long-term objective” of “net-zero emissions by 2050”. In that context, the company submits (par 11) that “aspirational” is to be distinguished from “normative”, as to which distinction it directs attention to AMS v AIF (1999) 199 CLR 160, at [50]. It goes on (in par 11) to submit:

... The aspiration referred to in the NSW CCPF cannot be described as an objective capable of being applied by a consent authority when considering an assessment of GHG emissions in evaluating a development consent. It is not directed to the process of assessment. More generally, how could a consent authority realistically form a view about likely emissions in NSW in 2050? How could a consent authority realistically assess the contribution which a development might make to those emissions given the infinite number of variables affecting that assessment? Those variables include potential technological developments, the structure of the State economy and future national and State climate change policies. The NSW CCPF is particularly inapplicable to the consideration of the SSD Application: the SSD Application was for a mine life out to 2033, 17 years prior to the relevant net zero emissions year of 2050.

149. Again (see subs 12), the target to be derived for Australia from the Paris Agreement, namely 26-28% by 2030, “is not directed to the process of assessment. Again, this target cannot be said to be a target capable of application by a consent authority. A consent authority in 2017 could not realistically form a view as to likely national emissions in 2030 and how a particular development might affect those emissions. The target is not something capable of application to the task of a consent authority”.

150. Any conflict which may arise “between State and national policies on GHG emissions” would not (subs 13) be “for a consent authority [or ‘a judge or commissioner of this Court’] ... to resolve”, so such “objectives or aspirations” are not “meant to be picked up by cl 14(2)”, and Ground 1 is, therefore, “misconceived, and should be dismissed”.

151. “In any event”, the company says (in subs 14), “a greenhouse gas assessment was before, and considered by, the PAC, as were the two policies relied upon”.

152. Whether the PAC had regard to the assessment of emissions in the proponent’s documents is a question of fact, in regard to which the onus falls on the party asserting that there has been a failure to consider: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594.

153. The company acknowledges that the association does not argue that the PAC has a duty to give reasons. In fact the PAC did not attempt to state a comprehensive set of reasons, merely (par 18) “to identify generally some core elements of [its] reasoning”, so as to “provide some additional context around key matters” it considered, and/or to “respond to specific concerns raised”.

154. The PAC stated that it had “considered carefully” a range of information. It was not practical (par 20) to expect it “to set out a line-by-line reference to every single matter it had considered”.

155. The company submits that those express statements lead to the inference that all material in the EIS and public submissions was (par 21) “carefully and meaningfully considered by the PAC”; the applicant association has not established to the contrary, and (par 22) should not “cherry pick” any particular mandatory matter, among the myriad of them, and allege that it was not given enough consideration.

156. The company submits (par 22) that to do that is to “engage in inappropriate retrospective analysis” and “slide into merits review” (c.f. Macfarlan JA in [133] above).

157. The submissions then (pars 23 to 27, and 30 to 33) trace the identification, collection and presentation of a range of detailed information and estimates, and indicate where it is to be found in the material that was available to the PAC. Again I do not set out that analysis, which competes with that done by the association ([135] above), but, I do note that the company has submitted (at pars 28 to 30, and 34):

28. Taken together these documents, and particularly the GHG Assessment, constituted an assessment of the emissions, including downstream emissions, from the development. Those documents do not cease to be assessments of GHG emissions because they do not "assess[] the ... emissions from the Project as a contribution to total Federal and State greenhouse gas emissions" (whatever that phrase means): cf AWS [34]. The documents estimate the likely emissions from the project. Had the drafter of cl 14(2) intended that a necessary condition of a valid assessment of emissions be that the document identify the contribution of the project to "total Federal" emissions, the drafter would have said so.

29. Even if the Court considered that cl 14(2) of the Mining SEPP required consideration of the NSW CCPF and the Paris Agreement (contrary to the submissions above), the Court would be comfortably satisfied that the PAC did have regard to the targets in those documents. To begin with, the PAC was informed in terms of the content of cl 14(2): EB 484.

30.   The evidence indicates that in the course of its original review, the PAC "carefully considered ... the submissions made" (EB 1797) and that it had "tak[en] into account the information available, views expressed at the public hearing and submissions received" (EB 1801) ...

...

34. The information before the PAC thus included ample information regarding both of the targets which the Applicant says were covered by cl 14(2) of the Mining SEPP. For the reasons given above, the Applicant has not established that the PAC did not do what it said it had done by having careful regard to this information.

158. In general, the company submits that the PAC had a myriad of considerations to take into account, and addressed them all in turn, hence the narrowing of focus or emphasis as it moved through the assessment documentation before it. As Mr Kirk submitted orally (Tp55, LL28-49):

Whatever importance the applicant now seeks to place on emissions in New South Wales and Australia compared to total emissions, that is not something the PAC was required to give great weight. It has myriad considerations to take into account and it’s entitled to focus in on the ones of great concern. That’s not to suggest for a second it ignored it. The evidence is to the contrary. We don’t even know how much they agonised about it. Maybe they did and considered in the end that’s just not our bailiwick. The fact is they took it into account and that’s all they had to do. They took into account what was raised about Paris and the rest no doubt.

One then comes to the final assessment report, which is at tab 25. My friend criticised this for not referring to climate change. That’s because, as I’ve said, the issues are narrowing down in terms of what’s becoming the focus of concern. By the way - just in case this is put against me in reply - a requirement to consider something means considered as part of the process. As you narrow down the issues in dispute, you come to the culmination of the process where there's fewer and fewer issues in dispute. The fact that when you're finally about to sign the pen, you’ve got three things still left in your mind just before you decide whether to sign, doesn’t mean you haven’t taken all the other thousand things into account. It's natural in decision making to focus in on the matters which in the end you think you can change, or which are critical to your decision.

159. He later added (Tp58, LL39-41):

It's plain the PAC turned its mind to climate change. That they didn't give the weight to it the applicant might’ve hoped or that other environmental groups might’ve hoped is a merits complaint. That submission is unsustainable.

Ground 2

160. The scope of the extension project includes continuation of the currently approved operations, which themselves include the as yet uncommenced mining of pit No 6 of the approved 7.

161. As formulated in its submissions (at 4b and 44), the association’s second ground of challenge says that (emphasis added):

4.   ...

b. the PAC failed to consider the likely impacts of the whole of the development the subject of the application before it, as required by s 79C(1) ...

...

44.   ... when considering likely impacts of the Project on the natural environment, specifically the likely impacts of the project on White Box Yellow Box Blakeley's Red Gum Woodland (an identified endangered ecological community, EEC), the PAC considered only the impact of clearing of the stands of this EEC present in the proposed extension area for the mine's operations. In this respect, it misunderstood the scope of the Project in relation to which it was required to consider relevant matters in s 79C(1) of the [EPA Act]. The PAC thus asked itself the wrong question and constructively failed to exercise its jurisdiction, by failing to consider the likely impacts of the whole of the development the subject of the application before it on the natural environment.

The association’s submissions

162. The association’s submissions say (in par 43, immediately before par 44 quoted above) that the PAC:

43.   ... understood generally that the scope of the Project for which development consent was sought included the continuation of operations within the area of the mine's existing approved footprint.

163. As Mr Kennett submitted (Tp24, LL42-46, and p25, LL19-21):

... what 79C(1) requires to be considered is the impact of the whole of the development, that is, here, in a case like this, the mine as proposed to be expanded, and with the proposed extended lifespan, but including - to the extent that it hasn't already been done - that which is currently approved by the existing approval.

...

... the PAC, in its consideration under s 79C, needed to have regard to the whole of the mining operation as proposed to be expanded.

164. As he noted (Tp25, LL45-47), the EIS expects “that the project would require clearance of approximately 354 hectares of native vegetation in the project open cut extension and infrastructure areas”, but (Tp26, LL15-16) “is only directing itself at clearance of certain types of vegetation in the area of extension”, and (LL31-32) “has not taken account of the clearing, if any, yet to be done within the existing approval area”, whereas (Tp27, LL13-14) “all of it ... needed to be canvassed in order to comply with s 79C”.

165. The association complains (par 46) that the PAC simply adopted the EIS’s quantification of the areas of disturbance of native vegetation, including EECs, and did not even mention EECs in its Determination Report (EB item 34). It says (subs par 49) that:

... It may thus be inferred that the PAC regarded the clearing of the White Box Yellow Box Blakeley's Red Gum Woodland EEC as a relevant factor only to the extent that it was to take place in the Project's extension area. In confining its consideration in that way, the PAC failed to discharge its obligation to consider each element of s 79C(1) of the [EPA Act], as relevant, in respect of the whole of the development the subject of the development application.

The company’s response

166. As Mr Kirk said (Tp62, LL46-50), this is not a “wrong question” ground, but another “failure to consider” ground, and (Tp66, LL12-14) “where you're dealing with a very complex DA for a very complex project, the EIS is going to be a formidable document, yet will always be capable of criticism as not having addressed X, or not having addressed it enough”.

167. Some of the relevant woodland is covered by the existing approval and so “could (and would) be cleared anyway [before 2026] even if the new consent was not granted, and even though the conditions under the Previous Approval relating to offsets for such clearing were reiterated in the Consent” (subs 35).

168. On this ground, the company’s primary submission is (subs 36):

The argument is artificial, and should be rejected. The key steps in the argument are (i) that the Project was likely to have an impact on White Box Yellow Box Blakeley's Red Gum Woodland on land which had been the subject of the Previous Approval, and the PAC was legally obliged to consider this; and (ii) the PAC failed sufficiently to consider those likely impacts. The Applicant has not made out either step. Even if it had, the Court should refuse relief in its discretion, including because of the lack of utility of such relief given that the clearing of the affected area can go ahead regardless.

169. The PAC’s duty under s 79C(1)(b) is to consider the likely impacts, including likely environmental impacts on the natural environment, of the development which is the subject of the DA being considered, and the company submits (par 40) that the association has not established that fulfilment of that statutory duty “required consideration of the level of detail of the effect on the identified types of woodland in the area that was already covered by the Previous Approval. It is most unlikely that the Parliament would be taken to have intended such detailed consideration”.

170. The company’s submissions continue (par 41):

As to any uncleared woodlands that remained at the time of the PAC's decision in the area of the Previous Approval, it is hardly surprising that the EIS and related materials did not address the effect of clearing such areas with great particularity, because they would be cleared anyway, regardless of whether the new consent was granted. Time is not short in this regard – the Previous Approval ran to 2026, and any remaining woodlands could have been cleared rapidly. Condition 9 of the Consent requires surrender of the Previous Approval (EB 2009), but if the Consent is invalid, as the Applicant argues, then the Previous Approval will remain in place and the woodlands in question could be cleared.

171. The company submits that the PAC did exactly what s 79C(1)(b) requires, and found the impacts of the proposal acceptable, when properly delineated, placed in a regional context, and with its protective and mitigation measures and recommended conditions in place.

172. I accept the company’s submissions (pars 43 and 44) in this respect, and I am satisfied, on the materials shown to have been before the PAC, that the likely impacts on any remaining box gum woodland in the area subject of the previous approval – the impacts of which were fully assessed in the earlier consent and modification processes, some by the PAC, which established substantive offsets – have been properly considered.

173. The conditions imposed include implementation of a biodiversity strategy involving both the existing and the required additional offsets. As Mr Kirk noted (Tp68, LL10-12), “Relevantly, there’s a biodiversity management plan dealing with what’s currently in place. It’s going to be continued in consultation with the relevant regulatory authorities”.

174. As the company submits (subs 52 and 53):

52.   The decision to attach these conditions gives rise to an irresistible inference that the PAC considered the likely impacts of the whole of the development on box gum woodland. The decision to continue previous offset requirements shows an engagement with the impacts which warranted the imposition of those requirements in the first place. The decision to attach additional offset requirements shows an engagement with the likely impacts of the additional development proposed by the SSD Application.

53.   That there was less detail before the PAC regarding the potential impacts on box gum woodland in the land the subject of the Previous Approval as there was for the extension land does not entail that the PAC did not consider the former. A decision-maker does not err merely because it has better information on some topics than others. That there was less information before the PAC regarding the land the subject of the Previous Approval is unsurprising in circumstances where those impacts had already been considered and addressed by previous, successive consent authorities.

I: Consideration

175. I have earlier referred ([130]) to Griffiths J’s decision in Malek Fahd, to which both sides made reference during argument.

176. Because I am persuaded that I ought follow His Honour’s approach, it is convenient now to set out in more detail what His Honour said (at [40] to [43], and [46] to [48], emphasis added):

40.    First, in circumstances where the delegate has voluntarily provided a detailed statement of reasons for her decision, that statement will provide a central focus for determining whether or not the conceded mandatory relevant consideration was taken into account by her. That is not to lose sight, however, of the well-established and important need to avoid an over zealous approach in reviewing such a statement and with an eye keenly attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 1 (sic – 185 CLR 259)). Such restraint is essential to preserve the legitimacy of judicial review.

41.   Secondly, in cases where a statute explicitly lists mandatory relevant considerations and also obliges the decision-maker to give reasons, it has been held that an inference might be drawn that a decision-maker has failed to consider an issue because of a failure expressly to deal with that issue in the reasons. Thus, for example, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE), at [47] the Full Court said:

47.   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

Although those observations were directed to a situation where a tribunal was statutorily obliged to consider particular matters and also had a statutory obligation to provide reasons for its decision, it seems to me that they are relevant and provide guidance in a case such as here, where it is conceded that the decision-maker was bound to consider a particular matter and the decision-maker has voluntarily provided a reasonably detailed written statement of reasons for her decision.

42.   There is one important qualification. It relates to the need for greater caution in drawing inferences from omissions in a statement of reasons which has been voluntarily provided by a decision-maker and not in discharge of a statutory obligation to do so. The High Court’s decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) highlights the importance of paying close regard to the precise terms of a statutory provision, such as s 430(1) of the Migration Act 1958 (Cth), which imposes a statutory obligation on a decision-maker to provide a written statement which sets out various matters and not just the reasons, such as a requirement to set out the findings on any material questions of fact. The precise terms of such a statutory obligation necessarily provide a critical framework in determining, for example, what legal significance should attach to the failure of such a decision-maker to make findings on every matter of fact which is objectively material to its decision. Caution is required in drawing adverse inferences from omissions in a statement of reasons which is volunteered by a decision-maker and absent any immediate legal obligation to do so because there is no detailed legal framework of the kind which operated in cases such as Yusuf and WAEE (and see also s 25D of the Acts Interpretation Act 1901 (Cth)). Having said that, however, the applicant’s complaint here is not that the delegate failed to make relevant findings of fact as such, but rather that she failed to engage in an active intellectual process in relation to, relevantly, the practical effect of delaying the Commonwealth’s funding in respect of the students of the School (see the observations of McHugh, Gummow and Hayne JJ in Yusuf at [75]).

43.   Thirdly, in cases where a statute has an explicit list of mandatory relevant considerations and also obliges the decision-maker to give reasons, the Court has emphasised that it is not only prudent, but also desirable, for the decision-maker explicitly to address the mandatory relevant considerations in its reasons for decision (see, for example, Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 229 FCR 290 at [21]-[22] per Flick J and at [31] per Katzmann J). It is difficult to see why the position should be different in any significant respect in circumstances where it is conceded that a particular matter is a mandatory relevant consideration (even though it is not explicitly stated to be so in the enabling legislation) and the decision-maker voluntarily provides a detailed statement of reasons, as is the case here. In either scenario, if the decision-maker fails directly to address a mandatory relevant consideration in the body of the statement of reasons, there is a risk that it might reasonably be inferred that the particular consideration has not been taken in account.

...

46.   Sixthly, the applicant carries the burden of proof of demonstrating, on the balance of probabilities, that an administrative decision-maker has failed to take into account a mandatory relevant consideration (see, for example, SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] per Heerey, Branson and Emmett JJ).

47.   Seventhly, it is relevant to note the current state of legal authorities on the issue of what amounts to “consideration” of a mandatory relevant consideration. The Full Court recently discussed many of the authorities in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [31] ff. The Court acknowledged the danger of using epithets such as give “proper, genuine and realistic consideration” to a mandatory relevant consideration (see at [34]). The Court also identified at [45] the many cases which endorse the principle that when a decision-maker is required by its statute to consider mandatory criteria, the decision-maker “must engage in an active intellectual process directed at that… criteria”. In circumstances where the Minister has conceded the existence of the mandatory relevant consideration in the terms set out in [36(b)(ii)] above, it is appropriate to address the relevant question of fact on the basis that the delegate was required to engage in an active intellectual process directed at that conceded mandatory relevant consideration.

48.   Eighthly, although there is no “necessary difficulty” with an assertion in a statement of reasons to the effect that the decision-maker has “considered all matters” or, as is the case here, an assertion that “[A]fter consideration of the material taken into account” (which material is identified in [13] of the 6 April 2017 letter), such an assertion does not shield from scrutiny such consideration as was in fact given to the material (see Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [32] per Flick, Barker and Rangiah JJ). Other authorities have indicated that, merely because a matter has been “touched upon” by a decision-maker, does not necessarily mean that it has been taken into account or considered in the relevant sense ... Necessarily, close attention must be given to the particular facts and circumstances of the case.

177. I am fortified in my own approach, and my acceptance of Griffiths J’s, by a re-examination of the earlier decisions in Walsh v Parramatta City Council and Alam (2007) 161 LGERA 118; [2007] NSWLEC 255, at [55] to [63], Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor (2007) 153 LGERA 450; [2007] NSWCA 171, at [76]-[78], Notaras v Waverley Council & Anor (2007) 161 LGERA 230; [2007] NSWCA 333, at [117] to [120], and Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224, and the decisions upon which those decisions rely.

178. While to some extent the association tried to argue that the onus (c.f. [46] of Malek Fahd) fell upon the company to satisfy the Court that the PAC had paid proper regard to its task in respect of either ground, the onus is clearly on the association to show a failure by the PAC to do so, and I have set out its submissions comprehensively.

179. Mr Kennett acknowledged during his opening address (Tp18, LL39-50):

Obviously enough, the EIS and its appendices contains an enormous volume of material, there was also a very large number of submissions.

One would be slow to find that the members of the commission have read every line of those and subjected them to close consideration and digested them, particularly - and I make that point in relation to both the EIS and the submissions - but the public submissions are apt to include in a process like this a huge range of issues, not all of which may be relevant to a final decision. So the commission should not be understood to be, when it says its considered this material, should not be understood to be saying that it has admitted to its reasoning process everything that's said in that material.

180. However, I have concluded that the PAC gave exactly that type of “close consideration” to the issues and the material in this case ([115]-[118] above), and that the compelling submissions made on the company’s behalf are to be clearly preferred.

181. I am satisfied that all the material and information I have surveyed in this judgment was indeed before the PAC, and was considered by it, as it reached its decision on this project, and prepared its Determination Report.

182. Where it could perhaps be said that the PAC appears merely to note references to all the issues raised by the Project, including the two involved in this case, I am comfortably satisfied that it gave them requisite consideration during its work, against the background of the public interest.

183. I specifically emphasise what I have written in paragraphs [141] to [159] and [168] to [174] above, in respect of the company’s evidence and submissions, as definitive of my findings.

J: Conclusion and Orders

184. The association’s summons should be dismissed.

185. No question of discretion or relief arises, and further argument is required only on costs, if disputed between the parties.

186. The Orders of the Court are:

1. The association’s summons is dismissed.

2. The question of costs is reserved.

3. All Exhibits and the bundles of authorities provided to the Court are returned.

**********

Decision last updated: 19 June 2018