Land and Environment Court New South Wales Case Name: Gloucester Resources Limited v Minister for Planning Medium Neutral Citation: [2019] NSWLEC 7 Hearing Date(s): 13-17, 20-24, 27-28 August 2018 and 16, 30 November and 7, 14 December 2018 (further evidence and written submissions) Date of Orders: 8 February 2019 Decision Date: 8 February 2019 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The appeal is dismissed. (2) State significant development application No SSD5156 for the amended Rocky Hill Coal Project is determined by refusal of consent to the application. Catchwords: APPEAL – open cut coal mine – impacts on existing, approved and likely preferred uses of land in the vicinity – high visual impact – negative social impacts – impacts of the mine on climate change – economic and public benefits of the mine and other land uses – impacts and costs of mine outweigh benefits of mine – development consent refused Legislation Cited: Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Environmental Protection Act 1994 (Qld) Gloucester Development Control Plan 2010 Gloucester Local Environmental Plan 2010 Mineral Resources Act 1989 (Qld) Paris Agreement 2015 Protection of the Environment Administration Act 1991 Protection of the Environment Operations Act 1997 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2009 State Environmental Planning Policy (Petroleum Production and Extractive Industries) Amendment (Air and Noise Impacts) 2018 State Environmental Planning Policy (State and Regional Development) 2011 United Nations Framework Convention on Climate Change 1992 Cases Cited: Abley v Yankalilla District Council (1979) 22 SASR 147; (1979) 58 LGRA 234 Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 Australian Conservation Foundation v Latrobe City Council (2004) 140 LGERA 100; [2004] VCAT 2029 Border Power Plant Working Group v Department of Energy 260 F Supp 2d 997 (SD Cal, 2003) BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 Broad v Brisbane City Council [1986] 2 Qd R 317 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited (2013) 194 LGERA 347; [2013] NSWLEC 48 Coast and Country Association of Queensland v Smith [2015] QSC 260 Coast and Country Association Queensland Inc v Smith [2016] QCA 242 Commonwealth v Tasmania (1983) 158 CLR 1; [1983] HCA 21 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545 Gray v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720 Hancock Coal Pty Ltd v Kelly (No 4) (2004) 35 QLCR 56; [2014] QLC 12 Harris v Scenic Rim Regional Council (2014) 201 LGERA 12; [2014] QPEC 16 Hub Action Group v Minister for Planning (2008) 161 LGERA 136; [2008] NSWLEC 116 Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 Massachusetts v Environmental Protection Agency 549 US 497 (2007) Mid States Coalition for Progress v Surface Transportation Board 345 F 3d 520 (8th Cir, 2003) Minister for Environment and Heritage v Queensland Conservation Council (2004) 139 FCR 24; [2004] FCAFC 190 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 Montana Environmental Information Centre v US Office of Mining 274 F. Supp 3d 1074 (D Mont, 2017) Myers v South Gippsland Shire Council (No 1) [2009] VCAT 1022 Myers v South Gippsland Shire Council (No 2) [2009] VCAT 2414 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2007] SAERDC 50 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPELR 557; [2013] QPEC 26 Re Sydney Harbour Collieries Co (1895) 5 Land Appeal Court Reports 243 San Juan Citizens Alliance v United States Bureau of Land Management 326 F Supp 3d 1227 (D N M, 2018) Sierra Club v Federal Energy Regulatory Commission 867 F 3d 1357 (DC Cir, 2017) Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd (2007) 161 LGERA 1; [2007] NSWLEC 59 Telstra v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10 The State of the Netherlands v Urgenda Foundation 200.178.245/01, 9 October 2018 Urgenda Foundation v The State of the Netherlands C/09/456689/HA ZA 13-1396, 24 June 2015 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 200 LGERA 375; [2014] NSWCA 105 WildEarth Guardians v US Bureau of Land Management 870 F 3d 1222 (10th Cir, 2017) Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 Texts Cited: Bell-James, J and Ryan, S, “Climate change litigation in Queensland: A case study in incrementalism” (2016) 33 EPLJ 515: 53 Bennett, K, “Australian climate change litigation: Assessing the impact of carbon emissions” (2016) 33 EPLJ 53: 546-548 Bonyhady, T, “A Useable Past: The Public Trust in Australia” (1995) 12 EPLJ 329 Figueres C et al (2017), “Three years to safeguard our climate”, Nature 546: 593-595 Global warming of 1.5°C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre- industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [V. Masson-Delmotte, et al (eds.)]. World Meteorological Organization, Geneva, Switzerland Guidelines for the Economic Assessment of Mining and Coal Seam Gas Proposals (December 2015) McGlade C and Ekins P (2015), “The Geographical Distribution of Fossil Fuels unused when limiting Global Warming to 2ºC”, Nature 517: 187-190 Trenberth, K E, “Climate change caused by human activities is happening and it already has major consequences” (2018) 36 Journal of Energy and Natural Resources Law 463-481 Category: Principal judgment Parties: Gloucester Resources Limited (Applicant) Minister for Planning (First Respondent) Groundswell Gloucester Inc (Second Respondent) Representation: Counsel: Mr A Galasso SC, Mr C Ireland (Applicant) Ms K Stern SC, Ms T Phillips, Mr M Sherman (First Respondent) Mr R White (Second Respondent) Solicitors: McCullough Robertson Lawyers (Applicant) Department of Planning and Environment (First Respondent) Environmental Defenders Office (Second Respondent) File Number(s): 2017/383563 Publication Restriction: Nil TABLE OF CONTENTS An open cut coal mine is proposed [1] The development application for the Rocky Hill Coal Project [9] The assessment and determination of the development application [20] The appeal to the Court against the Minister’s refusal [23] The planning framework for determining the mine proposal [25] The impacts of the mine on existing, approved and likely preferred uses [57] The vicinity of the development [58] The existing, approved and likely preferred uses [62] The impact of the proposed mine on the likely preferred uses [82] The incompatibility with the existing, approved or likely preferred uses [83] The comparative public benefits of the mine and other land uses [87] The visual impacts of the mine [90] The existing visual environment [91] The viewpoints likely to be affected [124] Methodology for assessing the visual impacts [130] The experts’ assessment of the visual impacts [143] High visual effect [162] Visibility [163] Distance [165] Cognitive mapping [174] Low integration [175] Topographic location, form and shape [176] Materials, texture and colour [182] Vegetation [189] Change over time [200] Night lighting [207] Cumulative visual impact [214] High visual sensitivity [216] High visual impact [217] The amenity impacts of the mine [223] Noise impacts [224] Dust impacts [264] The social impacts of the mine [270] What are the social impacts? [270] Changes to people’s way of life [276] Changes to people’s community [287] Changed access to and use of infrastructure, services and facilities [326] Impact on people’s culture [340] Impact on people’s health and wellbeing [353] Impact on people’s surroundings [369] Impact on people’s personal and property rights [380] Impact on people’s decision making systems [389] People’s fears and aspirations [393] Distributive inequity of the Project [398] Conclusion on the social impacts of the Project [417] The impacts of the mine on climate change [422] Gloucester Groundswell’s argument for refusal of the mine [422] GRL’s argument for approval of the mine [451] The GHG emissions of the Project support refusal of the Project [486] Both direct and indirect GHG emissions should be considered [486] All GHG emissions contribute to climate change [514] The Project’s emissions will contribute to climate change [525] No specific proposal to offset the Project’s emissions [529] Possibility of abatement unrelated to the Project not relevant [531] Assumptions of market substitution and carbon leakage unproven [534] Producing coking coal not a justification for GHG emissions [546] The Project’s poor environmental and social performance justifies refusal [550] The economic and public benefits of the mine and other land uses [557] The net economic benefits of the Project [561] Direct economic benefit: royalties [570] Direct economic benefit: company income tax [581] Indirect economic benefit: worker benefits [587] Indirect economic benefit: supplier benefits. [607] Indirect costs [637] Conclusion on the cost benefit analysis [664] Local effects analysis [670] The respective public benefits of the Project and other land uses [682] Balancing the benefits and the impacts of the mine [686] Orders [700] JUDGMENT An open cut coal mine is proposed 1 There is a valley, near Rocky Hill, that a coal mine proposes to cut and fill. The Gloucester valley is a creature of a unique topographic feature. The valley is the floor of a nest, the sides being ranges east and west. The Bucketts is the rocky range to the west. The Mograni range is the mountain range to the east. Both ranges are forest clad. Over aeons, the ranges have eroded.