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Legal frameworks for land use planning and development play an important role in regulating the location and the conduct of business activities that impact the environment and can lead to environmental harm. In Australia, these legal frameworks operate at a state level, and are quite similar across different state jurisdictions such as Victoria and NSW.
The activity this week provides an opportunity to explore the way in which the NSW planning framework, under the Environment Planning & Assessment Act 1979 (NSW), applies to proposals to develop or expand major projects, including extractive industries like coal mining.
The exercise will step you through some of the key decision points in the assessment and approvals process and illustrate how decisions on a development application can be challenged using the example of the Rocky Hill case – Gloucester Resources Limited v Minister for Planning – which was decided in 2019 in the NSW Land and Environment Court. The NSW Land and Environment Court is a specialist court which deals with disputes arising under planning, environmental and mining laws in NSW. Like VCAT in Victoria, it conducts merits review of planning decisions (but its jurisdiction is significantly broader than VCAT).
Please prepare a short 1-2 page outline of the case and its implications, referring to the questions below:
1. What type of development was proposed by Gloucester Resources Limited? Please note the location and the nature of the activities.
2. Who was responsible for deciding the application under the NSW planning framework (who was the consent authority)?
3. Why was the development application rejected by the consent authority?
4. What was the basis for the subsequent case in the NSW Land and Environment Court? Please note the parties involved, what was being challenged, and the nature of the legal challenge (e.g. merits review)?
5. Under the Environmental Planning & Assessment Act 1979 (NSW), a consent authority is required to consider a number of matters in determining an application for development consent, including the social impacts of the proposed development. What were some of the social impacts of the proposed mine? Which of these impacts do you think is most significant in this case and why?
6. In determining a development application, the consent authority is also required to take into consideration the provisions of any environmental planning instrument (e.g., State Environmental Planning Policies – SEPPs). One of the applicable instruments is this case was the Mining SEPP – Clause 14(2) provides:“… 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.”
7. Gloucester Resources argued that the greenhouse gas emissions from the proposed mine would account for only a small fraction of global greenhouse gas emissions. Did the consent authority still need to consider the greenhouse gas emissions?
8. How were greenhouse gas emissions associated with the project treated by the Land and Environment Court? Were ‘downstream emissions’ also considered?
9. What are the implications of the case for future major projects, particularly extractive industries, in NSW?
Before attempting the quiz, please read the below extracts from the case: https://www.caselaw.nsw.gov.au/decision/5c59012ce4b02a5a800be47f#_Toc431186
Focus on paragraphs [1]-[57]; [270]-[422]; [422]-[550]
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