On 19 February 2016, Preston CJ of the NSW Land and Environment Court handed down the decision in Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and Minister for Planning [2016] NSWLEC 6, dismissing the applicant’s judicial review challenge to the Watermark Coal Project, an open cut coal mining project located south east of Gunnedah. For the central issues in contention, the Court (reinforcing previous similar judgments) determined that the PAC was not required to make definitive findings of fact at the level of particularity alleged by the applicant and that consent authorities are not required to make definitive findings of fact about precise impacts particularly when they can be addressed by way of conditions of development consent.

BACKGROUND

The applicant, Upper Mooki Landcare Inc (UML), sought judicial review of a decision of the Planning Assessment Commission (PAC), to grant development consent (Consent) to an application made by Shenhua Watermark Coal Pty Ltd (Shenhua) to carry out the Watermark Coal Project (Project), an open cut coal mine about 25kms south east of Gunnedah. The Project, as a coal mine, was assessed as State significant development under section 89C of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

UML challenged the PAC’s decision on four grounds, each of which concerned the PAC’s assessment of Project impacts on koala populations located within the Project boundary and the adjoining Breeza State Forest. Preston CJ ultimately held that UML had not established any of its grounds of challenge to PAC’s decision to grant the Consent.

The alleged “misdirection” grounds

Two of UML’s grounds of challenge contended that the development application, and the PAC’s consideration of it, involved misdirection as to the construction of the statutory provisions regarding whether there was likely to be a significant effect on the threatened species of the koala or its habitat. As a result, UML submitted, the manner in which the PAC considered the factors in section 5A(2) of the EPA Act was erroneous, leading to invalidity of the Consent.

Preston CJ observed that, for the purpose of the requirement in clause 1(1)(e) of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation), the development application need only contain a brief “yes or no” indication, without detail, of whether development is likely to significantly affect threatened species, populations or ecological communities, or their habitats. Shenhua did answer this question on the application form, by ticking the box next to “yes” and hence gave the indication that the Project was likely to significantly affect koala populations and their habitat. This was also supported by further information in its environmental assessment.  Further, any error in interpretation or application of section 5A(2) by an applicant filling out an application form would not have the legal consequence of causing the development application to be invalid.

Given these findings, it was unnecessary for Preston CJ to give further consideration to UML’s contentions regarding the construction of section 5A(2)(a) of the EPA Act and the Threatened Species Assessment Guidelines. His Honour also noted that many other legislative requirements relating to consideration of threatened species, populations or ecological communities or their habitats, such as the public consultation requirements under section 89F of the EPA Act and clauses 82-85B of the EPA Regulation, or the requirement for a species impact statement to accompany a development application (clause 2(1)(f) of Schedule 1 to the EPA Regulation), do not apply to applications for State significant development.

THE ALLEGED “MISDIRECTION” GROUNDS

UML further contended that the PAC’s consideration of the impact of the Project on koalas required by section 79C(1)(b) of the EPA Act miscarried in two ways, being that the PAC failed to consider:

  1. the size of the population of koalas that would be directly impacted by the Project; and
  2. how many fatalities would likely arise as a result of koala translocation,

instead deferring those considerations until after development consent was granted.

Preston CJ rejected these grounds, finding that the PAC did consider the matters to the extent that they were required to be considered at the assessment stage. His Honour considered that there was no legal duty on the PAC to make definitive findings of fact, at the level of particularity alleged by UML, about the precise size of the population of koalas that were likely to be impacted by the Project or the certainty of success of the koala translocation program, before determining to grant consent to the Project. UML’s challenge to the PAC’s decision on these grounds went to the merits of the decision, which was not open to the Court to consider on judicial review.

ALLEGED FAILURE TO CONSIDER IMPACTS ON KOALAS

UML’s final ground of challenge was that the PAC, in considering the public interest under section 79C(1)(e) (applied by section 89H) of the EPA Act, failed to consider two principles of ecologically sustainable development (ESD) (namely the precautionary principle and the principle of the conservation of biological diversity and ecological integrity) when assessing the Project’s impacts on koalas. UML further sought to invoke the public trust doctrine in contending that the PAC’s consideration of these two principles needed to be informed by the fact that koalas, as protected fauna, are taken to be the property of the Crown and therefore the subject of a public trust.

Although Preston CJ accepted that the PAC was obliged to take into consideration these principles of ESD, His Honour was not satisfied that the PAC had failed to consider them. It was evident from the information contained in the development application and supporting documentation, the Secretary’s Environmental Assessment Report, the PAC Review Report, the PAC Determination Report and the conditions of consent, that the PAC had, in substance, considered the two principles of ESD.  In particular, the imposition of the conditions requiring, amongst other things, collection of baseline data on the resident koala population, demonstrated action taken to mitigate uncertainties about the likely success or failure of koala translocation. In any event, His Honour said the PAC’s obligation to consider these two principles of ESD did not demand consideration at the level of particularity argued by UML.

His Honour did not make any finding in relation to whether the public trust doctrine, if applicable, would separately give rise to an obligation to consider the principles of ESD. The obligation arises under section 79C(1)(e) in any case. To the extent that UML argued the public trust doctrine would require a consent authority, in determining a development application, to consider “affirmatively, fundamentally and properly” the relevant matters, this was an impermissible intrusion upon the merits of the decision under review.

IMPLICATIONS

The Court’s judgment reinforces previous judgments of a similar nature (e.g. Drake-Brockman v Minister for Planning [2007] NSWLEC 490 and Walsh v Parramatta City Council [2007] NSWLEC 255) in determining that the PAC was not required to make definitive findings of fact at the level of particularity alleged by the applicant.  Preston CJ remarked several times throughout the judgment that Shenhua went beyond what the legislation required. Specifically, Shenhua was not required to consider each factor under section 5A(a) and in some cases merely a “yes or no” answer was required. The obligations of a consent authority, like the PAC, when considering relevant impacts under section 79C(1) of the EPA Act, do not require resolution or factual findings on particular sub-topics going beyond what is specified under the relevant statutory provisions (and including consideration of the principles of ESD under section 79C(1)(e)).