Corrs acted for Dart Energy Ltd in the matter of  Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38, in which, Her Honour, Justice Pepper, has handed down a seminal judgment on Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). 

On 28 March 2013, Justice Pepper upheld the validity of Dart’s approval to undertake a coal seam gas (CSG) exploration activity at Fullerton Cove and, in so doing, made significant findings in relation to the operation of Part 5 of the EPA Act that will have important implications for public authorities responsible for making determinations under Part 5 of the EPA Act and companies engaged in activities to which Part 5 applies.

Summary    

  • The Land and Environment Court has the jurisdiction to review determinations made under Part 5 of the EPA Act and the validity of any consequential approvals granted under any other Act.
  • The ESG2: Environmental Impact Assessment Guidelines for exploration, mining and petroleum production activities subject to Part 5 of the Environmental Planning and Assessment Act 1979 (ESG2 Guidelines) released by the NSW Department of Trade and Investment, Regional Infrastructure and Services (DTIRIS) in March 2012 are not guidelines for the purpose of clause 228 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) and are not a mandatory relevant consideration.
  • This is the first judgment to directly and unequivocally decide that expert evidence is not admissible to determine whether or not a decision-maker has taken into account to the fullest extent reasonably possible all matters that affect or are likely to affect the environment as required by section 111 of the EPA Act.
  • Section 111 of the EPA Act does not impose a standard of perfection on determining authorities and is not a jurisdictional fact.  The term ‘jurisdictional fact’ is an expression that is used to identify a precondition of the exercise of a statutory power or discretion.
  • The Court authoritatively decided that section 112 of the EPA Act is a jurisdictional fact and, therefore, it is open to the Court to substitute its own position for the impugned decision based on extraneous expert evidence.
  • The ESG2 Guidelines, at their highest, may specify matters to be taken into account in the application of sections 111 and 112 of the EPA Act, but cannot fetter DTIRIS’s discretion as to whether an activity is likely or not likely to significantly affect the environment.
  • The onus of establishing that an activity is likely to significantly affect the environment is on the person challenging the decision under section 112 of the EPA Act.  This will most likely require the undertaking of a seven-part test of significance to establish the likely significance of the activity on the environment.