Community group Lock the Gate Alliance (LTGA) has commenced legal proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking to make the NSW Planning Department release correspondence it received from coal company lawyers.
In response to LTGA’s request, the Planning Department released two documents, but refused access to the others. LTGA then sought access to the remaining documents.
LTGA launched legal action after the Planning Department twice refused its requests and defied a recommendation of the NSW Information Commissioner to make a new decision.
The correspondence released by the Planning Department appeared to have been prepared by a law firm engaged by coal companies to justify the assessment of changes to coal mine developments as “modifications”, rather than new developments.
Expanding coal mines via modifications means coal mine developers avoid having their plans determined by the independent decision maker – the Independent Planning Commission.
LTGA is being represented in the matter by the Environmental Defenders Office, Australia’s leading public interest environmental law service.
Lock the Gate Alliance Head of Research and Investigations Georgina Woods said: “The NSW public has a right to know if big coal mine developers are influencing the NSW Minns Government and its Planning Department, leading to coal projects being assessed under a less transparent, less accessible process.
“There are 10 coal projects undergoing or awaiting assessment as modifications, and we want to make sure they are subject to the highest level of scrutiny available in NSW.
“The NSW Government must give full consideration to the impacts large coal mine expansions are having on communities, water, farmland, the environment, and climate and let the public participate in decision-making.
“The continued expansion of coal mining and its greenhouse pollution is endangering the wellbeing of the public and economic future of other industries right across NSW.
“These expanded coal mining proposals should not be snuck through the system without scrutiny and public debate about who is paying the cost for coal mining industry pollution.”
EDO Managing Lawyer Rana Koroglu said: “Our client is taking this action to uphold community rights to access information held by their governments.
“Public access to information and transparency of government decision making are cornerstones of our democracy. Public participation is built into the NSW Planning Act.
“The assessment of coal mine developments as modifications rather than new developments has serious implications for public participation. Any such decision requires close scrutiny.
“Our client is taking this matter to the NCAT to ensure that decision making is transparent and that public authorities can be held to account for their actions.
“Our client rejects the Planning Department’s assertion that information shared by coal mining companies with the regulator is subject to professional legal privilege and therefore exempt under the Government Information (Public Access) Act 2009.
“This view was confirmed by the NSW Information Commissioner and yet the department has declined to release the documents requested.
“Our client considers that it is in the public interest for this information to be released. That is why our client has decided to take the matter to the NCAT for a determination.”
A hearing into LTGA’s application will be held.
MEDIA CONTACT: James Tremain | 0419 272 254
BACKGROUND
On 4 March 2024, LTG applied under the GIPA Act to the Department of Planning, Housing and Infrastructure (Department) for access to:
A copy of any legal advice or opinion with respect to the interpretation of section 4.55 Environment Planning and Assessment Act 1979 (NSW) (modification of consents) provided to the Department by an industry group or association, or a mining company, privilege for which has been waived by virtue of its reproduction or provision to the Department. We are not seeking the producing party’s name or identifying details. Information to cover the period from: 01/01/2019 to 12/02/2024.
On 29 April 2024, the Department refused to provide access to the information on the basis of legal professional privilege and commercial confidentiality. On 7 May 2024, LTG requested an internal review of that decision. On 28 May 2024, the Department decided to uphold the original decision and refused to provide access to the information. On 18 July 2024 LTG applied for a review by the Information Commissioner.
On 1 November 2024, the Information Commissioner found that the Department’s decision to refuse the information was not justified and recommended that the Department make a new decision.
On 12 November 2024, in response to an email from LTG, Jenefer Plummer, Manager, Information Access of the Department advised:
The IPC has wasted both yours and our time by ignoring the public interest test that the Department already applied to the documents as an alternative to the conclusive presumption on the ground of legal privilege. The IPC’s review incorrectly states that an alternative public interest test should not have been put when a conclusive presumption argument has been made. While it is correct to say that there is no public interest test on the grounds of legal privilege, it is incorrect to state that alternative arguments cannot be made.
The Department has already made two decisions on this matter and the internal review found that, regardless of whether legal professional privilege applied to the documents, the documents were provided to the Department in confidence and constituted the business information of those parties. Consultation with the third parties confirmed their strong objections to release and their understanding that the documents were provided in confidence. The internal reviewer felt that the strength of these considerations against release outweighed the public interest in favour.
As a result, we have determined not to accept the recommendation as we do not believe the outcome is likely to change.
