ACA v NSW Minister for Planning & Wyong Coal Pty Ltd & Kores Australia Pty Ltd
EDO NSW, on behalf of the Australian Coal Alliance (ACA), filed a case in January 2018 against the NSW Minister for Planning on the basis that legal errors were made in the Planning Assessment Committee’s (PAC) approval of the Wallarah 2 longwall coal mine west of Wyong on the Central Coast.
The case was heard in the Land and Environment Court over three days in November 2018.
Update: Judgment was delivered on 22 March 2019 and the case was dismissed. In consultation with its client ACA, EDO NSW is considering further options.
Wyong Coal Pty Ltd, which trades as Wyong Areas Joint Coal Venture, and Kores Australia Pty Limited are co respondents. KORES Australia Pty Ltd, a fully-owned subsidiary of Korea Resource Corporation, is the majority shareholder of Wyong Coal Pty Ltd.
The case is being fought on four main grounds: climate change, flooding impacts, compensatory water and risks to water supply for farmers in the region.
Wallarah 2 involves construction and operation of an underground coal mine over 28 years, until 2046. It would extract five million tonnes of thermal coal a year. The total greenhouse gas emissions over the life of the mine will be 264+ million tonnes of CO2.
In approving the Project, the PAC chose not to take into account emissions which come from the burning of coal mined at Wallarah 2. Our client argues that the law wasn’t followed with respect to climate change impacts. The key ground with respect to greenhouse gas emissions is that the PAC failed to consider an assessment of downstream emissions from the project. Under the EP&A Act, the PAC was required to consider the public interest. ACA argues that in the current day, considering the public interest in projects such as coal mines mandates the consideration of principles of ecologically sustainable development, particularly intergenerational equity and the precautionary principle.
Inside a longwall coal mine. Creative Commons.
In addition, our client argues that the PAC unlawfully failed to consider the risks of the flood impacts and the potential loss of water occasioned by the mining project.
The Project, located within the Central Coast water catchment, would have significant impacts on the Central Coast water supply and residents in the surrounding areas.
It would permanently alter the landscape, causing flooding events that will only increase over time as the impacts of climate change are realised. The PAC approval proposes dealing with these devastating flooding events by first requiring the mine to try mitigation measures like putting people’s houses on stilts, relocating homes or building levees. If those measures don’t work, then the mine would be required to pay the owners of the properties for the harm. Our client says this simply is not a lawful way to mitigate harm from flooding. There is no evidence that the mitigation measures will work or that compensation is an effective way to remedy harm caused by flooding.
The mine is also likely to impact upon the Central Coast water supply and access to water for farmers in the surrounding region. The mine proposes to construct a pipeline to deliver compensatory water to the Central Coast Council and provide emergency and long-term compensatory water supplies to farmers if they lose access to water on their properties. If compensatory water cannot be provided, the mine can agree to buy those farmers out. The approval does not cover how the pipeline and the compensatory water is to be provided. ACA argues that the mitigation measures proposed by the PAC in the conditions of approval are not lawful, primarily because they go beyond the power of the PAC to deal with environmental impacts of the Project.
Isaac St Clair-Burns, Solicitor at EDO NSW, has carriage of this matter for ACA. Our Acting Principal Solicitor, Brendan Dobbie, is the solicitor on record.
We are grateful to Craig Leggat SC and Josie Walker of Counsel for their assistance in representing ACA in this case.