13 February 2019
The NSW Land and Environment Court (Court) has refused development consent for the Rocky Hill Coal Project in the Gloucester Valley, citing the mine’s likely contribution to climate change as a key reason.
The decision will have wide-reaching consequences and will likely affect the viability of coal and other fossil fuel-dependent industries in Australia. The growth in international jurisprudence directly linking fossil fuel developments with climate change may also lead banks and others who would traditionally invest in these industries to consider alternatives.
Gloucester Resources Limited (GRL) sought development consent for a new open cut coal mine approximately 5km south of the Gloucester town centre in New South Wales. Extraction of 2Mtpa of coal was proposed for a period of 21 years (Project).
The NSW Department of Planning and Environment referred the Project to the Planning Assessment Commission (PAC) (now the Independent Planning Commission) for determination, after receiving 2,570 submissions (2,308 objections).
On 14 December 2017 the PAC refused consent for the Project, citing:
GRL appealed to the Court on 19 December 2017.
The proceedings were later joined by a local community action group, Groundswell Gloucester Inc (Groundswell). In joining the proceedings, Groundswell sought to bring additional arguments centred around the climate change impacts of the Project and its incompatibility with Australia’s commitments under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.
Summary of the Court's decision
The Court's decision in Gloucester Resources Limited v Minister for Planning  NSWLEC 7 was handed down on 8 February 2019. His Honour Chief Justice Preston dismissed GRL’s appeal and upheld the PAC’s decision to refuse consent to the mine.
The Court’s reasons for refusal included that:
Ultimately his Honour held:
'In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.'
Incompatibility with other land uses
The primary arguments against approval of the Project centred around clause 12 of the Mining SEPP. This required the consent authority to consider the compatibility of the proposed mine with other land uses in the vicinity.
The Court had regard to existing uses, approved uses and likely preferred uses in the vicinity of the Project in determining that:
Groundswell argued that the Project should be refused because the GHG emissions from the Project, both direct and indirect, would be inconsistent with Australia’s commitments under the UNFCCC and the Paris Agreement to keep global temperature increases to below 1.5º to 2ºC above pre-industrial levels, and would have a cumulative impact on climate change in the long term.
GRL argued that:
The Court found that the Project's GHG emissions would be sizable over the life of the mine. In response to each of GRL’s arguments, the Court held that:
His Honour referred to statements made in evidence by Professor Will Steffen on behalf of Groundswell, that in order to reach emissions reductions targets “most fossil fuels will need to remain in the ground unburned”. Deciding which fossil fuel reserves should be allowed to be exploited and burned requires evaluating the merits of each potential fossil fuel development by considering its GHG emissions and the likely contribution to climate change, as well as the development's other impacts.
In this case:
'Refusal of consent to the Project would prevent a meaningful amount of GHG emissions, although not the greater GHG emissions that would come from refusal of a larger coal mine. However, the better reason for refusal is the Project’s poor environmental and social performance in relative terms. As I have found elsewhere in the judgment, the Project will have significant and unacceptable planning, visual and social impacts, which cannot be satisfactorily mitigated. The Project should be refused for these reasons alone.'”
Building upon a growing international jurisprudence directly linking fossil fuels and climate change, this decision is likely to have wide reaching consequences for the viability of coal and other fossil fuel-dependent industries in Australia. Future proponents will need to seriously consider the decision, as will banks and others who would traditionally invest in or support coal and other fossil fuel-dependent industries.
It is possible that the increasing recognition of causative links between fossil fuel developments and climate change could pave the way for future compensation claims of the kind now being seen in the United States.
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