Planning And Development Control Laws For Coal Mining In NSW

(1)explain the relevant planning and development control law provisions with which Kennedy Coal Pty Ltd must comply in order to build the coalmine;

(2) set out if and how the projected greenhouse gas emissions from the project will be factored into the development decision making processes; and

(3)explain any legal avenues for challenging and/or appealing any approval of the coalmine under the Environmental Planning and Assessment Act 1979 (NSW) and/or the Environment Protection and Biodiversity Conservation Act 1999 (Cth). In this section of the advice, you should refer to and discuss at least three cases involving challenges to approvals of coalmines in New South Wales.

Planning and Development Control Laws for Coal Mining in NSW

The parliament while drafting legislation in relation to environmental control must not only have in mind the impact of specific projects on the environment but also the economic impact of making too strict restrictions on projects. Thus legislations have been enacted in such a way that they development opportunities to industries as well as maintain a sustainable approach towards the environment. In New South Wales in order to initiate a mining project which might have an adverse impact on the environment the proponents have to ensure that they obtain the necessary approval from the determining authorities and have issue an Environmental Impact Statement.

Operations in relation to a coal mine can have adverse effect to the environment and the living organism residing nearby. Thus in order to ensure that mining operations are carried out by organization with the least possible adverse effect the Australian government has enacted specific legal provisions and legislation. It is illegal to carry out mining operations in Australia without compliance with legislations in relation to environment protection and workplace safety. In order to initiate mining operations in New South Wales an applicant must obtain a mining lease under Mining Act 1992. In order to get a mining lease an applicant has to show that there are mineral depositions which are economically beneficial and can be mined and the applicants have the technological and financial recourses to mine the economically beneficial minerals.

The applicants must also obtain consent with respect to the provisions of Environmental Planning and Assessment Act 1979 (EP&A Act) before mining operations can be initiated in NSW. Mines which have been newly setup have to go through an approval process and rigorous assessment in relation to the EP&A Act. Coal mines and other large mines which operate within an environmentally sensitive area of state significance are categorized as state significant development according to the provisions of EP&A Act.

In order to initiate coal mining operation within NSW the organizations have to go through the strict mining procedure set in NSW which demands a number of specific authorizations. The impact of the coal mine on the environment is regulated by statutory approvals under Protection of the Environment operations Act 1997, approvals under EP&A Act and the Mining leases. The approval framework and development assessment for mining activities and explorations are established by the EP&A Act.  The EP&A Act also require the promoter of the mine to prepare an Environmental Impact Statement as a part of the approval process. The EIS is a comprehensive document which includes issues like noise air quality, flora and fauna, transport, ground and water management, landscape management, mining methods, rehabilitation and surface management.

The Environment Protection and Biodiversity Conservation Act 1999 has been enacted to protect the environment and biodiversity of Australia along with its culturally and naturally significant places. The legislation establishes a variety of processes while support the promotion and protection of threatened species, significant places and ecological communities. The Environment Protection and Biodiversity Conservation Regulations have been established by the Act which requires various permits to carry out activities on land affecting the commonwealth and the commonwealth land itself. Establishment of coal mines and green house gas emission are one of the major areas over which the legislation exercises its control. A failure to comply with the provisions of the Act leads to court injunctions, remediation of damages along with with both criminal and civil penalties. The Act is administrated by the Australian Department of the Environment. In order to establish a coal mine an approval and environmental assessment under the legislation is mandatory. Coal mines in Australia account to 25% of the total green house emission in the country and thus the Act requires strict compliance with its provisions when it comes to the mining industry.

Environmental Planning and Assessment Act 1979 (NSW)

The Environmental Planning and Assessment Act 1979 is another major legislation which the proponents of a coal mine must comply with in order to initiate operation.  Section 111 of the Act provides the need to consider the environmental impact of the mining activity towards the environment. The environmental assessment must be done by a determining authority who may be a minister or a public body entrusted with the job.

The Environmental Sustainability Unit (ESU) is placed uniquely into the department in order to provide support with respect to environmental management in mining and exploration. The ESU strives to promote regulations and compliance with Mining Regulations 2016 and Mining Act 1992. The ESU involves the review of EIA for the proposed mining and exploration activities, promoting compliance through audits, regular reporting and site inspections, supervising mining closures and regulating rehabilitation, investigating incidents and complaints, taking action against non compliance and reviewing environmental performance before granting authorization.

Compliance with safety regulations are also a necessity for carrying out mining operations in Australia.  The NSW government prioritizes to improve the safety for workers within mines. The government has enacted the NSW Work Health and Safety (Mines and Petroleum Sites) Act 2013 and Work Health and Safety (Mines) Regulation 2014 which governs the safety regulations for employers with respect to mining operations.  The legislation and regulation provide guidelines in relation to health and safety reporting, principle hazard management, statutory functions, appointment of mine operator and risk management. The legislation requires the employment of a ventilation officer, quarry manger, mechanical engineer, mining engineering manager, electric engineering manager, mechanical engineering manager and an electric manager in order to ensure the safety of workers with respect to mining operations.

The construction of a mine is also subjected to the provisions of the Explosives Regulations 2013 and the Explosives act 2003.  The legislation intends to enhance public security and safety of explosives and exercises control over unauthorized access. Thus in order to use explosive for the mining operations a Blasting Explosive Users License has to be obtained.

Mining activities are also subjected to rehabilitation provisions in NSW. It is the duty of the mine owner to ensure that the land which has been disturbed due to the mining activities is restored to a sustainable position after the mining activity has been completed. The Mining Act 1992 provides several powers in relation to regulation of rehabilitation. The legislation imposes rehabilitation condition and environmental management on mining titles, provide for rehabilitation security bonds for all exploration and mining titles and clear enforcement powers to ensure compliance with rehabilitation obligations.

In order to successfully operate a coal mine without facing any legal implications Kennedy Coal Pty Ltd has to comply with all provisions in relation to environment management, Environment Impact Statement, health and safety regulations and finally regulations in relation to rehabilitation of land to be used by them for the purpose of mining.

Green house emissions have a significant adverse effect on the environment. In addition coals mine contribute to almost 17% of the total green house emission of Australia. Cole mine specially which are open cut produce a large amount of Methane which directly result in the increasing of carbon dioxide level in the atmosphere leading to environment degradation and global warming. Therefore the environmental protection legislations step in when it comes to carbon emission by the mining industry. The EP&A Act includes a environment assessment statement which analyzes the risk which the proposed project has on the environment. While making the assessment the determining body will therefore analyze the amount of green house gases emitted by the project along with the other factors which could pose a risk to the environment and the living organism residing around the project. The company would have to prove to the determining body that the green house gas emission from its operations would be within the limit prescribed by the EIS. The company would also need to pay tax on the amount of green house gases emitted by it. While determining that the company would be eligible for starting the project or not the determining authority would consider the health and safety of the nearby communities along with the resources available to the company with respect to tackling the green house gas emission. The determining authority would not only consider present impact of the green house emission before granting a mining license but also the future complications which might arise out of the emissions with respect to environmental safety. The determining authority would not only analyze the adverse effect of the green house emission by the mine but also the benefits the mine would brining to the economy of the mining industry and the country overall.

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

The Anvil Hill Coal Mine case is one of the landmark cases in the history of coal mining industry in New South Wales. The case is related to the effect of Green house gas emission by the coal mine. The mine had been approved by the planning minister who provided that there would be no harmful effects of the mine on the environment but not going forwards with the project would ensure that the economy of NSW suffers an adverse effect. The coal mine was supported by many land owners and the environmental assessment found that the species which were supposed to be effected by the project were found in abundance. However the Land and Environment Court of New South Wales found that the government in this case had failed to make proper assessment in relation to the green house emission from the coal mine and its effect on the environment in the future. The case is also known as Greenpeace which initiated the era of strict mining and environmental regulations in Australia.

Carmichael coal mine case in the federal court is also one of the landmark cases in Australia in relation to a coal mine and green house emission. The case was brought under the federal court of Australia through Administrative Decisions (Judicial Review) Act 1977 to review the decision made by the minister of environment in relation to the approval of the mine under Environment Protection and Biodiversity Conservation Act 1999. In the first appeal in relation to the case the mine was set aside but it was reapproved by the minister under the provisions of EPBC Act.  The mine was challenged in a second appeal made by the Australian Convention Foundation who claimed that the minister did not consider the impact of the mine on the Great Barrier Reef. In the case the court rejected the claim of the plaintiff and held that the mine was approved properly. However going against the general rule that the losing party is liable to pay 100% of the cost incurred by the other party to the suit the court only approved 70% to be paid to Minster and 40% to the mine owner.

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) has been enacted to ensure that no harm is caused to the environment because of manmade projects. The legislation also aims to promote sustainable development through the sustained use of natural resources. The legislation requires approval in relation to the impact of any project on World heritage sites, national heritage sites, wetlands, threatened communities and species, migratory species, marine environment, water resources and other matters of environmental significance. Section 24D of the legislation provides that the common wealth is not allowed to take any action if the action includes a coal mine development and such development has, will have or is likely to have a significant impact on water resources. Thus the coal mine can be challenged as it is  likely to have an impact on the water resources of the place.

Safety Regulations for Coal Mining

The Environmental Planning and Assessment Act 1979 (NSW) section 79 (5) allows a person to make objections with respect to a development application and to acquire consent to carry out such development. According to Section 76A of the Act developments which may have a significant impact on the environment as provided by the Environmental Planning Instrument require permission from the consent authorities. The consent authorities will only give consent if they are satisfied that the environmental impact of the project would not cause degradation to the environment. In case the authorities do not company with the provisions of the legislations, their actions can be challenged in the NSW tribunal and could be taken further to the court of appeal as discussed in few cases below. All determinations made by the consent authority must be notified to the council in case the authority is not a council. Any person may under Section 79(5) of the EP&A Act make a written submission to the authorities if they have any objection regarding the development and such application must set out the reasons for the objection. In order to make a decision the consent authorities must in relation to Section 79 of the legislation analyze the likely impacts of the project on both natural and manmade environment, the public interest, sustainability of the project and its site and any objection made in relation to the projects. As development of a coal mine is an integrated development project under Section 91 of the legislation as provided in Section 62 and 63 of the Mining Act 1992 the consent authorities may refuse development application for the project under section 92 of the EP&A Act. According to Section 111 of the legislation the determining authority has the duty to take into account all matters which may arise out of the project and have a significant impact on the environment in order to fulfill the purpose of this Act. The determining authorities must consider the provisions of other legislations like  National Parks and Wildlife Act 1974 , Threatened Species Conservation Act 1995 and Threatened Species Conservation Act 1995.

A few cases which provide grounds for challenging the approval of a coal mine are discusses through the following cases.

In the case of People for the Plains v Santos and Others the plaintiff claimed for an injunction to prevent the defendant from establishing a coal mine without taking an appropriate assessment with respect to planning and environment. The claim was made in the NSW Land and Environment Court. The proposed place for the mine was located near Pilliga State Forest in North-West NSW. It had been determined by the court in this case that the approval provided to the defendant was valid. The decision had been appealed by the plaintiff in the NSW court of appeal but the appeal was dismissed and the original decision was with held.

In the case of Quipolly Water Action Group Inc v NSW Department of Industry the plaintiff were successful in gaining an access to documents regarding ground water regulations with respect to Werris Creek Cola mine. The mine was owned by Whitehaven Coal and is located in the Liverpool plains in north western part of NSW. The document was requested by the plaintiff from the NSW department of Industry but the department refused to grant the document stating that it was commercial.

Explosives Regulations and Rehabilitation Provisions

The refusal was challenged before the NSW information commissioner which held that the refusal has not been justified. However as the decision of the commissioner was not binding on the department they further refused to grant the document. The matter was further taken up the the plaintiff in the NSW Civil and Administrative Tribunal and argument was provided by the plaintiff that the document was not commercial and the release of the document is subjected to public interest as ground water is a significant recourses and the public should know the impact of coal mine operations on ground water. The claim was granted by the tribunal and the decision had effects on third parties rights to appeal. Thus the mining companies not only have to meet their obligations in relation to documentation but also in relation to ground water protection.

 In the case of Upper Mooki Landcare Inc v Shenhua Watermark Coal Pty Ltd and NSW Minister for Planning the plaintiff had appealed against the approval of a coal mine in one of the most productive farming areas. The application was dismissed by the NSW Land and Environment Court which ruled that the mine had gained a valid approval.  The decision meant that the mining process could continue with respect to the condition imposed by the approval. The mine would destroy almost 847 hectares of land which is inhabited by Koala.  The decision was appealed in the court of appeal NSW on the basis that the initial court had failed to find the impact of the mine on the Koala habitat according to the guidelines of Threatened species and Environmental Planning Assessment Act 1979.

The court with respect to the appeal discussed the statutory framework governing significant development processes like the coal mine. According to section 89D(1) consent in relation to significant development processes are provided by the minister. In this case the power has been delegated by the mister to the PAC under section 23(1) of the Act. The application have applied to the minister under section 78A(1) of the Act. The minister had made an approval of the application in relation to clause 50(1) (b) of the EPA. According to Part 1 of the first schedule of the EPA regulations the application made for the mining process must include an indication in relation to the effect of the development program on population, ecological communities, and threatened species.

Generally when the project can have an adverse effect on the environment approval is not granted unless the minister governing the Threatened Species Conservation Act 1995 is not consulted by the minister in the consent authority. The applicants in this case had made three submissions relating to the approval provided to the mine which are the failure to assess impact of the development on Koalas, misdirection and failure to take into account two ESD principles. After analyzing the submission of the defendant and the minister the court came to a conclusion that there was no failure to consider the impact of the mine on koalas, there was no misdirection and the defendants did not fail to consider the two ESD principles. 

Anvil Hill Project Watch Association Inv v Minister For The Environment and Water Resources and Centennial Hunter Pty Ltd [2007] FCA 1480

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Plains v Santos and Others, Court Of Appeal 2017

Quipolly Water Action Group Inc v NSW Department of Industry 2015

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Upper Mooki Landcare Inc. v Shenhua Watermark Coal Pty Ltd and Minister for Planning[2016] NSWLEC 6

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