I FACTS

Narrabri Underground Coal Mine is a major coal mining operation situated in the Gunnedah Coalfield and is a wholly owned subsidiary of Whitehaven Coal Limited.[1] Whitehaven Coal Limited made an application for the mine to be extended and on 19 January 2022, this Extension Project was referred to the Independent Planning Commission of NSW (IPC) for determination as the Minister for Planning had requested a public hearing to be carried out.[2]

On 1 April 2022, the IPC determined the development application regarding the Extension Project by granting a development consent subject to conditions under Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) and published a 54-page statement of reasons for the decision. This statement contained the estimated greenhouse gas emissions for the Extension Project. This approval of the extension of the mine allowed its life to be extended from 2031 to 2044 and allows for Australia’s longest and widest underground longwalls.[3]

The Bushfire Survivors for Climate Action Incorporated (BSCA) commenced judicial review proceedings to challenge the grant of development consent by the IPC to Narrabri Coal Operations Pty Ltd for the extension to the Narrabri Underground Mine Extension Project.[4] The basis of the applicant’s claims was that the process of making the decision and the decision itself were legally unreasonable.[5] The grounds for this argument were that the IPC did not adequately address interim findings related to the impacts the project would have on the climate and the consideration of Ecologically Sustainable Development (ESD) and therefore should be considered legally unreasonable.[6]

II PROCEDURAL HISTORY

This case was first heard in the New South Wales Land an Environment Court on 1 July 2022 and a judicial review application was heard from 15 to 17 of February 2023 where judgment was delivered by Duggan J.[7]

III ISSUES

Was the decision to approve the Extension Project of the Narrabri Underground Coal Mine legally unreasonable due to the lack of consideration of the interim findings?

IV DECISION

The claims of the applicant were dismissed.

V THE COURT’S REASONING

1 The Principle of Legal Unreasonableness

To address claims of legal unreasonableness in relation to interim findings, Duggan J first provides an explanation of this principle. Duggan J identified that the High Court has previously addressed legal unreasonableness in Minister for Immigration and Citizenship v Li (2013) wherein it was decided that legal unreasonableness is informed by the scope, purpose and objects of relevant statutes and is “context specific”.[8] Therefore, Duggan J’s findings examine the purpose and objects of the EP&A Act to determine constraints upon power being exercised pursuant s 4.38(1). It was found that the objects of the EP&A Act indicate that the scope and purpose are to regulate and control development through planning assessment and control.[9]

2 Legal Unreasonableness in the Failure to Make Interim Findings

In applying legal unreasonableness to the failure to make interim findings, Duggan J found that there is no express or implied statutory requirement that mandated the IPC to give written reasons identifying all its considerations undertaken in making its decision to approve the Extension Project. Duggan J emphasised that the IPC’s function under the EP&A Act involves a broad evaluative balancing of environmental, economic and social considerations, rather than a rigid, step-by-step fact-finding process and therefore underlining how it was not legally required for the interim findings to be made.

The applicants argued that pursuant to s 4.15(1) of the EP&A Act, the IPC was required to give focal consideration to “the likely impacts of development, including environments, and social and economic impacts in the locality” as well as public interest.[10] In this regard, Duggan J identified that it is consideration of factors that is necessary, not specific findings on each factor.

Furthermore, Duggan J commented on the approach to consideration of a statement of reasons in an administrative decision-making context in IOF Custodian Pty Ltd atf the 105 Miller Street North Sydney Trust v Special Minister of Statewherein it was stated that “where reasons are given, it is appropriate that they be regarded as what they purport to be: a statement of reasons for the decision.[11] With this, Duggan J referred to Advocacy NSW Inc v Minister for the Environment Protection, Heritage and Arts (2011) and its discussion on the Administrative Decisions (Judicial Review) Act 1977 (Cth), the statutory provision that sets out necessary matters to be considered in a statement of reasons.[12] With evidence from the referenced cases and legislation, Duggan J identified that the administrative decision-maker is not required to pass comment on all material which their attention has been drawn. Therefore, it was identified that there is no evidence of a statutory basis on which it can be found that the IPC has a statutory requirement to give detailed reasons for approving the Extension Project, meaning the decision made by the IPC did not amount to legal unreasonableness.

In the decision of the Narrabri Coal case, Duggan J held that the decision fell within the range of lawful outcomes open to the IPC and was not required to make interim findings as claimed by the applicants and was therefore not legally unreasonable.

VI TAKEAWAYS

The decision of Bushfire Survivors for Climate Action Incorporated v Narrabri Coal Operations Pty Ltd highlights the widening gap between planning decisions and community expectations.[13] In discussion of judicial review and interim decisions, it highlights that ESD is only a mandated  consideration and does not impose a legally binding obligation when making decisions that affect the environment.[14] This in turn highlights the stance taken by the IPC wherein it was considered that the economic contribution of the project outweighed environmental costs.[15] On a contrasting note, supporters of the Expansion Project argued it would improve job security for the Narrabri region emphasising how this economic contribution is important to some individuals.[16] As a result, this case illustrates how broad administrative discretion can limit the practical influence of ESD principles in environmentally significant decisions.

VII FOOTNOTES

[1] Bushfire Survivors for Climate Action Incorporated v Narrabri Coal Operations Pty Ltd [2023] NSWLEC 69 (‘BSCA v Narrabri Coal’).

[2] Ibid.

[3]‘Narrabri Court Case’, Bushfire Survivors for Climate Action (Web Page) <Narrabri coal case — Bushfire Survivors for Climate Action>.

[4] ‘BSCA v Narrabri Coal’, n 1.

[5] Peter Williams, The Environmental Law Handbook: Legislation, Case Law and Policy in NSW (Thomas Reuters Australia, 7th ed, 2024) 12.

[6] Ibid 11.

[7] ‘Bushfire Survivors for Climate Action Incorporated v Narrabri Coal Operations Ltd’, The University of Melbourne (Web Page) <Australian and Pacific Climate Change Litigation>.

[8] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66].

[9] Environmental Planning and Assessment Act (‘EP&A Act’) s 1.3.

[10] Ibid s 4.15(1).

[11] IOF Custodian Pty Ltd atf the 105 Miller Street North Sydney Trust v Special Minister of State [2022] NSWLEC 86 at [68], [70] and [74]    

[12] Advocacy NSW Inc v Minister for the Environment Protection, Heritage and Arts (2011) 180 LGERA 99 ; s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[13] ‘Narrabri Court Case’ (n 3).

[14] Williams (n 5) 12.

[15] Ella Vines, ‘Legal Constraints on Australian Coal Mining: The Role of the Paris Agreement’ (2023) 13(3-4) Climate Law 224-236.