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Things to keep in mind: Recent NSW planning decisions and what those principles say about everyday development

Two recent cases regarding planning permission for NSW Coal Mines have resulted in a 1-1 draw for miners. Approval for a proposed mine extension has been reversed by the Court of Appeal, while a fortnight earlier the Land and Environment Court found that the consent for an open cut coal mine in the upper Hunter Valley had not lapsed as argued by local environment groups. For those not involved in the resource industry, both these cases still raise important issues to consider in everyday development regarding how impacts are considered and the consequences of lapsing of consent.

Springvale decision

The matter of 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191 involved an appeal regarding consent to an extension of a mine. Clause 10 of the State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 requires a consent authority not to grant development consent unless it is satisfied that the proposed development would have a “neutral or beneficial effect on water quality” where the development is situated on land in the Sydney drinking water catchment.  The NSW Planning Assessment Commission (PAC) approved the extension and such consent was appealed by 4nature on the basis of Clause 10 of the SEPP. This appeal was rejected by the Land and Environment Court, however the Court of Appeal reversed the decision and allowed the appeal.

The Court of Appeal took issue at how the PAC had compared the water quality in two scenarios: one where the development is carried out and one where it is not. The baseline water quality considered in this comparison took into account discharge by the existing coal mine at Springvale, however that mine was to cease operations in September 2015. The comparison had not taken temporal considerations such as the termination of the existing use and as such the Court held that the PAC undertook an erroneous comparison in its decision making required under the SEPP.

Hunter Valley decision

Two weeks before the decision in 4Nature, Pain J of the Land and Environment Court dismissed the appeal in Upper Hunter Sustainable Industries Association Inc v MACH Energy Australia Pty Ltd (No 2) [2017] NSWLEC 87. Development consent for the mine in question had been granted in December 1999 and the consent would lapse after 5 years unless building, engineering or construction work relating to the development was physically commenced on land to which the consent applies. This lapsing is based upon an older version of the Environmental Planning and Assessment Act 1979 (EPA Act), although the relevant wording is similar to the current amended EPA Act.

The Association argued that MACH was required to comply with certain conditions of the relevant Environmental Impact Statement (EIS) prior to beginning construction work on an environmental dam and as such was unlawful and could not prevent the lapsing of consent. It was further submitted that the dam did not accord with the EIS and as such could also not be considered “construction” that would prevent lapsing of consent. Pain J applied the requirements under Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124, namely:

  1. Was the work relied on building, engineering or construction work?
  2. Did it relate to the approved development?
  3. Was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

Pain J found that preparatory work such as surveying and geotechnical work would be considered “engineering” (as had been done so previously) and provided such preparatory work is not of itself unlawful there is no reason it cannot prevent the lapsing of consent. No basis could be found arguing that surveying and geotechnical work does not relate to the approved development or was physically commenced on the land.

The construction of the damn was also found to have met the requirements under Hunter Brokerage, noting that the “EIS is not to be construed strictly as if a legal instrument”. As such, the consent was found not to have lapsed.

What to consider outside of the mines

While both decisions have significant political, economic and environmental ramifications, neither bring in any considerable change to the NSW planning law situation. What they do raise, however, are important considerations to keep in mind regardless of the extent of development that is planned.

An assessment of development will invariably require a consideration of its impacts.  Decision makers will have to consider the future environment and planning context as can be reasonably anticipated. Such as in the Springvale decision, where it is known that a significant land use will change in the future this should become part of the consent authority’s decision making. It is important to consider how the temporal aspect of the environment will come in to play when your development is being considered.

Where there is risk of lapsing of development consent, it may be critical to ensure work is commenced to an extent that will prevent the lapsing of that consent. This work must be more than “merely notional or equivocal”. Certain early stage preparations (such as surveying or geotechnical work) may prevent lapsing provided they meet the requirements under Hunter Brokerage. Regardless of the scale of your development, you should remain well abreast on all your required consents and at what date they may lapse to ensure you commence work (and retain evidence of that work) prior to it lapsing.

Update: On 11 October 2017 a bill updating the SEPP in the Springvale Mine case was passed by NSW public. The SEPP explicitly states that consent for the Springvale Mine extension is validated. The SEPP further allows consideration in light of continuing development (such as was the case with Springvale) so that the comparison can be made as if any land use that was to expire will instead continue.

Alex Collie, Lawyer

Paul Carroll, Partner

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