Gloucester Resources Limited v Minister for Planning and Environment

Land and Environment Court (NSW)|2018-04-20

Judgment

By notice of motion dated 4 April, 2018 Goundswell Gloucester Inc., (the Intervener) seeks leave to be joined as a party to the Class 1 proceedings brought by Gloucester Resources Limited (GRL) against the Minister for Planning 's refusal of the development of a greenfield site for an open cut coal mine about 5km south of Gloucester (the Project).
The motion is supported by the affidavits of Elaine Johnson affirmed on 4 April, 2018 and 19 April, 2018. Ms Johnson is the Principal Solicitor of the EDO NSW and represents the Intervener. She states in her affidavit that the Intervener is a non - profit community organisation concerned with the economic, social and environmental future of the Stroud Gloucester Valley. The community organisation has 212 members and a website. It is a registered incorporated association and an objector to this state significant development.
The application for joinder as a party is made on two bases. The first is pursuant to s 8.15 (2) of the Environmental Planning and Assessment Act 1979 (the EPA Act), which is in the same terms as the now repealed s39A of the Land and Environment Court Act 1979 (the Court Act). Alternatively, the Intervener seeks an order that it be heard at the hearing pursuant to either the former s97A or s8.12 (3) of the EPA Act. As a last resort, if it is denied opportunity to be a respondent to the proceeding, it asks the Court to permit the group take part in the proceedings and provide "meaningful assistance" to the Court pursuant to s38 (2) of the Court Act 1979, or as is more commonly known as a "Double Bay Marina" order.

Ruling on Joinder

An issue is raised by GRL as to whether the application to be heard made pursuit to s8.12 (3) is in time. Fortunately, I do not need to determine this issue because I am satisfied that the Intervener should be joined as a respondent to the proceedings pursuant to s8.15 (2) of the EPA Act. The reasons for my decision follow.

Section 8.15 (2)

Section 8.15 (2) the EPA Act provides: (2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion: (a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or (b) that: (i) it is in the interests of justice, or (ii) it is in the public interest, that the person be joined as a party to the appeal.
The section gives the Court power to join a person to proceedings in certain circumstances. The first is if the person is able to raise an issue that should be considered in relation to the appeal which would not likely be sufficiently addressed if the person were not joined as a party (s8.15 (2) (a)).The second is if it is in the interests of justice or it is in the public interest that the person be joined as a party to the appeal (s8.15 (2) (b)).

Section 8.15 (2) (a) - two new issues

The Intervener would like to raise two issues in the proceedings that it submits will not be sufficiently addressed unless it is joined as a party namely; 1. unacceptable social impacts on the residents and community of Gloucester; and 2. the impact of the development on greenhouse gases including; 1. A quantitative assessment of potential Scope 1, 2 and 3 greenhouse gas emissions; 2. A qualitative assessment of the potential impacts of these emissions on the environment; and 3. An assessment of reasonable and feasible measures to minimise greenhouse gas emissions and ensure energy efficiency.
The Intervener seeks to present to the Court that a key requirement of the public interest and the principles of ESD, including inter-generational equity and the precautionary principle, is to ensure that, in order for the development approvals to be granted, a decision maker must be satisfied that the project, in combination with other proposed developments around the world, will not infringe the commitments made in the Paris Agreement. The climate change case which the Intervener intends to make is detailed in the particulars found in Annexure A at pp40A-40C in the affidavit of Elaine Johnson dated 4 April 2018. It is also summarised at paragraph [39] of the Applicants' written submissions (AWS) prepared by Mr Robert White of Counsel, who represents the Intervener on the hearing of the Motion.
In order to ensure that the two identified issues are "sufficiently addressed" the Intervener intends to adduce expert evidence on the climate change issue from Mr Sefton, a climate change specialist; and Mr Buckley, who is an expert in market measures to minimise greenhouse gas emissions. The Intervener intends to call expert evidence from an anthropologist with relevant expertise in respect of the social impact issues.
The Intervener submits, as stated by Preston CJ in Morrison Design v North Sydney (2007) 159 LGERA 361; [2007] NSWLEC 802 at [59] that "one of the purposes of s39A, particularly reflected in paragraph (a), is to allow the joinder of a person as a party to enable issues to be sufficiently addressed and hence to inform the Court so that is can give proper consideration to the issues".
While the Department recommended to the Planning and Assessment Commission (PAC) that the Project should be refused on a number of grounds (including that the Project would have unacceptable social impacts), the PAC's reasons for refusal did not include this ground. Furthermore, the Intervener submits that the Minister does not raise a specific social impact contention in the statement of facts and contentions (SOFC). Therefore, the issue of social impact as framed by the Intervener - including concepts of "wellness" and adverse impacts on the residents' sense of community - will only be "sufficiently addressed" by additional expert evidence if the joinder is ordered.
Ultimately, the Intervener submits that the two issues it would like to raise are key issues which have been specifically identified by the Director General's requirements as issued under the previous s78A (8A) of the Act. As such, they ought to be sufficiently addressed and without the Intervener being joined as a party this will not occur. The promotion of the social welfare of the community and the facilitation of social considerations in decision making about environmental planning are relevant objects of the EPA Act: s1.3. The Court must in determining an application, consider the public interest and ecologically sustainable development (ESD) when considering the Project and the modification of the Stratford mine: Barrington Gloucester -Stroud Preservation Alliance v Minister for Planning and Infrastructure (2012) 194 LGERA 113; [2012] NSWLEC 197 at 170. The effect of the Project on global greenhouse gas emissions is thus a mandatory consideration to be taken into account by the Court.

Section 8.15 (2) (b) (i) and (ii)

In the event that the Court is not satisfied about the requirements of subsection (2) (a), the Intervener submits that the joinder should be permitted in the interests of justice or as a matter of public interest.
The parties are not calling any expert evidence from an anthropologist to address the social impacts of the Project on the residents and the community. According to GRL, this issue is already sufficiently addressed by the documentary evidence before the Court, which includes expert assessment and a social impact statement, albeit not from an anthropologist. The Intervener submits that this new anthropological evidence is both relevant and necessary in order to "sufficiently address" social impact; and thereby justifies Groundswell Gloucester's joinder to the appeal.
There is no dispute between the parties that the development has generated significant public interest. There have been over 2,308 public submissions made in respect of the Project. Therefore, Groundswell Gloucester submits that its joinder to the proceeding is clearly in the interests of justice and additionally since it is in the public interest it should be joined as a party to the appeal. This will allow the community more generally the right to be heard; to call expert evidence; cross examine witnesses; and make submissions at the hearing of the appeals. Joinder on the facts in this case furthers the objects of the EPA Act in s1.3 in particular: 1. to promote the social and economic welfare of the community and a better environment by the proper management of, development and conservation of the State's natural and other resources, 2. to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, 3. to promote the orderly and economic use and development of land,…. 4. to provide increased opportunity to community participation in environmental planning and assessment.

Delay

In the event of joinder, the Intervener submits that it will not disrupt the existing timetable for the filing of evidence and joint reporting. Nor will its joinder frustrate or extend the allocated hearing dates. There is in excess of 12 weeks until the hearing and Groundswell Gloucester can have its expert evidence filed within 6 weeks. In the interests of justice and for the reasons articulated Groundswell Gloucester should be joined on both limbs of s8.15 (2) (a) and (b).

GRL's position

The written submission prepared by Mr Clifford Ireland of Counsel (RWS) dated 19 April 2018 comprehensively summarises GRL's submissions in opposing the joinder application on both limbs of s8.15. In that regard, GRL relies on the affidavit of the partner with the carriage of the proceedings, Patrick Holland, sworn on 18 April, 2018.
First, it submits that the issues sought to be raised in respect of social impact as particularised by the Intervener in Ms Johnson's affidavit are already adequately raised in the proceedings. With respect to the "climate change" issue, it submits that this is really a complaint about global geo-political relations, the resolution of which this merits appeal is a most singularly inappropriate vehicle.
As far as the complaints of the Intervener relate to the implementation of the Paris Agreement, it is said that all parties to the Paris Agreement have a shared responsibility to exercise efforts to stay within the carbon budget, and that, consequently "some or all of the existing mines will need to be curtailed prior to their completion" (page 5, affidavit of Ms Elaine Johnson sworn 13 April 2018). Furthermore it is asserted that in order for the signatories, including Australia, to meet the principal aim of the Paris Agreement, to limit the rise in global temperatures to below 2°C above preindustrial levels, "no new coal mines can be developed at the current time" (page 4, second Johnson affidavit).
While it is acknowledged in the particulars at page 6 of the second Johnson affidavit that "[t]here are currently no state, Australian or international marketing policy frameworks to prevent or prioritise the combustion of coal in a manner that will ensure global temperature will not exceed 2°C above preindustrial levels" (Particular T), the Intervener asserts that all parties to the Paris Agreement, including Australia, must in order to achieve the goal of the Paris agreement consistent with the science-based carbon budget, not approve of any new coal mines unless or until adequate measures are in place to ensure that consequent greenhouse gas emissions will not exceed the target set by the Paris Agreement (Particular U).
In dealing with s 8.15 of the EPA & A Act GRL emphasises that the Court's discretion to order a joinder should be exercised only if it forms the view that the person seeking joinder is able to raise an issue that should be considered in relation to the appeal but would not likely be sufficiently addressed if that the person is not joined as a party or that it is in the interests of justice or the public interest that the person be joined as a party. GRL invites me to consider the Court's reasoning in the decisions of Bongiorno Hawkins Frassetto & Associates Pty v Griffith City Council [2007] NSWLEC NSW LEC 205 at [6] referring to Lloyd J in Pro Vision Developments Pty Ltd v Ku ring gai Municipal Council (2003) 131 LGERA 108; [2003] NSWLEC 226 ('Pro Vision') and Morrison Design v North Sydney (2007) 159 LG RA 361; [2007] NSWLEC 982 at [43].
GRL submits quite properly that the question posed by s8.15 (2) (a) is governed by the words. Preston J stated this at [43] in Morrison. Once either the opinion in s 8.15 to (a) or (b) is formed, the Court then has a discretion to exercise, and issues such as delay, the likely strength of the issue sought to be raised and any other potential prejudice is relevant.
GRL submits that the Minister's SOFC already adequately raises the matters particularised in the Intervener's proposed social impact and climate change issues. Moreover, it contends that it is difficult to understand on the evidence the relevance of expert evidence from an anthropologist in the face of the social impact and other evidence already filed with the application. With respect to the climate change issue as particularised by the Intervener, GRL submits that if allowed, the effect will be that the Court will be asked to consider matters of global (and national) environmental management, policy and regulation - matters that are beyond the scope of the EPA Act and beyond the jurisdiction of the Court. For this reason, GRL submits that the climate change issue as framed by the Intervener is a "hopeless issue". In making this submission, it relies on the Court's reasoning in Hunter Environment Lobby V Minister for Planning [2011] NSWLEC per Pain J at [65]. In that case, it is submitted that the Court rejected the imposition of conditions requiring a coal mine to purchase Australian Carbon Credit Units to offset Scope 1 emissions from the Project because the mine's emissions contributed to a global problem that was regulated by a national scheme administered by the Australian Government (under the Clean Energy Act 2011 (Cth) and Carbon Credits (Carbon Farming Initiative ) Act 2011; Hunter Environmental Lobby V Minister for Planning (No 2) [2012] NSWLEC 40 at [2] and [15].
The contention sought to be raised by Groundswell Gloucester is one that is in terms a suggestion that approval of any new coal mine in New South Wales or elsewhere, contradicts both the Paris Agreement and the national policies developed by the Australian Government in relation to the management of climate change. GRL submits that the Paris Agreement does not contain any such rule that no new coal mines should be approved in the signatory states. Furthermore, the asserted new international norm would be an absurdity and inconsistent with the Paris Agreement itself, as it is self-evident that if the amount of additional GHG produced by a new coal mine is offset by reductions in emissions from other sources for example, the closure or equivalent of a larger mine elsewhere; carbon sinks such as forest growth or the like; or, carbon sequestration, then a single new coal mine would not add to the overall level of GHG's in the atmosphere. Hence, it is argued, that the "No new coal mines anywhere" rule would not serve any purpose.
Moreover Article 2, it is submitted, recognises that the goals of the Paris Agreement are to be achieved only in the context of sustainable development, a principle starkly at odds with the no new development contention put forward by the Intervener. Sustainable development in the future will rely on the development of renewable energy sources. Many of the renewable energy sources contain components which are manufactured from steel. Approximately 95% of the metallurgical coal produced from the Project will be used for steel production. Therefore, the coal produced from this Project will be used to produce steel products, which in turn, may be used as part of infrastructure that has the potential to assist in achieving the goals of the Paris Agreement.
For these reasons the new climate change issue is misconceived; and would represent a time-consuming but unhelpful addition to these proceedings. In short, GRL submits that this Class 1 proceeding is not a proper forum for this complex geo political question. As observed by Lloyd J in Pro Vision at [4] GRL submits that the satisfaction of s8.15 factors is not sufficient to justify a joinder, there would be little point in joining Groundswell Gloucester where the questions it seeks to raise had little or no prospect of success.
In the ultimate, GRL submits that the Intervener is asking the Court to make new policy and promulgate a new legal standard: "No new coal mines"; and thereby, seeks to have the Court do what it is well accepted as an inappropriate task for a Court in the Australian system of justice: State Government Insurance Agency v Trigwell (1979) 142 CLR 617; [1979] HCA 40 at 633 per Mason J. The Court must conclude that there is no basis pursuant to s8.15 (2) (a) to allow joinder for a debate on this matter as framed by the Intervener. The Court's role does not extend to developing new international norms. This case cannot bring a halt to the development of coal mines elsewhere in the world; and, without that being the case, it would be quite unfair to allow Groundswell Gloucester to assert that this coal mine should not be approved.

Delay

In this case GRL submits that given the delay in the promptness of this application for joinder and the likely disruption to the current timetable the Court would form the view that the joinder is too late. The proceedings already have hearing dates in August for 3 weeks. The climate change issue in particular would almost certainly disrupt that timetable. The application is not "prompt" as the proceedings were commenced last December and the Intervener became aware of the proceedings on or about 2 February, 2018. It is simply the case that despite the various steps that were taken regarding their decision to make the application for joinder as outlined in paragraph [13] to [22] of Ms Johnson's affidavit dated 4 April 2018, these steps were not timely enough.

Consideration

As Preston CJ has observed in Morrison at [50], the objective of the public participation mechanisms in the EPA Act is to improve planning decision making. GRL submits that the raising of the climate issue as proposed in a domestic Court if the Intervener were joined would not serve the purpose of improving this particular planning decision; and, instead, would be a "side show and a distraction". I do not agree.
I have considered the competing positions of the parties as outlined and any associated prejudice to the efficient administration of justice - including the overriding imperative in s56 of the Civil Procedure Act 2005 and the obligation of the Court to eliminate delay as required by s59; and I am persuaded in this case to exercise my discretion to order the joinder of Groundswell Gloucester as a respondent to these proceedings.
I have formed this view because I am satisfied that the criteria in s8.15 (a) and (b) are made out for the reasons submitted by Mr White on behalf of his client and summarised above. If Groundswell Gloucester is not joined, the additional expert evidence from the anthropologist will not be before the Court; and in my opinion it is not likely that the issues raised by the Intervener about social impact (as particularised in Annexure A of Affidavit of Ms Johnson 4 April 2018) will be sufficiently addressed at the hearing. Contention 4 of the SOFC does not in my opinion sufficiently address this issue.
With respect to climate change, Mr White ultimately submitted on instructions, if necessary, that it would confine its climate change contention to the key issues identified by the DG's requirement in respect of the assessment of the impact of the Project on greenhouse gases. In saying this he indicated that this would require the same expert evidence and discussion of the Paris Agreement and other matters as identified. It is not my role in determining the joinder application to assess or weight the evidence which will be adduced at the hearing. I simply must be satisfied that new issues sought to be raised should be considered in relation to the appeal and they would not likely be sufficiently addressed if that person where not joined. That is the case in this instance based on the evidence before me.
Separately, I am also satisfied given the significant public interest in the appeal (as indicated by the volume of submissions in respect of the application) that it is in the interests of justice and the public interest to order joinder. This course, in my opinion, furthers the objects of the EPA Act as it provides an opportunity for community to cross-examine the opponent's witnesses and to make submissions to the Court and bring forward new expert evidence about issues which may impact them.
Once Groundswell Gloucester is joined as a party, they have all the rights of a party. In one sense, this could include raising other issues than those identified to date. However, this would require leave of the Court to advance any further issues and the Court can always decline to allow any issues other than those raised which was the basis of joinder: Avalon Beach Property Pty limited CAN 609856224 as Trustee for the Avalon Beach Property Trust v Northern Beaches Council [2017] NSWLEC 130 at [24] per Preston CJ. For example, as was the case in Manderrah Pty Ltd v Woollahra Municipal Council (No 2) [2013] NSWLEC 115.
GRL seeks a similar restriction in this case. While Mr White has stated, on instructions that his client does not want to raise any other issue in the appeal the Court cannot hold his client to that position into the future. However, as indicated any such application is ultimately in the discretion of the Court.
Accordingly, the Court orders: 1. That Groundswell Gloucester is joined as a party to these proceedings pursuant to s8.15 (2) (a) and (b) of the Environmental Planning and Assessment Act 1979. 2. The hearing dates of 13 August 2018 to 31 August 2018 are confirmed.

Directions

The Court directs: 1. That Groundswell Gloucester file and serve a notice of appearance and a Statement of Facts and Contentions setting out its contentions within 7 days of the date of these orders. 2. Under rules, 31.19 and 31.20 of the Uniform Civil Procedure Rules Groundswell Gloucester is directed to file and serve any evidence it intends to rely upon in in respect of the two issues it raises (social impact and climate change) within 6 weeks of the date of these orders. 3. The respondents are to file and serve any evidence in reply 6 weeks after that. 4. The parties are granted liberty to restore the matter for mention if necessary, on 24 hours' notice. In the event of any material slippage in the timetable the party in default is to exercise the opportunity to restore the matter to the Court to deal with the slippage.

Susan Dixon Senior Commissioner of the Land & Environment Court

Amendments 26 April 2018 - Corrections to typographical errors at [34] and [39] (2). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2018

(2012) 194 LGERA 113

(2007) 159 LGERA 361

(2003) 131 LGERA 108

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