Hunter Environment Lobby Inc v Minister for Planning and Infrastructure

ex tempore Judgment 1Hunter Environment Lobby Inc (the applicant) has appealed to this Court pursuant to s 75L of the Environmental Planning and Assessment Act 1979. Its appeal relates to a project approval granted by the Planning Assessment Commission, as delegate of the Minister, on 4 October 2012. Approval was then granted to the carrying out of what might generally be described as an open cut mining operation on land south of Camberwell Village in the Hunter Valley of New South Wales. 2The applicant for project approval was Ashton Coal Operations Pty Limited (Ashton). Ashton is the second respondent to the present proceedings. By notice of motion dated 25 March 2013, Ashton seeks an order setting aside a subpoena issued at the request of the applicant on 13 March 2013 and addressed to the New South Wales Office of Water (Office of Water). The documents that are the subject of that subpoena have been produced to the Court by the Office of Water without objection and without expressing limitation upon the entitlement of the parties to inspect those documents. 3The subpoena that is the subject of the present notice of motion sought production of the following documents: "(a). The document identified as 'NoW Mines Officer - Meeting Minutes 25th January 2012' at Point (ii) of an internal memo from John Paul Williams to Michael Williams of the New South Wales Office of Water, dated 25 May 2012; (b) Documents (limited to final versions of internal memoranda of the NSW Office of Water) for the period 1 October 2010 - 13 March 2013, which record, evidence or refer to any issues in relation to the operation of the low permeability barrier in respect of the project known as Hunter Valley Operations: North Pit and Alluvial Lands (previously known as "Hunter Valley No. 1")." 4The Minutes to which item (a) nominated in the subpoena relates is a memorandum directed, at least in part, to what is described as a low permeability barrier. Paragraph (b) of the documents sought also relates to a low permeability barrier but in respect of a mine that is not the mine that is the subject of the present appeal. 5In support of its motion, Ashton contends that the subpoena issued by the applicant has not been issued for a legitimate forensic purpose. Its submissions in support of that contention are twofold. First, it submits that the provision of a low permeability barrier, at least the design, construction and operation of such a barrier, is not an issue in the proceedings. Secondly it submits that the documents that are the subject of the subpoena, relating as they do to a different low permeability barrier at another mine, can never be relevant to the consideration of such a barrier at the site that is the subject of these proceedings. 6Before addressing each of these grounds it is necessary to say something about the low permeability barrier. On the limited material that I have before me, a low permeability is proposed for the Ashton mine site in order to address the movement of ground water between the pit site of the proposed mine and a stream known as Glennies Creek which runs adjacent to the site and flows into the Hunter River. The barrier, so it seems, is intended to arrest any drawdown in the water of the Creek which might otherwise have a reduced flow as a consequence of the pit being excavated. The barrier is also intended to prevent the flow of saline ground water from the mine pit to the Creek. Part of the applicant's case is the impact which will be had by the excavation of the pit upon the quality of water in the Creek and the volume of flow that will occur as a consequence. 7In the preparation of the matter for hearing and conformably with the Court's Practice Notes, the applicant has filed a statement of facts and contentions and in response Ashton has filed its statement of facts and contentions. The parties have focused upon those documents for the purpose of addressing the first of the two grounds advanced by Ashton in support of its motion. In summary, Ashton contends that consideration of its application should be confined to the applicant's statement of facts and contentions. The contentions contained in that document do not, in terms, identify as an issue, the adequacy of the proposed low permeability barrier to address the flow of groundwater in the manner earlier outlined by me. 8Reference is made to paragraphs 61 and 62 of the contentions contained in the applicant's document. Paragraph 61, in particular subparagraphs (g) to (k), seek to identify the manner in which the project application fails to address "medium to long term risks to landscape functionality (including water quantity, water quality and land quality)". The contention continues by asserting that the project is therefore contrary to the precautionary principle and intergenerational equity. 9Paragraph 62 of the contentions asserts that the "Project Approval [sic] fails to adequately protect the health of the Hunter River and associated tributaries downstream of the Project site and the communities and environments that depend on that system." As a consequence, it is again contended that the project application is contrary to the precautionary principle, intergenerational equity, the principle of conservation of biological diversity and ecological integrity. A particular of that paragraph is that the" Project conditions" fail to identify appropriate mechanisms for ensuring that the Project will not contribute to background salinity levels in the Hunter River in the medium to long term. 10In an appeal of the present kind the Court does not carry out a review of the decision by the Planning Assessment Commission; rather, the Court determines the application for itself on the basis of the material before it. The conditions imposed when the Planning and Assessment Commission determined to grant Project Approval are nonetheless relevant to be considered, no doubt because they are conditions that will be relied upon as conditions appropriate to regulate the development if the Court is otherwise persuaded to grant project approval. Those conditions to which my attention has been drawn clearly indicate that a mechanism designed to address impacts upon Glennies Creek and, in turn, downstream impacts upon the Hunter River, include the construction and the efficient operation of the low permeability barrier. 11The statement of facts and contentions in reply filed on behalf of Ashton seeks to address the contentions contained in paragraphs 61 and 62 of the applicant's contentions. Without reciting the terms of the reply contentions in their detail, paragraphs 27, 28 and 29 make tolerably clear that, to the extent of any ambiguity in the applicant's contentions, Ashton well understood that the efficient operation of the low permeability barrier was a matter which was in contention. I say this because in several of the sub-paragraphs to paragraphs 27, 28 and 29, reference is made to the low permeability barrier and the fact that it would, when constructed, sufficiently address any concerns about the impact of either inflow or outflow of groundwater from or to Glennies Creek. 12That, so it seems to me, is sufficient to address the first of the two issues that are raised by Ashton. In short, the exchange of statement of facts and contentions between the applicant and Ashton make sufficiently clear that whether or not the low permeability barrier will address the environmental impact of the proposed mine as it relates to the flow of water in Glennies Creek and the potential increase in salination of that Creek are issues that are to be determined in the principal proceedings. 13The second issue is addressed by the evidence that has been put before me in the affidavit of Corrina Novak, sworn on 3 April 2013 and filed on behalf of the applicant. That affidavit annexes documents which indicate two things. First, that the Office of Water had considered the impact of a low permeability barrier, as intended for the subject proposal, and more importantly, had considered the efficiency of such a barrier by reference to the installation and operation of such a barrier at the mine site referred to in paragraph (b) of the documents which the subpoena seeks to have produced. 14Ashton had provided to the Planning Assessment Commission a report from consultants retained by it to address the operation of the low permeability barrier proposed for the Ashton mine. That report is a report prepared by Cardno Geotech Solutions Pty Limited, consulting engineers. In that report, support is drawn for the barrier on the Ashton site from the fact that the low permeability barrier installed at the mine site referred to paragraph (b) of the subpoena operates efficiently. It is suggested that with some alteration to the design used for the latter barrier, the barrier designed for the subject site could be expected to operate with even greater efficiency. In other words, the fact that the barrier at the other site operated efficiently, demonstrated the likelihood that the barrier proposed for the subject site would achieve the purpose intended for it. 15Having regard to that matter it seems to me that the consideration given by the Office of Water to the comparability between the existing barrier and that proposed for the subject site is potentially relevant to an issue in these proceedings. That is, the documents sought may materially assist on an identified issue in the present proceedings. 16The principles that are to be applied in circumstances arising in the present case are discussed by Tobias JA, (Basten JA and Handley AJA agreeing) in ICAP Australia Pty Ltd v BCG Partners Australia Pty Ltd [2009] NSWCA 307. There his Honour accepted the principle stated by the trial judge that: "[I]t must be shown that is likely the documentation will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documentation will." 17Applying that principle I am satisfied that there is a reasonable basis, beyond speculation, for concluding that the documents identified in the subpoena have the potential to provide material assistance to the identified issue, namely the capacity of the proposed low permeability barrier to address groundwater flows to and from the pit site and their impact upon the adjoining Creek and river system. 18For these reasons I propose to dismiss the notice of motion. As I have earlier recorded the documents have been produced to the Court. They are available to be inspected by the applicant, Ashton already having done so. 19The applicant seeks an order that its costs on the notice of motion be paid by Ashton. It correctly acknowledges that the rule that governs costs in proceedings of the present kind is r 3.7 of the Land and Environment Court Rules 2007. Relevantly, subrule (2) requires that the Court not make an order for payment of costs unless it considers the making of an order as to the whole or any part of the costs to be fair and reasonable in the circumstances. It submits that it is fair and reasonable in the present circumstances and although not confining its submission in this regard, points to subrule (3)(a)(ii), paragraph (a)(ii) by contending that the present motion was preliminary to the consideration of the merits of the application. 20I do not accept that submission. Subrule (3)(a)(ii) needs to be understood in the context of the chapeau which is that the proceedings involve, as a central issue, a question of law, question of fact or question of mixed fact and law and that the determination of the question was preliminary to or otherwise not involved in the evaluation of the merits. 21It seems to me that subrule (3)(a)(ii) is not intended, at least directly, to apply to a motion of the present kind, although I do not dismiss that such a motion in some circumstances, if unsuccessful, may lead to an order for costs. Importantly, it seems to me that Ashton's application was not without some merit in that the determination of the issue which founded the successful defence of the motion was one to be divined from a consideration of not only the applicant's statement of facts and contentions but also to be teased out from the notice of facts and contentions in reply. 22As I have earlier said, I think it is tolerably clear, when one considers those documents together, that an issue as to the low permeability was raised. However, the applicant may have been on stronger ground in seeking costs if its notice of contentions had stated, in terms, that the issue was the capacity of the low permeability barrier to control groundwater flow so as to avoid significant environmental impact. 23In the circumstances it seems to me that it is not fair and reasonable that Ashton should pay the applicant's costs of the motion. Each party should pay its own costs. 24The orders that I make therefore are these: