KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc

Commission's considerations

1. The first factor addressed by the Commission in part 6.1 of its reasons was described as "[e]xisting, approved and likely preferred uses of land in the vicinity". The requirement to consider these factors appears in cl 12 of the Mining SEPP. There were numerous aspects to the assessment of such land use issues, addressed over 47 paragraphs. Importantly, the Commission had regard to an assessment that the project site and its vicinity were classified as "Biophysical Strategic Agricultural Land (BSAL), which is essentially the best farming land in the region". [7] Numerous other uses were addressed. Clause 12 of the Mining SEPP required that the Commission not merely consider existing and approved uses, together with likely future preferred uses, but also to "evaluate and compare the respective public benefits" of the development and the land uses on which the development would have a significant impact and with which it might be incompatible. These were broad ranging considerations as a result of which the Commission reached the following conclusions: "235. The Commission has considered the public benefits of the Recommended Revised Project and finds them to be 805 direct and indirect jobs, $278 million (net present value) in royalties for the NSW Government and contribution of funding for local infrastructure. The Commission finds the negative impacts of the Recommended Revised Project to be the likelihood that rehabilitated land will not be at the standard of BSAL-equivalent resulting in a permanent loss of BSAL in the Bylong Valley, long-term impacts on groundwater, contribution towards climate change through GHG emissions, impacts on intergenerational equity and adverse heritage impacts and adverse visual impacts on the Bylong Valley landscape. 236. The Commission makes findings about the public benefits of the mine and other land uses in section 6.17.5. For the reasons given in this section, the Commission finds that the public benefits of the Project and the Recommended Revised Project have not been proven to outweigh either the public costs of the proposed mine or the public benefits of the existing, approved and likely preferred uses in the vicinity if those uses were left unaffected by the proposed mine."
2. Section 6.17 in the reasons dealt with the "public interest". In 6.17.5, the Commission identified the economic and social benefits while the mine was operational, based on its findings as to the economic assumptions: par 798. It then turned to the negative impacts which were identified in the following terms: "799. The Commission considers that the negative impacts of the Project include the: • impact on the aesthetic, scenic, heritage and natural landscape significance of the Bylong scenic landscape …; • impacts on the heritage values of Tarwyn Park …; • contribution towards climate change through GHG emissions…; • the likelihood that impacted productive agricultural land will not be rehabilitated to BSAL-equivalent standard post-mining, resulting in the permanent loss of BSAL in the Bylong Valley …; and • long-term impacts on the groundwater …." These, and other findings, were summarised (though not exclusively) in the final paragraph 817 of the reasons. Clearly a complex balancing exercise was required and was undertaken.
3. The second factor identified by the Commission in part 6.2 of its reasons was "[n]atural environment impacts - groundwater". It will be necessary to return one aspect of this assessment in considering a ground of appeal in relation to cl 14 of the Mining SEPP. The assessment of the mine's impact on groundwater resources was the subject of detailed consideration in a number of reports which were provided to the Commission. The Commission considered the material over 60 paragraphs, concluding: "297. The Commission finds that the groundwater impacts on the Project Site are unacceptable for the reasons set out below: • aquifer recharge events are infrequent leading to long term declines in groundwater levels over prolonged dry periods …; • the groundwater system will reach a new equilibrium within 100-150 years …. The Commission is of the view that this will have long term intergenerational consequences; … • there is uncertainty and insufficient information before it as to whether the 'make good' requirements of the Project and Recommended Revised Project are met …; and • the predicted water seepage into the mine at cessation of mining is significant … and the length of time over which the aquifer will recover is beyond the commercial life of the mine and there will be continued groundwater impacts at the cessation of mining …."
4. Consistent with the Commission's view as to loss of BSAL land in considering "land use compatibility-agriculture" in section 6.4, the Commission concluded that the project was not compatible with the land use objectives of the relevant local environment and regional plans: par 376.
5. Again consistently with concerns as to the loss of BSAL land, the Commission drew a negative conclusion in relation to the appellant's rehabilitation strategy: par 407. In part 6.6 dealing with "[b]uilt and natural environment impacts - heritage", the Commission concluded that both the project and the recommended revised project would have negative impacts on the aesthetic, scenic, heritage and natural beauty characteristics of the vicinity and landscape both during operation and post-mine, and that there remained uncertainty regarding the risk of impact on heritage values of "natural sequence farming": par 488.
6. In part 6.14 the Commission addressed "[n]atural environment impacts - climate change". In 6.14.1, the Commission identified the statutory context within which climate change was to be assessed. It noted the requirements of Pt 4.15 of the Environmental Planning and Assessment Act 1977 (NSW) ("the Planning Act"), s 6(2) of the Protection of the Environment Administration Act 1991 (NSW) requiring "the effective integration of social, economic and environmental considerations in decision-making processes", relevant clauses of the local Environmental plan dealing with "sustainable" production, and finally referred to cl 14 of the Mining SEPP to which it will be necessary to return.
7. The Commission concluded that cl 14(2) of the Mining SEPP requiring it to have regard to "any applicable state or national policies, programs or guidelines concerning greenhouse gas emissions" included the NSW Climate Change Policy Framework: par 655. This conclusion was the subject of ground 3 on the appeal.
8. In 6.14.3, the Commission set out the appellant's own assessment of GHG emissions from the project which were, with figures rounded, (i) 2.2 million tonnes of carbon dioxide-equivalent (CO2-e) for Scope 1; (ii) 1.3 million tonnes of CO2-e for Scope 2 and (iii) 203 million tonnes of CO2-e for Scope 3: par 657. It was the Scope 3 emissions which concerned the Commission. The categories of Scope 1, 2 and 3 emissions were identified in the Environmental Impact Statement prepared in September 2015 in the following terms: [8] "Scope 1: • Fuel consumption [diesel] during mining operations and construction. • Release of fugitive CH4 during and post mining. Scope 2: • Indirect emissions associated with purchased electricity brought in to the organisational boundary to supplement the on-site electricity generation. Scope 3: • Indirect emissions associated with the production and transport of fuel. • Emissions from coal transportation. • Emissions from the use of the product coal." Unsurprisingly, some 98% of emissions were within Scope 3. The coal was intended entirely for export to feed electricity generation plants operated by KEPCO in South Korea.
9. Relevant aspects of the Commission's reasoning in respect of climate change will be addressed in considering grounds 1, 2 and 5. The conclusions were as follows: "696. The Commission accepts that the Recommended Revised Project will slightly reduce the GHG emissions compared to the Project …. The Commission notes that the Applicant has committed to develop an Energy and Greenhouse Gas Management Plan which will set out measures to minimise GHG emissions from the Project …. The Commission notes that these measures appear to relate only to Scope 1 and 2 GHG emissions. The Commission is therefore of the view that the Applicant has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable as required under Clause 14(1)(c) of the Mining SEPP. The Commission also notes that there are no offset measures proposed in either the Project or Recommended Revised Project from the Applicant. 697. The Commission accepts that there is no policy guidance on what constitutes an acceptable, unacceptable or substantial amount of GHG emissions. Nonetheless, the Commission concludes that based on the evidence … there will be a contribution to global GHG emissions that needs to be considered by the Commission."
10. In considering the economic aspects of the proposal, the Commission accepted that the project would result in a "net economic benefit to NSW during the operation of the mine": par 779. However, it also concluded that "the distribution of costs and benefits over and beyond the life of the mine is temporally inequitable in that the economic benefits accrue to the current generation and the environmental, agricultural and heritage costs are borne by future generations": par 783. The Commission concluded that "there is a reasonable level of uncertainty in the estimation of the economic benefits of the Project and Recommended Revised Project, and that this is exacerbated by the intergenerational inequity of costs and benefits": par 784.
11. In the part concerned with the public interest, 6.17, the Commission had particular regard to objects (a), (b) and (f) of the Planning Act. These are as follows: 1.3 Objects of Act The objects of this Act are as follows - (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, … (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), ….
12. The Commission concluded that the project and recommended revised project were "inconsistent with the objects (a), (b) and (f) of the [Planning Act] and [are] not in the public interest": par 813. Relevant elements in the summary of the Commission's findings were as follows: "817. The Commission has considered the merits of both the Project and Recommended Revised Project and finds that: • neither the Project nor the Recommended Revised Project are compatible with land use objectives (b) and (c) of the MWR LEP 2012 and the objective of the CW&O Regional Plan (see paragraph 376); • the groundwater impacts would be unacceptable because: aquifer recharge events are infrequent leading to long term declines in groundwater levels over prolonged dry periods; drawdown at the Project Site exceeds the AIP thresholds of 2m; the groundwater system will reach a new equilibrium within 100-150 years; and there is insufficient information before the Commission and, therefore, uncertainty as to whether the 'make good' requirements are met (see paragraph 297); • the Commission does not accept that there is evidence to support the Applicant's claim that the 423.1 ha of BSAL impacted by the Project - nor the 400.43 ha of BSAL impacted by the Recommended Revised Project - can be rehabilitated to BSAL-equivalent (see paragraph 402); • due to the level of disturbance and the fact that the current landscape is undisturbed, the Commission does not consider that a recreated landscape will retain the aesthetic, scenic, heritage and natural values of the current landscape (see paragraph 487); … • the Recommended Revised Project will slightly reduce the GHG emissions compared to the Project. However, the Commission is of the view that the Applicant has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable as required under Clause 14(1)(c) of the Mining SEPP. The Commission also finds that there are no offset measures proposed by the Applicant in either the Project or Recommended Revised Project from the Applicant (see paragraphs 696). • the cumulative environmental impact of the Project and Recommended Revised Project needs to be considered when weighing up the acceptability of GHG emissions associated with the mine. The Commission finds that it is rational to refuse fossil fuel developments with greater environmental, social and economic impacts than fossil fuel developments with lesser environmental, social and economic impacts as this not only achieves the goal of not increasing GHG emissions by source, but also achieves the collateral benefit of preventing those greater environmental, social and economic impacts (see paragraph 692). … • the Project and the Recommended Revised Project would result in a net economic benefit to NSW during the operation of the mine. However, the Commission is of the view that the distribution of costs and benefits over and beyond the life of the mine is temporally inequitable in that the economic benefits accrue to the current generation and the environmental, agricultural and heritage costs are borne by future generations. The Commission also finds that there is a reasonable level of uncertainty in the estimation of the economic benefits of the Project and Recommended Revised Project (see paragraphs 783 and 784); • the Project and the Recommended Revised Project are inconsistent with objects (a), (b) and (f) of EP&A Act (see paragraph 813); and • the Project is not in the public interest because it is contrary to the principles of ESD - namely intergenerational equity because the predicted economic benefits would accrue to the present generation but the long-term environmental, heritage and agricultural costs will be borne by the future generations. (see paragraphs 806)."

Grounds of appeal - Mining SEPP, clause 14(1)

1. Grounds 1, 2 and 4 in the notice of appeal related to the reasoning of the trial judge with respect to the manner in which the Commission addressed cl 14(1) of the Mining SEPP. Ground 3 alleged error in the manner in which the Commission had dealt with cl 14(2). It is convenient to set out the terms of cl 14 in full: 14 Natural resource management and environmental management (1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following - (a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable, (b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable, (c) that greenhouse gas emissions are minimised to the greatest extent practicable. (2) Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions. (3) Without limiting subclause (1), in determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director-General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.
2. Grounds 1, 2 and 4 read as follows: "1 The primary judge erred: (a) to the extent that her Honour held (at [58]-[60], cf [41]) that the [Commission] did not misconstrue cl 14(1)(c) of the [Mining SEPP]; and (b) in holding (at [61]-[64]) that any misconstruction of cl 14(1)(c) by the [Commission] was not material error justifying relief. 2 The primary judge erred: (a) in holding (at [52]-[55], [75]) that the obligation imposed by cl 14(1)(c) of the Mining SEPP arose only once a consent authority had decided to grant consent to a development application; and (b) in holding (at [76]-[86]) that the [Commission] discharged any obligation imposed by cl 14(1)(c) of the Mining SEPP. … 4 The primary judge erred: (a) to the extent that her Honour held (at [148], cf [147]) that the [Commission] did not misconstrue cl 14(1)(a) of the Mining SEPP; (b) in holding (at [147]) that the obligation imposed by cl 14(1)(a) of the Mining SEPP arose only once a consent authority had decided to grant consent to a development application; (c) to the extent that her Honour held (at [148]) that the [Commission] discharged any obligation imposed by cl 14(1)(a) of the Mining SEPP; and (d) in holding (at [149]) that any failure to discharge the duty imposed by cl 14(1)(a) was not material error justifying relief."

(1) structure of clause 14

1. The appellant's case with respect to these three grounds rested upon two propositions. The first was that the power conferred by cl 14(1) related to the imposition of conditions: the Commission misconstrued the clause because it asked whether the appellant had, in terms of par (c), minimised greenhouse gas emissions to the greatest extent practicable, rather than asking whether it [the Commission] could impose a condition which had that effect. The same error was said to have infected its treatment of par (a) in relation to groundwater.
2. The second proposition was that although the primary judge accepted that the Commission had made an error in its construction of cl 14(1), the error was not material because the question of imposing conditions only arose once the Commission had decided to grant consent. That approach, the appellant submitted, contained two errors. On the one hand, it assumed a two-stage process which was not the proper construction of the clause. Secondly, the error was not avoided by that analysis because, even if the Commission did not reach the point of imposing conditions, it had nevertheless assumed that the appellant was obliged to take steps to minimise adverse impacts and had not done so.
3. For the reasons explained below, the appellant was correct to say that there was no two-stage process; however, that conclusion demonstrates that there was no error in the Commission's reasoning process.
4. The primary judge's reasoning turned upon the wording of sub-cl (1) ("[b]efore granting consent") which contrasted with the wording of sub-cll (2) and (3) ("in determining a development application"). The difference suggested that the application of sub-cl (1) must differ from that of sub-cll (2) and (3). [9] Although the judge dismissed a submission that the preferred construction gave rise to "an impermissible two-step process", [10] she held that the orthodox process of considering conditions as part of the overall determination of the application remained, but that the mandatory requirements of cl 14(1) were not engaged. [11] There is an unresolved tension in this conclusion.
5. The appellant's submission that the proper construction of the clause does not involve a two-stage process is to be accepted for several reasons. First, the function being exercised by the consent authority is the singular function of determining whether to grant or refuse consent to a development application. Relevantly for this case, s 4.38(1) of the Planning Act provides as follows: 4.38 Consent for State significant development (cf previous s 89E) (1) The consent authority is to determine a development application in respect of State significant development by - (a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or (b) refusing consent to the application. Note - Section 380AA of the Mining Act 1992 provides that an application in respect of State significant development for the mining of coal can only be determined if it is made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
6. On one view, this provision identifies a binary choice, namely to grant or refuse consent; however, it is better thought of as providing a decision-making process which involves the weighing of conflicting considerations and results in a choice along a spectrum of permissible modifications and conditions. Refusal of consent is one outcome, but the grant of consent is not a singular alternative. So much is clear from the fact that an applicant for consent who is dissatisfied with the conditions imposed may appeal to the court: Planning Act, s 8.7.
7. That s 4.38 and the Mining SEPP, including cl 14(1), provide for a function to be exercised holistically is confirmed by the obligation under s 4.15 for the consent authority to consider such matters as "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality", "any submissions made in accordance with this Act" and "the public interest": s 4.15(1)(b), (d) and (e). These matters will, inevitably, involve a consideration of appropriate conditions.
8. This approach is consistent with authority in this Court. As Leeming JA explained in Bankstown City Council v Zraika; Roads and Maritime Services v Zraika: [12] "[96 It would be quite artificial to regard the exercise of power under s 91(1)(a), on a single occasion recorded in a single instrument, as in fact comprising the separate functions of (i) granting consent to the development application, but at the same time (ii) imposing conditions upon the grant of consent. The power to grant consent subject to conditions is conferred in the one paragraph: paragraph (a) of s 91(1). The two aspects of the power cannot sensibly be separated. Indeed, there is a body of law (commonly associated with Mison v Randwick Municipal Council (1991) 23 NSWLR 734) requiring the consent authority to determine all important aspects of the application. … [98] Both as a matter of form and substance, there is a single decision by a council determining a development application. This was not a case where there was a failure to exercise or to consider exercising the function of determining the development application: the Council did so, favourably, although subject to conditions."
9. The second reason for adopting an holistic approach is that, as noted above, the matter in fact considered by the Commission was identified as "the Project" and the "Recommended Revised Project", which incorporated 36 pages of conditions. Had the Commission been minded to grant consent, there would have been no bifurcated decision-making process. Accordingly, the mandatory obligation in cl 14(1) would, on the primary judge's reasoning, not have been engaged.
10. The third reason is that the language of cl 14 does not permit the differential operation of sub-cll (1), on the one hand, and (2) and (3), on the other hand. So much is implicit in the hierarchical indicator at the commencement of sub-cll (2) and (3) ("[w]ithout limiting subclause (1)"). All three subclauses must have the same temporal operation. What happens "before granting consent" must happen in the process of determining a development application.
11. The subject matter of sub-cll (2) and (3) may be relevant to conditions, but is not restricted to the formulation of conditions. Subclause (1) is directed to a certain kind of condition which may be imposed. It is true that the approval of the precise terms of conditions may not arise unless consent is to be granted, a matter which provides a sematic explanation for the opening words of sub-cl (1).
12. Finally, in respect of textural implications, various phrases are used through the Mining SEPP including "before determining an application" (cll 12 and 12A(2), 13(2)), and "before granting consent" (14(1), 15(1), (2) and 16(1) and 17(1)). The phrase "in determining a development application" is not commonly used, but clearly does not involve a different operation in cl 14(2) and (3) from the operation of other provisions in Part 3 of the Mining SEPP.

(2) misconstruction of cl 14

1. The appellant relied upon two passages in the reasons of the Commission to support its claim that the Commission had misunderstood the obligation imposed by cl 14(1)(c). The first is found in par 696 of the Commission's reasons, set out at [17] above. The statement that the appellant "has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable as required under cl 14(1)(c) of the Mining SEPP" demonstrated, the appellant submitted, that the Commission believed cl 14(1)(c) imposed an obligation on the proponent of a project. In fact, the submission continued, the only obligation was one imposed on the Commission, which was to "consider whether or not the consent should be issued subject to" certain conditions, including a condition to ensure that GHG emissions are minimised to the greatest extent practicable. The second passage relied upon was the summary of par 696 repeated at par 817, being the fifth point set out at [20] above.
2. There is, however, a significant element of artificiality in reading these two sentences in such a way as to demonstrate error. The words "as required under" are at best a paraphrase of the obligation imposed by the chapeau to cl 14(1), whilst the words adopted verbatim appear in par (c). Had they identified the obligation more completely, they would have read "as the Commission is required to consider as a possible condition under".
3. As has been noted more than once, the "Recommended Revised Project", which was the subject of consideration in each paragraph, included detailed conditions, including a limited mechanism for addressing GHG emissions. Thus, to say that "the [appellant] has not minimised" such emissions is not to speak about events in the real world; so far, the appellant has done nothing at all to implement the project. All that those words can mean is that the appellant has not proposed a condition by which it would seek to minimise GHG emissions to the greatest extent practicable. In other words, the Commission is required to consider the imposition of such a condition, but none has been proposed. Thus the words "has not minimised" can only mean "has not proposed a condition which, if implemented, would minimise" GHG emissions.
4. That this was indeed the meaning intended by the Commission is clear from the sentences on either side of that said to reveal error. Thus, in the previous two sentences in par 696, the Commission referred to the appellant having "committed to develop" an energy and greenhouse gas management plan "which will set out measures to minimise GHG emissions from the Project". (The Commission considered those measures inadequate because they only related to Scope 1 and 2 emissions.) The sentence following the sentence relied upon referred to there being "no offset measures proposed in either the Project or the Recommended Revised Project from the applicant." There is no reason to doubt that the Commission was dealing with matters it was expressly obliged to deal with under cl 14(1) (and other provisions dealing with environmentally sustainable development). It was considering whether conditions which would satisfy the criterion identified in cl 14(1)(c) had been identified, but found them absent or wanting.
5. If it were thought that there was some degree of ambiguity in the language used by the Commission, any such doubt should be dismissed, having regard to the statement by the Commission of the mandatory considerations, as set out in part 5.2 of the reasons. There were numerous sources of such considerations identified and addressed. In dealing with the Mining SEPP, the Commission noted first the relevant aims stated in cl 2: par 102. It then referred to mandatory considerations identified in Pt 3 of the Mining SEPP, which includes cl 14. It expressly referred to the obligation in cl 14(2) to consider "an assessment of the greenhouse gas emissions (including downstream emissions) of the development": par 106. It identified its understanding of "downstream emissions" in terms which would embrace Scope 3 emissions: par 107. Significantly, in setting out the mandatory considerations, it did not identify the three matters set out in pars (a)-(c) of cl 14(1).
6. That the Commission correctly understood how cl 14(1) operated may also be seen from the manner from which it dealt with those factors which it considered had been adequately addressed. Thus, in dealing with surface water, it commenced with the statutory context, noting: "298. Part 3 cl 14(a) [sic] of the Mining SEPP requires the consent authority to consider whether impacts on significant water resources, including surface water resources, have been avoided, or are minimised to the greatest extent practicable."
7. The Commission concluded: 323. The Commission notes that there were concerns raised by the public in relation to impacts of the Project and Recommended Revised Project on surface water. However, the Commission agrees with the Department's conclusion … that the mine water could be effectively managed in surface storages and the mined underground workings without the need to discharge to receiving waters. The Commission accepts the Department's conclusions … that surface water impacts were acceptable and manageable through the Department's Final Recommended Conditions." Thus, in considering surface water, where there were conditions deemed to be acceptable, it is clear that the analysis under cl 14(1)(a) was undertaken in the exercise of the mandatory consideration of proposed conditions.
8. The applicant failed to demonstrate that the Commission misconstrued the chapeau to cl 14(1).
9. It may be noted that the submissions put in relation to ground 1 insisted that the Commission misconstrued par (c) in cl 14(1): however, none of paragraphs (a), (b) or (c) imposes any obligation. Rather, the obligation is to be found in the chapeau.

(3) conclusions - grounds 1 and 2

1. To the extent that ground 2 alleged error on the part of the primary judge in concluding that cl 14(1) imposed an obligation which was engaged only when the Commission had decided to grant consent, it should be upheld. However, there was no basis for concluding that the error infected the Commission's reasoning. On the contrary, the Commission did consider whether the project or the recommended revised project contained conditions which addressed the matter identified in cl 14(1)(c). The appellant did not challenge the proposition that the Commission did address that issue. Rather its complaint was that it addressed it in the wrong way by not considering whether it should impose a condition to that effect. That contention must fail because the Commission weighed in the balance against the grant of consent that the appellant had proposed no condition which addressed the critical element, namely minimising the 98% of GHG emissions falling within Scope 3. If there were any lacuna in the express findings of the Commission, it was a finding that such a condition should have been proffered. However, as with the express comment in relation to the lack of offset arrangements, there can be no doubt that the Commission treated the absence of such a condition negatively. It did not say such a condition was necessary, nor was it required to do so. The fact that it did not say such a condition was necessary, but considered its absence, demonstrates that it was indeed considering a condition having that effect.
2. Ground 1 must be rejected.
3. It follows from the fact that the real source of complaint lay with the Commission's understanding of the chapeau to cl 14(1), that ground 4, dealing with the element of groundwater referred to in par (a) of cl 14(1) should also be rejected. However, it is appropriate to explain by reference to the reasons how that issue was addressed.

(4) ground 4 - groundwater resources

1. The Commission commenced its consideration of groundwater resources by including a similar statement as to the statutory context (which was however more complex with respect to groundwater, given that there were standards set by cl 12AB of the Mining SEPP, in addition to those contained in cl 14(1)(a)). However, if as explained above, the paraphrase referring to par (a) demonstrated no error in the way the Commission dealt with surface water, neither did it demonstrate error with respect to its dealing with groundwater.
2. The conclusions reached by the Commission in respect of groundwater have been set out in [11] above. The assessment of groundwater was complicated by the fact that cl 12AB identified development standards which, if complied with, prevented the consent authority from requiring more onerous standards: cl 12AB(1). Requirements with respect to groundwater were set out in an "Aquifer Interference Policy": cl 12AB(7). Where those standards were exceeded, "make good" provisions applied: par 244. The Commission was satisfied that the "drawdown on the aquifer on land owned and operated by the applicant is projected to be greater than 2m which exceeds the maximum drawdown thresholds in the AIP": par 292. The Commission noted that there had been "no information provided by the applicant in relation to proposed 'make good' measures": par 296.
3. Although in the statement at par 292 there was reference to "projected" drawdown, when the Commission returned to that issue in par 296 it stated "that there is a breach of the AIP's maximum drawdown". By stating the matter in the present tense, the Commission did not, of course, imply that anything was happening at the time. That which was occurring in the present was an assessment of a project, subject to conditions.
4. That the appellant's challenge pursuant to grounds 1, 2 and 4 elided this distinction is apparent from the following written submission with respect to ground 4: "76. This misunderstanding of cl 14(1)(a) generated a further error. Clause 14(1)(a) imposes a duty on the consent authority to consider whether to attach conditions of the kind identified. R [237] and [298] … disclose that the IPC misunderstood that duty: the IPC thought that the duty was a duty to consider whether water impacts had been minimised, not a duty to consider whether to attach conditions directed to that purpose. A consequence of that is that the IPC, having found that the groundwater impacts of the Project would be unacceptable (R [297], [817]) …, did not then proceed to consider whether those impacts could be avoided or minimised by the imposition of conditions, and did not consider attaching conditions directed to that end." (Emphasis added.)
5. A duty "to consider whether water impacts had been minimised" could only be a duty to consider whether "the Project" and the "Recommended Revised Project", including the 36 pages of conditions, had that effect. There was no separate obligation to formulate conditions which would have that effect. No doubt if the proponent wished to vary its proposal it could have done so. The appellant's case, however, for present purposes relied upon a distinction, not fully articulated, between a description of how the mining operation would be undertaken and the conditions to which it was subject. If there were such a valid distinction, the basis for it was not explained and it was not consistent with the exercise undertaken (i) by the appellant, in putting forward the environmental impact statement and responding to various criticisms of its proposal, (ii) by the Department in its assessing the proposal together with appropriate conditions, or (iii) by the Commission in adopting the same approach.
6. The appellant demonstrated no error of law affecting the exercise by the Commission of its functions, as presented in ground 4.

(5) ground 3 - applicable policies

1. Ground 3 related to the operation of cl 14(2) of the Mining SEPP. The ground read as follows: 3 The primary judge erred: (a) in holding (at [110]) that cl 14(2) of the Mining SEPP imposed a duty to assess GHG emissions, as distinct from a duty to consider an assessment of GHG emissions; (b) in: (i) failing to hold that the [Commission] had misconstrued the term "applicable" in cl 14(2) by adopting the view that a policy was "applicable" if the policy was one "concerning greenhouse gas emissions"; and (ii) in failing to consider the Appellant's argument that a policy was "applicable" only if it was capable of being applied, fit, suitable or relevant to the task of considering an assessment of greenhouse gas emissions; (c) in holding (at [116]) that the [Commission] was entitled to depart from the conclusions of the Land and Environment Court in Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 as to the proper construction of cl 14(2) and whether the NSW Climate Change Policy Framework was and could be an "applicable" policy within the meaning of cl 14(2); and (d) in holding (at [118]-[119]) that the [Commission's] erroneous construction and application of cl 14(2) was not material error justifying relief.
2. There were two separate propositions within ground 3. The first was a distinction drawn between a duty "to assess GHG emissions" and a duty "to consider an assessment of GHG emissions". The same proposition appears to have been put to the primary judge, noted by her at [110]. Whether the supposed error was pressed is by no means easy to determine. Both in written and in oral submissions the appellant elided the two limbs of ground 3, focusing upon the latter, namely what were "applicable" government policies to which cl 14(2) required the Commission to have regard.
3. There may have been a reason to place little weight on ground 3(a): the substance of the applicant's assessment of climate change impacts of the project, set out in its reasons at 6.14.3, commenced with the statement that "[t]he Applicant assessed the GHG emissions of the Project in its Air Quality and Greenhouse Gas Impact Statement": par 657. Having addressed the applicant's assessment, the Commission turned to the Department's preliminary assessment report and its assessment of GHG emissions associated with the project. Thirdly the Commission turned to the Planning Assessment Commission's review, which was itself a separate assessment of GHG emissions. Following those reports, the applicant updated its own air quality and greenhouse gas assessment in which it "assessed the GHG emissions of the Revised Mine Plan": par 667. The Commission considered that document. Finally, of relevance, the Commission identified and referred to the Department's consideration of climate change impacts of the recommended revised project.
4. Fairly understood, all these documents, especially that provided by the applicant, involved "assessments of GHG emissions". It was those materials to which the Commission properly had regard. Thus, even if there were a valid distinction between assessing assessments of GHG emissions and assessing GHG emissions, the former being mandatory and the latter not, it is clear that the Commission undertook the former exercise. Any contrary contention is untenable.
5. The second aspect of ground 3 turned on the second limb of s 14(2), requiring the Commission to have regard to "any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions." There was no dispute that the Commission had regard to a document entitled "NSW Climate Change Policy Framework" and, on the inside of the front cover, "Climate Change Policy Framework for NSW". The Commission expressly identified that document as a relevant State policy: par 655. The Commission noted: "656. The stated aim of the NSW Climate Change Policy Framework is to 'maximise the economic, social and environmental well-being of NSW in the context of a changing climate and current and emerging international and national policy settings and actions to address climate change'. The plan for implementation of the Policy includes 'investigate how to embed climate change emissions savings and adaption in government decision-making.'"
6. The appellant took issue with reliance on this document on the basis that it was not an "applicable" policy. It was said not to be "applicable" for two reasons. First, it was only applicable if it were "capable of being applied to the task undertaken by a consent authority, namely considering an assessment of GHG emissions and deciding whether to grant consent to a relevant development, in particular in the context of considering what conditions (if any) to impose under cl 14(1)." [13] Secondly, the Commission was in error in having regard to the policy because a judge of the Land and Environment Court in Wollar Progress Association Inc v Wilpinjong Coal Pty Ltd [14] had held it was not an applicable policy.
7. There was an element of ambiguity in the appellant's submissions in relation to this aspect of ground 3. At one level, it appeared that the appellant's case required this Court to determine what were and were not applicable policies, as a matter of jurisdictional fact. The alternative reading was that the submissions were directed to an error of law in the interpretation of cl 14(2).
8. The circumstances in Wollar did not raise either question. As noted in the summary of the objector's submissions in Wollar, the Commission (then known as the PAC or Planning Assessment Commission) had prepared reasons, but those reasons contained "no note or record of the PAC's consideration of an assessment of the greenhouse gas emissions …, including by reference to any applicable State and national policies, programs or guidelines". [15] The applicant in Wollar had submitted that both the Climate Change Framework Policy for NSW and the Paris Agreement (which set levels of reduction in greenhouse gas emissions necessary to limit global warming), should have been considered. The applicant's case was that the PAC "did not turn its mind to that issue": at [137].
9. In response, the company submitted that neither the Paris Agreement nor the NSW policy could be applicable because they could not "meaningfully guide the task of the consent authority." [16]
10. It is by no means clear how the Court in Wollar determined this issue. Having set out the submissions in respect of this matter (ground 1), it went on to consider ground 2 (an unrelated matter). The conclusions appear to adopt the submissions for the company which were "to be clearly preferred", [17] the judge stating he was satisfied that "all the material and information I have surveyed in this judgment was indeed before the PAC, and was considered by it". [18]
11. Little can be derived as a matter of legal principle from this judgment and little time was spent considering it in submissions before this Court. It is not relevant to the present issue. It turned on a factual finding as to what the PAC considered. Indeed, it appears to have found that the PAC did consider the NSW policy, with no hint that that was not required, let alone that doing so was legally erroneous.
12. On the basis that no submission was made that the Commission's reliance on the policy was irrational or manifestly unreasonable, the only ground of review appears to be that it was not open to the Commission to conclude that that particular policy fell within the scope of cl 14(2). That submission should be rejected for two main reasons.
13. First, the appellant correctly identified the submission as turning on the meaning of "applicable". However, that was to take one word out of its statutory context. What the Commission was required to have regard to was "any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions." That language did not restrict the scope of the policies, programs or guidelines to those which would be directly relevant to assessing an assessment of greenhouse gas emissions. There is no reason to impose a restrictive gloss on that language. The very generality of this language supports the conclusion that it was for the consent authority to determine what documents fell within it.
14. Secondly, the appellant relied upon a dictionary definition of "applicable" as meaning "capable of being applied; fit, suitable; relevant". [19] Even that is language of some generality: ultimately the submission went no further than to point out that if it were necessary to have regard to a particular policy, the policy must be useful in some way.
15. Because the Commission did look at the policy, there can have been no error of law unless the policy was not merely outside the mandatory terms of cl 14(2), but was a prohibited consideration. That was not suggested. Had it been suggested, it might have been necessary to identify how the Commission used or misused the policy. The reasons of the Commission stated: "655. The Mining SEPP's reference to "State…policies" includes the NSW Climate Change Policy Framework, which states: 'The NSW Government endorses the Paris Agreement and will take action that is consistent with the level of effort to achieve Australia's commitments to the Paris Agreement'. Under the Paris Agreement, Australia has committed to limit the increase in global temperature to below 2 degrees. The NSW Climate Change Policy Framework says that its 'aspirational emissions savings objective is to achieve net-zero emissions by 2050'. 656. The stated aim of the NSW Climate Change Policy Framework is to 'maximise the economic, social and environmental well-being of NSW in the context of a changing climate and current and emerging international and national policy settings and actions to address climate change'. The plan for implementation of the Policy includes 'investigate how to embed climate change emissions savings and adaption in government decision-making.' … 687. Under clause 14(2) the Mining SEPP the Commission as the consent authority is required to consider greenhouse gas emissions including downstream emissions in its assessment as set out in paragraph 106 and 107. Clause 14(2) also states that in considering GHG emissions, the Commission must 'have regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions'. The NSW Climate Change Policy Framework outlines the States long-term objectives to achieve net-zero emissions by 2050 and to make NSW more resilient to a changing climate. The Commission is therefore of the view that the NSW Climate Change Policy is applicable and must be considered by the Commission. 688. Based on the evidence presented by the Applicant and the Department to quantify GHG emissions from the Project and Recommended Revised Project, the Commission accepts for the: • Project: the cumulative Scope 1, Scope 2 and Scope 3 GHG emissions will be 206,493,327 tonnes of C02-e over the life of the Mine as set out in Table 12.1 in Appendix O of the EIS; and • Recommended Revised Project: the cumulative Scope 1, Scope 2 and Scope 3 GHG emissions will be 200,808,700 tonnes of Co2-e as set out in the Updated Air Quality and Greenhouse Gas report, Appendix F to the Supplementary Information Report. 689. The Commission notes that the NSW government has endorsed the Paris Agreement and set the goal of achieving net zero emissions by 2050. Neither the Paris Agreement, Australia's Nationally Determined Contributions (NDCs) of reducing GHG emissions in Australia by 26% to 28% below 2005 levels by 2030 nor NSW's Climate Change Policy Framework prescribe the mechanisms by which these reductions in GHG emissions to transition to zero net emissions are to be achieved. In particular, there is no prohibition on approval of new sources of GHG emissions, such as new coal mines. 690. For the purpose of the Commission's assessment of the Project and Recommended Revised Project, it is not necessary to decide whether consideration of the Scope 3 emissions extends beyond New South Wales to, for example, the use of the coal in South Korea. That is because the Commission accepts that all of the direct and indirect GHG emissions of the Project and the Recommended Revised Project, will adversely impact the NSW environment. 691. The Commission agrees with Preston CJ that: 'Nevertheless, the exploitation and burning of a new fossil fuel reserve, which will increase GHG emissions, cannot assist in achieving the rapid and deep reductions in GHG emissions that are necessary in order to achieve "a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century" (Article 4(1) of the Paris Agreement) or the long term temperature goal of limiting the increase in global average temperature to between 1.5ºC and 2ºC above pre-industrial levels (Article 2 of the Paris Agreement).' [525] 692. The Commission acknowledges that NSW is currently in a transition away from the use of fossil fuels as an energy source. In that context, the Commission is of the view that the cumulative environmental impact of the Project and Recommended Revised Project needs to be considered when weighing the acceptability of GHG emissions associated with the mine. The Commission agrees with Preston CJ at [555] in Gloucester Resources v Minister that: 'it would be rational to refuse fossil fuel developments with greater environmental, social and economic impacts than fossil fuel developments with lesser environmental, social and economic impacts. To do so not only achieves the goal of not increasing GHG emissions by source, but also achieves the collateral benefit of preventing those greater environmental, social and economic impacts.'"
16. Apart from the submission that there was error of law in having any regard to the NSW Climate Change Framework Policy, no legal error was identified in the use to which the policy framework was put in this reasoning.
17. Ground 3 should be rejected.

Ground 5 - alternative sources ignored

1. Ground 5 related to greenhouse gas emissions, but did not depend on any provision in the Mining SEPP. Rather, the mandatory matter with which it was said the Commission failed to engage was a defensive part of the applicant's case. It may be accepted that a failure to consider the substance of an applicant's case, at least where it demonstrated a misunderstanding of the Commission's function could constitute jurisdictional error. [20] Alternatively, as explained by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs: [21] "[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice." Further, as explained by Kirby J in the same case: "[88] Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way."
2. The first limb of ground 5 rests on an assumption that there was "cogent evidence". Whether the evidence was cogent or not, was undoubtedly a matter for the Commission. However, the ground alleges that the Commission failed to consider the evidence, presumably at all. The appellant's alternative reading of the Commission's reasons was that it was aware of the material relied upon, but considered it to be no evidence at all.
3. The subject matter of the dispute was whether, "if the Project or Recommended Revised Project is not approved, the Applicant will need to secure an alternative source of coal and that this coal may be of an inferior quality and may lead to poorer environmental outcomes, as was asserted in the Applicant's letter dated 8 March 2019 and in the Department's Preliminary Assessment Report": par 694.
4. There is no doubt that the Commission was cognisant of the issue. The letter of 8 March 2019 was a letter from Hansen Bailey, environmental consultants working for the appellant. The issue was raised in the letter in precisely the terms set out by the Commission. The sentence quoted from par 694 of the Commission's reasons commenced with the proposition that "[t]he Commission does not have evidence before it to determine whether" the submission in the applicant's letter was correct. The letter itself merely stated that "[i]t is possible that an alternate supply may be of an inferior quality."
5. The letter of 8 March was a response to submissions lodged by EDO NSW dated 15 February 2019. However, four days earlier, on 4 March 2019, Hansen Bailey had provided a separate report which considered Australia's obligations under the Paris Agreement and other issues relating to GHG emissions. That submission was referred to by the Commission at pars 674-676. A response from EDO NSW dated 8 March 2019 was referred to at par 684. There can be no doubt that the Commission was cognisant of the issues raised in the Hansen Bailey submission of 4 March 2019. That submission, in par 6.2, referred to Appendix B which was described as "a letter from KEPCO Australia's President and CEO which highlights the strategic importance of the coal to be produced by the Project to assist KEPCO in providing a reliable supply of electricity to its people while minimising its GHG emissions." The submission concluded: "However, if such coal is not readily available, KEPCO's power stations will continue to operate and will rely (and will probably need to rely) on substituted coal to ensure that its energy supply is not compromised. The use of lower quality coal in these power generation facilities will lead to a poorer environmental outcome."
6. The letter from KEPCO Australia's President and CEO was indeed annexed to the Hansen Bailey report to which the Commission made express reference. There is no basis upon which to infer that the Commission was not aware of the content of the letter. Relevantly, the letter concluded: "If KEPCO is required to obtain substituted coal supplies, it is likely to have a higher ash and sulphur content and will be sourced from countries such as Indonesia. This will have an adverse effect on the Australian and New South Wales economies and the Korean environment."
7. The substitution argument was also identified by the Department and referred to by the Commission at par 662.
8. The proposition that the Commission was not aware of the statements made by and on behalf of the appellant in relation to this issue is untenable. Whether the submissions provided "evidence" or merely stated the possibility of an adverse outcome if alternative sources were to be sought, was a matter for the Commission. It was also a matter for the Commission to determine whether the statements, if they could be treated as evidence, were "cogent evidence". The first limb of ground 5 must be rejected.
9. The second limb suggested that the Commission was acting unreasonably or irrationally in concluding that it had "no evidence" before it to determine whether KEPCO would secure an alternative source of coal of inferior quality. In the paragraph before its consideration of the 8 March 2019 letter, the Commission stated: "693. The Commission notes that the Department's position that the Project and Recommended Revised Project's contribution to Australian and global GHG emissions will be very small and therefore have limited impact. However, the Commission does not accept the Department's assessment that refusal would not reduce global GHG emissions, as a gap in supply will almost certainly be filled by another coal resource locally or overseas as no evidence to support this argument was provided to the Commission."
10. To a lawyer, a statement that there was "no evidence" of a particular matter before a tribunal may be understood to mean there was nothing rationally capable of supporting a particular finding of fact. However, as noted by the respondent, a statement that there was "no evidence" may not mean that there was literally no evidence before the tribunal, but rather that "there was no evidence capable of satisfying [the tribunal] on the issues in question". [22] The statement may also be used rhetorically.
11. There can be no doubt that the Commission was using it as meaning there was no evidence capable of satisfying it on the issue in question. So much can be inferred from the next sentence, in par 694, which stated that the Commission "does not have evidence before it to determine whether" an alternative source would be secured and would be of inferior coal.
12. Apart from the material to which the Commission clearly had regard and which it was for it to assess, this Court was not taken to any other evidence before the Commission which might have demonstrated support for the appellant's claims. For example, it was not submitted that the Commission had specific evidence as to the source of supplies then enjoyed by KEPCO, nor as to any gap in supplies due to delays in obtaining consent for the Bylong Project, nor as to whether there was any gap to be filled in the coming years before the Bylong Coal Project could be expected to produce coal. Manifest unreasonableness and irrationality were not demonstrated. Further, the Commission concluded this section with the statement: "694. … The Commission agrees with Preston CJ that, in any event, an unacceptable impact does not become acceptable because the Applicant may end up pursuing an alternative development that has unacceptable impacts".
13. Both limbs of ground 5 lack substance and the ground must be rejected.

Conclusions

1. It follows that the appellant has been unsuccessful with respect to each ground of appeal. The appeal must be dismissed and the appellant must pay the costs of the active respondent, Bylong Valley Protection Alliance Inc.
2. PRESTON CJ OF LEC: KEPCO Bylong Australia Pty Ltd (KEPCO) applied for development consent to construct and operate a new coal mine in the Bylong Valley about 55km north east of Mudgee in New South Wales. The proposed coal mine was State significant development. The consent authority, the Independent Planning Commission (IPC), refused consent to the development application.
3. KEPCO brought judicial review proceedings in the Land and Environment Court challenging the IPC's decision to refuse consent. The IPC entered a submitting appearance. The Bylong Valley Protection Alliance Inc (BVPA) was joined as a party to the proceedings. The primary judge, Pain J, dismissed the challenge. KEPCO has appealed against the primary judge's decision.
4. The five grounds of KEPCO's appeal to this Court fell into three groups. Two of the groups concerned the IPC's and the primary judge's construction of cl 14 of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (the Mining SEPP), one group concerned cl 14(1) and the other group concerned cl 14(2). The third was a no evidence ground. In order to address the grounds concerning the construction of cl 14 of the Mining SEPP, that clause and its place in the statutory scheme need explanation.

Clause 14 of the Mining SEPP

1. KEPCO's proposed coal mine is of a class or description of development that has been declared to be State significant development for the purposes of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), under s 4.36. The IPC is the consent authority designated to determine development applications for State significant development: s 4.5(a) of the EPA Act.
2. In determining a development application for State significant development, the IPC, as the consent authority, is required to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the development application: s 4.40 of the EPA Act. Section 4.15(1) of the EPA Act provides: "In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest."
3. As s 4.15(1)(a)(i) provides, amongst the matters the consent authority is required to take into consideration in determining the development application, are the provisions of any environmental planning instrument of relevance to the development the subject of the development application. The Mining SEPP is a type of environmental planning instrument and is relevant to KEPCO's proposed development.
4. Clause 14 of the Mining SEPP regulates the consideration and determination of a development application for specified development, being development for the purposes of mining, petroleum production or extractive industries. Clause 14 of the Mining SEPP provides: "(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following - (a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable, (b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable, (c) that greenhouse gas emissions are minimised to the greatest extent practicable. (2) Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions. (3) Without limiting subclause (1), in determining a development application for development for the purposes of mining, the consent authority must consider any certification by the Chief Executive of the Office of Environment and Heritage or the Director-General of the Department of Primary Industries that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate."
5. The three subclauses operate to add, as matters that the consent authority is required to take into consideration under s 4.15(1) of the EPA Act, the matters in the subclauses.
6. The three subclauses identify the time by which the consideration of the matters in each subclause must occur by different phrases, but with the same effect. Subclauses (2) and (3) identify the time by the phrase "in determining a development application", while subclause (1) identifies the time by the phrase "before granting consent". A development application is determined by granting consent or refusing consent: see 4.16(1) and s 4.38(1) of the EPA Act. The phrase "in determining a development application" refers to the determination of the development application by either granting consent or refusing consent, while the phrase "before granting consent" refers to the determination of the development application only by granting consent. Both phrases, however, refer to the exercise of the same function, being the determination of the development application. The time at which this function of determination of the development application occurs is the time by which the consideration of the matters in the subclauses must be undertaken.
7. The explanation for the use of different language between subclause (1) and subclauses (2) and (3) lies in the different matters that are to be considered by those subclauses. The matter to be considered under subclause (1) concerns whether or not the consent should be issued subject to conditions of the kind specified in the subclause. Only the grant of consent can be subject to conditions, a refusal of consent cannot be. Subclause (1) therefore describes the time by which the consideration of conditions required by the subclause is to occur by reference to the determination of the development application by granting consent for development, instead of the generic description used in subclauses (2) and (3) of "determining the development application".
8. That each of the subclauses applies to the same process of consideration of the relevant matters in determining the development application, notwithstanding the use of different phrases in the subclauses describing the time by which that consideration is to occur, is corroborated by the opening phrase of subclauses (2) and (3), "without limiting subclause (1)". If subclause (1) were to apply to a different process and at a different time to the process and time to which subclauses (2) and (3) apply, this opening phrase would have no work to do: subclauses (2) and (3) could never limit subclause (1). If, however, the three subclauses all apply to the same process of consideration of the matters of relevance to the development the subject of the development application before the consent authority determines the development application, the opening phrase works to ensure that the consideration required by subclauses (2) and (3) does not displace the consideration required by subclause (1).
9. A consent authority's determination of a development application for State significant development is under s 4.38(1) of the EPA Act, which provides: "The consent authority is to determine a development application in respect of State significant development by - (a) granting consent to the application with such modifications of the proposed development or on such conditions as the consent authority may determine, or (b) refusing consent to the application."
10. The function of determining a development application by granting consent or refusing consent to the application is a single, indivisible function; there is not one power to grant consent and a separate power to refuse consent: Singh v Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397 at 402; [1989] FCA 737; GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116; [2006] NSWLEC 303 at [47] affirmed in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 at [1], [53] and [54]. Equally, the function of determining a development application by granting consent is single and indivisible; there is not one power to grant consent and a separate power to grant consent with such modifications of the proposed development or on such conditions as the consent authority may determine. The consideration of whether or not the consent should be granted with any modification of the development or on conditions is an integral part of the determination of the development application by granting consent.
11. That the function of determining a development applicant is single and indivisible is underscored by the terms in which the right of appeal is given. Section 8.7(1) of the EPA Act entitles an applicant for development consent who is dissatisfied with "the determination of the application" by the consent authority to appeal to the Court "against the determination". An applicant could be dissatisfied with a determination to refuse consent to the application but also a determination to grant consent with modifications of the proposed development or on conditions with which the applicant is dissatisfied. Either way, it is with the one determination of the application that the applicant is dissatisfied.
12. As earlier explained, although the subclauses in cl 14 of the Mining SEPP use different phrases to identify the time by which the consideration of the matters required by the subclauses is to occur, which is the same time of the determination of the development application whether by granting consent or refusing consent, the consent authority's consideration of the relevant matters before that time is one and the same process, being the consideration required by s 4.15(2) and s 4.40 of the EPA Act. It is of no consequence that the matters to be considered differ between the subclauses; a consent authority is required to consider all of the matters that are of relevance to the development the subject of the development application in determining the development application.
13. For example, the consent authority is required to consider the matter specified by subclause (2), of an assessment of the greenhouse gas emissions (including downstream emissions) of the development, as well as the matter specified by subclause (1)(c), of whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure that greenhouse gas emissions are minimised to the greatest extent practicable. Both of the matters specified in subclauses (1) and (2), if relevant to the development the subject of the development application, need to be considered by the consent authority in determining the development application, and before the consent authority determines the development application, regardless of whether the determination of the development application is to be by granting consent or refusing consent.
14. Similarly, the matter in cl 14(1)(a) of the Mining SEPP, of whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable, if relevant to the development the subject of the development application, needs to be considered by the consent authority in determining the development application, and before the consent authority determines the development application, regardless of whether the determination of the development application is to be by granting consent or refusing consent.
15. This result, that the consent authority is required to consider whether or not the consent should be issued subject to conditions of the kind specified in cl 14(1) of Mining SEPP before the consent authority determines the development application by either granting consent or refusing consent, flowing from a proper construction of cl 14(1), accords with what ordinarily is involved in giving proper consideration to relevant matters under s 4.15(1) of the EPA Act. Consideration of the relevant matters under s 4.15(1), such as the likely impacts of the development under s 4.15(1)(b), may require consideration of whether conditions of consent should be imposed directed to addressing the relevant matters, such as mitigating the likely impacts of the development.
16. In Parramatta City Council v Hale (1982) 47 LGRA 319, the grant of consent to a sports stadium at Parramatta that would cause traffic and parking impacts without imposing conditions to address these impacts was held to evidence a failure to consider the relevant matters of the traffic and parking impacts: at 338-339, 340, 342. Moffitt P, referring to the former s 90(1), which required the consent authority to consider the relevant matters (now s 4.15(1)), and the former s 91(3)(a), which permitted the imposition of a condition of consent if it related to any relevant matter referred to in s 90(1) (now s 4.17(1)(a)), observed: "It follows that, where a s 90(1) matter is relevant, e.g. (b) in the manner referred to, the effect of s 90(1) and s 91(1)(3) is to require that the authority, in making its determination shall take into consideration the relevant matter, (e.g. (b)), on the question whether conditions should be imposed on the consent, if given, and, if so, what should be the conditions. Hence where, as in the present case, the development is likely, indeed certain, to cause harm to the environment, as the end result of the impact of the development upon motor and pedestrian traffic and parking, an obligation, (and in that instance a very serious one), is imposed on an authority, minded to give its consent, "to take into consideration" "any means that may be employed to protect the environment or to mitigate (the) harm" "in making the determination", as to whether the condition should be imposed and if so, the terms of them." (at 339).
17. In Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88, development consent was granted to a rail freight terminal that would generate unacceptable noise impacts, subject to a condition that the consent would not operate until the applicant obtained the relevant approval from the Environment Protection Authority. The relevant approval was an environment protection licence that would regulate, amongst other impacts, the noise emitted from the premises. This Court, by majority, held that the consent authority had failed to consider the relevant matter of the noise impacts of the development by deferring and delegating consideration of that matter to the Environment Protection Authority. As Giles JA observed: "The terms of s 90(1) were mandatory: the Council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration (Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-9, 340,342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration (Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5)." (at [80]).
18. In Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [73], Basten JA observed that the relevant matter of the likely impacts of the development, including environmental impacts, required to be considered by the former s 79C(1)(b) (now s 4.15(1)(b)), "arguably, could not have been properly considered without reference to the specific conditions proposed to be attached to the consent."
19. These three decisions will suffice to illustrate the proposition that consideration of the relevant matters under s 4.15(1) of the EPA Act may involve consideration of any conditions that could be imposed on the consent to address concerns raised by the relevant matters. The requirement in cl 14(1) of the Mining SEPP for a consent authority to consider whether or not consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner gives statutory force to a particular consideration of conditions of consent in giving proper consideration to certain relevant matters under s 4.15(1) of the EPA Act.

KEPCO's argument

1. KEPCO raised before the primary judge and on this appeal one ground alleging misconstruction of cl 14(1)(a) (ground 4) and two grounds alleging misconstruction of cl 14(1)(c) (grounds 1 and 2). The alleged misconstruction by the IPC is essentially the same.
2. KEPCO argued that cl 14(1) imposes a duty on the consent authority to consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the outcomes or objectives stated in paragraphs (a) and (c) are achieved. KEPCO contended that this duty was enlivened when the IPC as the consent authority was deciding whether to grant consent or refuse consent. KEPCO argued that the reference to the time "before granting consent" in cl 14(1) is a reference to the process of consideration which precedes a decision as to whether or not to grant consent. The reason, KEPCO submitted, is that: "there is only a single process of consideration before granting consent; there is not a two-step process involving a decision to grant consent followed by further consideration of what conditions to impose. The reference to the time 'before granting consent' is not a reference to the time after which the consent authority has decided to grant consent, but has not yet formed a view on what (if any) conditions should attach." (AWS at [38]).
3. KEPCO submitted that a consent authority cannot form a view on the matters required to be considered under s 4.15(1) of the EPA Act, including the impacts of the development on the environment, without considering the conditions it will impose on any grant of consent that bear on those matters. KEPCO cited the statement of Giles JA in Weal v Bathurst City Council at [80] that a consent authority, in taking into consideration the relevant matters, including the impact of the development on the environment, "had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration".
4. KEPCO submitted, therefore, that the time for the performance of the duty in cl 14(1) was the time at which the IPC was considering the relevant matters to determine whether or not to grant consent to the development application. This is the consideration required by s 4.15(1) and s 4.40.
5. The next step in KEPCO's argument was that the IPC did not discharge the duty under cl 14(1) to consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, in two respects.
6. First, KEPCO argued that the IPC misdirected itself as to what cl 14(1) required the IPC to do. KEPCO seized on comments in the IPC's written statement of reasons as establishing that the IPC was of the view that KEPCO, as the applicant for consent, had not achieved the objectives or outcomes stated in paragraphs (a) and (c) of cl 14(1).
7. In relation to paragraph (a), the IPC said in its Statement of Reasons: "Part 3 cl 14(a) [sic, cl 14(1)(a)] of the Mining SEPP requires the consent authority to consider whether impacts on significant water resources, including groundwater resources, have been avoided, or are minimised to the greatest extent practicable" (at [237] in relation to groundwater resources and a similar comment at [298] in relation to surface water resources).
8. In relation to paragraph (c), the IPC said in its Statement of Reasons (at [817]) that it had considered the merits of the Project and the Recommended Revised Project and found that: "- The Recommended Revised Project will slightly reduce the GHG emissions compared to the Project. However, the Commission is of the view that the applicant has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable as required under Clause 14(1)(c) of the Mining SEPP…".
9. This conclusion reflected the IPC's earlier finding at [696]: "The Commission accepts that the Recommended Revised Project will slightly reduce the GHG emissions compared to the Project as set out by the Department in paragraph 677. The Commission notes that the Applicant has committed to development and Energy and Greenhouse Gas Management Plan which will set out measures to minimise GHG emissions from the Project (refer to paragraph 660). The Commission notes that these measures appear to relate only to Scope 1 and 2 GHG emissions. The Commission is therefore of the view that the Applicant has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable as required under Clause 14(1)(c) of the Mining SEPP. The Commission also notes that there are no offset measures proposed in either the Project or Recommended Revised Project from the Applicant."
10. KEPCO submitted that these statements reveal that the IPC believed that cl 14(1) required that the outcomes or objectives stated in paragraphs (a) and (c) had to be achieved. KEPCO submitted that this belief was erroneous. Clause 14(1) does not impose a duty to ensure that the proposed development will achieve the outcomes or objectives stated in paragraphs (a) and (c) or a duty to impose conditions to ensure such outcomes or objectives are achieved. The duty under cl 14(1) is merely "to consider" whether or not a consent should be issued subject to conditions "aimed at" ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the outcomes or objectives stated in paragraphs (a) and (c).
11. This error of misconstruction and misdirection founded ground 1 (concerning cl 14(1)(c)) and ground 4 (concerning cl 14(1)(a)).
12. Secondly, KEPCO argued that the IPC failed to perform the duty imposed by cl 14(1) to consider whether or not the consent should be issued subject to conditions to ensure the outcome or objective in paragraph (c) is achieved, namely that greenhouse gas emissions are minimised to the greatest extent possible. KEPCO argued that the IPC did not, for itself, consider whether to grant consent subject to such conditions. The reason for the IPC not doing so, KEPCO suggested, was the IPC's misconstruction of cl 14(1)(c). KEPCO argued that it was incumbent on the IPC to ask the right question and turn its mind to the right topic. The IPC did neither. It was not sufficient that the IPC had before it and considered draft conditions on the subject matter of greenhouse gas emissions. The duty on the IPC was to consider whether or not consent should be issued subject to conditions to ensure that greenhouse gas emissions are minimised to the greatest extent practicable. The IPC did not do this. This failure to perform the duty under cl 14(1)(c) founded ground 2.
13. KEPCO submitted that the primary judge erred in not upholding each of these three grounds of challenge to the IPC's decision. As to grounds 1 and 4, KEPCO argued that the primary judge erred in finding that the IPC had not misconstrued cl 14(1)(a) and (c) but even if it had, the misconstruction was immaterial because the IPC had decided to refuse consent for other reasons. As to ground 2, KEPCO argued that the primary judge erred in finding that the duty imposed by cl 14(1)(c) had not arisen because it had decided to refuse consent but in any event the duty was discharged by the IPC's consideration of appropriate conditions.

BVPA's argument

1. BVPA contested KEPCO's arguments on the cl 14(1) grounds. The answer to all three grounds is that they are founded on a misconstruction of cl 14(1) of the Mining SEPP and the statutory provisions of the EPA Act to which cl 14(1) relates.
2. BVPA submitted that cl 14(1) refers to a different stage in the decision-making process in determining a development application to the stage referred to in cl 14(2) and (3). The stage referred to in cl 14(2) and (3) is the consideration of relevant matters "in determining a development application" under cl 4.15 and cl 4.40 of the EPA Act, while the stage referred to in cl 14(1) is the determination of the development application by granting consent under s 4.16 and s 4.38 of the EPA Act ("before granting consent").
3. BVPA submitted that the choice by the legislative drafter to use a different formulation in cl 14(1) to that used in cl 14(2) and (3) evinces an intention for the provisions to operate at different stages in the decision-making process in determining a development application. The consequence, BVPA contended, is that cl 14(1) operates as a precondition to a decision to grant consent, but not as a precondition to a decision to refuse consent. There is a sound logical basis for this distinction. Where a consent authority is minded not to grant consent, there is no reason for the consent authority to turn its mind to the question of whether or not a consent, which it is not minded to grant, should be issued subject to conditions at all or conditions with a particular content, including by reference to the matters in cl 14(1)(a) or (c).
4. In the present case, the IPC determined KEPCO's development application by refusing consent. In this circumstance, the duty under cl 14(1) of the Mining SEPP was not engaged and the IPC did not need to consider whether or not a consent should be issued subject to conditions of a kind referred to in cl 14(1). Accordingly, the IPC cannot have erred in performing or not performing a duty under cl 14(1) that had not arisen. The IPC never reached the point of granting consent to the development application.
5. BVPA submitted that KEPCO's reliance on Weal v Bathurst City Council was misplaced. That case concerned the grant of consent subject to conditions, which disclosed that the consent authority had failed to consider relevant matters before granting consent to the development. The dicta relied upon by KEPCO was directed to this question. Weal has no application to the quite different question raised by cl 14(1)(a) of the Mining SEPP.
6. The more particular answer BVPA gave to each of the cl 14(1) grounds is that they are based on a narrow reading of isolated comments within a comprehensive statement of reasons. BVPA submitted that, if IPC's reasons are read fairly and as a whole, no error is disclosed in the IPC's reasoning.
7. BVPA submitted that any analysis of the IPC's reasons should be done from the starting point of the proper construction of cl 14(1), which is that it does not impose an obligation on the consent authority to consider the matters in the subclause when determining the development application, but rather only when the consent authority decides to grant consent to the development application. In this context, the matters in cl 14(1)(a) and (c) were permissible, but not mandatory, considerations. The IPC was entitled to turn its mind to the kinds of conditions that might be available to address the matters in paragraphs (a) and (c), although it was not required to do so until it decides to grant consent.
8. As a matter of fact, BVPA submitted, the IPC did consider the potential conditions that could be imposed to address the matters in paragraphs (a) and (c) of cl 14(1). With regard to paragraph (a), the IPC considered conditions 27 and 28 that had been recommended by the Department. The recommended conditions were appended to the Final Assessment Report considered by the IPC. Conditions 27 and 28 referred to alluvial aquifers, with condition 27 setting water management performance measures and condition 28 requiring the development of a water management plan. There was a large body of material before the IPC on the appropriateness of the conditions in relation to the impact on water resources. The IPC was entitled to have regard to this material in considering the impacts of the proposed development on water resources. The IPC's consideration of this material and the draft conditions informed its comments about whether impacts on significant water resources have been avoided or minimised to the greatest extent practicable.
9. With regard to paragraph (c), the IPC considered a number of draft conditions of relevance to the subject matter of greenhouse gas emissions. At the most general level, the IPC considered a condition that would have required KEPCO to implement the Recommended Revised Project rather than the original Project that was the subject of the development application, which might have slightly reduced the greenhouse gas emissions compared to the original Project. The IPC considered a draft condition requiring that the development be carried out in accordance with the Environmental Impact Statement, which contained an Energy and Greenhouse Gas Management Plan. The IPC commented particularly on this management plan, saying that in its view the management plan did not minimise greenhouse gas emissions to the greatest extent practicable because it related only to Scope 1 and 2 emissions and not Scope 3 emissions as well. The IPC also had before it the final proposed conditions, one of which, condition 19(d), would have required that KEPCO "implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site".
10. The IPC's consideration of these conditions and the material on these conditions informed its comment that KEPCO had not minimised Scope 1, 2 and 3 greenhouse gas emissions to the greatest extent practicable.
11. With regard to both paragraphs, BVPA submitted, the IPC was not suggesting in its comments that cl 14(1)(a) or (c) imposed an obligation on a proponent to ensure the outcome or objective stated in the paragraph. The IPC instead was recognising that the kinds of conditions that had been suggested in the assessment process would not be adequate to address the IPC's more fundamental concerns about the environmental impacts of the development regarding the significant water resources (paragraph (a)) or greenhouse gas emissions (paragraph (c)).
12. Read in this context, the IPC's comments do not reveal misdirection as to the obligation under cl 14(1). Grounds 1 and 4 should therefore be rejected. Ground 2 should also be rejected because the IPC did consider such draft conditions as had been put before it addressing the matter of greenhouse gas emissions in cl 14(1)(c).

The cl 14(1) grounds should be rejected

1. KEPCO has not established that the IPC misconstrued or misapplied cl 14(1) of the Mining SEPP, either generally or with respect to paragraphs (a) and (c) particularly.
2. KEPCO's argument that cl 14(1) did apply to the IPC's consideration and determination of KEPCO's development application is correct. As earlier explained, all three subclauses of cl 14 apply to a consent authority's consideration under s 4.15(1) of the EPA Act of the matters of relevance to the development the subject of the development application, in determining a development application. BVPA's submission that cl 14(1), on the one hand, and cl 14(2) and (3), on the other hand, apply to different stages and at different times in the process of determining a development application, so that cl 14(1) is only engaged if and when the consent authority chooses to grant consent, is incorrect, for the reasons earlier explained. In this regard, the primary judge was also incorrect in accepting BVPA's submission (at [49]-[51] of the judgment).
3. In the present case, on a proper construction of cl 14(1), the IPC was required to consider not only the matter in cl 14(2) but also the matters in cl 14(1) of the Mining SEPP in determining KEPCO's development application. However, the IPC did so: it considered both subclauses of cl 14. The IPC noted in its Statement of Reasons both subclauses, referring to cl 14(1)(a) (at [237] and [298]) and cl 14(1)(c) (quoting at [653] and noting at [696]) and cl 14(2) (quoting at [106] and [652] and noting at [687] and [695]).
4. The IPC did not, therefore, adopt the construction put forward by BVPA and accepted by the primary judge that it was not required to consider cl 14(1) because it had chosen to determine the development application by refusing, and not granting, consent for the development.
5. The question is whether, in applying cl 14(1), the IPC misconstrued the subclause. KEPCO argued that the IPC did misconstrue both clause 14(1)(a) and (c), focusing on the comments the IPC made in its Statement of Reasons in [237] and [298] (for cl 14(1)(a)) and [696] and [817] (for cl 14(1)(c)). Such misconstruction is not made out on a fair reading of the comments themselves and having regard to the context in which the comments were made.
6. Starting with cl 14(1)(c), the one sentence comment in [696], which was repeated in the conclusion at [817], was simply: "The Commission is therefore of the view that the Applicant has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable as required under Clause 14(1)(c) of the Mining SEPP." The statement that "the Applicant has not minimised Scope 1, 2 and 3 GHG emissions" was a reference to how KEPCO was proposing to undertake the development. Clause 14(1) requires the consent authority to consider whether or not the consent should be issued subject to conditions aimed at "ensuring that the development is undertaken" in an environmentally responsible manner, including conditions "to ensure" that greenhouse gas emissions are minimised to the greatest extent possible. This is to say, one of the ways in which conditions can aim to ensure that the development is undertaken in an environmentally responsible manner is by the development being undertaken in a manner to ensure that greenhouse gas emissions are minimised to the greatest extent possible. This focuses attention on how the applicant proposes to undertake the development and, in particular, on whether the applicant proposes to undertake the development in a manner to ensure that greenhouse gas emissions are minimised to the greatest extent practicable.
7. With this understanding, the consent authority is in a position to consider whether the consent should be issued subject to conditions to ensure that greenhouse gas emissions are minimised to the greatest extent practicable, thereby ensuring that the development is undertaken in an environmentally responsible manner.
8. In the present case, the IPC was of the view that KEPCO had not proposed to undertake the development in a manner that would ensuring that greenhouse gas emissions are minimised to the greatest extent practicable. KEPCO had proposed to develop an Energy and Greenhouse Gas Management Plan that would set out measures to minimise greenhouse gas emissions from the development. The IPC noted that the measures proposed by KEPCO related only to minimising Scope 1 and 2 greenhouse gas emissions, not Scope 3 greenhouse gas emissions (at [660] and [696]). As KEPCO did not propose to minimise Scope 3 greenhouse gas emissions at all, but instead only Scope 1 and 2 greenhouse gas emissions, the IPC was of the view that KEPCO "has not minimised Scope 1, 2 and 3 GHG emissions to the greatest extent practicable".
9. It is in this context that the IPC's following words "as required under Clause 14(1)(c) of the Mining SEPP", should be understood. The IPC viewed the term "greenhouse gas emissions" in cl 14(1)(c) to include all three categories of greenhouse gas emissions, Scope 1, 2 and 3 greenhouse gas emissions. If the development were to be undertaken by KEPCO in a manner that minimised only two of the three categories of greenhouse gas emissions, being Scope 1 and 2 but not Scope 3 greenhouse gas emissions, then in the IPC's view the outcome or objective in paragraph (c) would not be met - greenhouse gas emissions would not be minimised to the greatest extent practicable. This is the sense in which the IPC used the words "as required under Clause 14(1)(c) of the Mining SEPP".
10. Accordingly, the IPC's single sentence statements in [696] and [817] do not reveal a misconstruction of cl 14(1)(c) of the Mining SEPP. The statement was simply a finding of fact that was open to the IPC on the evidence. KEPCO proposed to undertake the development by minimising only Scope 1 and 2 greenhouse gas emissions and not Scope 3 greenhouse gas emissions, and therefore would not ensure that all greenhouse gas emissions were minimised to the greatest extent practicable.
11. For this reason, ground 1 is not established.
12. KEPCO has also not established that the IPC failed to perform the duty under cl 14(1)(c) of the Mining SEPP. As earlier found, the IPC did consider cl 14(1) and understood the consideration that the subclause required. The IPC had accurately set out the terms of cl 14(1)(c) (at [653]). The chapeau of cl 14(1), which the IPC set out, stated that the consent authority must consider whether or not to issue the consent subject to conditions, including conditions to ensure that greenhouse gas emissions are minimised to the greatest extent practicable. This was the task that the IPC understood it was undertaking when it set out its factual findings in [696] and [817]. The measures to minimise greenhouse gas emissions, proposed by KEPCO and the Department, and referred to by the IPC, would be implemented by way of conditions of consent.
13. The first measure was to approve the Recommended Revised Project. The development for which the development application sought consent was the Project. KEPCO had put forward the Revised Project that the IPC found "will slightly reduce the greenhouse gas emissions compared to the Project" (at [696]), according to the Department in its Final Assessment Report (at [677]). The IPC had power under s 4.38(1) of the EPA Act to determine KEPCO's development application with such modifications to the proposed development and on such conditions as the consent authority may determine. Thus, the IPC could grant consent to the development application by approving not the Project but instead the Recommended Revised Project. The Final Proposed Conditions, which the Department recommended in its Final Assessment Report, and which were attached to the IPC Statement of Reasons as Appendix H, proposed such a condition. Condition 2(c) required the applicant to carry out the development "for the open-cut stage, generally in accordance with the Revised Mine Plan". This was the Revised Mine Plan detailed in the report "Bylong Coal Project, Supplementary Information, July 2018". The Revised Mine Plan together with the proposed conditions were referred to by the IPC as the Recommended Revised Project (at [16] of the Statement of Reasons).
14. The second measure to which the IPC referred in [696] was to require KEPCO to develop an Energy and Greenhouse Gas Management Plan. The IPC noted that KEPCO "has committed to 'develop an Energy and Greenhouse Gas Management Plan which will describe a number of reasonable and feasible measures to be implemented to minimise GHG emissions from the Project'" (at [660]). This management plan was included as part of the Environmental Impact Statement (EIS) that accompanied the development application. As earlier noted, the IPC found that this management plan proposed minimising only Scope 1 and 2 and not Scope 3 greenhouse gas emissions (at [660] and [696]). Condition 2(a) of the Final Proposed Conditions required the applicant to carry out the development "generally in accordance with the EIS". By this condition, KEPCO would have been required to undertake the development in accordance with the Energy and Greenhouse Gas Management Plan.
15. The third measure was proposed in condition 19(d) of the Final Proposed Conditions and required the applicant to "implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site".
16. Finally, the IPC noted measures that had not been proposed either by KEPCO or in the Final Proposed Conditions, which were to offset the greenhouse gas emissions of the development. The IPC noted that "there are no offset measures proposed in either the Project or Recommended Revised Project from the Applicant" (at [696]). To so note is to consider the fact that a condition to offset the greenhouse gas emissions of the development had not been proposed.
17. This consideration by the IPC of the measures proposed or not proposed to minimise the greenhouse gas emissions and the conditions that would require the taking of the measures, involved consideration of whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions that greenhouse gas emissions be minimised to the greatest extent practicable, which is the consideration that cl 14(1)(c) required.
18. In these circumstances, KEPCO has not established that the IPC failed to perform the duty under cl 14(1)(c). Ground 2 is not established.
19. Turning to cl 14(1)(a), KEPCO's argument that the IPC misconstrued cl 14(1)(a) focused on two sentences, one in [237] and the other in [298] of the IPC's Statement of Reasons. The sentences were in the same terms, except that one referred to groundwater resources, and the other to surface water resources. The first was this: "Part 3 Clause 14(a) [sic, cl 14(1)(a)] of the Mining SEPP requires the consent authority to consider whether impact on significant water resources, including groundwater resources, have been avoided, or are minimised to the greatest extent practicable" (at [237]).
20. This statement can only be seen to be a misconstruction of cl 14(1)(a) if it is read as stating or purporting to state all of the requirements of cl 14(1)(a), rather than focusing on but one of the requirements. The IPC's statement should not be read in the former manner.
21. The IPC was aware of the whole of the terms of cl 14(1). The IPC had accurately quoted the chapeau of cl 14(1) when it was dealing with another of the paragraphs in cl 14(1), namely paragraph (c), concerning greenhouse gas emissions (at [653]). The quoted chapeau stated that the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the outcome or objective specified in paragraphs (a), (b) or (c). The IPC, in its statements in [237] and [298], referred to the outcome or objective specified in paragraph (a), namely "that impacts on significant water resources, including surface and groundwater resources are avoided, or are minimised to the greatest extent practicable."
22. The IPC's statements in [237] and [298] faithfully repeat the words of paragraph (a), with only two minor changes. First, because one sentence is referring only to groundwater resources and the other sentence is referring only to surface water resources, each sentence refers to the relevant water resource rather than referring to both types of water resources, as does paragraph (a) of cl 14(1). Second, each sentence substitutes the words "have been" for the word "are" in paragraph (a) before the word "avoided" but this does not change the meaning in any material way.
23. The IPC's statement in each instance, therefore, directs attention to the outcome or objective in paragraph (a). In doing so, the IPC was not ignoring the chapeau of cl 14(1). As earlier noted, the IPC was aware that the chapeau of cl 14(1) required the IPC to consider whether or not consent should be issued subject to conditions to ensure, amongst others, that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable.
24. The explanation for the IPC only referring in the statements in [237] and [298] to the outcome or objective in paragraph (a) is that this was the basis for the IPC's factual findings regarding the development's impacts on groundwater and surface water resources. In each instance, the IPC was concerned to evaluate whether the development would be undertaken in an environmentally responsible manner in terms of the development's impacts on significant water resources, both groundwater and surface water resources.
25. In relation to groundwater resources, the IPC found that the groundwater impacts of the development would be unacceptable, for a variety of reasons summarised in [297]. One of the reasons the IPC gave was that "there is uncertainty and insufficient information before it as to whether the 'make good' requirements of the Project and Recommended Revised Project are met" (at [297] referring to [296]). The "make good" requirements would be imposed by conditions, as recommended in the Proposed Final Conditions. Moreover, the IPC noted that if consent were to be granted subject to a condition requiring the applicant to carry out the Recommended Revised Project, the Recommended Revised Project would slightly reduce the impacts on groundwater (at [293] referring to [274]). The IPC also was aware that the Proposed Final Conditions included particular conditions dealing with managing impacts on groundwater resources, including Condition 27 requiring compliance with water management performance measures, such as negligible environmental consequences to the alluvial aquifer, and Condition 28 requiring the preparation of a Water Management Plan, incorporating both a Surface Water Management Plan and a Groundwater Management Plan.
26. The IPC's reasons reveal that the IPC was of the view that the development, if undertaken in accordance with the proposed conditions of consent, will not ensure that impacts on groundwater resources are avoided or are minimised to the greatest extent practicable. In this circumstance, it is to be inferred, the IPC was of the view that consent should not be granted subject to conditions to ensure that impacts on significant water resources, including groundwater resources, are avoided or are minimised to the greatest extent practicable, because that outcome or objective will not be achieved.
27. In relation to surface water resources, the IPC in fact found that "surface water impacts were acceptable and manageable through the Department's final recommended conditions" (at [323]). This reveals clearly that the IPC did consider whether the consent should be issued subject to conditions to ensure that impacts on significant water resources, including surface water resources, are avoided or are minimised to the greatest extent practicable, and concluded that such surface water impacts could be so minimised. This corroborates the finding that the IPC's statement in [298] should be read as simply focusing on the outcome or objective in paragraph (a) of cl 14(1), and was not intending to set out all of the requirements of cl 14(1) of the Mining SEPP.
28. For these reasons, ground 4 is not established.

KEPCO's argument

1. Clause 14(2) of the Mining SEPP specifies a relevant matter to be considered in determining a development application under s 4.15(1) and s 4.40 of the EPA Act and how that matter is to be considered. The relevant matter to be considered is "an assessment of the greenhouse gas emissions (including downstream emissions) of the development". The manner in which this relevant matter is to be considered is by "having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions".
2. KEPCO's ground 3 contended that the IPC's consideration of the relevant matter miscarried because it had regard to the NSW Climate Change Policy Framework, adopted by the NSW Government in 2016. KEPCO contended that this Policy did not fall within the description in cl 14(2) of "any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions", and therefore was not a relevant matter that the IPC was bound to have regard to under cl 14(2) in considering an assessment of the greenhouse gas emissions of the development.
3. KEPCO argued that the word "applicable" in the subclause bears its ordinary meaning of "capable of being applied; fit; suitable; relevant" (Macquarie Dictionary). In the subclause, a policy, program or guideline should be understood to be "applicable" if and only if it is capable of being applied to the task undertaken by the consent authority, namely considering an assessment of greenhouse gas emissions, in deciding whether to grant consent to a development. The applicable policies, programs or guidelines would be ones that are relevant to the nature of the assessment and are capable of being applied by the consent authority.
4. KEPCO argued that the subject to which a policy, program or guideline is to be applicable is not the topic of greenhouse gas emissions per se, but rather the task of considering an assessment of the greenhouse gas emissions of the development. KEPCO submitted that this construction of cl 14(2) had been accepted by Sheahan J in Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 (Wollar) at [147]-[148] (recording the first respondent's submission) and [183] (the judge's adoption of the first respondent's submission).
5. KEPCO noted that the IPC had understood that it was required to consider the NSW Climate Change Policy Framework. The IPC said at [655] of its Statement of Reasons: "The Mining SEPP's reference to 'State…policies' includes the NSW Climate Change Policy Framework, which states: 'The NSW Government endorses the Paris Agreement and will take action that is consistent with the level of effort to achieve Australia's commitments to the Paris Agreement'. Under the Paris Agreement, Australia has committed to limit the increase in global temperature to below 2 degrees. The NSW Climate Change Policy Framework says that its 'aspirational emissions savings objective is to achieve net-zero emissions by 2050'."
6. The IPC further stated at [695] of its Statement of Reasons: "In addition, the Commission does not accept the Department's statement in paragraph 679 that the NSW Climate Change Policy Framework has no direct bearing on the determination of the Project or the Recommended Revised Project. Clause 14(2) of the Mining SEPP requires the consent authority to have regard to that Framework as set out in paragraph 687. Likewise, the Commission does not accept that this Policy only applies to government projects as narrowly interpreted by the Department as there is no evidence to support this statement. The Commission considers that on the proper construction of the Mining SEPP, the NSW Climate Change Policy is applicable and must be considered by the Commission."
7. KEPCO contended that the IPC misconstrued cl 14(2) of the Mining SEPP, erroneously believing that it was compelled to consider the NSW Climate Change Policy Framework. This misconstruction led to the IPC considering the NSW Climate Change Policy Framework. KEPCO argued that in doing so, the IPC failed to follow the decision in Wollar, which had held that the NSW Climate Change Policy Framework was not an applicable State policy, program or guideline that a consent authority was required to consider under s 14(2) of the Mining SEPP.
8. KEPCO contended that the primary judge erred in not upholding this ground of challenge to the IPC's decision. In particular, KEPCO submitted that the primary judge erred in finding that it was within the IPC's discretion to conclude that the NSW Climate Change Policy Framework was applicable and therefore should be considered. KEPCO argued that any discretion the IPC had to select the policies, programs or guidelines to be considered had to be exercised in accordance with cl 14(2) properly construed. The primary judge did not explain why KEPCO's construction of cl 14(2), which had been upheld in Wollar, was wrong.

BVPA's argument

1. BVPA contested KEPCO's construction of cl 14(2) of the Mining SEPP. The word "applicable" needs to be construed by reading the subclause as a whole. The State or national "policies, programs or guidelines" that are "applicable" are those "concerning greenhouse gas emissions", being the final words of the subclause. BVPA submitted that the NSW Climate Change Policy Framework met the description of being an "applicable" State policy "concerning greenhouse gas emissions". A document of this kind describing the State's policy setting for the reduction of greenhouse gas emissions from future activities is "applicable" to the exercise of a consent authority, such as the IPC, considering the greenhouse gas emissions associated with a proposed development, as disclosed in an assessment of those emissions, under cl 14(2).
2. BVPA submitted the primary judge was therefore correct to find that the IPC was entitled to conclude that the NSW Climate Change Policy Framework was an applicable State policy concerning greenhouse gas emissions, to which the IPC could have regard in considering an assessment of the greenhouse gas emissions of the development.
3. BVPA submitted that the IPC did not err in not following the decision in Wollar. First, the IPC's approach was not inconsistent with the decision in Wollar because it did not and could not determine the applicability of the NSW Climate Change Policy Framework in all circumstances. As the primary judge held, a consent authority has a discretion under cl 14(2) to decide what State or national policies, programs or guidelines concerning greenhouse gas emissions are applicable in considering an assessment of the greenhouse gas emissions of the development the subject of the development application.
4. Second, Wollar did not authoritatively determine whether or not the NSW Climate Change Policy Framework was an applicable policy for the purposes of considering an assessment of greenhouse gas emissions. Sheahan J's mere acceptance in Wollar, without separate explanation or reasoning, of the first respondent's submissions that he had earlier set out, makes it unclear whether he did in fact hold that the NSW Climate Change Policy Framework was not an applicable policy for the purposes of cl 14(2), or whether he merely held that the consent authority in that case had taken it into account, so that the challenge to the consent authority's decision on the ground of failure to consider that policy was rejected on this basis. This uncertainty about the basis for the decision in Wollar undermines its authority for any proposition that the NSW Climate Change Policy Framework can never be an applicable policy for the purposes of cl 14(2).
5. Third, if Wollar did determine authoritatively that the NSW Climate Change Policy Framework can never be an applicable policy for the purposes of cl 14(2) of the Mining SEPP, in a way that was not confined to the particular circumstances of that case, it was wrongly decided. The language of "policies, programs and guidelines" is apt to refer to a wide range of documents. The fact that a policy may be "aspirational", or set an overarching policy framework, does not render it incapable of being "applied" to the evaluative task that is involved in an assessment of the greenhouse gas emissions of the development. BVPA gave as an example that the objectives set out in the NSW Climate Change Policy Framework may be applicable to the question of considering the overall aim of the State government, as identified in the Policy, such as the extent and rate of reduction of greenhouse gas emissions and achieving the goals of the Paris Agreement that the Policy endorses, and then considering the implications for an assessment of the greenhouse gas emissions of the development. If the NSW Climate Change Policy Framework is of assistance to the consent authority in evaluating such matters, then it is capable of being applied.
6. Finally, BVPA noted that KEPCO did not contend that the NSW Climate Change Policy Framework was not a permissible consideration, only that it was not a mandatory relevant consideration. In this circumstance, the fact that the IPC considered the NSW Climate Change Policy Framework when it was permitted to but not bound to, was not material and does not vitiate the IPC's decision.

The cl 14(2) ground should be rejected

1. KEPCO's cl 14(2) ground should be rejected as KEPCO's construction of cl 14(2) of the Mining SEPP is erroneous. The word "applicable" does not operate to constrain the class of documents to which a consent authority may have regard under cl 14(2) as narrowly as KEPCO contends, for six reasons.
2. First, the ordinary meaning of "applicable" is, as both parties accepted, to be "capable of being applied; fit; suitable; relevant". None of these meanings is narrow, especially the last two meanings of "suitable" and "relevant".
3. Secondly, the adjective needs to be read in conjunction with the noun phrase it qualifies, "State or national policies, programs or guidelines concerning greenhouse gas emissions". This noun phrase describes a wide class of documents. Documents falling within the class can be policies, programs or guidelines, each category of document itself being wide. Basten JA's observation in Belmorgan Property Development Pty Ltd v GPT Re Ltd at [71] about policies and procedures is equally apt to describe "policies, programs and guidelines" in cl 14(2): "As a matter of ordinary usage, "policies and procedures" are likely to be understood as matters of general application, and not as matters specific to a particular decision. Putting procedures to one side, defined policies have a legitimate role in administrative decision-making, because they promote the justifiable outcome of treating like cases alike: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206 (French and Drummond JJ)."
4. Documents meeting the description of "policies, programs or guidelines" need only be "concerning" greenhouse gas emissions, a non-exacting preposition that casts a wide net: the documents need only be "relating to; regarding; about" the topic of greenhouse gas emissions (Macquarie Dictionary). The subject matter with which the documents need to concern, "greenhouse gas emissions", is expressed at a high level of generality, thereby widening the class of documents concerning the subject matter.
5. Documents can be either State or national documents. In a Federal constitutional system, few if any national policies, programs or guidelines concerning greenhouse gas emissions will have direct legal application to decision-making under State planning laws, such as the EPA Act and the Mining SEPP. This speaks against construing the work "applicable" as meaning capable of direct application.
6. Thus, the very width of this class of documents that the adjective "applicable" qualifies is an indicator that the word "applicable" is also to be widely construed.
7. Thirdly, the consent authority is to have regard to "any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions" when considering "an assessment of the greenhouse gas emissions (including downstream emissions) of the development". Greenhouse gas emissions are categorised as Scope 1, 2 and 3. Scope 1 greenhouse gas emissions are direct emissions from the coal mine project, while Scope 2 and 3 greenhouse emissions are indirect emissions. Scope 2 emissions are "upstream" emissions, such as the emissions in producing electricity used by the development. Scope 3 emissions are "downstream" emissions, such as the emissions from the combustion of coal mined from the project, by entities other than the project operator. An assessment of greenhouse gas emissions, including downstream emissions (which are Scope 3 emissions), will be wide, enlarging the class of State or national policies, programs or guidelines concerning greenhouse gas emissions that could potentially be applicable.
8. Fourthly, and following on from the third point, the context in which the consent authority is to have regard to the applicable State or national policies, programs or guidelines concerning greenhouse gas emissions supports giving the word "applicable" a wide meaning. Whilst the consent authority is to have regard to these applicable documents in its consideration of "an assessment of the greenhouse gas emissions (including downstream emissions) of the development", that consideration is itself part of the wider decision-making process of "determining a development application" for that development. Clause 14(2) adds a relevant matter to be considered under s 4.15(1) of the EPA Act by a consent authority in determining a development application, being an assessment of the greenhouse gas emissions of the development. The applicable State or national policies, programs or guidelines concerning greenhouse gas emissions are not themselves relevant matters to be considered in determining the development application, but rather are documents to which regard is to be had in considering the relevant matter of an assessment of the greenhouse gas emissions of the development. This context indicates that the word "applicable" should be given a wider rather than a narrower meaning.
9. Fifthly, having regard to these four points of construction, and reading the subclause as a whole, the statutory description "applicable State or national policies, programs or guidelines concerning greenhouse gas emissions" can be seen to set not an objective criterion, a form of jurisdictional fact, but rather a subjective criterion to be determined by the consent authority having regard to the facts and circumstances of the development the subject of the development application. The consent authority has a discretion to decide whether a State or national policy, program or guideline concerning greenhouse gas emissions falls within or without the statutory description and is or is not "applicable". An exercise of such discretion is still reviewable, on grounds such as those identified in Buck v Bavone (1976) 135 CLR 110 at 118, but not by the Court on review as a jurisdictional fact.
10. In the present case, KEPCO has sought to review the IPC's determination only on the ground that, as a matter of objective fact, the NSW Climate Change Policy Framework is not, and can never be, an "applicable" State policy, program or guideline concerning greenhouse gas emissions within the statutory description in cl 14(2) and the IPC was wrong to decide otherwise. That ground of review is not available once it is recognised that the IPC has a discretion to decide whether the NSW Climate Change Policy Framework was an applicable State policy, program or guideline concerning greenhouse gas emissions to which it must have regard in considering an assessment of the greenhouse gas emissions of the development for the purposes of cl 14(2).
11. Finally, the decision in Wollar does not assist KEPCO's argument. Although there is doubt in ascertaining precisely what Wollar did decide, it at least did decide that "all the material and information" that Sheahan J surveyed in his judgment, including the NSW Climate Change Policy Framework, was indeed before the consent authority, the former Planning Assessment Commission (PAC), and was considered by it, as it reached a decision on the project, and prepared its Determination Report (at [181]). In this circumstance, the challenger had failed to discharge the onus on it to satisfy the Court that the PAC had not paid proper regard to its task in respect of either ground of challenge (at [178]). The first ground of challenge was that the PAC had failed to consider matters it was required to consider by cl 14(2) of the Mining SEPP, one of which was the NSW Climate Change Policy Framework (at [56], [58], [123], [127]). The judge found (at [180]) that the PAC had given close consideration to the issues and the material in the case, referencing his earlier summary of the PAC's Determination Report (at [115]-[118]), which included addressing public submissions that the project was contrary to "targets set by the NSW Government", contained in the NSW Climate Change Policy Framework.
12. The decision in Wollar, therefore, was simply a factual one: the challenger had failed to show that the consent authority, the PAC, had failed to consider a matter that the challenger had argued it was required to consider, being the NSW Climate Change Policy Framework. The decision in Wollar is not authority for the proper construction of cl 14(2) of the Mining SEPP. Wollar did not decide that the phrase "applicable State or national policies, programs or guidelines concerning greenhouse gas emissions" sets an objective criterion, the satisfaction of which is capable of being determined by the Court on review, rather than a subjective criterion, the satisfaction of which is in the discretion of the consent authority. Hence, Wollar did not decide that the NSW Climate Change Policy Framework was not, and could never be, an applicable State policy, program or guideline concerning greenhouse gas emissions under cl 14(2) of the Mining SEPP.
13. For these reasons, KEPCO's construction of the word "applicable", and its argument that the NSW Climate Change Policy Framework can never be an applicable State policy, program or guideline concerning greenhouse gas emissions, are both incorrect. The IPC had a discretion to decide whether the NSW Climate Change Policy Framework was applicable and it exercised this discretion to decide that it was applicable. No error of misconstruction or misapplication of the cl 14(2) is established.
14. The primary judge also did not err in construing cl 14(2) as giving the IPC, as the consent authority, a discretion to decide whether or not the NSW Climate Change Policy Framework was an applicable State policy, program or guideline concerning greenhouse gas emissions to which it could have regard in considering an assessment of the greenhouse gas emissions of the development (at [108]). The primary judge also did not err in distinguishing the decision in Wollar (at [116]-[117]).
15. In any event, even if the IPC were to have misconstrued what are "applicable" policies, programs or guidelines for the purposes of cl 14(2), such error would not cause the IPC's consideration of the matter required by cl 14(2) to have miscarried. The manner in which the consent authority is required by cl 14(2) to consider an assessment of the greenhouse gas emissions of the development is non-exhaustive. The subclause does require that the consent authority consider an assessment of greenhouse gas emissions of the development by having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions, but it does not preclude the consent authority having regard to other matters, including other policies, programs or guidelines concerning greenhouse gas emissions of relevance to an assessment of greenhouse gas emissions of the development. This is to say, whilst a consent authority is bound by cl 14(2) to have regard to any "applicable" State or national policy, program or guideline concerning greenhouse gas emissions, it is permitted to consider any other State or national policy, program or guideline concerning greenhouse gas emissions.
16. The legal consequence is that a consent authority will be in breach of cl 14(2) if it fails to have regard to an applicable State or national policy, program or guideline concerning greenhouse gas emissions, but not if it considers any other State or national policy, program or guideline concerning greenhouse gas emissions. Hence, even if the NSW Climate Change Policy Framework could not be considered to be an "applicable" State or national policy, program or guideline concerning greenhouse gas emissions, for the purposes of cl 14(2), the IPC's consideration of it would not have the legal consequence of causing the IPC's consideration to be in breach of cl 14(2).
17. For these reasons, ground 3 is not established.

The no evidence ground

1. KEPCO's final ground of appeal, ground 5, is founded on its argument that the IPC made a finding of fact that failed to take account of cogent evidence or was legally unreasonable in that there was only one finding open on the evidence, which the IPC did not make.
2. The finding of fact, which KEPCO challenged, was that made by IPC in [694] of its Statement of Reasons: "The Commission does not have evidence before it to determine whether, if the Project or Recommended Revised Project is not approved, the Applicant will need to secure an alternative source of coal and that this coal may be of an inferior quality and may lead to poorer environmental outcomes, as was asserted in the Applicant's letter dated 8 March 2019 and in the Department's Preliminary Assessment Report. The Commission agrees with Preston CJ that, in any event, an unacceptable impact does not become acceptable because the Applicant may end up pursuing an alternative development that has unacceptable impacts."
3. KEPCO contended that, contrary to this finding, there was evidence before the IPC on this issue. There was a letter from the President and CEO of KEPCO Australia Pty Ltd, Mr Lee, dated 4 March 2019. KEPCO Australia Pty Ltd, along with the applicant, KEPCO Bylong Australia Pty Ltd, is a subsidiary of Korea Electric Power Corporation (KEPCO Korea). KEPCO Korea is an energy generator, distributor and retailer in Korea. Mr Lee stated that KEPCO Korea, by proposing the Bylong Coal mine, "is seeking to secure high quality coal for our existing High-Efficiency, Low-Emissions (HELE) coal-fired power plants" in Korea. Mr Lee stated: "In 2011, KEPCO made the decision to establish its largest overseas greenfield resources project in Bylong due to the suitability of the coal resource in KEPCO's modern coal power infrastructure. This Project is important to and will ensure the stability of supply for the KEPCO owned power stations. If KEPCO is required to obtain substituted coal suppliers, it is likely to have a higher ash and sulphur content and will be sourced from countries such as Indonesia. This will have an adverse effect on the Australian and New South Wales economies and the Korean environment."
4. KEPCO's planning consultant, Hansen Bailey, also provided a letter to the IPC, also dated 4 March 2019, asserting that: "As KEPCO is the dominant electricity provider in the Republic of Korea, there is no margin for shortfalls in energy supply. KEPCO's preference is to use high quality low sulphur coal due to its environmental and operational advantages. The coal from the Project meets that intent. However, if such coal is not readily available, KEPCO's power stations will continue to operate and will rely (and will probably need to rely) on substituted coal to ensure that its energy supply is not compromised. The use of lower quality coal in these power generation facilities will lead to a poorer environmental outcome."
5. KEPCO argued that these two letters were "plainly evidence before the IPC enabling it to determine whether KEPCO Korea would need to secure an alternative source of coal, and that that coal may be of inferior quality".
6. KEPCO argued that the IPC's finding of fact firstly revealed that the IPC had failed to take account of these two letters, in the sense of actual consideration rather than mere advertence or lip service, citing Anderson v Director General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337 at [51]-[58]. Alternatively, if the IPC did in fact consider the letters but nevertheless found that it did not have evidence before it to make a determination on the matters, KEPCO argued that the IPC's finding was legally unreasonable. A finding will be legally unreasonable if there is "only one conclusion open on the evidence or…there is no logical connection between the evidence and the inferences drawn": Fattah v Minister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31 at [45].
7. KEPCO contended that the primary judge erred in rejecting these arguments. The primary judge considered that the arguments went to the merits (at [241]), revealing that she misunderstood the arguments. KEPCO was not arguing that the IPC had erroneously concluded that KEPCO Korea would not in fact secure alternative sources of dirtier coal, but instead that the IPC had erroneously concluded that there was no evidence enabling a finding on that topic.

BVPA's argument

1. BVPA contested that the IPC's finding involves either error claimed by KEPCO. As to the first alleged error, that the IPC had failed to consider the two letters, BVPA submitted that this is not borne out by reference to the letters or the IPC's findings. The letters do not establish that, if development consent were to be refused, KEPCO would secure alternative sources of coal of an inferior quality. Mr Lee's letter merely stated that if KEPCO is required to obtain substituted coal supplies, "it is likely to have a higher ash and sulphur content". Hansen Bailey's letter of 4 March 2019 went little further. It stated that KEPCO's preference is to use high quality, low sulphur coal due to its environmental and operational advantages and that coal from the proposed Bylong coal mine would meet this preference. The letter stated that, "However, if such coal is not readily available, KEPCO's power stations will continue to operate and will rely (and will probably need to rely) on substituted coal to ensure that its energy supply is not compromised". BVPA submitted that neither letter asserted that KEPCO's alternative plans are certain or that, if consent is not granted to the proposed Bylong coal mine, KEPCO would secure alternative sources of coal of an inferior quality. Neither letter identified any particular alternative sources of coal or provided information as to its quality.
2. The IPC's finding was not that KEPCO would not need to secure an alternative source of coal, but only that it did not have evidence before it to reach a determination on that issue. In saying this, the IPC was not indicating that it had no evidence at all on the topic. The IPC was aware of KEPCO's contentions on this topic, as revealed by the IPC's reasons in section 6.14.6, including at [673] and [694]. The IPC was only indicating that it did not consider that it was in a position, based on the evidence before it, to reach any satisfactory conclusion about whether the claimed eventuality would in fact arise.
3. BVPA submitted that, reading the IPC's finding in the context of its reasons as a whole, the IPC's statement in [694] that it "does not have evidence" did not mean that there was literally no evidence before it on the point, but rather that in the IPC's assessment, there was not evidence capable of satisfying it on the point, citing A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1], [19]-[27].
4. As to the second alleged error, BVPA submitted that the IPC's finding cannot be said to be legally unreasonable. The IPC engaged with the material before it on the topic, including the letters of Mr Lee and Hansen Bailey, each dated 4 March 2019. The IPC recorded that KEPCO had asserted that it will need to secure alternative sources of coal and that this coal may be of inferior quality and may lead to poorer environmental outcomes. The IPC, having considered the qualified terms in which the letters were written, found that this assertion was not evidence that KEPCO would secure alternative sources of coal of inferior quality. There was a logical connection between the letters and the IPC's conclusion that they were insufficient to permit this finding. It also cannot be said that there was only one conclusion open on the letters.

The no evidence ground is rejected

1. KEPCO has not established that the IPC erred in making its finding in [694] of its Statement of Reasons in either of the ways claimed in ground 5.
2. First, the IPC did not fail to take into account KEPCO's letters asserting that, if the Bylong coal mine were not to be approved and KEPCO was required to obtain substituted coal supplies, they are likely to be of inferior quality. The IPC expressly referred to Mr Lee's letter and Hansen Bailey's letter, each of 4 March 2019 (at [668]-[676], referring specifically to the Hansen Bailey letter of 4 March, which attached Mr Lee's letter). The IPC also referred to another letter dated 8 March 2019 from Hansen Bailey at [672]-[673] and [694]. Hansen Bailey's letter of 8 March 2019, referred to "previous correspondence to the IPC", which included its letter of 4 March 2019 attaching Mr Lee's letter of the same date. Hansen Bailey's 8 March 2019 letter stated: "It has been established in previous correspondence to the IPC that KEPCO is a vertically integrated company. KEPCO has targeted the Project to secure a reliable appropriate quality supply of coal for its power stations in South Korea. If the Project is not approved, KEPCO will need to secure an alternative source of coal from elsewhere to meet its energy demands. It is possible that an alternative supply may be of an inferior quality. A refusal of this Project would not in any way influence the quantity of coal forecast to be utilised in KEPCO's power generation in the decades to come."
3. This letter of 8 March 2019, like the two letters of 4 March 2019, is equivocal as to whether any alternative source of coal would be likely to be of inferior quality. The letter merely asserted that "it is possible that an alternative source of coal may be of an inferior quality". Having regard to the uncertainty and imprecision in which the issue of whether KEPCO would secure alternative sources of coal of inferior quality was expressed in the letters, it was reasonably open to the IPC to find that it "does not have evidence before it to determine whether, if the Project or Recommended Revised Project is not approved, the Applicant will need to secure an alternative source of coal and that this may be of an inferior quality and may lead to poorer environmental outcomes". This finding involves an evaluation of the content of the letters, both what they do assert and the terms in which they assert it, as well as what they do not assert. This is actual consideration of the letters, not mere advertence or lip service. KEPCO has therefore not established the first way it put this ground of failure to take account of and evaluate the letters.
4. Secondly, KEPCO has not established that the IPC's finding that the letters did not constitute sufficient evidence to enable the IPC to determine whether KEPCO "will need to secure an alternative source of coal and that this may be of an inferior quality and may lead to poorer environmental outcomes" was legally unreasonable. As earlier noted, Mr Lee's letter of 4 March 2019 and Hansen Bailey's letters of 4 March and 8 March 2019 are all expressed in general and uncertain terms, using words such as "likely", "probably" and "possible". The letters also lack any details of what might be the alternative sources of coal and what might be the quality of the coal from those sources. Mr Lee's letter stated that the substituted coal supplies "will be sourced from countries such as Indonesia", Hansen Bailey's letter of 4 March 2019 was silent as to where substituted coal would be sourced, and Hansen Bailey's letter of 8 March 2019 vaguely suggested that any alternative source of coal will be "from elsewhere". No details are given as to the particular qualities of the coal from these unspecified sources, beyond the assertion that "is likely to have a higher ash and sulphur content" (Mr Lee's letter), be "lower quality coal" (Hansen Bailey's 4 March 2019 letter), or be of "an inferior quality" (Hansen Bailey's 8 March 2019 letter).
5. Having regard to the terms in which these letters were expressed, it was reasonably open to the IPC to make the finding that the letters were not "evidence" sufficient to enable the IPC "to determine", as facts, that KEPCO "will need to secure an alternative source of coal" and that this coal "may be of inferior quality and may lead to poorer environmental outcomes". In so saying, the IPC was not finding that there was no evidence at all, but rather that in its view the evidence, in the form of the letters, was not capable of satisfying it on these points: see A v Minister for Immigration and Multicultural Affairs at [1].
6. The IPC's finding that the letters were insufficient to enable it to determine the points regarding alternative sources and quality of coal was open on the letters, so that it cannot be said that it was legally unreasonable for the IPC to have made the finding. The IPC's finding also cannot be said to lack any logical connection to the letters.
7. At the base of both of the errors alleged by KEPCO is a dissatisfaction with the factual finding of the IPC, that the IPC did not make the finding KEPCO had asserted that the IPC should make from the letters, rather than making the finding that the IPC did make. This was the point made by the primary judge in [241] when she categorised KEPCO's complaint to be "about a merits matter". The primary judge did not err in rejecting KEPCO's challenge to the IPC's decision on this ground.
8. Ground 5 is not established.

Conclusion and orders

1. KEPCO has not established any of its five grounds of appeal against the primary judge's dismissal of its challenge to the IPC's decision. The appeal should be dismissed with costs.

Endnotes

1. KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) [2020] NSWLEC 179 ("primary judgment").
2. Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [12] (Gaudron and Gummow JJ).
3. Proposed development consent, Sch 2, par 2(c).
4. Ibid, par 5.
5. Independent Planning Commission, "Statement of Reasons for Decision, Bylong Coal Project (SSD 6367)", 18 September 2019 ("reasons").
6. MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
7. Reasons, par 211.
8. Air Quality and Greenhouse Gas Impact Statement, Hansen Bailey, September 2015, par 12.2.
9. Primary judgment at [50].
10. Primary judgment at [55].
11. Primary judgment at [58].
12. (2016) 94 NSWLR 159; [2016] NSWCA 51, (Gleeson JA and Simpson AJA agreeing). Section 91(1) of the Planning Act (as in force in 1997, being the relevant date in Zraika) was relevantly identical to the present s 4.16(1) and s 4.38(1).
13. Appellant's written submissions, par 53.
14. [2018] NSWLEC 92 (Sheahan J) at [148].
15. Wollar at [134].
16. Wollar at [141].
17. Wollar at [180].
18. Wollar at [181].
19. Macquarie Dictionary (5th ed).
20. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81] (Gaudron J).
21. [2003] HCA 26; 77 ALJR 1088.
22. A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1] (Burchett and Lee JJ), citing Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479 (Gummow J). 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: 14 September 2021