KEPCO Bylong Australia Pty Ltd v Independent Planning Commission - [2020] NSWLEC 179 - NSWLEC 2020 case summary — Zoe

NSWNSWLEC

KEPCO Bylong Australia Pty Ltd v Independent Planning Commission

[2020] NSWLEC 179

Land and Environment Court (NSW)|2020-12-18|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2020-12-18

Before

Pain J

Catchwords

[2018] NSWCA 245 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
[2009] HCA 41 Alexandria Landfill v Transport for NSW [2020] NSWCA 165 Attorney-General (NSW) v Quin (1990) 170 CLR 1
[1981] HCA 26 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379
[2006] NSWCA 155 Davis v Gosford City Council (2014) 87 NSWLR 699

Source

Original judgment source is linked above.

Catchwords

[2018] NSWCA 245 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27[2009] HCA 41 Alexandria Landfill v Transport for NSW [2020] NSWCA 165 Attorney-General (NSW) v Quin (1990) 170 CLR 1[1981] HCA 26 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379[2006] NSWCA 155 Davis v Gosford City Council (2014) 87 NSWLR 699[2014] NSWCA 343 Ex parte King[2019] FCAFC 31 Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160[2015] NSWLEC 61 Gilbank v Bloore (No 2) [2012] NSWLEC 273 Gloucester Resources v Minister for Planning (2019) 234 LGERA 257[2019] NSWLEC 7 Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332[2016] NSWLEC 45 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34 IW v City of Perth (1997) 191 CLR 1[2018] NSWLEC 26 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[2019] HCA 3 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Judgment (64 paragraphs)

[1]

160; [2015] NSWLEC 61 Gilbank v Bloore (No 2) [2012] NSWLEC 273 Gloucester Resources v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7 Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38 Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 1 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 P&C Cantarella Pty Ltd v Egg Marketing Board for the State of NSW [1973] 2 NSWLR 366 Parramatta City Council v Hale (1982) 47 LGERA 319 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000] FCA 1113 Plaintiff M61/2010E v the Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40 FCR 332 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000; Harvey v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299; [2008] NSWCA 356 Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Wollar Progress Association Incorporated v Wilpingjong Coal Pty Ltd [2018] NSWLEC 92 Category: Principal judgment Parties: KEPCO Bylong Australia Pty Ltd (Applicant) Independent Planning Commission (First Respondent) Bylong Valley Protection Alliance Incorporated (Second Respondent) Representation: COUNSEL: R Lancaster SC and D Hume (Applicant) Submitting appearance (First Respondent) S Free SC and R McEwen (Second Respondent)

[2]

SOLICITORS: Minter Ellison (Applicant) Crown Solicitor's Office (First Respondent) Environmental Defender's Office (Second Respondent) File Number(s): 19/392909

[3]

Judicial review of refusal of new coal mine by Independent Planning Commission

The Applicant KEPCO Bylong Australia Pty Ltd (KEPCO) has commenced judicial review proceedings challenging the refusal of a coal mine in the Bylong Valley by the First Respondent, the Independent Planning Commission (IPC).
The IPC is a corporation constituted by s 2.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). It is a continuation of the same legal entity as the Planning Assessment Commission (PAC) established under s 23B of the EPA Act immediately before the repeal of that section. The IPC has filed a submitting appearance. The Second Respondent, the Bylong Valley Protection Alliance Incorporated (the BVPA), is a registered incorporated association under the Associations Incorporation Act 2009 (NSW). It was joined as a party pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) in KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38.
KEPCO's Further Amended Summons filed 3 June 2020 seeks a declaration that the purported determination by the IPC by way of refusal on 18 September 2019 (the Refusal Decision) in relation to State Significant Development Application No SSD 6367 (the DA) lodged by KEPCO for the Bylong Coal Project (the Project) is invalid and of no effect. An order remitting the DA to the IPC, constituted by individuals different to those who constituted it in making the Refusal Decision, for re-determination in accordance with law is also sought.
There are eight grounds of judicial review (Grounds 5 and 10 were not pressed at the hearing). KEPCO alleges that by reason of the errors alleged in the grounds of review, each of which is a jurisdictional error according to KEPCO, the Refusal Decision was invalid and should be set aside. KEPCO bears the onus of proof on the balance of probabilities of establishing the errors it alleges: Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116 at [2] citing SOCARES Support Group Inc v Cessnock City Council (2012) 190 LGERA 1; [2012] NSWLEC 23 at [8]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] (Gummow J); Gilbank v Bloore (No 2) [2012] NSWLEC 273 (Gilbank v Bloore (No 2)) at [48].

[4]

Environmental Planning and Assessment Act 1979 (NSW)

Relevant sections of the EPA Act as in force between 1 July 2019 and 31 October 2019 provided: Part 2 Planning administration Division 2.3 Independent Planning Commission … 2.8 Members of Commission (1) The Independent Planning Commission is to consist of such members as are appointed by the Minister. (2) One member of the Commission is, in the instrument of appointment or a subsequent instrument, to be appointed as the chairperson of the Commission. (3) Each member is to have expertise in at least one area of planning, architecture, heritage, the environment, urban design, land economics, soil or agricultural science, hydro-geology, mining or petroleum development, traffic and transport, law, engineering, tourism or government and public administration. (4) In appointing a member of the Commission, the Minister is to have regard to the need to have a range of expertise represented among the Commission's members. (5) The Minister may appoint additional members of the Commission for the purposes of exercising specific functions of the Commission. An additional member is not required to have expertise in an area referred to in this section but is required to have expertise in an area relevant to the functions the member is to exercise. (6) Without limiting subsection (5), the Minister may appoint as an additional member for the purposes of that subsection a person who is a member of a subcommittee of the Commission. Any such appointment may be limited to a particular matter or matters, in addition to any limitation relating to specific functions. 2.9 Functions of Commission (1) The Independent Planning Commission has the following functions: (a) the functions of the consent authority under Part 4 for State significant or other development that are (subject to this Act) conferred on it under this Act, … Part 4 Development assessment and consent … Division 4.2 Consent authority 4.5 Designation of consent authority For the purposes of this Act, the consent authority is as follows: (a) in the case of State significant development - the Independent Planning Commission (if the development is of a kind for which the Commission is declared the consent authority by an environmental planning instrument) or the Minister (if the development is not of that kind), … 4.6 Provisions relating to Independent Planning Commission The following consent authority functions of the Independent Planning Commission are to be exercised by the Planning Secretary on behalf of the Commission: (a) receiving development applications and determining and receiving fees for the applications, (b) undertaking assessments of the proposed development and providing them to the Commission (but without limiting the assessments that the Commission may undertake), (c) obtaining any concurrence, and undertaking any consultation, that the consent authority is required to obtain or undertake, (d) carrying out the community participation requirements of Division 2.6, (e) notifying or registering the determinations of the Commission, (f) the functions under section 4.17 in relation to the provision of security, (g) the determination of applications to extend the period before consents lapse, (h) any other function prescribed by the regulations. … Division 4.3 Development that needs consent (except complying development) … 4.15 Evaluation (1) Matters for consideration - general 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. (2) Compliance with non-discretionary development standards - development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority: (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards: (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. … 4.18 Post-determination notification (1) The consent authority must, in accordance with the regulations, notify its determination of a development application to: (a) the applicant, and (b) in the case of a development application for consent to carry out designated development, each person who made a submission under Schedule 1, and (c) such other persons as are required by the regulations to be notified of the determination of the development application. (2) If the consent authority is not the council, the consent authority must notify the council of its determination. (3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under Schedule 1 by way of objection of the person's rights to appeal against the determination and of the applicant's rights to appeal against the determination. (4) For the purposes of this section, designated development includes State significant development that would be designated development but for section 4.10(2). … Division 4.7 State significant development 4.36 Development that is State significant development (1) For the purposes of this Act, State significant development is development that is declared under this section to be State significant development. (2) A State environmental planning policy may declare any development, or any class or description of development, to be State significant development. … 4.38 Consent for State significant development (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. … (6) If the determination under section 3.34 (Gateway determination) for a planning proposal declares that the proposed instrument is principally concerned with permitting the carrying out of State significant development that would otherwise be wholly prohibited: (a) the proposed instrument may be made only by the Independent Planning Commission under a delegation from the Minister, and (b) the development application for the carrying out of that development may be determined only by the Independent Planning Commission under a delegation from the Minister. … 4.40 Evaluation of development application (s 4.15) Section 4.15 applies, subject to this Division, to the determination of the development application. …

[5]

Environmental Planning and Assessment Regulation 2000 (NSW)

Regulation 100 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) as in force between 13 September 2019 and 14 November 2019 provided: Part 6 Procedures relating to development applications … Division 10 Post-determination notifications 100 Notice of determination (1) For the purposes of section 4.18 (1) of the Act, a notice of the determination of a development application must contain the following information - … (c) if the application has been refused, or granted subject to conditions (other than conditions prescribed under section 4.17 (11) of the Act), the consent authority's reasons for the refusal or for the imposition of those conditions, …

[6]

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW)

Regulation 19 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) provides: Part 2 Provisions consequent on enactment of Environmental Planning and Assessment Amendment Act 2017 … 19 References to Minister as consent authority for State significant development (1) In this clause - document includes any Act, statutory instrument, contract, agreement or other instrument issued or made under or for the purposes of any Act or statutory or other instrument. (2) A reference in section 7.14 or 7.16(3) of the Biodiversity Conservation Act 2016, or in any other document, to the Minister for Planning as consent authority for an application for development consent for State significant development includes a reference to the Independent Planning Commission as consent authority for any such application as a consequence of the enactment of section 4.5(a) of the Act by Schedule 4.1 to the Environmental Planning and Assessment Amendment Act 2017. …

[7]

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

Relevant provisions of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) as in force between 30 August 2019 to 12 December 2019 provided: Part 1 Preliminary … 2 Aims of Policy The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries - (a) to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and (b) to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and (b1) to promote the development of significant mineral resources, and (c) to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources, and … Part 3 Development applications - matters for consideration 12AA (Repealed) 12AB Non-discretionary development standards for mining (1) The object of this clause is to identify development standards on particular matters relating to mining that, if complied with, prevents the consent authority from requiring more onerous standards for those matters (but that does not prevent the consent authority granting consent even though any such standard is not complied with). (2) The matters set out in this clause are identified as non-discretionary development standards for the purposes of section 4.15(2) and (3) of the Act in relation to the carrying out of development for the purposes of mining. … (7) Aquifer interference Any interference with an aquifer caused by the development does not exceed the respective water table, water pressure and water quality requirements specified for item 1 in columns 2, 3 and 4 of Table 1 of the Aquifer Interference Policy for each relevant water source listed in column 1 of that Table. …. (9) In this clause - Aquifer Interference Policy means the document entitled NSW Aquifer Interference Policy published by the NSW Office of Water, Department of Primary Industries and in force as at the commencement of this clause. … 12 Compatibility of proposed mine, petroleum production or extractive industry with other land uses Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must - (a) consider - (i) the existing uses and approved uses of land in the vicinity of the development, and (ii) whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and (iii) any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and (b) evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a)(i) and (ii), and (c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a)(iii). 12A Consideration of voluntary land acquisition and mitigation policy … (2) Before determining an application for consent for State significant development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider any applicable provisions of the voluntary land acquisition and mitigation policy and, in particular - (a) any applicable provisions of the policy for the mitigation or avoidance of noise or particulate matter impacts outside the land on which the development is to be carried out, and (b) any applicable provisions of the policy relating to the developer making an offer to acquire land affected by those impacts. … 13 Compatibility of proposed development with mining, petroleum production or extractive industry … (2) Before determining an application to which this clause applies, the consent authority must - (a) consider - (i) the existing uses and approved uses of land in the vicinity of the development, and (ii) whether or not the development is likely to have a significant impact on current or future extraction or recovery of minerals, petroleum or extractive materials (including by limiting access to, or impeding assessment of, those resources), and (iii) any ways in which the development may be incompatible with any of those existing or approved uses or that current or future extraction or recovery, and (b) evaluate and compare the respective public benefits of the development and the uses, extraction and recovery referred to in paragraph (a) (i) and (ii), and (c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii). 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. 15 Resource recovery (1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider the efficiency or otherwise of the development in terms of resource recovery. (2) Before granting consent for the development, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at optimising the efficiency of resource recovery and the reuse or recycling of material. (3) The consent authority may refuse to grant consent to development if it is not satisfied that the development will be carried out in such a way as to optimise the efficiency of recovery of minerals, petroleum or extractive materials and to minimise the creation of waste in association with the extraction, recovery or processing of minerals, petroleum or extractive materials. 16 Transport (1) Before granting consent for development for the purposes of mining or extractive industry that involves the transport of materials, the consent authority must consider whether or not the consent should be issued subject to conditions that do any one or more of the following - (a) require that some or all of the transport of materials in connection with the development is not to be by public road, (b) limit or preclude truck movements, in connection with the development, that occur on roads in residential areas or on roads near to schools, (c) require the preparation and implementation, in relation to the development, of a code of conduct relating to the transport of materials on public roads. (2) If the consent authority considers that the development involves the transport of materials on a public road, the consent authority must, within 7 days after receiving the development application, provide a copy of the application to - (a) each roads authority for the road, and (b) the Roads and Traffic Authority (if it is not a roads authority for the road). 17 Rehabilitation (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 the rehabilitation of land that will be affected by the development. (2) In particular, the consent authority must consider whether conditions of the consent should - (a) require the preparation of a plan that identifies the proposed end use and landform of the land once rehabilitated, or (b) require waste generated by the development or the rehabilitation to be dealt with appropriately, or (c) require any soil contaminated as a result of the development to be remediated in accordance with relevant guidelines (including guidelines under clause 3 of Schedule 6 to the Act and the Contaminated Land Management Act 1997), or (d) require steps to be taken to ensure that the state of the land, while being rehabilitated and at the completion of the rehabilitation, does not jeopardize public safety. Part 4AA Mining and petroleum development on strategic agricultural land … Division 2 Development applications 17B Assessment of development applications (1) Before determining an application for development consent for mining or petroleum development that is accompanied by a gateway certificate, the consent authority must - (a) refer the application to the Minister for Regional Water for advice regarding the impact of the proposed development on water resources, and (b) consider - … (ii) any written advice provided by the Minister for Regional Water in response to a referral under paragraph (a), and … (2) In determining an application for development consent for mining or petroleum development that is accompanied by a gateway certificate, the consent authority must consider whether any recommendations set out in the certificate have or have not been addressed and, if addressed, the manner in which those recommendations have been addressed. (3) The Minister for Regional Water, when providing advice under this clause on the impact of the proposed development on water resources, must have regard to - (a) the minimal impact considerations set out in the Aquifer Interference Policy, and (b) the other provisions of that Policy.

[8]

Statement of agreed facts/chronology

A number of background facts were helpfully agreed by the parties in the following Statement of Agreed Facts (SOAF): The Development Application Process 1 On or around 17 January 2014, the Applicant made a written request to the Secretary of the Department of Environment & Planning (Department) for Secretary's Environmental Assessment Requirements (SEARs) for the Project. This written request was accompanied by a document entitled "Bylong Coal Project - Background Document" dated 17 January 2014. 2 On or around 12 March 2014, the Project (EPBC 2014/7133) was determined to be a 'controlled action' under the Commonwealth EPBC Act, and that the Project will be assessed under the bilateral agreement with NSW. 3 On or around 15 April 2014, a Conditional Gateway Certificate was issued under the Mining SEPP for the Project. 4 On or around 23 June 2014, the Secretary of the Department wrote to the Applicant attaching the SEARs with respect to the Project. 5 On or around 11 November 2014, the Secretary of the Department wrote to the Applicant attaching the (revised) SEARs with respect to the Project. The Conditional Gateway Certificate formed attachment 3 to the SEARs. 6 On or around 22 July 2015, the Applicant lodged with the Department an application form for state significant development dated 22 July 2015 (Development Application). 7 On or around 1 September 2015, the Applicant lodged with the Department a document entitled "Bylong Coal Project - Environmental Impact Statement (EIS)" dated September 2015 prepared by Hansen Bailey (EIS Main Report), which included Appendices labelled A - AG. 8 Between 23 September 2015 and 6 November 2015, the Department placed the EIS Main Report and the Appendices thereto on public exhibition and received submissions. 9 On 12 December 2015, the Paris Agreement was adopted by a conference of the parties to the United Nations Framework Convention on Climate Change, including Australia. 10 In a letter dated 4 January 2016, the Deputy Secretary, Planning Services, of the NSW Department of Planning and Environment invited advice from the Minister for Primary Industries and Minister "in accordance with clause 17B of the Mining SEPP". In an undated letter, which was sent at least after 12 May 2016, the Minister for Primary Industries responded to the 4 January 2016 letter. 11 On or around 23 March 2016, the Applicant lodged with the Department a document entitled "Bylong Coal Project -EIS Response to Submissions" dated March 2016 prepared by Hansen Bailey, which included Appendices labelled A - N. 12 On or around 19 August 2016, the Applicant lodged with the Department a document entitled "Bylong Coal Project - EIS Supplementary Response to Submissions" dated August 2016 prepared by Hansen Bailey, which included Appendices labelled A - M. 13 On 1 October 2016, the NSW Government published the NSW Climate Change Policy Framework. 14 On 9 November 2016, Australia ratified the Paris Agreement. 15 On or around 9 January 2017, the Minister issued a request to the Planning Assessment Commission (PAC) under s 23D of the EP&A Act for the PAC to review the Project and hold a public hearing. 16 On or around 31 March 2017, the Department released its document entitled "Preliminary Assessment Report" dated March 2017, which included Appendices labelled A - M. 17 On 11 May 2017, the PAC held a public hearing with respect to the Project, for the purposes of the then s 23D EP&A Act. 18 On or around 27 July 2017, the PAC released its document entitled "Review Report" dated 25 July 2017 (PAC Review Report), which included Appendices labelled 1-9. 19 On or around 17 January 2018, the Applicant lodged with the Department a document entitled "Bylong Coal Project - Response to PAC Review Report" dated January 2018 prepared by Hansen Bailey, which included Appendices labelled A - X. [Revised Mine Plan included] 20 On or around 29 May 2018, the Department requested further information from the Applicant, via a letter dated 28 May 2018, in relation to the potential implications of stepping the open cut mine off Tarwyn Park. 21 In response, on or around 12 July 2018, the Applicant lodged with the Department a document entitled "Bylong Coal Project - Supplementary Information" dated July 2018 prepared by Hansen Bailey, which included Appendices labelled A - N. 22 On or around 4 October 2018, the Department released its document entitled "State Significant Development - Final Assessment Report (SSD 6367)" dated October 2018, which included Appendices labelled A - H. 23 Between 8 October 2018 and 14 November 2018, the First Respondent placed the Project on public exhibition and received submissions. 24 During the months of October 2018 and November 2018, the First Respondent held meetings with the Applicant, the public, community groups, local governments and the Second Respondent, and conducted a site inspection. 25 On or around 20 December 2018, the Department released a document entitled "Review of Economic Analysis supporting the Revised Bylong Coal Project" dated 20 December 2018. 26 On or around 13 February 2019, the Department provided additional information to the First Respondent entitled "Bylong Coal Project (SSD 6367) - Request for Additional Information" dated 13 February 2019, which included Appendices labelled A and B. Appendix B being a letter dated 19 December 2018 prepared by Hansen Bailey addressing the Request for Additional Information and annexing a report prepared by Australasian Groundwater and Environmental Consultants. 27 On or around 10 March 2019, the First Respondent released a document entitled "Review of Groundwater Issues Associated with the Proposed Bylong Project" dated 5 March 2019 (Independent Groundwater Review). 28 On or around 12 June 2019, the First Respondent released a document entitled "Bylong Coal Project (SSD 6367) - GML Heritage Advice" dated 12 June 2019 (Independent Heritage Review). 29 During June 2019 the First Respondent accepted written submissions on the Independent Heritage Review. 30 On or around 6 August 2019, the First Respondent met with the Department and Department of Primary Industries Agriculture. 31 On or around 18 September 2019, the First Respondent refused the Development Application, and published a document entitled "Statement of reasons for decision" (Statement of Reasons) dated 18 September 2019. 32 On 13 December 2019, the Applicant filed its Class 4 Application (Summons - Judicial Review) with the Court.

[9]

Evidence

KEPCO tendered volumes 1, 2, 3 and 4 of the Evidence Book (Ex A), the IPC's Statement of Reasons (SOR) (Ex B), and the SOAF (Ex C)).
The BVPA tendered volumes 5 and 6 of the Evidence Book (Ex 1).
The evidence relied on by the parties is expanded below by reference to each of the grounds of review alleged by KEPCO.

[10]

Statement of Reasons

As is clear from the SOR, in forming its decision the IPC considered the merits of both (i) the Project, and (ii) a Revised Mine Plan and a set of conditions (Final Proposed Conditions), as put forward by the Department of Planning and Environment in its State Significant Development Final Assessment Report October 2018 (Final Assessment Report) as a potential modification to the Project under s 4.38(1)(a) of the EPA Act (the Recommended Revised Project).
The IPC was under a duty to provide reasons for its decision pursuant to s 4.18(1) of the EPA Act (above in [5]) and reg 100(1)(c) of the EPA Regulation (above in [6]).
The IPC's SOR is extensive, consisting of 819 paragraphs over 146 pages. All the grounds are largely addressed by reference to the SOR. It is therefore extensively extracted below in [19].
The SOR is divided into eight sections. 1. Section 1 ("Introduction") summarises the Project before the IPC including a description of the site and locality. 2. Section 2 ("Key steps in the consideration of the application") outlines the key steps taken in consideration of the DA, including assessment by the Department of Planning and Environment (Department) and the PAC before the IPC was established. 3. Section 3 ("The Commission's meetings and site inspection") describes the inspections and meetings held by the IPC, including meetings with the Department and with KEPCO. 4. Section 4 ("Additional information") describes additional information received by the IPC in response to its requests for additional information. 5. Section 5 ("Material considered by the Commission") lists the material considered by the IPC in its determination, including those items that it was mandatory for the IPC to take into consideration. Section 5 also outlines relevant environmental planning instruments, including pars 102-110 which outlines applicable provisions of the Mining SEPP, and pars 149-155 which describe the IPC's consideration of "other advice". 6. Section 6 ("Commission's considerations") describes the IPC's consideration of, inter alia: 1. existing, approved and likely preferred uses of land in the vicinity (agriculture, heritage, tourism, and mining), the impact of the Project on those uses, and the incompatibility or comparative benefits of the Project (Sections 6.1.2-6.1.7, pars 193-236) concluding in pars 235-236 that the public benefits of the Project and the Recommended Revised Project have not been proven to outweigh the public costs of the proposed mine or the public benefits of the existing, approved and likely preferred uses in the vicinity; 2. groundwater (Section 6.2, pars 237-297) concluding in pars 288-297 that the groundwater impacts on the Project site are unacceptable; 3. surface water (Section 6.3, pars 298-323) concluding in pars 322-323 that the surface water impacts are acceptable and manageable; 4. agriculture (Section 6.4, pars 324-376) concluding in pars 369-376 that neither the Project nor the Recommended Revised Project is compatible with the land use objectives of protecting agricultural land; 5. mine rehabilitation (Section 6.5, pars 377-407), concluding in pars 402-407 that neither the Project or the Recommended Revised Project meet objectives relating to the proper management of resources by protecting, conserving and enhancing land; 6. heritage (Section 6.6, pars 408-488), concluding in pars 479-488 that the heritage impacts of the Project and the Recommended Revised Project would be unacceptable; 7. Aboriginal heritage impacts (Section 6.7, pars 489-516), concluding in pars 514-516 that there was insufficient evidence for the IPC to form a view on the impacts on Aboriginal heritage; 8. biodiversity (Section 6.8, pars 517-535), concluding in par 532-535 that the Project and the Recommended Revised Project would result in a net loss of 288 hectares of Biophysical Strategic Agricultural Land (BSAL); 9. transport and traffic (Section 6.9, pars 536-558), concluding in pars 557-558 that the impacts of the Project and the Recommended Revised Project on traffic could be managed; 10. air quality (Section 6.10, pars 559-573), concluding in par 573 that the air quality impacts resulting from the Project and the Recommended Revised Project are acceptable; 11. noise and blasting (Section 6.11, pars 574-608), concluding in pars 606-608 that the noise and blasting impacts resulting from the Project and the Recommended Revised Project are acceptable; 12. visual impact (Section 6.12, pars 609-625), concluding in pars 624-625 that the visual impacts of the Project and the Recommended Revised Project can be minimised; 13. subsidence (Section 6.13, pars 626-647), concluding in pars 646-647 that the subsidence impacts resulting from the Project and the Recommended Revised Project are acceptable; 14. climate change (Section 6.14, pars 648-697), noting in par 687 that it is required under cl 14(2) of the Mining SEPP to consider greenhouse gas (GHG) emissions in its assessment, and concluding in pars 696-697 that (a) no offset measures are proposed by KEPCO; and (b) the IPC accepts that there is no policy guidance on what constitutes an acceptable, unacceptable or substantial amount of GHG emissions, nonetheless concluding that based on the evidence before it, the contribution that the Project and the Recommended Revised Project will make to global GHG emissions needs to be considered by the IPC; 15. social impacts in the locality (Section 6.15, pars 698-735), concluding in pars 730-735 that the Project and the Recommended Revised Project will fundamentally change the nature of the Bylong Valley and that people may perceive it as having a negative impact on their health and wellbeing; 16. economic impacts in the locality (Section 6.16, pars 736-784), concluding in pars 779-784 that there is a reasonable level of uncertainty in estimation of the economic benefits of the Project and the Recommended Revised Project, meaning the economic benefits are uncertain; and 17. public interest (Section 6.17, pars 785-813), concluding in pars 797-813 that the Project and the Recommended Revised Project are inconsistent with the objects in s 1.3 (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) and (f) (to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage)) of the EPA Act and are therefore not in the public interest. 1. Section 7 ("How the Commission took community views into account in making decision") outlines how the IPC considered public submissions and comments received as part of the exhibition of the DA. 2. Section 8 ("Conclusion: The Commission's findings and determination") sets out the IPC's conclusion in respect of the Project, finally concluding in par 819 that it "determined to refuse consent for the Project" for all the reasons outlined in the SOR.

[11]

Ground 1 - error of law in relation to cl 14(1)(c) of Mining SEPP

The Further Amended Summons states: 15 In making the Refusal Decision, the First Respondent: (a) construed cl 14(1)(c) of the Mining SEPP as requiring an applicant for development to which cl 14(1) applied to minimise scope 1, 2 and 3 greenhouse gas emissions from the project to the greatest extent practicable; (b) formed the view that the Applicant has not minimised scope 1, 2 and 3 greenhouse gas emissions to the greatest extent practicable as required under cl 14(1)(c); and (c) took into account and relied upon, adversely to the Applicant, the First Respondent's view that the Applicant had not complied with that requirement as a reason for making the Refusal Decision. Particulars Statement of Reasons at [696]; [817 (seventh bullet point)]. 16 Clause 14(1)(c) of the Mining SEPP does not impose a requirement on an applicant for development to which cl 14(1) applies to minimise scope 1, 2 and 3 greenhouse gas emissions from the project to the greatest extent practicable. 17 By its conduct pleaded in paragraph 15, the First Respondent erred in law, asked itself the wrong question and took into account an irrelevant consideration.

[12]

Evidence

The evidence relevant to Ground 1 referred to by the parties is contained in pars 648-697 of the SOR (Section 6.14 of the SOR "Natural environment impacts - climate change"). Section 6.14 gives an overview of the relevant statutory context and applicable policies before turning to KEPCO's assessment of the climate change impacts of the Project, the Department's consideration of the climate change impacts of the Project, the PAC's review of KEPCO's assessment of the climate change impacts of the Revised Mine Plan, the Department's consideration of the climate change impacts of the Recommended Revised Project, and public comments regarding the climate change impacts of the Recommended Revised Project. The IPC's consideration of the climate change impacts is found in pars 687-697. Of particular relevance to KEPCO's case are pars 696 and 817 (seventh bullet point).

[13]

KEPCO's submissions

Ground 1 asserts an error of law in that the IPC considered cl 14(1)(c) of the Mining SEPP imposed a compulsory requirement, as demonstrated in par 696 of the SOR where the IPC said it was 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". Clause 14(1) does not impose a duty in fact to impose conditions directed to the aim stipulated in subcl (c). It is a duty to consider. It is clear from the text of cl 14(1)(c) that it is for the consent authority to decide "whether or not" to impose conditions of the relevant kind. The clause assumes that the consent authority, having considered the matter, might elect not to impose conditions of the identified kind.
Further, cl 14(1) does not impose a duty to ensure that development is in fact undertaken in an environmentally responsible manner. The IPC treated cl 14(1)(c) as imposing a substantive obligation to reduce GHG emissions to the greatest extent practicable. It is no more than a duty to consider, and the subject of the consideration is as to whether or not conditions should be attached directed to that end. These are errors of law as the IPC is required to correctly construe the instruments it applies: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (Hossain) at [29]; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 per Gageler J at [75]-[76].
The SOR can be taken to be the IPC's steps in reasoning, a statutory decision-maker, prepared pursuant to a duty to give reasons. The reasons are presumptively the decision-maker's actual reasons: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 (Waterways) cited in Alexandria Landfill v Transport for NSW [2020] NSWCA 165 at [401]. The IPC erred in the SOR in par 696, repeated in par 817 (seventh bullet point), a final concluding paragraph underscoring the significance of the finding.
The IPC had no authority to misconstrue (indeed, fundamentally misconstrue) the Mining SEPP. Further, the IPC's misconstruction led it to ask the wrong question and to fail to ask the correct question (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]). The IPC asked whether GHG emissions had been minimised to the greatest extent practicable, not whether or not conditions should attach to a consent that were directed to that end. If an error law is established, namely the misconstruction of the Mining SEPP, that is a jurisdictional error.

[14]

The BVPA's submissions

Clause 14(1)(a) is incorrectly paraphrased in pars 696 and 817 of the SOR in that this subclause does not operate in terms to impose any particular obligation on an applicant for consent. The SOR, however, must be read fairly and as a whole, not focussing on loose language. The power the IPC was exercising under the EPA Act in determining the DA was a combination of ss 4.38 and 4.40, calling up s 4.15. Under s 4.15(a)(i), any applicable environmental planning instrument must be considered, which in this case is the Mining SEPP. KEPCO has to prove that the obligation under s 4.15 miscarried in terms of the alleged non-compliance with the Mining SEPP.
KEPCO's construction of the Mining SEPP erroneously fails to recognise the different obligations in subcll (1) and separately, (2) and (3) of cl 14, which, given their different drafting, can be assumed to intend a different result. The preconditions in subcll (2) and (3) require the IPC to consider relevant matters when determining an application, where subcl (1) is narrower in application, being a precondition to be satisfied upon granting consent. Subclause (1) may be completely irrelevant if consent is to be refused. The subclause is directed to the manner in which the development is to be carried out as to whether conditions should be imposed, so that when undertaken it is done in an environmentally responsible manner. The subclause is not directed to broad considerations of whether the impacts of the proposed development are acceptable or unacceptable. It operates as a precondition to the grant of a consent. It does not mean that a consent authority will only consider these matters if it has predetermined that it is going to grant consent.
Where a consent authority determines that consent should not be granted, it would be nonsensical to say that it is nevertheless obliged to consider whether conditions should be imposed, as KEPCO's approach would require.
KEPCO's grounds of review fall to be determined, in large measure, by analysis of the reasons given by the IPC for refusing to grant consent to the proposed development. In considering those grounds of review, it is important to recall that the reasons of an administrative decision-maker such as the IPC are to be given a "beneficial construction" and should not be construed "minutely and finely with an eye keenly attuned to the perception of error". The Court should not be concerned with mere "looseness in the language … nor with unhappy phrasing": Wu Shan Liang at 272, see also 291. The SOR represents the culmination of a process of consideration of the DA over almost four years, involving the consideration of a very substantial body of documents, in addition to meetings with relevant stakeholders. The SOR must be read as a whole and in the context of the entire assessment process undertaken by the IPC, as described in the SOR. The need to consider the SOR as a whole becomes particularly significant when considering the materiality of the errors alleged by KEPCO, to the extent that they are made out at all.

[15]

Ground 1 not established

The IPC referred expressly to cl 14(1)(c) in par 696 of the SOR, repeated in par 817, and did not correctly identify the obligation therein to consider whether or not consent should be issued subject to conditions, as KEPCO submitted and the BVPA accepted. The question arises of whether, legally speaking, that error matters. The answer requires consideration of statutory construction principles in relation to the proper application of cl 14(1)(c) of the Mining SEPP, the IPC's assessment as identified in the SOR and, finally, if error is found, whether it would be material justifying a declaration that the IPC's Refusal Decision is invalid.

[16]

Statutory construction of cl 14(1)(c)

At issue in Ground 1 is the construction of cl 14(1)(c) of the Mining SEPP which, by virtue of s 4.15(1)(a)(i) of the EPA Act, the IPC was required to take into consideration in determining whether to approve or refuse development consent.
Principles of statutory construction require the words of a statute to be considered in their context per Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [381]-[382] where McHugh, Gummow, Kirby and Hayne JJ stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision." Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 11 also referred to the necessity of applying a construction of a statute consistent with its purpose.
Where words are plain and unambiguous, they should be given their ordinary and grammatical meaning, per Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ). In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at 46-47 Hayne, Heydon, Crennan and Kiefel JJ confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy.
More recently these principles have been described in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 by Kiefel CJ, Nettle and Gordon JJ at [14] (footnotes omitted) as follows: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

[17]

IPC's assessment process/ Statement of Reasons consideration

It is now necessary to consider the IPC's reasons in light of my findings on statutory construction above. The IPC's reasons, particularly when required by a statutory scheme as here, should be taken as a decision-maker's actual reasons, as held in Waterways at [130]. Statements of principle of how to consider reasons given by statutory decision-makers include Wu Shan Liang at 272, to the effect that loose language should not be penalised. In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 Bell P and Payne JA at [78]-[80] identified that not penalising loose language cannot be applied to mask jurisdictional error in a decision-maker's reasons. Consideration of the SOR in light of all these authorities is necessary.
Reasons should be read fairly and as a whole. The lengthy SOR is summarised to some degree above in [17]-[18]. There is no complaint about how the IPC described the statutory framework for its decision in relation to the EPA Act at Section 6 "Commission's considerations" of the SOR. Section 4.15(1)(a)(i) of the EPA Act required the IPC to have regard to applicable environmental planning instruments which included the Mining SEPP, inter alia. The lengthy Section 6.14 concerning climate change is largely extracted above in [19]. The IPC set out the statutory context, including the Mining SEPP (of which there is no criticism by KEPCO), applicable policies, KEPCO's assessments of climate change impacts of the Project and more relevantly the Revised Mine Plan, public comments and an extensive consideration section.
As the SOR confirms the IPC, as part of considering the overall impact of the proposal, did consider the Final Proposed Conditions drafted by the Department for the Recommended Revised Project. As I have found above, that approach is entirely orthodox in an assessment under s 4.15 of the EPA Act. The IPC was entitled to consider what conditions might be imposed as part of determining whether consent should be granted but this was not obligatory. Essentially, the offending sentence relied on by KEPCO in par 696 is a shorthand way of summarising the IPC's conclusions in relation to GHG emissions, albeit inaccurately reflecting cl 14(1)(c).
The way that the BVPA characterised what the IPC was doing as set out in [38]-[39] above is not impermissibly rewriting what the SOR shows was the IPC's reasoning process, and is accepted as what is reflected in the SOR viewed as a whole. No jurisdictional or other fundamental legal error is reflected in the SOR.

[18]

If error, not material

Had I held in favour of KEPCO on this ground, the question whether such an error of law was material justifying a declaration of invalidity of the IPC's determination to refuse consent would arise. KEPCO relied on Hossain at [29]-[31] and SZMTA at [45]-[46] where Bell, Gageler and Keanne JJ in the High Court held that "a breach is material to a decision only if compliance could realistically have resulted in a different decision". KEPCO submitted that the threshold for materiality is low. The reasoning of the IPC as detailed in the whole SOR does not enable that threshold, if low, to be reached.
The IPC considered 17 separate issues in its merits assessment, as identified in the summary of Section 6 in [18(f)] above. The SOR set out in Section 8 "Conclusion" in par 817 a summary of various findings already made during the extensive consideration in the SOR, as detailed above in [18]. Importantly, par 819 states that the IPC's determination is based on all of its reasons, not just those summarised in the concluding Section 8, namely par 817. KEPCO relied on par 817 which identifies a number of issues which the IPC was weighing up to submit, effectively, that an error in relation to any matter undermined by invalidity identified therein resulted in the invalidity of the whole assessment process undertaken by the IPC.
The SOR makes clear throughout that there were several separate bases on which the IPC reached the conclusion to refuse consent, expressly adopting the approach identified in Rocky Hill at [686] in par 787. A decisive conclusion in my view is that the IPC found that the Project and the Recommended Revised Project were not in the public interest, in Section 6.17 of the SOR. That finding alone, based on a number of considerations, suggests that any error in Ground 1 would not be material. As identified above, the IPC considered the public interest (Section 6.17, pars 785-813), concluding in pars 797-813 that the Project and the Recommended Revised Project are inconsistent with the objects in s 1.3 (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) and (f) (to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage)) of the EPA Act and are therefore not in the public interest. In its consideration of the impacts of the Project and the Recommended Revised Project on public interest, the IPC did not accept that there was evidence to support KEPCO's claim that the site of the development could be rehabilitated to BSAL-equivalent (par 803), found that the groundwater impacts of the Project were unacceptable (par 804), found that the environmental impacts on groundwater and productive agricultural land would last long after the life of the Project and Recommended Revised Project (par 805) and considered that it had not been demonstrated that either the Project or the Recommended Revised Project were consistent with the principles of ecologically sustainable development (par 806) inter alia. Several other significant merit issues were determined separately by the IPC to justify its decision to refuse approval. An error as articulated in Ground 1 would not be a material error justifying the relief sought by KEPCO as I do not consider that would invalidate the refusal of the DA by the IPC.

[19]

Ground 2 - failure to perform duty imposed by cl 14(1)(c) of Mining SEPP

The Further Amended Summons states: 18 On the proper construction of cl 14(1) of the Mining SEPP, where a consent authority is considering whether to grant consent to an application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not any 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. 19 In considering whether or not to grant consent to the Development Application, the consent authority failed to perform the duty imposed by cl 14(1) of the Mining SEPP.

[20]

Evidence

The evidence relevant to Ground 2 referred to by the parties is contained in pars 16, 40, 42, 696 and 817 of the SOR. Paragraph 16 describes the Recommended Revised Project. Paragraphs 40 and 42 describe the Department's Final Assessment Report. Paragraph 696 is the culmination of the IPC's consideration of the climate change impacts of the Project and the Recommended Revised Project. Paragraph 817 as noted above is the final concluding paragraph of the SOR.
As identified in par 16 of the SOR the Recommended Revised Project is the Revised Mine Plan identified in par 12 of the SOR, and the Final Proposed Conditions prepared by the Department.
I note that the Mining SEPP refers to "downstream emissions", defined in par 107 of the SOR as the "[GHG] emissions relating to sold goods and services and thus caused by the end users' use of the product". This term is used interchangeably in the evidence and submissions with the phrase "Scope 3 emissions", being indirect emissions including those from the downstream burning of coal.

[21]

KEPCO's submissions

The IPC misconstrued cl 14(1) of the Mining SEPP. Clause 14(1)(c) imposed a duty on the IPC to consider whether certain conditions should attach to a development consent if granted. The time for performance of that duty was when the IPC was considering whether or not to issue the consent. The SOR does not disclose whether the IPC considered whether conditions should be imposed with the aim of minimising GHG emissions. Clause 14(1)(c) required a more demanding (but not very demanding) obligation to consider the identified topic, not a narrower obligation to take into account only proposed conditions of consent. There is no evidence in the SOR that the IPC considered conditions aimed at ensuring that GHG emissions are minimised to the greatest extent practical, and this cannot be inferred per Al Maha v Huajan Investments (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha) Basten JA at [25].
In addition to conditions proposed by KEPCO and the Department which addressed Scope 1 and 2 emissions reduction, KEPCO submitted in its oral submissions in reply that the IPC should have itself considered whether there were conditions which would have advanced the objective of reducing Scope 3 emissions if consent were to be granted in order to comply with cl 14(1)(c).
The BVPA's approach impermissibly seeks to reconstrue what the IPC said in the SOR. As identified in Ground 1, the argument that the clause cannot apply cannot be correct. Firstly, the IPC clearly considered cl 14(1)(c). It considered proposed conditions aimed at ensuring that GHG emissions were minimised. The duty in cl 14(1)(c) is not wholly discharged by considering draft conditions submitted to the consent authority by the Department or KEPCO. There is no such limitation in cl 14(1)(c) and no such limitation should be implied. The duty to consider conditions is imposed on the consent authority to, if necessary, propose its own conditions, accepting that obligations of procedural fairness would arise if the IPC was to do so.

[22]

The BVPA's submissions

Ground 2 is similar to Ground 1. KEPCO's argument in support of Ground 2 proceeds from the false premise that the duty imposed by cl 14(1)(c) had "arisen for performance". Subclauses (2) and (3) apply to a consent authority "in determining a development application for development for the purposes of mining". By contrast, cl 14(1)(c) requires a consent authority to consider the specified matters only "before granting consent" for development for the purposes of mining. The duty under subcl (1) never arose because it is a precondition to granting consent, and the IPC resolved not to grant consent. Ground 2 fails on that basis alone.
Factually, in any event, if there was an obligation to consider conditions that could minimise GHG emissions to the greatest extent practicable, the IPC did so in par 696 and considered the condition the Department proposed. The Revised Mine Plan and Final Proposed Conditions were before the IPC, as referred to in par 16 of the SOR, as making up the Recommended Revised Project. The IPC engaged directly with these conditions as is clear from the SOR in par 42 which set out conditions for rehabilitation and therefore engaged with the question of what conditions could be imposed on carrying out the development to minimise GHG emissions to the greatest extent practicable. Clause 14(1)(c) does not impose an obligation on the IPC to do more, such as propose its own conditions, as KEPCO submitted. The obligation was to consider draft conditions.

[23]

Ground 2 not established

This ground of review overlaps with Ground 1. I have accepted above in [42]-[55] that the duty in cl 14(1)(c) did not arise when cl 14 is construed as a whole in the context of the Mining SEPP, as the IPC did not resolve to approve the Project or the Recommended Revised Project. As I also found above, the assessment of GHG emissions by the IPC did occur as required by s 4.15(1) of the EPA Act.
On the assumption that that finding is not correct and the obligation in cl 14(1)(c) did arise, KEPCO's primary argument on this ground required the construction of cl 14(1)(c) at a high level of generality and was stated with brevity. Namely, as no reference to conditions to mitigate GHG emissions as required by cl 14(1)(c) is identified in one sentence in par 696 of the SOR, the IPC failed to comply with the obligation placed on it by that subclause. That level of generality cannot survive scrutiny of what actually happened, given the contents of the whole of par 696 read in the context of the SOR as a whole.
A fair reading of the SOR as a whole identifies that there was extensive consideration of Scope 1, 2 and 3 GHG emissions likely to be produced by the Project, and the Recommended Revised Project to a slightly lesser extent. KEPCO proposed to prepare the GHG Management Plan which would set out measures to minimise GHG emissions from the Project, as recorded in par 660 of the SOR and as stated in par 696. According to the IPC in par 660, the GHG Management Plan would deal with limiting Scope 1 and 2 emissions.
The SOR read as a whole, and as stated explicitly by the IPC in par 696, did consider KEPCO's proposal to manage Scope 1 and 2 emissions through a management plan which can be a condition of consent. As the BVPA submitted, the IPC did consider conditions relevant to minimising GHG emissions being those presented by KEPCO and the Department which related to Scope 1 and 2 emissions. That finding is essentially a further answer to this ground of review in that conditions to limit GHG emissions were considered by the IPC.
KEPCO relied on Al Maha at [25] where the Court of Appeal stated: A failure to comply with an obligation to give reasons may itself constitute a basis for setting aside the decision, where it can be said that giving reasons was a condition of validity. (No such contention was put forward in the present case.) An alternative consequence is that the absence of reasons may more readily allow an inference that a particular matter was not determined (or not considered), because the Commissioner was required to indicate what she had decided (or considered). It was on this (evidential) approach that the applicant relied. No absence of reasons is demonstrated in relation to cl 14(1)(c), however.

[24]

Ground 3 - errors of law in application of cl 14(2) of Mining SEPP

The Further Amended Summons states: 20 Clause 14(2) of the Mining SEPP provides that, 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. 21 A policy, program or guideline is "applicable" for the purposes of cl 14(2) only if it is capable of being applied to the task of considering an assessment of greenhouse gas emissions in deciding whether to grant consent to a relevant development. 22 On 19 June 2018, the First Respondent (formerly known as the Planning Assessment Commission) was party to a decision of the Land and Environment Court in which the Land and Environment Court held that: (a) the NSW Climate Change Policy Framework, including the objective of achieving net zero emissions by 2050 (the NSW CCP Framework); and (b) the Paris Agreement, including Australia's Nationally Determined Contribution under that agreement of a 26-28% reduction in Australia's emissions below 2005 levels by 2030 (the Paris Agreement), were not applicable policies, programs or guidelines for the purposes of cl 14(2) of the Mining SEPP. Particulars Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 at [146]-[150], [183]. 23 In making the Refusal Decision, the First Respondent concluded that the following were "applicable State or national policies, programs or guidelines, concerning greenhouse gas emissions" for the purposes of cl 14(2) of the Mining SEPP: (a) The NSW Climate Change Policy Framework and, in particular, that framework so far as it identifies an objective of achieving net zero emissions by 2050. Particulars Reasons at [655]-[656], [687], [689]. (b) The Paris Agreement, and Australia's Nationally Determined Contribution under that agreement of a 26-28% reduction in Australia's emissions below 2005 levels by 2030. Particulars Reasons at [655], [689]. 24 In making the Refusal Decision, the First Respondent relied on the conclusions referred to in paragraph 23 adversely to the Applicant. 25 The NSW CCP Framework and the Paris Agreement are not applicable State or national policies, programs or guidelines concerning greenhouse gas emissions for the purposes of cl 14(2) of the Mining SEPP. 26 In making the Refusal Decision, the First Respondent: (a) erred by finding that the NSW CCP Framework was an applicable State or national policies, programs or guidelines concerning greenhouse gas emissions for the purposes of cl 14(2) of the Mining SEPP; (b) erred by finding that the Paris Agreement was an applicable State or national policies, programs or guidelines concerning greenhouse gas emissions for the purposes of cl 14(2) of the Mining SEPP; and (c) erred in its construction of "applicable State or national policies, programs or guidelines concerning greenhouse gas emissions" for the purposes of cl 14(2) of the Mining SEPP.

[25]

Evidence

A large part of the SOR in relation to GHG emissions is extracted above. Of particular relevance are pars 687-697 addressing the IPC's consideration of the climate change impacts of the Project and the Recommended Revised Project.
KEPCO took the Court to the following documents in the Evidence Book in the course of its oral submissions on Ground 3: (i) the Paris Agreement; (ii) the NSW Climate Change Policy Framework (NSW CCPF); (iii) EIS dated September 2015; (iv) Appendix O to EIS: Air Quality and GHG Impact Assessment (GHG Impact Assessment); (v) Department's Final Assessment Report October 2018.
The BVPA relied on the GHG Impact Assessment, the NSW CCPF and the Paris Agreement. The BVPA also took the Court to various submissions and reports which the IPC considered in its assessment of the DA, namely: 1. a submission prepared by Farmers for Climate Action dated 12 November 2018; 2. a submission prepared by Doctors for the Environment dated November 2018; 3. a submission prepared by the Blue Mountains Conservation Society dated 2 August 2019; 4. a report prepared by Professor Will Steffen dated 14 November 2018 (Steffen Report); and 5. a letter from Chalk & Behrendt acting for the Lock the Gate Alliance to the IPC regarding its consideration of the NSW CCPF dated 13 February 2019.

[26]

KEPCO's submissions

Clause 14(2) of the Mining SEPP applied and the IPC acted on that basis as can be seen in the SOR. Clause 14(2) imposes a double duty, firstly, to consider an assessment of GHG emissions and, secondly, to do so having regard to applicable state and national policies, programs and guidelines. Firstly, in par 687, the IPC wrongly took into account GHG emissions in general rather than an assessment of GHG emissions as the clause requires. Secondly, the IPC erroneously, from a legal perspective, applied policies which were not applicable policies for the purposes of cl 14(2). At par 687 the IPC said (see also SOR in pars 655, 780): The NSW Climate Change Policy Framework outlines the States [sic] 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.
The IPC took the NSW CCPF into account for the purposes of cl 14(2), as is clear from pars 687 and 695 of the SOR. The NSW CCPF contains an aspirational objective. It does not guide consideration of the assessment of GHG emissions as required by cl 14(2). Applying it as a policy "concerning greenhouse gas emissions" misconstrues cl 14(2). The clause requires consideration of an assessment of GHG emissions. As identified in Wollar at [146] (adopted by Sheahan J at [183]) an assessment of emissions is an estimation or evaluation.
The failure to correctly apply Wollar is a further error. It is an error for an administrative decision-maker to disregard, and fail to apply, the conclusions of an authoritative judicial decision: Plaintiff M61/2010E v the Commonwealth (2010) 243 CLR 319; [2010] HCA 41 (Plaintiff M61/2010E) at [87]-[88]. In Wollar at [183] Sheahan J adopted the respondent's submissions at [147]-[148], that the NSW CCPF was not an applicable policy for the purposes of cl 14(2) as it was not capable of being applied to the consideration of assessing GHG emissions. That finding was binding on the IPC in making this Refusal Decision, and it acted contrary to that finding. At par 107, the IPC correctly treated Wollar as authoritative on the meaning of downstream emissions. The IPC nevertheless failed to apply Wollar when it came to the critical parts of its reasoning. As the Court in Wollar had determined that the NSW CCPF was not covered by cl 14(2) of the Mining SEPP, that became part of the rule of law that the IPC was bound to apply.

[27]

The BVPA's submissions

KEPCO's first argument that the IPC considered GHG emissions but failed to consider an assessment of GHG emissions as required by cl 14(2) is untenable. It is factually wrong and impermissibly identifies a distinction without a difference. The SOR sets out the assessment of climate change impacts of both the Project and the Revised Mine Plan in pars 657-661 and 667-676. Those assessments quantified the GHG emissions expected to result from the development and logically and legitimately founded the IPC's consideration of their relevance. Qualitative questions concerning that assessment are necessary to discharge the duty imposed on the IPC, including in relation to the imposition of conditions. To separate a single sentence in par 687 of the SOR for criticism because the words "an assessment" were not used is to adopt an impermissible approach. The only error identified is in that paragraph. In any event, the relevant part of cl 14(2) is set out in par 106 of the SOR.
In relation to KEPCO's second argument, the IPC did not err in law in having regard to the NSW CCPF in treating that as an applicable policy for the purposes of cl 14(2) of the Mining SEPP. Alternatively, even if not strictly applicable, it was not impermissible as a prohibited consideration. The IPC was entitled to have regard to it.
As a matter of fact, the IPC did not separately treat the Paris Agreement as an applicable policy for the purposes of cl 14(2). The references to the Paris Agreement in the SOR (par 655) were in the context of the references within the NSW CCPF to the Paris Agreement (or in the context of reference to the Paris Agreement in other material before the IPC, see for example pars 670, 677, 680, 682, 684, 689, 778 and 780). At par 780 the IPC commented that "[t]he Paris Agreement is referred to in the NSW Climate Change Policy, which is a relevant policy consideration for this project…. This is inconsistent with the IPC considering the Paris Agreement separately as an applicable policy. Given the submissions received by the IPC and the references in other material to the Paris Agreement (listed in [91] above), it is unsurprising that the IPC noted the Paris Agreement in par 689, and referred to the remarks of Preston CJ in Rocky Hill at [525] in par 691. However, the SOR did not indicate that the IPC treated the Paris Agreement as an applicable policy within the meaning of cl 14(2) of the Mining SEPP.

[28]

Ground 3 not established

Clause 14(2) refers to "policies, programs or guidelines" relevant to the assessment of GHG emissions. The principles of statutory construction are summarised in Ground 1 above at [43]-[47] and require that the ordinary meaning of words be applied in their context. Such principles apply to delegated legislation such as the Mining SEPP. In the absence of any definitions in the Mining SEPP or elsewhere, applying the plain and ordinary meaning of the words "policies, programs or guidelines" in their context could potentially apply to a broad range of documents. The Court has not been told that any such documents have been identified by any statutory instrument as applicable for the purposes of cl 14(2). The discretion of the IPC to determine what it considers appropriate is wide given this statutory context and its functions as a consent authority under the EPA Act, particularly in the context of development assessment under s 4.15.
Clause 14(2) requires an assessment of GHG emissions, including downstream emissions, of a development having regard to any applicable state policies inter alia concerning GHG emissions. KEPCO's ground focusses on the wording in the SOR. Relevant authorities concerning reasons relied on by both parties are outlined above at [24]-[26], [36] and [56]. The assessment of GHG emissions by the IPC in pars 648-697 of the SOR is lengthy, partially extracted above in [19]. The IPC considered the statutory context (see SOR pars 648-653) and applicable policies (see SOR pars 654-656). KEPCO lodged the GHG Impact Assessment prepared as part of the EIS, analysing GHG emissions of the Project and the Recommended Revised Project. The Department provided its assessment in the Final Assessment Report. The IPC received a large number of submissions which referred to the Paris Agreement and the NSW CCPF (see SOR pars 680-686). The IPC's consideration of GHG impacts of the Recommended Revised Project is at pars 687-697.
KEPCO's first criticism is that the IPC erroneously referred in par 687 to "GHG emissions" generally rather than to the "assessment of GHG emissions", the wording found in cl 14(2). This was submitted to be a legal error. KEPCO's focus on one sentence in par 687, repeated again in the concluding par 817, is not a fair reading of the SOR as a whole. Indeed, in the first sentence of par 687, the IPC states that it must consider GHG emissions in its assessment, referring in turn to par 106 (cl 14 Mining SEPP) and par 107 (downstream emissions defined). Wu Shan Liang, relied on by the BVPA above in Ground 1 as authority on the approach to construing reasons, is also relevant here given the extensive nature of the SOR. A fair reading of all the material concerning GHG emissions referred to in the SOR, as referred to in the BVPA's submissions, demonstrates that the IPC understood its task was to assess GHG emissions in the context of this development. The BVPA's submissions in [99] above are accepted, including that cl 14(2) is correctly identified in par 106 of the SOR.

[29]

If error, not material

Finally, as the BVPA submitted, even if the IPC was in error in relation to its approach to cl 14(2), contrary to my finding immediately above, the NSW CCPF is permissible to consider in any event. In other words, it is not a prohibited matter. Another example of consideration of that policy can be found in Rocky Hill, a merits appeal matter, at [526]. That decision is cited by the IPC in several paragraphs of the SOR including par 686, where the IPC referred to the consideration of the NSW CCPF in Rocky Hill, and pars 692 and 694, where the IPC agreed with the decision of Preston CJ. Under s 4.15 of the EPA Act the IPC had an obligation to consider a range of environmental impacts and aspects of the public interest, as the BVPA submitted. There was extensive material on potential GHG emission impacts prepared by KEPCO (such as the EIS), the Department and in numerous public submissions, many concerning Scope 3 emissions and referring to the NSW CCPF. Under s 4.15 of the EPA Act this was material relevant to the IPC's consideration.
In addition to my conclusion immediately above, I also considered the question of whether an error in relation to GHG emissions assessment under cl 14(1)(c) would be material in Ground 1 in [62]-[63] above. Even if an error was found in this ground, it could not be material in a legal sense for the reasons given in relation to Ground 1 in [62]-[63].
Ground 3 is not established.

[30]

Ground 4 - failure to refer development application to Minister for Regional Water

The Further Amended Summons states: 27 Clause 17B of the Mining SEPP applied to the determination of the Development Application for the Project by the First Respondent. Particulars The Development Application is an application for development consent for mining or petroleum development. The Project is specified in cl 5 (Mining) of Sch 1 to State Environmental Planning Policy (State and Regional Development) 2011 (SRD SEPP). A mining lease under the Mining Act 1992 (NSW) is required to be issued to enable the Project to be carried out because there is no current mining lease in relation to the Project. The Development Application for the Project is accompanied by a gateway certificate. 28 Clause 17B(1)(a) of the Mining SEPP imposed an obligation on the First Respondent, before determining the Development application, to: (a) refer the application to the Minister for Regional Water for advice regarding the impact of the proposed development on water resources; and (b) consider any written advice provided by the Minister for Regional Water in response to such a referral. 29 Prior to making the Refusal Decision: (a) the First Respondent did not perform its duties under cl 17B(1) of the Mining SEPP; and (b) those duties were not otherwise performed.

[31]

Evidence

The SOR considered cl 17B of the Mining SEPP in pars 149-155 under the heading "Other advice".
Two letters in the Evidence Book are relevant to this ground, relied on by both parties in the course of argument. On 4 January 2016, the Deputy Secretary of Planning Services at the Department (Deputy Secretary) wrote to the Honourable Niall Blair, Minister for Primary Industries and Minister for Lands and Water. The letter commenced by identifying the Department as the "consent authority for the Bylong Coal Project". The letter stated: Prior to determining the application for development consent for the Bylong Coal Project, the Department is required, under clause 17B(1)(a) of the State Environmental Planning Policy (Mining, Petroleum and Extractive Industries) 2007 (Mining SEPP), to refer the application to the Minister for Primary Industries for advice regarding the impact of the proposed development on water resources. … In providing this advice, I also note that clause 17B(3) of the Mining SEPP requires the Minister for Primary Industries to have regard to the minimal impact considerations set out in the Aquifer Interference Policy, and other provisions of that policy.
The Minister for Primary Industries and Minister for Lands and Waters' letter in reply addressed water licencing considerations, water table impacts, water quality impacts, and other impacts. The letter commenced by acknowledging it was advice prepared in accordance with cl 17B(1)(a) of the Mining SEPP: In accordance with clause 17B(1)(a) of the State Environment Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007, advice is provided based on the minimal impact considerations and other provisions of the Aquifer Interference Policy, drawing on a detailed assessment undertaken by the Department of Primary Industries (DPI) - Water.
As identified in the two letters, the Department wrote to the then Minister for Primary Industries and Minister for Lands and Water seeking advice pursuant to cl 17B(1) of the Mining SEPP in January 2016. The parties agreed that the Minister for Planning was the consent authority in 2016. A response from the relevant Minister was received after January 2016, agreed by the parties in the SOAF to have been sent at least after 12 May 2016 (although I note that the SOR refers to this letter having been sent in January 2016). In the SOR, express reference is made to that response in pars 78 and 149-155. Such a response must be considered under subcl (1)(b)(ii). There was no dispute that the Minister's response satisfied subcl (3)(a) in having regard to the minimal impact considerations set out in the Aquifer Interference Policy (AIP). The IPC referred specifically to cl 17B(1)(b)(ii) in par 150 of the SOR.

[32]

KEPCO's submissions

Ground 4 identifies an error in the process adopted by the IPC, in failing to comply with a mandatory requirement that the consent authority refer the application in accordance with cl 17B(1) of the Mining SEPP to the Minister for Regional Water. Clause 17B(1)(a) requires the consent authority to refer the application to the Minister for Regional Water for advice and consider any advice (subcl (1)(b)(ii)). The IPC as consent authority did not refer the development consent as required by cl 17B(1)(a). Further, the IPC did not consider the advice of the Minister for Regional Water as required by subcl (1)(b)(ii). That is a fundamental failure to comply with the obligations of the Mining SEPP, which creates a mandatory obligation not just to refer, but also to consider the advice in response to a compliant referral. The Deputy Secretary of the Department, identifying that Department as the consent authority, wrote to the Minister for Lands and Water, now known as the Minister for Regional Water, on 4 January 2016. The consultation required by cl 17B(1) never occurred - the IPC never wrote a referral and did not consider advice in response to its own referral.
The error is material as the advice of the Minister considered by the IPC was dated 2016, more than two and a half years before the DA was referred to the IPC on 4 October 2018. A lot of additional work on groundwater impacts has been undertaken since that time. Had the advice of the Minister for Regional Water been sought by the correct consent authority, the IPC, at the relevant time, it could have taken into account that additional material.

[33]

The BVPA's submissions

KEPCO's suggestion that there has been non-compliance with cl 17B(1) of the Mining SEPP is wholly artificial. Clause 17B(1)(a) of the Mining SEPP relevantly requires that before a consent authority determines an application for development consent for mining that is accompanied by a gateway certificate, that authority "must … refer the application to the Minister for Regional Water for advice regarding the impact of the proposed development on water resources." On 4 January 2016 the Deputy Secretary of the Department referred the application to the Minister for Primary Industries and Minister for Lands and Water (precursor to the Minister for Regional Water) and requested advice as to the impact of the proposed development on water resources. At that time, the relevant consent authority for the purposes of cl 17B(1)(a) was the Minister for Planning and Environment, by virtue of the operation of s 89D of the EPA Act as in force at that time. It was entirely orthodox that the Minister's Department should undertake a referral of this kind on behalf of the Minister, noting that this is no more than an administrative act not involving any deliberation or decision. As a consequence, the obligation under cl 17B(1)(a) was discharged.
The passage of the Environmental Planning and Assessment Amendment Act 2017 (NSW) (2017 EPA Amendment Act) and the transfer of responsibility for the DA to the IPC did not create any new or different obligation to undertake or repeat the act of referral. The transitional arrangements accompanying those amendments had the effect of stipulating that references in any document to the Minister as consent authority for SSD were taken to be read as references to the IPC: see reg 19 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation (extracted in [7] above). The artificiality of this point is further reinforced by the fact that under s 4.6(c) of the EPA Act (in force at the time of the Refusal Decision), the Department's Planning Secretary was expressly required to undertake any consultation that the consent authority was required to undertake.
All that cl 17B(1)(b)(ii) requires is that the consent authority consider any written advice provided by the Minister for Regional Water in response to a referral under subcl (a). This occurred in the present case - in response to the referral, the Minister for Regional Water provided written advice and it was considered by the IPC as the consent authority.

[34]

Ground 4 not established

Clause 17B of the Mining SEPP sets out steps that must be followed in relation to assessing the possible impact of a proposal on water resources. The consent authority must refer a development application for mining to the Minister for Regional Water for advice (subcl (a)) and consider, inter alia, the Minister for Regional Water's written response (subcl (b)(ii)). Under subcl (3), the Minister for Regional Water must have regard to the AIP (defined in cl 12AB(9)) when providing advice. There is no temporal requirement in cl 17B(1)(a) and (b). At the time the relevant letter for the purposes of cl 17B(1)(a) was written in January 2016 by his Department, the consent authority was the Minister for Planning and Environment. The Minister for Regional Water (then known as the Minister for Lands and Water) responded as required (I note that the letter is undated but it is an agreed fact it was sent at least after 12 May 2016). The IPC as consent authority from 2018 expressly considered that response as identified in pars 149-155 of the SOR , extracted above in [19]. The provisions of cl 17B(1)(a) were expressly and correctly referred to by the IPC in par 150 of its reasons.
Regulation 19(1) and (2) "References to Minister as consent authority for State significant development" of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation provides expressly that any reference to the Minister for Planning in an Act is to be taken to be the IPC, as a result of the enactment of s 4.5(a) of the EPA Act. The effect of the transitional provisions is that the IPC did not have to repeat steps already taken pursuant to cl 17B(1)(a) when it became the consent authority for SSD, in the absence of any statutory requirement that it do so. That is the statutory answer to this ground, as the BVPA identified.
KEPCO's submission that any errors would be material because the letter from the Minister for Regional Water was sent in 2016, meaning the IPC has not taken account of additional material, is not supported by the legislative scheme in the absence of any temporal requirement in that scheme.
I agree with the BVPA's submission in [131] above, that all cl 17B(1)(b)(ii) required the IPC to consider was advice from the Minister for Regional Water provided pursuant to a referral under subcl (a). It did so in satisfaction of that requirement.

[35]

Ground 6 - failure to perform duty imposed by cl 14(1)(a) of Mining SEPP

The Further Amended Summons states: 33A On the proper construction of cl 14(1)(a) of the Mining SEPP, where a consent authority is considering whether to grant consent to an application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not any 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. 33B In considering whether or not to grant consent to the Development Application, the consent authority failed to perform the duty imposed by cl 14(1)(a) of the Mining SEPP.

[36]

Evidence

The evidence relevant to Ground 6 is contained in the SOR in pars 237-323 (consisting of Section 6.2 "Natural environment impacts - groundwater" and Section 6.3 "Natural environmental impacts - surface water"). In particular, the parties' submissions refer to the IPC's consideration of the groundwater impacts of the Project and Recommended Revised Project in pars 288-297, extracted in [19] above.
Section 6.2 addresses the relevant statutory context and gives an overview of the Gateway Certificate recommendations, Regional Plans and AIP. It then turns to KEPCO's assessment and the Department's assessment of the groundwater impacts of the Project and Revised Mine Plan, the PAC Review Report of the groundwater impacts of the Project and Revised Mine Plan, public comments on the groundwater impacts of the Recommended Revised Project, and an analysis of an independent review of the groundwater impacts of the Project. Section 6.2 concludes with the Commission's consideration of the groundwater impacts of the Project and Recommended Revised Project. Section 6.3 addresses each of these topics in relation to surface water impacts.

[37]

KEPCO's submissions

Similar errors to those made in relation to cl 14(1)(c) (Grounds 1 and 2) were made by the IPC in relation to subcl (a). Clause 14(1)(a) imposes an obligation on the consent authority to consider whether to attach conditions aimed at ensuring that impacts on significant water resources are minimised. It does not impose an obligation on a consent authority to consider whether impacts on significant water resources are avoided or are minimised to the greatest extent practicable. The IPC regarded cl 14(1)(a) as if it imposed an obligation on the proponent to do something, that affixed some standard or criteria for the proponent to satisfy which, if not satisfied, was a basis for refusal of the DA. This is clear from par 817 of the SOR where the effect on groundwater became one the factors counting against the grant of consent. Similarly, in par 237 of the SOR, the IPC misstated cl 14(1)(a), and then in par 297 found that the groundwater impacts on the Project site were unacceptable. The IPC operated as though there was a duty on KEPCO to minimise groundwater impacts, when on the proper understanding of cl 14(1)(a) it was a requirement that was imposed on the IPC itself to consider whether or not conditions should be imposed.
The IPC formed the view that the groundwater impacts of the Project would be unacceptable in part because KEPCO had not provided it with sufficient information as to whether "make good" requirements for groundwater would be met. The weight the IPC gave to this view was infected by its erroneous construction of cl 14(1)(a). The BVPA's submissions reconstrue the IPC's actual reasons. If the IPC was unsure about the adequacy of proposed "make good" requirements it was obliged to consider whether the inadequacies could be addressed by conditions but did not do so.

[38]

The BVPA's submissions

Ground 6 is similar to Grounds 1, and 2. The SOR must also be read as a whole when considering cl 14(1)(a). The IPC considered the question of whether conditions should be imposed in relation to the impact of the Project on significant water resources. There was a large body of material before the IPC concerning the appropriateness of the conditions in relation to the impact on water resources.
Even if the paraphrasing of cl 14(1)(a) of the Mining SEPP in par 237 of the SOR has some looseness of language, the matter must be determined as one of substance looking at the SOR as a whole. There is no legal error disclosed when this is done. Consideration of the kinds of conditions that could potentially be imposed to address adverse impacts on water resources is a logical extension of consideration of whether or not there are unacceptable impacts which cannot properly be managed, mitigated or offset. Proposed Conditions 27 and 28 both referred to alluvial aquifers. The impacts on groundwater were engaged in the proper consideration of the DA as a whole and in anticipation of the exercise required under cl 14(1)(a). The insufficiency of evidence concerning the "make good" requirements was only one of several factors of particular relevance considered in the SOR in pars 237-323 and the conclusions on the unacceptability of groundwater impacts in par 297.
KEPCO's submissions in [141] above that there is a rational possibility that an erroneous construction of cl 14(1)(a) affected the IPC's consideration of "make good" requirements is unsupported. As identified in pars 237-240 of the SOR, adverse impacts on groundwater, including the existence of "make good" provisions, were relevant by reason of a number of applicable instruments, including under s 4.15 of the EPA Act. The IPC's concern was that the "make good" proposals would in fact work to address the adverse groundwater impacts. This did not depend upon any particular view about who was obliged to satisfy the IPC about that matter. The point was rather that at the end of the assessment process the IPC was in fact left in a state of uncertainty that the "make good" requirements would be met. The IPC's conclusion in par 297 followed consideration of groundwater in the context of an introduction to the statutory context encompassing a variety of different instruments. KEPCO has not demonstrated that any error in the description of cl 14(1)(a) had any material impact on the IPC's conclusions in this regard.

[39]

Ground 6 not established

The effect of cl 14(1)(a) of the Mining SEPP is not accurately set out in par 237 of the SOR, as KEPCO identifies. I have already considered the proper construction of cl 14(1)(c) of the Mining SEPP above in Grounds 1 and 2. The focus of this ground is cl 14(1)(a) which is in similar terms to cl 14(1)(c) and requires that before granting development consent for mining, a consent authority must consider whether consent should be issued subject to conditions which ensure that impacts on significant water resources are avoided or minimised to the greatest extent practicable. Relevant principles of statutory construction are set out above in [42]-[47]. The same conclusions about construction reached in Ground 1 in [48]-[55] above apply to cl 14(1)(a). There was no failure to fulfil any duty as none arose under cl 14(1)(a) given that the IPC determined to refuse approval. I also found that the IPC could, as part of its overall assessment, consider draft conditions in [55] above.
Relevant principles of construing reasons are also referred to above in [56]-[57]. Any loose or inaccurate language must be considered in light of the reasons as a whole. Considering what the IPC did, as identified by the BVPA the information about and consideration of impacts on water resources by the IPC was extensive, as identified in the SOR at 237-323 (partially extracted above in [19]. The consideration of aquifer impacts was extensive in pars 288-297. One inaccurate statement does not undermine legally the substance of the merit assessment undertaken by the IPC on this topic.
If an error had been found, it would not be material for the reasons already given in Ground 1 in [62]-[63] above.
Ground 6 is not established.

[40]

Ground 7 - failure to perform duty imposed by cl 12(a)(ii) of Mining SEPP

Clause 12(a)(ii) of the Mining SEPP requires consideration of whether the development is likely to have a significant impact on uses that are likely to be preferred uses of nearby land, in the opinion of the consent authority, having regard to land use trends. The Further Amended Summons states: 33C The First Respondent was obliged, before determining the Development Application, to consider whether or not the development was likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development. Particulars Mining SEPP clause 12(a)(ii). 33D In discharging the duty described in paragraph 33C, the First Respondent was obliged to consider "land use trends" within the meaning of cl 12(a)(ii). 33E In determining the Development Application, the First Respondent failed to discharge the duties described in paragraphs 33C and 33D above.

[41]

Evidence

The evidence relevant to Ground 7 referred to by the parties is contained in the SOR in Section 6.1.4 "Likely preferred uses", in pars 206-236. The likely preferred uses examined in the SOR are agriculture (pars 209-214), heritage (pars 215-218), tourism (pars 219-222), and mining (pars 223-226). From pars 227-236 the Commission's consideration of likely preferred land uses is set out (extracted in [19] above). The IPC considered the impact of the proposed mine on the likely preferred uses, the incompatibility with the existing, approved or likely uses, and the comparative public benefits of the mine and other land uses.

[42]

KEPCO's submissions

Clause 12(a)(ii) imposes two requirements being: (i) an express duty imposed on the IPC to consider matters identified therein; and (ii) an obligation to form an opinion as to uses that are likely to be the preferred uses of land in the vicinity of the development and to form an opinion having regard to land use trends. That consideration and formation of opinion must have regard to land use trends. The IPC failed to perform the duty. It was required to consider whether, irrespective of the current character and planning controls in an area as a matter of fact, the uses of land are trending in a particular direction. The IPC's reasoning in pars 206-228 of the SOR concludes in par 227 by listing five matters that regard was given in concluding the likely preferred uses in the vicinity. Absent is any reference to land use trends in the area, a failure to comply with the express obligation in cl 12(a)(ii).
The IPC did not identify anywhere in the SOR where it performed the duty to consider likely preferred uses. The SOR sets out the process the IPC followed and, absent any description of carrying out this task, it is properly inferred that the IPC did not perform the duty to consider likely preferred uses.

[43]

The BVPA's submissions

This ground is a complaint about the factual conclusion the IPC came to, and therefore an impermissible complaint about the merits: Australian Coal Alliance at [73] citing Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 (Walker), Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 (Walsh) at [56]. Whether or not the words "land use trends" appear in the SOR is not to the point. As a matter of substance, the IPC did consider land use trends in pars 206-236 of the SOR.
The obligation under cl 12(a)(ii) is to consider whether the development is likely to have a significant impact on the uses that are likely to be preferred uses of land in the vicinity of the development, in the opinion of the consent authority, having regard to land use trends. The obligation to have regard to land use trends is a part of the formation of an opinion about likely preferred uses. That in turn informs a consideration of significant impact on land uses. The approach of the IPC in par 206 of the SOR and following showed a proper appreciation of this hierarchy of considerations. It was open to the IPC to consider the evidence and submissions concerning land use trends and attribute weight to them accordingly. This approach was consistent with Rocky Hill at [57], [62]-[65]. The IPC stated in par 206 that it had adopted guidance on preferred uses in Rocky Hill. The IPC considered the zoning of land, agriculture, heritage and mining, then the impact of the mine on the likely preferred uses in par 229 onwards. It considered that there have been no significant changes to land use trends over time, with a long history of agricultural land use. There was no error in this approach.

[44]

Ground 7 not established

Clause 12(a) of the Mining SEPP required the IPC to consider (i) the existing and approved uses of land in the vicinity of the Project; (ii) whether the Project is likely to have a significant impact on preferred uses of land in the vicinity which, in the opinion of the IPC, are likely, in light of land use trends; and (iii) any ways the Project may be incompatible with any of the existing, approved, or likely preferred uses. This ground focusses on cl 12(a)(ii). In other words, there is no criticism of the identification of existing and approved uses of land in the vicinity (cl 12(a)(i)), or of consideration of the ways the Project may be incompatible with any of the existing, approved or likely preferred uses (cl 12(a)(iii)).
Judicial review proceedings are not to be used as a vehicle for seeking to overcome merit objections to the findings of a consent authority. The merits of a decision cannot be considered in judicial review proceedings: Gilbank v Bloore (No 2) at [48] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend) at 42; and Teys Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186; [2015] NSWLEC 1 at [90] citing Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36 (Brennan J). Nor should reasons be considered selectively and with an eye for error, per Wu Shan Liang at 291. A review ground which is largely one of form over substance should not succeed. This ground essentially offends these limitations. The BVPA's criticisms can be largely adopted.
Considering the construction of cl 12(a)(ii), as the BVPA submitted in [156] above, the obligation on the IPC was to have regard to land use trends as part of the formation of an opinion about likely preferred uses which is to be considered in determining significant impact on land uses. The SOR from par 206 shows that the IPC understood that was its task.
In terms of the facts, the consideration of land use in the SOR is extensive. The provisions of cl 12(a) are set out in pars 109 and 189. The words "land use trends" appear in par 206. Likely preferred uses were expressly considered in Section 6.1.4 pars 206-236 of the SOR, as extracted in part above in [19]. Section 6.1.5 titled "Impact of the proposed mine on the likely preferred uses in the vicinity" is identified as an issue the IPC had to consider. Conclusions of incompatibility with existing, approved or likely preferred uses is identified expressly in pars 231-232. A fair reading of the extensive analysis of historic, current and preferred uses of land self-evidently includes consideration of land use trends. As the BVPA identified, the uses of land in this area of the Bylong Valley have been relatively static since white settlement. I adopt the BVPA's submissions in [155] above that this ground is essentially a complaint about a factual conclusion and is therefore an impermissible merits complaint per Australian Coal Alliance at [73] citing Walker and Walsh at [56].

[45]

Grounds 8 and 9 - legal errors in conclusion that lack of evidence on relevant matters and irrational finding in relation to alternative supplies of coal

There is substantial overlap between Grounds 8 and 9 and these will be considered together.
The Further Amended Summons states (Ground 8): 33F The First Respondent was obliged, in determining the Development Application: (a) to afford procedural fairness to the Applicant; and (b) in discharging that duty, to consider cogent evidence relevant to the issues before it. 33G Further, the First Respondent was obliged, in determining the Development Application: (a) to afford procedural fairness to the Applicant; and (b) in discharging that duty, to advise the Applicant of any adverse conclusion at which the First Respondent had arrived which was not obviously open on the known material. 33H Further, the First Respondent was obliged, in determining the Development Application: (a) to consider the likely impacts of the development the subject of the Development Application; and Particulars Environmental Planning and Assessment Act 1979 (NSW) s 4.15(1)(b). (b) in discharging that duty, to acquaint itself with material relevant to the likely impacts of the development. 33I Further, the First Respondent was obliged, in determining the Development Application, not to act in a manner that was legally unreasonable or irrational. 33J In making the Refusal Decision, the First Respondent concluded, adversely to the Applicant: (a) that it had insufficient evidence before it to reach conclusions on certain issues; and (b) that the effect of certain evidence before it was unclear. Particulars See Reasons at [516], [811] and [817] (re impacts on Aboriginal heritage) [693]-[694] (re alternative sources of coal), [696] (the finding as to the nature of the proposed GHG mitigation measures) and [296], [297] and [817] (re "make good" measures). 33K Further, in making the Refusal Decision, the First Respondent failed to consider cogent evidence before it relevant to whether, absent the development, the applicant would need to secure an alternative source of coal which would or may be of inferior environmental quality. Particulars The evidence not considered was: (a) the Applicant's letter (and attachments) dated 4 March 2019 and, in particular, the letter from the Chair of the Applicant to the First Respondent dated 4 March 2019 which expressly addressed the counterfactual; (b) the Department's Preliminary Assessment Report at pages 40-41 which addressed the counterfactual. 33L Before making the Refusal Decision the First Respondent: (a) did not advise the Applicant that it had reached the conclusions described in paragraph 33J; and (b) did not acquaint itself with material relevant to addressing the uncertainty in the evidence that it perceived there was. 33M Further, if the First Respondent did consider the evidence referred to in paragraph 33K, it acted unreasonably and/or irrationally in forming the view that it had no evidence before it to determine whether, if consent were given, 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. 33N By reason of the matters alleged in paragraphs 33J to 33M above, the First Respondent breached the duties alleged in paragraphs 33F to 33I above.

[46]

Aboriginal heritage impacts

KEPCO took the Court to the PAC Review Report dated 25 July 2017 which observed at p 26 that further investigation was required to properly assess the expected impacts to Aboriginal cultural heritage.
Appendix U to EIS: Correspondence with the Office of Environment and Heritage (OEH) regarding Aboriginal Heritage included draft proposed Condition 44(d), designed to protect Aboriginal cultural heritage, based on a verbal agreement reached between the OEH and KEPCO (incorporated into the Department's Final Assessment Report).

[47]

Alternative sources of coal

KEPCO relied on the Department's State Significant Development Assessment Report March 2017 (Department Preliminary Report), specifically the observation at p 41 that "refusing the project would not reduce global greenhouse emissions, as the gap in coal supply would almost certainly be filled by another coal resource locally".
KEPCO took the Court to a letter from Hansen Bailey (KEPCO's planners) to the IPC addressing "relevant information for the IPC's consideration in relation to greenhouse gas emissions", dated 4 March 2019 (with a letter from the president of KEPCO to the IPC addressing the demand for coal in Korea, inter alia, annexed) (Hansen Bailey March 2019 letter). The president of KEPCO noted that the construction of new coal-fired power stations in South Korea demonstrates the "ongoing demand for thermal coal for years to come".

[48]

Lack of certainty as to "make good" provisions

KEPCO relied on Appendix M to EIS: Groundwater Impact Assessment dated June 2015, specifically p 140 which states: … the groundwater system essentially re-equilibrates within 100 years of mining ceasing.
KEPCO also took the Court to Appendix G to EIS: Review of Groundwater Impacts dated July 2018 which also states that the groundwater system would slowly recover over a period of approximately 100 years post-mining.
A letter from Hansen Bailey to the IPC on "response to submissions in relation to water resources" dated 20 December 2018 states that "any drawdown in water levels will not be permanent and that there will be no adverse impacts post-mining".

[49]

Nature of proposed greenhouse gas mitigation measures

KEPCO took the Court to its GHG Impact Assessment, specifically p 99 where Scope 1, 2 and 3 emissions are defined, and its consideration of minimising emissions from production of purchase materials, employee business travel, waste disposal, and contractor-owned vehicles inter alia.
The Department's Final Proposed Conditions included Condition 19(d) which states: 19. The Applicant must: … (d) implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site;

[50]

Affidavit evidence

Relevant to each of the four topics addressed above, KEPCO read the affidavit of Mr Bailey sworn 19 May 2020. Mr Bailey deposed that Hansen Bailey was engaged as the lead environmental approvals and planning consultant by KEPCO in relation to its DA. Mr Bailey had day-to-day carriage of the matter. During the course of the IPC's assessment of the DA, KEPCO received and responded to correspondence from the IPC. From time-to-time after receiving correspondence from the IPC, KEPCO forwarded that correspondence to Hansen Bailey for advice. Mr Bailey's practice upon receiving such correspondence was to gather information and prepare a considered response. This response was communicated back to KEPCO or directly to the IPC.
Mr Bailey deposed that several matters were not communicated to Hansen Bailey. Mr Bailey said he did not receive any communication from KEPCO or the IPC to the effect that the IPC had formed the view that: 1. it had insufficient evidence to form a view on the impacts of the Project on Aboriginal heritage; 2. it had no evidence to support the argument that a gap in supply of coal would almost certainly be filled by another coal resource locally or overseas; 3. it had no evidence to determine whether, if the Project or Recommended Revised Project, were not approved, KEPCO would need to secure an alternative source of coal that may be of inferior quality and lead to poor environmental outcomes; 4. the GHG mitigation measures that KEPCO had committed to in its proposed GHG Management Plan appeared to relate to only Scope 1 and 2 GHG emissions, and that was an adverse factor; 5. there was uncertainty and insufficient information before it as to whether the "make good" requirements of the Project and Recommended Revised Project were met.
Mr Bailey said that had he been made aware that the IPC had formed these views, he would have implemented his usual practice of gathering information and preparing a considered response to provide to the IPC.

[51]

Aboriginal heritage impacts

The BVPA relied on several documents which were submissions before the IPC addressing the inadequacy of the assessment of Aboriginal heritage impacts, namely: 1. the transcript of an IPC public meeting held on 7 November 2018; 2. a written submission prepared by Hilary Crawford, a Rylstone resident, dated 12 November 2018; 3. a written submission prepared by the Lock the Gate Alliance, dated 13 November 2018; 4. a written submission prepared by the BVPA, dated 14 November 2018; and 5. an Expert Review of Aboriginal Cultural Heritage Assessment prepared by Peter Kuskie of South East Archaeology, dated 14 November 2018.

[52]

Alternative sources of coal

The BVPA took the Court to the Expert Review prepared by the Institute for Energy Economics and Financial Analysis (IEEFA), dated June 2018, which provides as follows (p 2): The clear change in direction on energy policy by the South Korean government significantly impacts the long-term economic viability of the Bylong Coal Project in terms of the amount of coal that can be placed into the market and for how long. … KEPCO's letter of support for the project fails to consider the significant change in the long-term outlook for coal demand in South Korea that has taken place since the election of a new government in 2017.
The Bylong Coal Project Supplementary Information prepared by Hansen Bailey, dated July 2018, was prepared in response to the IEEFA Expert Review.
A further Reply to KEPCO's Response to IEEFA was prepared by IEEFA, dated November 2018. Also prepared by IEEFA was a document titled Briefing Note: South Korea Shifting Further Away from Coal, dated April 2019.
The question of coal demand was also addressed in various submissions, including a written submission prepared by The Australia Institute, dated November 2018.
A transcript of an IPC meeting held with the BVPA on 12 November 2018 records a series of contentions to the effect that global coal demand and South Korean reliance on coal are reducing.
The Steffen Report also deals with the question of alternative coal sources including in pars 60-61 his observation that the argument that if the Project is not allowed to proceed another coal source will be used in its place is fundamentally flawed.
The Hansen Bailey March 2019 letter addresses the question of demand for coal and maintains KEPCO's contention that coal will be sourced elsewhere.
Further submissions and correspondence addressing this topic included a letter from the Environmental Defender's Office (EDO) acting for the BVPA dated 8 March 2019, a letter from Hansen Bailey to the IPC on "response to EDO NSW submission dated 15 February 2019", addressing the decision in Rocky Hill, dated 8 March 2019, and a letter from Hansen Bailey to the IPC on "response to IPC correspondence dated 27 June 2019", addressing various public submissions, dated 5 July 2019.

[53]

Lack of certainty as to "make good" provisions

The BVPA relied on a written submission prepared by the Lock the Gate Alliance that was before the IPC, dated 6 November 2015 and a later submission dated 13 November 2018 which addressed the question of how the AIP applies.
The BVPA took the Court to a letter from Hansen Bailey to the IPC providing its "response to submissions in relation to water resources", dated 20 December 2018.
Also referred to was a letter from Chalk & Behrendt acting for the "Lock the Gate Alliance" to the IPC addressing the proper interpretation of cl 12AB of the Mining SEPP regarding the AIP, dated 13 February 2019.

[54]

Nature of proposed greenhouse gas mitigation measures

The BVPA took the Court to evidence already relied on by KEPCO, namely the GHG Impact Assessment (see [175] above) and proposed Condition 19(d) (see [176] above).
Other relevant documents addressing the need for closer scrutiny to Scope 3 emissions included the letter from Chalk & Behrendt described in [191] above and the transcript of an IPC meeting held with the BVPA on 12 November 2018 described in [185] above.
The BVPA also relied on a submission prepared by Doctors for the Environment that was before the IPC, dated November 2018, and other submissions calling for closer scrutiny to be given to Scope 3 emissions.

[55]

KEPCO's submissions

The errors asserted in Grounds 8 and 9 are that the IPC reached conclusions adverse to KEPCO in circumstances where that was unexpected, and the IPC should have disclosed to KEPCO the matters so that it could have addressed further submissions on the topics. Ground 8 is based on a number of well-established legal principles: 1. As an incident of the duty to accord procedural fairness, a decision-maker "is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material": Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone), 592, referred to with approval in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 at [22] (Ex parte Palme) (Gleeson CJ, Gummow and Heydon JJ). 2. The duties imposed by s 4.15(1) of the EPA Act (including, for example, the duty to consider the likely impacts of the development) carry with them a duty on the consent authority "to acquaint itself with such material as will permit it to consider" those of the matters which are in fact material: Parramatta City Council v Hale (1982) 47 LGERA 319 (Hale) at 340 (Moffitt P). 3. Consistently with the presumption that Parliament intends powers to be exercised in a legally rational or reasonable way (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [24], [29], [63], and [88]-[90]), the consent authority must not act in a way that is legally unreasonable. Among the ways in which a finding will be shown to be legally unreasonable is if there is "only one conclusion open on the evidence" and some other conclusion is reached, or if "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 (Fattah) at [45] (Perram, Farrell and Thawley JJ). 4. A decision-maker will constructively fail to exercise jurisdiction and commit jurisdictional error if the decision-maker fails to take account of cogent evidence providing substantial support to a person's case: SZMTA at [13] (Bell, Gageler and Keane JJ); Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at [103]-[115] (Robertson J). This is supplemented by a consent authority's duty to "evaluate the development application (including any accompanying documents)": Davis v Gosford City Council (2014) 87 NSWLR 699; [2014] NSWCA 343 at [39] (Preston CJ of LEC) (Beazley P agreeing at [1]; Ward JA agreeing at [2]).

[56]

The BVPA's submissions

These grounds are essentially raising merit arguments in the guise of judicial review grounds. The principles articulated by KEPCO are made in particular statutory contexts and their application must be considered with caution for that reason. Alphaone approved in the High Court in the unanimous decision of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [32] is cited in relation to procedural fairness that a party must be given the opportunity to address on critical issues that are not apparent from the natural terms of the statute under which the decision is being made. Each of the matters complained of in Grounds 8 and 9 concern an issue that was clearly identified as critical in the assessment process and which KEPCO was well aware was critical. The IPC reached a conclusion that was open on the material before it.
Other principles of administrative law must also be considered, namely that procedural fairness does not require a decision-maker to identify its thought processes or its preliminary conclusions to an applicant for comment: Alphaone at 591-592, Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40 FCR 332 (Powerlift) at 365-366; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000] FCA 1113 (Pilbara ALCAC) at [63]-[73]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 (S154) at [54], [57]-[58].
Hale, relied on by KEPCO in [195(b)] above, was a very different case where the local council issued development consent without being aware of a number of significant issues of traffic, parking and access. In that context, the CA held the council had an obligation to acquaint itself with matters sufficiently to be able to undertake its statutory obligation to consider relevant impacts. The facts of this case are different in that there was information before the IPC about each of the topics relied on in these grounds. Much of that material was voluminous. The principles in Hale did not require it to reach certainty in respect of all the matters it considered. There is no general administrative law principle that a consent authority is obliged to acquaint itself with such materials as will enable it to determine a matter. Weal also had quite different circumstances of a grant of development consent with a deferred commencement condition for a crucial impact of noise. The fact that an insufficiency of evidence or area of uncertainty arose in relation to a matter which KEPCO knew of did not impose a duty to enquire on the IPC and did not make it inappropriate to proceed to make a final determination to refuse consent. That the IPC was uncertain about particular impacts must be understood in the context of its whole reasoning.

[57]

Aboriginal heritage impacts

From the start of the assessment process the Secretary's Environmental Assessment Requirements (SEARs) issued by the Department required an assessment of the likely impacts of the Project on Aboriginal heritage. KEPCO accordingly prepared an assessment of those impacts. The PAC Review Report identified some concerns with KEPCO's approach and the need for further investigations to occur. This was also recorded in correspondence with the OEH. The decision to undertake further assessment of Aboriginal heritage impacts after consent was granted may have been satisfactory to the OEH but was the subject of dissent in several public comments, including submissions of the BVPA and an assessment prepared by archaeologist Mr Kuskie (listed above in [180(b)]-[180(d)). Concerns included that an adequate investigation had not been undertaken and the cumulative impacts of both the Project and the Recommended Revised Project on Wirajduri heritage had not been addressed.
It was right for the IPC to conclude that there was insufficient evidence for it to form a view on the impacts of the Project on Aboriginal heritage as there had been no advance in terms of understanding what the impacts actually were following the concerns raised by the PAC. This could have been no surprise to KEPCO as the lack of adequate evidence was precisely what the public submissions were drawing attention to.
The IPC discharged its duty to acquaint itself with material relevant to the exercise of its function. It was logical for the IPC to reason that it could refuse consent without reaching a final view about the precise nature of the heritage impacts, given they could at best only be seen as a neutral matter, not a matter that favoured the granting of consent. It did not draw any adverse conclusion about Aboriginal heritage impacts. It is absurd to suggest that the IPC, having reached that view on the facts, was nevertheless obliged to undertake some further factual inquiry in order to give procedural fairness to KEPCO. A situation of refusal does not give rise to the same kind of considerations in Hale and Weal where consent was granted without an understanding of the impacts.

[58]

Alternative sources of coal

The IPC was under no obligation to reach any more definitive conclusion about the likelihood of KEPCO obtaining alternative sources of coal if consent were refused. The IPC was aware that KEPCO had asserted that Scope 3 GHG emissions would be emitted irrespective of the approval because if the Project was refused it would find alternative sources of coal. KEPCO's suggestion that it would use alternative sources of coal was challenged and dealt with by material before the IPC (see [181]-[188] above). KEPCO was plainly alive to the fact that this was a matter in dispute. The IPC's comment that it "does not have evidence before it to determine whether… the Applicant will need to secure an alternative source of coal" was not intended to indicate that it had no evidence at all before it on the topic. It was clearly aware of KEPCO's contentions on the point. The statement reflects that the IPC did not consider it was in a position to reach a satisfactory conclusion about whether that eventuality would in fact arise.
The material before the IPC addressing this contention included an Expert Review dated June 2018 prepared by IEEFA (see [181] above). This submission took issue with the proposition that it was inevitable that there would be continued use of coal-powered power stations in South Korea and that the Project was needed to meet existing coal demand. It contended that the clear change in energy policy by the South Korean government significantly impacts on the long-term economic viability of the Project. KEPCO's assumed ongoing need for coal in South Korea is disputed. KEPCO responded to some of these propositions in the submission titled Bylong Coal Project Supplementary Information prepared by Hansen Bailey, dated July 2018 (see [182] above).
The next relevant document is the Department's Final Assessment Report in October 2018. The Department expressed its views about the dispute and the competing contentions of IEEFA and KEPCO in its response. The Department agreed with KEPCO about what was likely to happen in the future and the likely state of South Korean energy policy going forward.
A submission prepared by the Australia Institute in November 2018 which addressed that global demand for coal was falling went to KEPCO's proposition about the necessity of KEPCO obtaining coal from another source (see [184] above). IEEFA put on a reply to KEPCO's response in November 2018 which again contested the factual claims about energy and power in South Korea. IEEFA put on a further submission, a briefing note dated April 2019 analysing South Korea's shift further away from coal (see [183] above).

[59]

Lack of certainty as to "make good" provisions

The issue of "make good" provisions in relation to groundwater impacts arose in the SOR in the context of the AIP. The IPC noted that "there has been no information provided by the Applicant in relation to proposed 'make good' measures". The IPC accepted the submissions of KEPCO and the Department that the drawdown on the aquifer on land owned and operated by KEPCO was to be greater than two metres, which exceeds the maximum drawdown threshold in the AIP. It concluded that the drawdown was an interference with an aquifer exceeding the respective water table threshold under cl 12AB(7) of the Mining SEPP. As a consequence, it came to consider the existence of "make good" provisions at KEPCO's suggestion. KEPCO did not address in detail how minimal impact considerations were addressed with respect to its land. Whether or not "make good" provisions were adequate was addressed squarely in the material, including whether these provisions would apply to land and bores owned by KEPCO. The IPC was entitled to come to the conclusion on the facts that the ultimate effect of the material before it was uncertain and there was insufficient evidence on that topic for it to conclude that the "make good" provisions were certain and sufficient.
Relevant documents that were before the IPC included submissions provided by the Lock the Gate Alliance from 2015 and November 2018 (see [189] above) addressing the application of the AIP. The Lock the Gate Alliance submitted that when you read the AIP, it applies to any water supply work, irrespective of who owns the property, where there is a drawdown of more than two metres. There is no justification for limiting the evaluation of the mine's impact to land not owned by the mine. This presented a problem for KEPCO because its response throughout the assessment process had been to focus on how the AIP applied to land owned by others and its intention to make good any problems for those landowners. Other relevant documents are outlined in [189]-[191] above.

[60]

Nature of proposed greenhouse gas mitigation measures

The IPC's concern is about the impact of Scope 3 emissions, namely the downstream burning of coal which will produce something approaching 200 million tonnes of carbon dioxide over the life of the Project. This is a critical environmental impact. The issue raised by KEPCO regarding Scope 3 GHG emissions is artificial. The sole basis for KEPCO's complaint appears to be that the IPC alluded to the fact that the GHG Management Plan seemed to relate only to Scope 1 and 2 emissions but did not resolve one way or another whether it was so confined. In oral submissions KEPCO suggested this was an irrational conclusion because that GHG Management Plan did in fact deal with Scope 3 emissions. This is factually wrong. The types of emissions KEPCO alluded to in making that submission were marginal in nature. The Scope 3 emissions addressed in KEPCO's GHG Management Plan are separated into indirect emissions associated with the production and transport of fuel and separately the use of thermal coal. None of the measures contemplated to minimise GHG emissions capture off-site Scope 3 emissions. The conditions proposed by the Department also failed to address Scope 3 emissions. Condition 19(d) proposed by the Department was to "implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site". This contemplates onsite emissions which are Scope 1 and 2, and therefore does not consider Scope 3 emissions.
The lack of attention to Scope 3 emissions is made clear in submissions addressed to the IPC on this topic. Doctors for the Environment noted that Scope 3 emissions had not been properly addressed (see [194] above). This was picked up in meetings with the IPC, as shown in meeting transcripts (see [193] above). The submission of Chalk & Fitzgerald on behalf of the Lock the Gate Alliance also called for closer scrutiny to be placed on Scope 3 emissions (see [193] above). The Hansen Bailey March 2019 letter sought to engage with the criticisms that had been made about Scope 3 emissions and incompatibility of the Project with the NSW CCPF and the Paris Agreement. It is clear that there had been a series of submissions on this topic and KEPCO had been given the opportunity to respond.
KEPCO had every opportunity to put forward a GHG Management Plan that addressed concerns about Scope 3 emissions. In the circumstances, any supposed error in failing to reach a more certain conclusion in that regard was immaterial to the IPC's conclusions.

[61]

Grounds 8 and 9 not established

I agree with the BVPA that these grounds are an attempt to canvas merit issues in the guise of judicial review grounds alleging failure to accord procedural fairness, failing to consider cogent evidence concerning likely impacts of the proposed mine, not telling KEPCO of adverse conclusions and irrationality in relation to the IPC's consideration of alternative sources of coal in particular.
Alphaone in the Full Federal Court, cited with approval in SZBEL by the High Court (Alphaone was identified in Ex parte Palme at [22] in setting out a party's submissions but did not arise squarely in the reasoning of the High Court) can, and indeed must, be accepted. However, the circumstances of the exhaustive assessment process outlined in the BVPA's submissions in the four areas identified do not come close to establishing a denial of procedural fairness to KEPCO in the areas complained of, or to establishing that the IPC failed to advise of an adverse conclusion not obviously open on the evidence. There is a substantial difference between the factual matters informing the authorities relied on by KEPCO and what actually happened before the IPC in considering the Project and the Recommended Revised Project.
In Alphaone, the Commissioner for ACT Revenue appealed the successful judicial review of their refusal to grant a licence to Alphaone Pty Ltd on the basis that it was not a fit and proper person to hold the licence it had applied for. The Full Federal Court was addressing the question of the extent to which a decision-maker must, as a matter of fairness, invite a response from an applicant to its evaluation of an application. In SZBEL citing Alphaone at [27] to the effect that the rules of procedural fairness require a party affected to be given the opportunity of ascertaining relevant issues and to be informed of the nature and content of adverse material, the High Court unanimously held that the Refugee Review Tribunal had not accorded procedural fairness to an applicant because he was not given an opportunity to address it on a determinative issue. It is useful to note that the High Court at [48] cited with approval Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 (La Roche) at 369 as follows: … the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.

[62]

Conclusion

In my findings above I considered it necessary to address the issue of materiality in relation to Grounds 1, 3 and 6 and have done so. I did not consider it necessary to consider materiality in relation to Grounds 2, 4, 7, 8 and 9.
As KEPCO has been unsuccessful in its grounds of review its summons should be dismissed.
The usual costs rule in judicial review proceedings is that costs follow the event. The BVPA (the Second Respondent) as the successful party should have its costs paid by KEPCO (the Applicant). The IPC (the First Respondent) filed a submitting appearance save as to costs. Before making a costs order, the IPC should have the opportunity to advise if it wishes to make any submissions on costs. If not, the costs order I have indicated will be made. A timetable will be discussed with the parties.

[63]

Orders

The Court orders: 1. The Applicant's Further Amended Summons filed 3 June 2020 is dismissed. 2. Costs are reserved. 3. The exhibits are returned.

[64]

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: 22 December 2020

Particular extracts relevant to various grounds of review are extracted below. It will also be necessary to consider the overall structure as summarised in the immediately preceding paragraph. Relevant extracts provide (figures omitted): 1 INTRODUCTION … 1.2.2 Revised Mine Plan 12. Following review of the Project by the former Planning Assessment Commission (PAC) in July 2017 (the PAC Review Report), and a letter from the Department to the Applicant dated 28 May 2018, the Applicant submitted a Bylong Coal Project - Supplementary Information Report (Supplementary Information Report) to the Department in July 2018, which provided details of a Revised Mine Plan. 13. The 28 May 2018 letter stated that the Department "considers that revisions to the proposed mine plan are required to adequately avoid and minimise the potential impacts on the heritage values of Tarwyn Park and surrounding landscape" and that "no open cut mining or overburden emplacement should be permitted on the Tarwyn Park property; and overburden emplacement areas should be redesigned to minimise the visual impacts and maximise the integration of the proposed final landform with the surrounding topography". 14. The Revised Mine Plan submitted by the Applicant includes the following changes, and is illustrated in Figure 4: • removal of open cut mining and overburden emplacement from the Tarwyn Park landholding, avoiding impacts on the former Upper Bylong Catholic Church and cemetery; • reducing the volume of overburden being handled by around 24%; • reducing the footprint of the western open cut by 22.5 ha to maintain a wooded ridgeline and retain the existing views from the Tarwyn Park homestead; • modifying the north-western overburden emplacement area to incorporate a valley/ drainage line, to minimise visual impacts on Tarwyn Park homestead; • reducing the height and slope of the south-western overburden emplacement area to integrate with the existing topography; • re-establishing the connection between the Upper Bylong Road and Lee Creek Road at mine closure, subject to consultation and agreement with Mid-Western Regional Council (the MWRC); • incorporating macro relief into the conceptual final landform, consistent with existing landscape elements in the Upper Bylong Valley; and • removal of the on-site WAF to accommodate the construction workforce. 15. The Revised Mine Plan would result in approximately 1,047 ha of surface disturbance, compared to the Project's surface disturbance of approximately 1,160 ha. 16. Further to the Revised Mine Plan, the Department recommended a set of conditions (Final Proposed Conditions) in its Final Assessment Report to amend the Project in line with the Revised Mine Plan and prohibit the construction of the WAF and the open cut mine on the historic Tarwyn Park property (see section 2.5 for a summary of the Final Assessment Report). The Revised Mine Plan and the Final Proposed Conditions are collectively referred to as the Recommended Revised Project. 17. The Commission notes that despite providing an assessment of the Revised Mine Plan, the Applicant has not formally amended its development application (see paragraph 54). The Commission has therefore assessed the Project on the basis that approval is being sought for the Project as originally proposed in the EIS submitted with the development application, as described in paragraph 11. 18. The Commission has also considered the merits of the Recommended Revised Project, as put forward by the Department in its Final Assessment Report, as a potential modification to the Project under section 4.38(1)(a) of the EP&A Act. … 5 MATERIAL CONSIDERED BY THE COMMISSION 5.1 Material before the Commission 78. In this determination, the Commission has carefully considered the following material (the Material): • the Independent Expert Scientific Committee (IESC) advice (IESC advice) dated 14 March 2014 • the report by the Mining & Petroleum Gateway Panel to accompany a Conditional Gateway Certificate for the Bylong Coal Project (the Gateway Report) dated 15 April 2014; • the development application, including the Revised Secretary's Environmental Assessment Requirements, dated 11 November 2014; • the Bylong Coal Project Environmental Impact Statement (the EIS), dated September 2015 and prepared by Hansen Baily Environmental Consultants, and its accompanying appendices; • the Department's request to Minister for Lands and Water for advice, dated 4 January 2016; • the Minister for Lands and Water advice to the Department, dated January 2016; • the Bylong Coal Project: Environmental Impact Statement Response to Submissions (the RtS), dated March 2016, and its accompanying appendices; • the Mining & Petroleum Gateway Panel's response to the Department, dated 9 September 2016; • the Department's State Significant Development Assessment Bylong Coal Project (SSD-6367), dated 31 March 2017; • the PAC's Bylong Coal Project SSD6367 Review Report, dated 25 July 2017, including Appendices; • the Bylong Coal Project Response to PAC Review Report (the Applicant's Review response), dated January 2018, and its accompanying appendices; • the Applicant's Revised Mine Plan detailed in the report Bylong Coal Project, Supplementary Information, July 2018; • the Department's Final Assessment Report dated October 2018; • the Microsoft Surface Pro tablet (the tablet) containing information and visual rendering regarding the Project and the Revised Mine Plan, dated 1 November 2018; • information discussed with the Commission at its meeting with MWRC on 6 November 2018 and provided in the transcript published on the Commission's website; • information discussed with the Commission at its meeting with Muswellbrook Shire Council on 12 November 2018 and provided in the transcript published on the Commission's website; • information discussed with the Commission at its meeting with the Department on 29 October 2018 and provided in the transcript published on the Commission's website; • information discussed with the Commission at its meeting with the Applicant on 29 October 2018 and provided in the transcript published on the Commission's website; • information discussed with the Commission at its meeting with the BVPA on 12 November 2018 and provided in the transcript published on the Commission's website; • oral submissions made by the 58 speakers at the public meeting and the 3192 written comments received subsequently; • the Independent Groundwater Review prepared by GW-SW Pty Ltd, dated 5 March 2019; • the Independent Economic Review prepared by CIE dated 20 December 2018; • additional information provided by the Applicant including: ○ Bylong Coal Project Response to Submissions on the Greater Blue Mountains World Area, dated 10 December 2018; ○ Bylong Coal Project Response to Glencore Submission dated 12 November 2018, dated 14 December 2018; ○ Bylong Coal Project Response to Submissions in Relation to Economic Impact Assessments, dated 18 December 2018; ○ Bylong Coal Project Clarification over Meeting Transcript in Relation to Mine Plan Sought (SSD 14_6367), dated 19 December 2018; ○ Bylong Coal Project Response to Submissions in Relation to Water Resources, dated 20 December 2018; and ○ Bylong Coal Project Relevant Information for the IPC's Consideration in Relation to Greenhouse Gas Emissions, dated 4 March 2019; ○ Applicant's response to the EDO NSW Submission, dated 15 February 2019; ○ the Department's Bylong Coal Project (SSD 6367) - Request for Additional Information, dated 13 February 2019, and its accompanying appendices (the Department's Groundwater Response); ○ Bylong Coal Project Response to GML Heritage Advice, dated 27 June 2019; ○ response to the Commission correspondence, dated 5 July 2019; ○ comments on the Gateway Certificate, dated 23 July 2019; ○ further comments on the Gateway Certificate, dated 5 August 2019; ○ further comments on the Gateway Certificate, dated 13 August 2019; and ○ comments on the Commission's meeting with the Department and DPI on 6 August 2019, dated 23 August 2019; • the independent Heritage Review prepared by GML Heritage, dated 12 June 2019; • written comments received following the publication of the Heritage Review on the Commission's website. • written comments received following the publication of the Commission's media statement relating to the expiry of the gateway certificate; • written comments received following the publication of the Applicant's comments on the gateway certificate; and • information discussed with the Commission at its meeting with the Department and DPI on 6 August 2019 and provided in the transcript published on the Commission's website. … 5.2 Mandatory considerations … 5.2.2 Relevant Environmental Planning Instruments 84. The EIPs that may apply to the Project and the Recommended Revised Project are: • Mid-Western Regional Local Environment Plan 2012 (MWR LEP 2012); • SEPP No. 33 - Hazardous and Offensive Development (SEPP 33); • SEPP No. 44 - Koala Habitat Protection (SEPP 44); • SEPP No. 55 - Remediation of Land (SEPP 55); • SEPP State and Regional Development 2011 (SEPP SRD); • SEPP (Infrastructure) 2007 (Infrastructure SEPP); and • Mining SEPP. … Mining SEPP 102. The relevant aims of the Mining SEPP as stated in clause 2 are: "The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries: (a) to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and (b) to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and (b1) to promote the development of significant mineral resources, and (c) to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources…" 103. Part 3 of the Mining SEPP lists a number of matters that a consent authority must consider before determining an application for development for the purposes of mining, including: • non-discretionary development standards for mining (i.e. noise, air quality, blasting and aquifer interference); • compatibility of development with other land uses; • the Voluntary Land Acquisition and Mitigation Policy approved by the Minister and published in the Gazette on the date on which State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (Air and Noise Impacts) 2018 is published on the NSW legislation website (103); • compatibility of development with mining, petroleum production or extractive industries; • natural resource management and environmental management; • resource recovery; • transport; and • rehabilitation. 104. Clause 12AB of the Mining SEPP identifies various non-discretionary development standards for mining for the purposes of s 4.15(2) and (3) of the EPA Act (see clause 12AB(2) of Mining SEPP). The object of the clause is stated in cl 12AB(1) of the Mining SEPP: "The object of this clause is to identify development standards on particular matters relating ) to mining that, if complied with, prevents the consent authority from requiring more onerous standards for those matters (but that does not prevent the consent authority granting consent even though any such standard is not complied with)." 105. The relevant non-discretionary standards are considered by the Commission in Section 6. 106. In relation to GHG emissions, Clause 14 of the Mining SEPP states that: "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." 107. The Commission notes that the term "downstream emissions" is not defined in the Mining SEPP. The Commission understands the term to denote the greenhouse gas emissions relating to sold goods and services and thus caused by the end users' use of the product. (Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018] NSWLEC 92 per Sheahan J at [126]). 108. Division 2 of Part 4AA of the Mining SEPP also requires the Commission to have regard to the minimal impact considerations set out in the NSW Aquifer Interference Policy 2012 (AIP) and the other provisions of the AIP. The Commission has therefore considered the provisions of the AIP in Section 6.2. 109. Clause 12 of the Mining SEPP requires the consent authority, before determining a development application for mining, to consider the compatibility of the proposed mine with other land uses in the vicinity of the mine. Clause 12 provides: "Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must: (a) consider: (i) the existing uses and approved uses of land in the vicinity of the development, and (ii) whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and (iii) any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and (b) evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a) (i) and (ii), and (c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii)." 110. The Commission has considered the existing, approved and likely preferred uses of land in the vicinity of the Project and Recommended Revised Project with respect to Clause 12 of the Mining SEPP in Section 6. … Other advice 149. In accordance with clause 17B(1)(b)(ii) of the Mining SEPP, the Commission has considered the written advice provided by the Minister for Regional Water (MRW) dated January 2016. 150. Clause 17B(1)(b)(ii) of the Mining SEPP, requires the consent authority to consider any written advice provided by the MRW in response to a referral. On 4 January 2016, the Department wrote to the Minister for Lands and Water (now known as the MRW) seeking advice on the impact of the Project on water resources. The Minister for Lands and Water provided a response to the Department in January 2016. 151. In relation to water licensing, the Minister for Lands and Water stated that the Proponent has identified sufficient entitlement to account for the predicted take and use of water from alluvial groundwater source. The MRW noted that the proponent had applied for a licence under part 5 of the Water Act 1912 and that the application was under assessment. 152. In relation to water table impacts, the Minister for Lands and Water stated that the "DPI Water advises that the modelling and assessment of groundwater impacts should be improved to better understand the impacts and proposed management of the project". … 5.3 Other relevant documents 5.3.1 Commonwealth Approvals … 5.3.4 Relevant Guidelines 188. In determining this Application, the Commission has also considered the: • Noise Policy for Industry (NPI) dated 2017; • NSW Climate Change Policy Framework dated November 2016; • NSW Aquifer Interference Policy 2012 (AIP) • VLAMP dated September 2018; • Social Impact Assessment Guidelines dated September 2017; and • 2013 Interim protocol for site verification and mapping of biophysical strategic agricultural land (the Interim BSAL Protocol) … 6 COMMISSION'S CONSIDERATIONS 6.1 Existing, approved and likely preferred uses of land in the vicinity 189. As presented in paragraph 104, under the Mining SEPP the Commission must give consideration to the existing uses and approved uses of land in the vicinity of the development, including whether or not it is likely to have a significant impact on the uses that are likely to be the preferred uses of land in the vicinity of the development and any ways in which the development may be incompatible with any of those uses. … 6.1.2 Existing uses 193. Clause 12(a) of the Mining SEPP set out in paragraph 104 above requires consideration of three types of uses of land in the vicinity of the Project: existing uses, approved uses and likely preferred uses. … 6.1.4 Likely preferred uses 206. The Commission has adopted Preston CJ's guidance on likely preferred uses in Gloucester Resources v Minister as referring to uses of the land that, having regard to land use trends, are likely to be the preferred uses of land in the vicinity. 207. The Commission considers that the MWLEP 2012 is a relevant representation of what land uses are most likely to be considered the preferred uses of land in the vicinity of the Project. … Agriculture … Heritage … Tourism … Mining 223 As per paragraph 87, the Commission notes that development for the purposes of open cut mining is permissible with consent on land zoned RU1. The Commission also notes that "underground mining" is not listed as a permissible or prohibited use in the MWLEP on land zoned RU1 and SP2. The Commission notes that under clause 7(1)(b)(i) of the Mining SEPP, development for the purposes of miming may be carried out on any land where agriculture or industry is a permissible land use, which includes land zoned SP2. 224. The Preliminary Assessment Report states the while [sic] the Project is located within the Western Coalfield, there is no history of coal mining in the Bylong Valley. The nearest coal mine is Wilpinjong Mine located 20km northwest of the Project Site. 225. Mining would be a new land use in a predominately agricultural setting, surrounded by State Forests and National Parks. The Preliminary Assessment Report stated that "[e]xpansion of the mining industry into the Bylong Valley area has the potential to create land use conflicts with existing agricultural industries, including cattle grazing operations". 226. The PAC considered that the impact of this new use would be felt across the local economy of the Bylong Valley" "…the conclusion that might be reached is that any approval of the project would represent a fundamental shift in the valley in favour of mining as opposed to agricultural or pastoral pursuits, and that the water security on which agricultural activities depend, may be jeopardised, particularly during extended dry period." Commission's consideration of likely preferred uses 227. The Commission acknowledges that open cut mining on the Project Site is permissible with consent, as stated in paragraphs 87 and 89. On balance, the Commission finds that agricultural and some tourism land uses are the likely preferred uses in the vicinity, having regard to: • the objectives of zoning in the MWLEP being primarily agricultural, as well as the maintenance of heritage and promotion of tourism (paragraph 207); • the minimum lot sizes being suited to intensive agricultural use (paragraph 209); • the prevalence of BSAL in the vicinity and on the Project Site to support agricultural activities given that BSAL is a finite natural resource and with BSAL being the most fertile 3.5% of soils in NSW as there are comparatively few locations that have access to all the relevant characteristics (see paragraph 372); • the prevalence of historical items and landscapes with heritage significance in the vicinity (paragraph 217); and • the nearest coal mine being 20 km away (paragraph 224). 228. The Commission considers that these likely preferred uses of the land are also compatible with a further objective of the RU1 zoning to preserve the local heritage and rural landscape (see paragraph 207). 6.1.5 Impact of the proposed mine on the likely preferred uses 229. As stated in paragraph 109, under Clause 12 of the Mining SEPP, the Commission must consider whether the Project or Recommended Revised Project is likely to have a significant impact on the likely preferred uses in the vicinity. 230. The Commission has considered the impacts further in this section of the Statement of Reasons including evaluating any measures proposed by the Applicant to avoid or minimise any incompatibility. 6.1.6 The incompatibility with the existing, approved or likely preferred uses 231. As stated in paragraph 109, under Clause 12(a)(iii) of the Mining SEPP the Commission must consider any ways in which the Project or Recommended Revised Project may be incompatible with any of the existing, approved or likely preferred uses. Where there is incompatibility, under subclause 12(c) of the Mining SEPP the Commission must evaluate any measures proposed by the Applicant to avoid or minimise incompatibility. 232. The Commission considers the impacts of the Project and Recommended Revised Project in this Statement of Reasons in Section 6 and finds that, by reason of its groundwater and agricultural impacts, and the lack of evidence to support the rehabilitation to BSAL equivalent, mining will be incompatible with the existing, approved and likely preferred uses in the vicinity and that the measures proposed by the Department and the Applicant will not avoid or minimise this incompatibility. 6.1.7 The comparative public benefits of the mine and other land uses 233. As stated in paragraph 109, under Subclause 12(b) of the Mining SEPP the Commission must evaluate and compare the respective public benefits of the Project and the existing, approved and likely preferred uses of land in the vicinity. 234. The Commission has considered the public benefits of the Project and finds them to be employment for up to 470 mine workers at full production, with 275 persons employed during underground only operations and $290 million (net present value) in royalties for the NSW Government. 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, longterm 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. … 6.2 Natural environment impacts - groundwater 6.2.1 Statutory context 237. Part 3 cl 14(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. 238. Division 2 of Part 4AA of the Mining SEPP requires the consent authority to: • "consider any written advice provided by the Minister for Regional Water; and • have regard to the minimal impact considerations set out in the NSE Aquifer interference Policy 2012 (AIP) and the other provisions of the AIP". 239. Clause 12AB(7) of the Mining SEPP requires that "[a]ny interference with an aquifer caused by the development does not exceed the respective water table, water pressure and water quality requirements specified for item 1 in columns 2, 3 and 4 of 'Table 1 of the Aquifer Interference Policy for each relevant water source listed in column 1 of that Table." And that "[t]he taking of water from all water sources must be authorised by way of licenses or exemptions under the relevant water legislation." 240. Section 4.15 of the EP&A requires the consent authority to consider "the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". … 6.2.12 Commission's consideration of the groundwater impacts of the Project and Recommended Revised Project 288. The Commission accepts the findings of the Applicant and Independent Groundwater Review in paragraphs 251, 275 and 287 that there would be no cumulative impact on groundwater in relation to nearby mines as there is no overlap in zone of influence. 289. The Commission accepts the robustness of the modelled groundwater impacts presented in the Applicant's Bylong Coal Project Mine Plan Update Groundwater Impact Assessment as referenced in paragraph 261. 290. The Commission accepts the findings of the Applicant and Independent Groundwater Review in paragraphs 251 and 286 that the groundwater system will reach a new equilibrium within 100-150 years. 291. The Commissions [sic] agrees with the conclusions of the Applicant and the Department in paragraphs 265 and 269 that the projected aquifer drawdown will not exceed 2m on neighbouring properties not owned or operated by the Applicant. The Commissions [sic] finds that the Project and the Recommended Revised Project meet the requirements of the AIP in relation to the groundwater impacts on land that is not owned or operated by the Applicant. 292. The Commission accepts the statements of the Applicant and Department in paragraphs 265 and 270 that the drawdown of 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 set out in paragraph 238. The Commission notes that the Applicant's modelling as stated in paragraph 263 predicts a drawdown of between 2 and 10m in the aquifer along the Bylong River and Lee Creek for the Project. The Commission notes that the drawdown is predicted to be marginally less (between 0.1m and 0.2m) for the Recommended Revised Project. The Commission is of the view that this is a significant decline in the water table in comparison to Table 1 "The Minimal Impact Considerations for Aquifer Interference Activities" which sets out the AIP's maximum drawdown threshold of a 2m decline. 293. The Commission accepts the Department's conclusion that the Recommended Revised Project has slightly reduced the impacts on groundwater as stated in paragraph 274. 294. The Commission notes the Department's conclusion in paragraph 272, that the Applicant has designed the Project to avoid significant groundwater impacts. The Commission does not support this conclusion for the reasons set out in paragraph 295, 296 and 297. The Commission accepts the Department's conclusion in paragraph 272, that the Applicant holds sufficient water licenses to account for its predicted water take in the alluvium and that the Applicant has not acquired all its entitlement in the Permian aquifer. 295. The Commission notes the Department's conclusion in paragraph 272 that the Applicant's management of the groundwater impacts of the Recommended Revised Project was acceptable because the predicted impacts on water users would comply with Table 1- Minimal Impact Considerations for Aquifer Interference Activities set out in the AIP. The Commission is of the view that this only applies to land not owned by the Applicant. As set out in paragraph 292, the drawdown of the aquifer on land owned and operated by the Applicant is projected to be greater than 2m (up to 9m along Dry Creek), exceeding the maximum drawdown thresholds in the AlP. The Commission finds that under Clause 12AB(7) of the Mining SEPP, this is an interference with an aquifer caused by the proposed development that does exceed the respective water table threshold under the AIP as both considerations 1 and 2 in the AlP refer to a "2m decline cumulatively". 296. The Commission notes that there is a breach of the AlP's maximum drawdown as stated in paragraph 292 and therefore the AIP "make good" provisions apply as set out in paragraph 244. The Commission notes that the AIP does not define or identify what "make good provisions" are. The Commission acknowledges that the AIP states that "surrendering of water access licences is a 'make good' provision which may account for ongoing post closure take of water, provided water management costs and the net present value of any charges associated with this ongoing take of water and the surrendered licences are met (p30). The Commission notes that there has been no information provided by the Applicant in relation to proposed "make good" measures. The Commission finds 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 given the exceedance in the respective water table. 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, as stated in paragraph 249; • the groundwater system will reach a new equilibrium within 100-150 years as stated in paragraph 290. The Commission is of the view that this will have long term intergenerational consequences; • drawdown at the Project Site exceeds the AIP thresholds (i.e. 2m). The Commission notes that one area along Dry Creek will have a maximum impact of up to 9m as stated in paragraph 292. • there is uncertainty and insufficient information before it as to whether the "make good" requirements of the Project and Recommended Revised Project are met as stated in paragraph 296; and • the predicted water seepage into the mine at cessation of mining is significant, as stated in paragraph 251 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, as stated in paragraph 251 and 286. 6.3 Natural environment impacts - surface water … 6.14 Natural environment impacts - climate change 6.14.1 Statutory context 648. Part 4.15 of the EP&A Act requires the Commission to consider the likely environmental impacts of the development on the natural environment. 649. The following sections of the EP&A Act require the Commission to consider GHG emissions in assessing the Project: • s 4.15(1)(a), which requires the Commission to take into consideration the provisions of any applicable environmental planning instrument including the Mining SEPP (which in tum requires the consideration of GHG emissions as explained below). • s 4.15(1)(b), which requires the Commission to take into consideration the likely impacts of the development, including environmental impacts which the Commission considers includes impacts of GHG emissions on climate change); and • s 4.15(1)(e), which requires the Commission to take into consideration public interest, including the principles of ecologically sustainable development (ESD). 650. Section 6(2) of the Protection of the Environment Administration Act 1991, as set out in paragraph 82, states that ESD: "…requires the effective integration of social, economic and environmental considerations in decision-making processes. [ESDJ can be achieved through the implementation of the following principles and programs: (a) the precautionary principle-namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options, (b) inter-generational equity-namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations; (c) conservation of biological diversity and ecological integrity; and (d) improved valuation, pricing and incentive mechanisms." 651. Clause 1.2(2)(b), (c) and (d) of the MWRLEP 2012 states that the particular aims of the plan include: "(b) to encourage the proper management, development and conservation of resources within Mid-Western Regional by protecting, enhancing and conserving: (i) land of significance to agricultural production, and (ii) soil, water, minerals and other natural resources, and (iii) native plants and animals, and (iv) places and buildings of heritage significance, and (v) scenic values, (c) to provide a secure future for agriculture through the protection of agricultural land capability and by maximising opportunities for sustainable rural and primary production pursuits, (d) to foster a sustainable and vibrant economy that supports and celebrates the MidWestern Regional's rural, natural and heritage attributes" 652. Clause 14 of the Mining SEPP relevantly provides: "(2) in determining a development application …. 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." 653. 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: (c) that greenhouse gas emissions are minimised to the greatest extent practicable. 6.14.2 Applicable policies 654. The Commission must consider an assessment of the GHG emissions of both the Project and the Recommended Revised Project, having regard to applicable State or national policies, programs or guidelines concerning GHG emissions, by reason of the application of the Mining SEPP, in accordance with section 4.15(1)(a) of the EP&A Act. 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." 6.14.3 Applicant's assessment of climate change impacts of the Project … 6.14.4 Department's consideration of the climate change impacts of the Project … 6.14.5 The Planning Assessment Commission's Review of the climate change impacts of the Project … 6.14.6 Applicant's assessment of climate change impacts of the Revised Mine Plan 667. ln its updated Air Quality and Greenhouse Gas Assessment (Appendix F to the Supplementary Information Report), the Applicant assessed the GHG emissions of the Revised Mine Plan. A summary of GHG emissions was attached in Appendix B, p.23. 668. In the correspondence from the Applicant dated 4 March 2019, the Applicant stated that the Revised Mine Plan will reduce GHG emissions because it would remove the open cut mining off Tarwyn Park, which: "reduces the recoverable coal resource for the Project by approximately 4.6 million tonnes (Mt) of Run of Mine (ROM) coal. To deliver minor reductions in Scope 1, Scope 2 and Scope 3 GHG emissions due to the reduction in coal reserve. Scope 3 (indirect) GHG emissions associated with end use of product coal (i.e. power generation) were predicted at 197.4 mt of Co2-e." 669. The Applicant considered that South Korea would be the jurisdiction within which the Scope 3 emissions from the coal mined at Bylong would occur: "it is predicted that the product coal will wholly be sold to and used in the Republic of Korea. It is not predicted that any product coal will be used in NSW." 670. The Applicant considered international policy and noted that the contribution of Scope 3 emissions from the Bylong coal in South Korea "… is not incompatible with South Korea's commitments under the Paris Agreement". 671. The Applicant considered that NSW would be the jurisdiction within which Scope 1, Scope 2 and Scope 3 emissions "associated with the production and transport of diesel, supply of electricity and the transport of product coal to the Port of Newcastle" from the Bylong coal mine operations would occur and presented this amount as a total value and a percentage of total State emissions: "On an annual basis, these Scope 1, Scope 2 and Scope 3 (which occur within NSW) emissions associated with the Project equate to approximately 0.16 Mt CO2-e. This represents a negligible proportion (0.1%) of NSWs annual emissions in 2011/12…" 672. The Applicant also submitted a letter dated 8 March 2019 which responded to the submission made by the NSW EDO on behalf of Bylong Valley Protection in relation to Gloucester Resources v Minister (outlined below in paragraph 683) stating: • "Rocky Hill was a merits review in the Class 1 jurisdiction of the Land and Environment Court, • there are difficulties relying on the findings of the decision; • no inference should be drawn from the fact the Department did not cross-examine a witness; and • the mine was refused on other grounds alone." 673. The Applicant in its response to the submissions made by the EDO said that the Applicant had targeted the Project as "a reliable appropriate quality supply of coal for its power station in South Korean and claimed that: "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 alternate 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." 674. On 4 March 2019, the Applicant provided further comments to the Commission in relation to the Commission's task in considering the Project's Scope 3 GHG emissions (the "March Letter"). In this letter, the Applicant outlined the various assessments that were previously conducted in relation to the assessment of GHG emissions. The letter also noted that "Scope 3 emissions associated with the transportation of product coal to port" were included within the cost benefit analysis, as questioned by the PAC in its Review and presented in paragraph 665. 675. In the March 2019 letter, the Applicant stated it is: "committed to a number at mitigation and management measures to minimise its GHG emissions. These measures will be described within the Air Quality Management Plan to be prepared to the satisfaction of the DP&E. The mitigation and management measures proposed are consistent with the primary objective of the Emissions Reductions Fund to reduce GHG emissions." 676. The Applicant further stated that "the total Scope 3 emissions associated with the use of the coal from the [Recommended Revised Project] were estimated at approximately 197.4 MtCo2-e. This value represents the total GHG emissions from end use at product coal from the [Recommended Revised Project] equates to approximately 8.6 Mt CO2-e per year." 6.14.7 Department's consideration of the climate change impacts of the Recommended Revised Project 677. In its Final Assessment Report, the Department considered the GHG emissions based on the Revised Mine Plan, finding: "The Revised Mine Plan reduces Scope 1 and Scope 2 GHG emissions (direct emissions and electricity consumption) by around 3% over the life of the project to 3.4 MTCo2-e (annual average contribution reduced from 0.140Mt to 0.136Mt), which is 0.03% of Australia's commitment under the Paris Agreement. There is also a 2% reduction in Scope 3 emissions, largely due to less extraction and transportation of coal over the life of the project." (p.86) 678. The Department assessed the relevant objects of the EP&A Act in its Final Assessment Report, including ESD and concluded it is satisfied that: "the proposed modification is able to be carried out in a manner that is consistent with the principles of ESD… the Revised Mine Plan has further reduced the environmental and social impacts of the project, while providing a significant net benefit to NSW and the regional Economy." 679. The Department considered that the NSW Climate Change Policy Framework is a "framework to guide Government in its own operations, rather than a development control policy as such" and concluded that "the policy's content has no direct bearing on either the project or its determination by the Commission." (p.86) 6.14.8 Public comments on the climate change impacts of the Recommended Revised Project 680. The Commission heard concerns from speakers at the public meeting and received written comments regarding the contribution of the Recommended Revised Project to climate change, the potential impacts of climate change on NSW, including by reference to the Paris Agreement and the Intergovernmental Panel on Climate Change's Report commissioned by the United Nations (the IPCC Report), and whether it was in the public interest to approve a greenfield thermal coal mine. The Commission also heard the following concerns raised by members of the community: "Proceeding with the Bylong mine is incompatible with meeting the goals of the Paris agreement to limit global temperature increases to 1.5 degrees Celsius to a preindustrial level, and moderating the negative effects that climate change will have on human health over the next century. (p.30 of the transcript); There is a significant body of law from both New South Wales Land and Environment Court and the New South Wales Court of Appeal which indicates that the public interest includes the consideration of the principles of ecologically sustainable development. One of those is the principles of intergenerational equity. I don't have time to go into the detail of that, but climate change is the definitive example of the principles of intergenerational equity. (p.32 of the transcript); the most serious and urgent environmental issue we face is climate change, and climate change is very much an issue of intergenerational equity. (p.89 of the transcript); What is essential is that we phase out coal, as the recent IPCC report has stated. It appears more than cynical that the final VPA assessment report saying this mine was approvable was released on the same day as the IPCC report on the need to reduce coal dependency. (p86 of the transcript); I wish to object to the Bylong Valley Coal Mine because I feel it is not an ecologically sustainable development. ESD is defined in the New South Wales Protection of the Environment Act, and the Act requires that the precautionary principles should be applied, that irreversible damage to the environment should be avoided, but the present generation should ensure the health, diversity and productivity of the environment are maintained for the benefit of future generations, and those who generate pollution and waste should bear the cost of containment, avoidance or abatement." (p89 of the transcript). 681. As stated in paragraph 672 above, the Commission received submissions that included references to and a copy of the recent decision, Gloucester Resources v Minister. 682. The Commission received a letter from Lock the Gate dated 13 February 2019 in relation to Gloucester Resources v Minister and the Commission's consideration of the NSW Climate Change Policy Framework and Paris Agreement. 683. The Commission received a submission from EDO NSW on behalf of the BVPA dated 15 February 2019, which raised climate change and Gloucester Resources v Minister, noting that this was a matter of public interest. 684. A further submission from the EDO NSW on behalf of the BVPA, dated 8 March 2019, raised the following issues in response to the Applicant's letter dated 4 March 2019 in relation to the Commission's task in considering the Scope 3 GHG emissions from the Project and the Recommended Revised Project: • The Commission should consider the cumulative GHG emissions of the Project. The Court in Gloucester Resources v Minister stated: "it matters not that this aggregate of the Project's GHG emissions may represent a small fraction of the global total of GHG emissions. The global problem of climate change needs to be addressed by multiple local actions to mitigate emissions by sources." • A "Carbon Budget and 'double counting' argument" similar to the statement by the Applicant in the March letter (outlined in paragraph 673) was rejected by the Court in Gloucester Resources v Minister, stating: "a consent authority cannot rationally approve a development that is likely to have some identified environmental impact on the theoretical possibility that the environmental impact will be mitigated or offset by some unspecified and uncertain action at some unspecified and uncertain time in the future". • Preston CJ's at [441] of Gloucester Resources v Minister referred to the concept of a "carbon budget approach", which is a commonly used approach to determine whether the nationally determined contributions of the parties to the Paris Agreement cumulatively will be sufficient to meet the long term temperature goal of keeping the global temperature rise to between 1.5°C and 2°C, is the carbon budget approach. • The EDO NSW stated in its submission that in order to respect the Global Carbon Budget, and in order to limit global warming to non-dangerous levels, "most fossil fuel reserves will need to remain in the ground unburned". • A "Market Substitution" argument, similar to the statements by the Applicant in the March Letter that lower quality substituted coal sourced from elsewhere will otherwise be used and lead to poorer environmental outcomes, was rejected by the Court in Gloucester Resources v Minister because, amongst other things, there was no evidence provided to the decision maker that this was the case. 685. In relation to the "Market Substitution" argument, the Commission also notes that the Gloucester Resources v Minister Judgment appended to the EDO's submission states: "If a development will cause an environmental impact that is found to be unacceptable, the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact". (paragraph 545) 686. In relation to the consideration of new coal mines under the NSW Climate Change Policy, Gloucester Resources v Minister noted that, like the Paris Agreement, this Policy does not "prescribe the mechanisms by which … reductions in GHG emissions to achieve zero net emissions by 2050 are to occur. In particular, there is no proscription on approval of new sources of GHG emissions, such as new coal mines". 6.14.9 The Commission's consideration of the climate change impacts 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 CO2-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 1.5°C and 2°C 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." 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. 694. 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 6 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: "If a development will cause an environmental impact that is found to be unacceptable, the environmental impact does not become acceptable because a hypothetical and uncertain alternative development might also cause the same unacceptable environmental impact. The environmental impact remains unacceptable regardless of where it is caused. The potential for a hypothetical but uncertain alternative development to cause the same unacceptable environmental impact is not a reason to approve a definite development that will certainly cause the unacceptable environmental impacts. In this case, the potential that if the Project were not to be approved and therefore not cause the unacceptable GHG emissions and climate change impacts, some other coal mine would do so, is not a reason for approving the Project and its unacceptable GHG emissions and climate change impacts: see Kane Bennett, "Australian climate change litigation: Assessing the impact of carbon emissions" (2016) 33 EPLJ 538 at 546 548; Justine Bell-James and Sean Ryan, "Climate change litigation in Queensland: A case study in incrementalism" (2016) 33 EPLJ 515 at 535 [Rocky Hill 545] 695. 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 NSW Climate Change Policy is applicable and must be considered by the Commission. 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 develop an 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 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 in paragraph 688 there will be a contribution to global GHG emissions that needs to be considered by the Commission. … 8. CONCLUSION: THE COMMISSION'S FINDINGS AND DETERMINATION 816. The Commission has considered all the Material before it, as set out in paragraph 78. The Commission is required to consider the Project as submitted by the Applicant. The Commission has also considered the Recommended Revised Project as a potential modification to the Project within the meaning of section 4.38(1)(a) of the EP&A Act. The Project and Recommended Revised Project have been assessed in accordance with the current statutory and policy framework as set out in this Statement of Reasons, notwithstanding that the Commission's determination under section 4.38 of the EP&A Act is in respect of the Project only. 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 Tarwyn Park Complex is of heritage significance. The Commission finds that the Project has unacceptable impacts on the heritage values of the Tarwyn Park Complex which have not been addressed by the Applicant. However, the Commission finds that the adverse direct impacts on the heritage values of the Tarwyn Park Complex have been addressed and mitigated as far·as practicable in the Recommended Revised Project (see paragraph 483); • the Aboriginal cultural heritage assessment has not been greatly advanced since the PAC Review Report, and therefore there is insufficient evidence before the Commission for it form a view on the impacts on Aboriginal heritage (see paragraph 516); • 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 propose 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 Applicant has proposed sufficient measures in accordance with the Biodiversity Conservation Act 2016 to avoid, minimise and mitigate impacts to biodiversity. However, the Commission notes that meeting these requirements will result in the loss of 288 ha of BSAL being available for agriculture use (see paragraph 535); • the Applicant could reinstate Equine CIC following closure of the mine and rehabilitation of the Project Site (excluding the use of 515 ha of Equine CIC for biodiversity offsets). • the Project and Recommended Revised Project's impacts to transport could be managed with appropriate conditions. The Commission accepts the findings of ARTC confirming that the current rail network has the capacity to accommodate the additional tonnage of product coal to be produced by the Project and Recommended Revised Project (see paragraph 557 and 558); • the air quality impacts resulting from the Project and the Recommended Revised Project are acceptable (see paragraph 573); • noise and blasting impacts resulting from the Recommended Revised Project would be acceptable and that the Department's Final Recommended Conditions provide appropriate safeguards for monitoring and managing impacts (see paragraph 608); • surface water from the mine water could be effectively managed in surface storages and the mined underground workings without the need to discharge to receiving waters (see paragraph 323); • suitable mitigation measures have been proposed by the Applicant to address the potential visual impacts of the Recommended Revised Project on surrounding residences (see paragraphs 624 and 625); • subsidence impacts associated with the Project and the Recommended Revised Project are able to be minimised, mitigated or at least compensated for to an acceptable standard (see paragraph 646); • 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). 818. In determining the development application for the Project, the Commission has taken into account all of the matters in this Statement of Reasons, including the anticipated benefits and adverse impacts of the Project, and on balance has reached the following conclusion. 819. For all the reasons outlined in this Statement of Reasons for Decision (not limited to those set out in this Conclusion). The Commission has determined to refuse consent for the Project dated 18 September 2019.

When the IPC's consideration of the NSW CCPF in the SOR is fully considered as a whole, it is clear that the NSW CCPF was referred to in the context of Scope 3 emissions. This is because the IPC accepted in par 697 that, based on the evidence in par 688 which identifies the total of Scope 1, 2 and 3 GHG emissions over the life of the mine, the contribution to GHG emissions of the Project and the Recommended Revised Project should be considered. Scope 3 GHG emissions are by far the largest contributor of GHG emissions of the Project and the Recommended Revised Project, as identified in the estimations in pars 657 and 668. The public comments on climate change impacts of the Recommended Revised Project were summarised in pars 680-686 including in relation to Scope 3 GHG emissions, referencing the NSW CCPF. In relation to the IPC's findings and determination, the IPC identifies its obligations under cl 14(2) and identifies that the NSW CCPF outlines the long-term objectives to achieve net-zero emissions by 2050 inter alia in par 687. In par 687 it also considers the policy is applicable and must be considered. The estimations of GHG emissions are accepted in par 688. The IPC identifies that the NSW government has adopted the goal of achieving net zero emissions by 2050 with no mechanisms prescribed for doing so in par 689. That there is no prohibition on the approval of new sources of GHG emissions such as new coal mines is noted in par 689. The IPC accepts in par 690 that all direct and indirect GHG emissions of the Project and the Recommended Revised Project will adversely impact the NSW environment. The IPC cites Rocky Hill at [525] and [555] with approval in pars 691 and 692. The IPC does not accept the Department's assessment that refusal will not reduce global GHG emissions because an alternative source of coal will be found, in par 693. In the absence of any other statutory guidance concerning Scope 3 emissions, which by their nature are very broadly dispersed, and the broad assessment responsibility of the IPC, reference to the NSW CCPF is well within the exercise of the IPC's discretion to identify any applicable policies under cl 14(2). The IPC's discretion as a consent authority is wide within the terms of s 4.15 of the EPA Act and under cl 14(2) of the Mining SEPP.

KEPCO Bylong Australia Pty Ltd v Independent Planning Commission

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