Lester v Minister for Planning & Ashton Coal Operations Pty Ltd

Issues raised and their consideration 32In this section of the reasons, I discuss the arguments of the applicant using the same headings as he has used in his written submissions.

(i) The request to modify a major project application fails to comply with s 75W application and the regulations: the application not duly made 33The only submission advanced at the hearing in relation to this issue, concerned the absence of any notation of the "Date duly made" at the head of the form completed and lodged by Ashton entitled "Request to modify a major project". The form has the appearance of a standard form which, as in this case, is to be completed by the person or party seeking approval for the modification of approval earlier given to carry out a project under Part 3A. The form had, in this case, been duly completed. 34However the standard form did, as just noted, contain at its head the words "Date duly made:" followed by a series of underscored lines and forward slashes to facilitate the notation of a date, a month and a year. The submission was to the effect that, in the absence of such a notation in the present case, the form did not constitute an application or request for approval and, as I understood the argument, approval could not be given in the absence of a duly completed form. 35The applicant did not identify any provision in the Act or the EPA Regulation which required the notation of the day, month and year when the application or request was made let alone a provision which would suggest that a failure to make the notation meant there was no application or request enlivening the power to approve the modification. The case relied upon by the applicant, Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312 concerned materially different legislative provisions and provides no support for the proposition advanced in these proceedings about the consequences of the notation of the type being discussed not being made. 36This point is without substance.

(ii) Failure to consider overlapping development approval 37As I told the applicant's representative during the hearing, I found this submission as articulated in the written submissions difficult to follow. Ultimately, after it was addressed in oral submissions, the point being sought to be made appeared to be that approval had been given in February 2011 to an aspect of the development of a project contiguous to the site of Ashton's project (namely, the realignment of a transmission line, road and associated matters). Documentation furnished by the proponent of the activities approved in February 2011, so it was said, established the existence of 12 Aboriginal heritage sites (or some lesser number) within the area to which Ashton's modification application also related. 38The alleged error (identified in the written submissions) was the failure of the Minister to consider that the gas wells were to be constructed and operated in this other area (on the surface of the land) contiguous to the site of Ashton's project and not on that site (in so far as surface land was concerned). In oral submissions the point appeared to be that there were some Aboriginal heritage sites identified in the earlier documentation (in support of the approval given in February 2011) which should have been considered, but were not, in assessing Ashton's modification application. 39The evidence in relation to this latter point did not prove to my satisfaction there were sites identified in the earlier documentation not revealed in the documentation advanced in support of Ashton's modification application, let alone that there was any relevant failure on the part of the PAC to consider this topic or any deficiencies in its consideration (I will later address its consideration of Aboriginal heritage sites more generally). 40This point is without substance.

(iii) The first respondent determination for the gaswells is invalid and there was a breach of s 75 (2)(a) & (f) of the EP&A Act 41This point is possibly of some substance. 42Section 75X provided: "(1) ....... (2) The following documents under the Part in relation to a project are to be made publicly available by the Director-General: (a) applications to carry out projects, (b) environmental assessment requirements for a project determined by the Director-General or the Minister, (c) environmental assessment reports of the Director-General to the Minister, (d) approvals to carry out projects given by the Minister, (e) applications for the Minister's approval of concept plans (and approvals of concept plans), (f) requests for modifications of approvals given by the Minister and any modifications made by the Minister. (3) ...... (4) ...... (5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project." 43Augmenting the operation of this section was clause 8G of the EPA Regulation which provided: "(1) This clause applies to the duty of the Director-General under section 75X (2) of the Act to make specified documents relating to a project publicly available. (2) The documents are to be made available on the Department's website and in such other locations as the Director-General determines. (3) The documents are to be posted on the Department's website and in those other locations within 14 days of: (a) in the case of a document that is an application, request or submission-the date on which the application, request or submission is made, or (b) in the case of a document that is a determination of environmental assessment requirements, a report or an approval-the date on which the determination, report or approval is made or given. (4) In addition to the documents referred to in section 75X (2) of the Act, the Director-General is to include on the Department's website and in such other locations as the Director-General determines the following documents: (a) the declaration of development as a project to which Part 3A of the Act applies or its declaration as a critical infrastructure project, (b) guidelines published under section 75F or 75H of the Act, (c) any environmental assessment in relation to a project that has been placed on public exhibition under section 75H of the Act, (d) responses to submissions, preferred project reports and other material in relation to a project provided to the Director-General by the proponent after the end of the public consultation period (whether under section 75H (6) of the Act or otherwise), (e) reports of panels under section 75G of the Act (as in force before its repeal) or of reviews by the Planning Assessment Commission or reports by the Planning Assessment Commission where a public hearing has been held, (f) any reasons given to the proponent by the Minister as referred to in section 75X(3) of the Act. (5) A document may be made available on the Department's website by providing an electronic link to the document on another website. 44The contention of the applicant was, in effect, that the absence of a link on the website to appendices 1-4 of the EA meant that the publication required by the combined operation of s 75X(2) and clause 8(2) had not been achieved. The contention then appeared to be that this failure invalidated the decision of the PAC presumably on the basis that satisfaction of this procedural requirement was a precondition to the exercise of the power to approve Mod 7. 45It appears to be comparatively settled law that the legal consequences of non-compliance with the procedural steps in s 75X (apart from the requirement referred to in s 75X(5)) that "an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N)" are to be determined by reference to the principles discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355: see the observations of Hodgson JA (who gave the leading judgment) in Minister for Planning v Walker [2008] 161 LGERA 423 at [29]-[32] citing with approval the judgment of Jagot J in Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [179]-[184]. 46The applicant's argument contained a number of propositions though the argument was not put with any particular precision. The first was that the expression "requests for modifications of approvals" in 75X(2)(f) comprehended documents accompanying the request, in this case the EA. The second was that making available the documents on the Department's website for the purposes of clause 8G(2), involved making available not only the EA but also the appendices to it. While that could be achieved by posting the documents on the website: clause 8G(2), or providing an electronic link to the document on another website: clause 8G(5), neither was achieved. In addition, the required publication ("making available") was not achieved by identifying on the web the e-mail address of a person who might be able to provide the document in some form including an electronic form. 47In the absence of full considered legal argument on both sides of the record, I am reluctant to express a concluded view about the first proposition in the preceding paragraph, which may be of more general legal significance. For reasons which will shortly become apparent, I am prepared to assume in the applicant's favour, that the first proposition is correct. 48I can therefore commence by addressing whether making available the documents on the Department's website for the purposes of clause 8G(2), involved making available not only the EA but also the appendices to it. I see the force in the argument that the expression "requests for modifications of approvals" should not be narrowly construed in the context of an obligation to publish, given a stated objective of the Act is to provide increased opportunity for public involvement and participation in environmental planning and assessment: s 5(c). 49For the moment, EA signifies in these reasons any document constituting an environmental assessment accompanying a request for the modification of an approval not just the particular document in this case. I think I can, at least in this context, reasonably draw a distinction between an EA and the appendices. In other contexts, an EA might well be the entire document. Usually, as was the case here, the appendices are primary documents, often an expert's report, on which some of the commentary in the body of the EA is based. But it is the commentary in the body of the EA which constitutes the environmental assessment provided in support of the request. 50It may well be that the appendices will likely be supportive of that assessment, often in some detailed technical way and can sometimes be of some assistance in understanding why the commentary is expressed precisely as it is. However the commentary would have been intended to be a coherent and complete account of the environmental assessment without the appendices. It really is that commentary, and not the appendices, which would promote public discussion and debate bringing about the public involvement and participation contemplated by s 5(c). Accordingly I am inclined to think that if the expression "requests for modifications all of approvals" is to be treated as comprehending documents provided with the request, then that would include only the EA and not any appendices. If this is correct then there has not been non-compliance with s 75X(2) when read together with clause 8G. 51But the applicant's argument fails at a more fundamental level. The ultimate legal issue is whether the Act, properly construed, manifests an intention that the act done (in this case the approval of the modification) in breach of the provision (concerning publication) should be invalid: Project Blue Sky Inc at [93]. It is fundamentally a task of statutory construction. However it is well settled that, at least in the ordinary course, it is impermissible to have regard to regulations when construing an Act: Wallaby Grip Ltd v QBE Insurance (Aust) Ltd (2010) 240 CLR 444 at [21]. Accordingly the requirements of clause 8G should play no part in determining what the contents of any statutory precondition might be, and the consequences of noncompliance, to the exercise of the power to approve a modification. 52At best for the applicant, the relevant statutory precondition would be the obligation in s 75X(2) of the Act to make "publicly available" the request for modification of the approval and the accompanying EA (for the moment, I will assume this includes the appendices). However when expressed at that level of generality (to make publicly available) the relevant evidence on that question changes complexion and significance. 53It is clear that the Department intended to publish the EA as well as the appendices on the web. It was the deficient link, almost certainly inadvertent, which led to this not being completely achieved. However it can readily be inferred, and I draw the inference, that had an interested member of the public contacted the planner Nicholas Hall, identified on the website, and asked for the missing appendices (perhaps pointing out the problems with the link), they would have been provided. Him providing them would be entirely consistent with the Department's intention. By these means all documents (including all the appendices) would have been made available to interested members of the public. Accordingly, on the facts, the documents were made publicly available which is the requirement in the Act. In the result, the applicant cannot demonstrate a failure to meet a statutory precondition which might otherwise lead to consideration of the type referred to in Project Blue Sky Inc. 54This point fails.

(iv) First respondent fails to give regard to public interest: failure to exercise power pursuant to s 5(a)(vii) of the EP&A act 55At the heart of this submission was an arguable error in the June 2011 report from the Director-General to the PAC. I refer to it as an arguable error only because, for reasons which I will shortly explain, the submission ultimately leads nowhere. Accordingly it is unnecessary for me to address a myriad of collateral questions including whether it was an error (a proposition resisted by counsel for Ashton). The applicant's submission that it was an error and a significant one (a proposition advanced with some force) was founded on the content of the EA of February 2011 prepared by Ashton in support of its modification application and which accompanied that application. 56The EA addressed the impact of the activities proposed by the modification on air quality and, specifically, the effect of the discharge of carbon dioxide and methane. It referred to an annual discharge of 328,178 tonnes of carbon dioxide equivalent as greenhouse gas. The topic was addressed in more detail in appendix 2. In the June 2011 report of the Director-General there is a table running over several pages assessing several components of the Mod 7 application or request including the development of the gas drainage wells for the underground mine. The table is divided into three columns. The left-hand column identifies the "Issue", the middle column contains the "Consideration" and the right-hand column contains the "Conclusion". Insofar as greenhouse gas is concerned it read: Issue Consideration Conclusion ... ... ... * The majority of greenhouse gas (GHG) emissions would be methane (CH4) as it is actively vented from each gas well over a 2 month period (totalling about 328,000 t CP2-equivalent). Greenhouse Gas * Some carbon dioxide (CO2) would also be generated from using the diesel powered air compressor, equating to about 1,130t CO2-equivalent. * The Department raised the possibility of flaring or re-using this gas to reduce GHG emissions rather than simply venting mine gas to the atmosphere. * Combined these GJG sources represent an increase of 0.06% to total 1990 baseline Australian GHG emissions. * Ashton claims that this is not a financially viable option for this interim proposal, but has since committed to capturing (and beneficially re-using) goaf gas in its mine-wide reticulated gas drainage system, which is currently under development. The department is satisfied with this approach. * Ashton argues that the same amount of GHG emissions would enter the atmosphere irrespective of whether the gas wells are developed or not because it would occur via other existing mine ventilation pathways, albeit more slowly.

57The error alleged by the applicant was that the amount of carbon dioxide equivalent is, in the table, identified as an absolute or aggregate amount of 328,000 tonnes and not an annual amount. If, as the agreed documents suggest, the underground mining will continue until 2023, then, so the applicant submitted, the total or aggregate amount of greenhouse gas emissions extracted by the gas drainage wells will be a manyfold multiple of 328,000 tonnes. 58The fundamental difficulty with this aspect of the applicant's case is that the PAC had before it not only the June 2011 report from the Director-General but it also had the EA including the appendices. Thus the PAC had before it the very document the applicant now relies on to demonstrate the "true position" and the existence of the error in the Director-General's report. 59The applicant's case on this point was put in a variety of ways. I repeat them without endorsing their applicability, as a matter of legal principle, in the way suggested by the applicant. It is said that the consideration of the report containing this alleged error had the result that the PAC failed to consider a relevant consideration (the true quantity of greenhouse gas emissions resulting from the activities which would flow from approval of the modification), considered an irrelevant consideration (the much smaller quantity suggested by the figure said to be the error), made the decision under a misapprehension about the existence or non-existence of a material fact and established that the decision was infected by Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 60There are many potential difficulties, both legal and factual, with the way the applicant has framed this aspect of his case. However the fundamental difficulty is that I would not, and do not, infer that the PAC did not have regard to the very material relied on by the applicant in the EA as establishing the "true position". If such an inference is not drawn, the applicant is unable to prove that the PAC made its decision approving the modification without knowing the consequences, in terms of greenhouse gas emissions, of the activities which would be undertaken if approval was given. 61I should explain a little further why I decline to draw the inference just discussed. The PAC produced and sent to the Director-General a document it described as a "determination report". This, for present purposes, might be viewed as its reasons or at least a summary of its reasons. The determination report noted that the PAC had met with staff from the Department and a number of issues had been discussed including greenhouse gas emissions. 62It is true that the determination report observed that the Department's assessment report had considered a number of issues including greenhouse gas emissions and a number of further references were made to that assessment report. However the PAC concluded by saying that it had considered the assessment report and associated documents including the notice of modification. There is really no basis for assuming that this additional material to which the PAC referred, did not include the EA. 63In the result, the applicant has not demonstrated error on the part of the PAC in the way described earlier when I summarized the applicant's case. There was a subsidiary point made by the applicant that neither the EA nor appendix 2 quantified the volume of greenhouse gas emissions (mainly methane) emitted during free venting. Free venting described a process whereby the gas wells would no longer extract gas by inducing the removal of gas using suction pumps and the like (an active well) but rather gas would be released through the natural free flow of the gas through the gas wells. The applicant suggested that somehow the decision was vitiated because the PAC did not know how much greenhouse gas would be emitted by this process of free venting. 64There are many difficulties with this submission. Firstly it is by no means clear (in fact it is entirely unclear) from the material relied on that the quantity of free-vented gas would be significant. Indeed having regard to some of the statements in the material there would be none or next to none because the likelihood was that each gas well would be sealed, for the time being, when it ceased to be an active well. Secondly the submission focused only on pieces of evidence which may point to the existence of a fact (greenhouse gas emissions from free venting) but which fell well short of establishing that the fact was a material fact let alone a material fact that somehow the PAC was obliged to consider and did not which might affect the validity of its decision. 65Ultimately these points were without substance.

(v) First respondent fails to give regard to public interest: Aboriginal cultural heritage 66Again, this submission was a little difficult to follow. It was based on the failure of Ashton to submit, as part of its EA or otherwise an Aboriginal cultural heritage assessment specifically focused on the modification request and associated consultation, a deficiency pointed to in a letter from the OEH of 27 April 2011 to the Department. But that failure ultimately leads nowhere. The PAC quite clearly addressed the impact of the modification on Aboriginal cultural heritage. Not only did it specifically address this topic in its determination report but, more importantly, it imposed specific conditions when consenting to the modification application prohibiting the development of gas drainage wells impacting on cultural heritage sites/objects and a specified area of potential archaeological deposits. The PAC also required, as another condition to its consent to the modification application, that Ashton carry out the development generally in accordance with, amongst other things, its statement of commitments of 6 May 2011. That statement of commitments included steps to be undertaken by Ashton when locating and developing sites for gas drainage wells directed to protecting and preserving Aboriginal heritage sites and Aboriginal artefacts sites. 67This point is without substance.

(vi) Modification determination is uncertain 68This point arises from the matter discussed in the preceding section, namely the failure of Ashton to submit, as part of its EA or otherwise an Aboriginal cultural heritage assessment specifically focused on the modification request and associated consultation. Without knowing, so the applicant said, where Aboriginal heritage sites or Aboriginal artefacts sites might be at or around the locations where the gas wells are to be built, the approval of the modification application or, perhaps the development consent as modified, is uncertain. Again there are many difficulties with this submission. However fundamentally this submission fails to appreciate the limited role uncertainty has assumed as a ground for impugning an administrative decision. 69This topic of uncertainty was addressed by Preston J (as he then was) in Ulan Coal Mines Ltd v Minister for Planning [2008] 160 LGERA 20. In that case the applicant challenged a planning approval on the basis that a condition imposed was uncertain and rendered invalid the entire approval. The condition, in substance, required the proponent of the project (a mining company) to ensure that it had sufficient water for all stages of the mining project and to adjust its mining activities to achieve that objective. His Honour noted at [50] that a condition would only be invalid, by lacking certainty or finality, if it fell outside the class of conditions which the statute expressly or impliedly permitted and also noted at [66] the mere ambiguity or uncertainty of the meaning of words did not necessarily lead to invalidity. 70One of the specific arguments advanced by the applicant in that matter was that the condition was uncertain because it did not specify the precise way in which the mining company was to adjust its mining operations to satisfy the condition. It was noted by Preston J at [78] that the retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may well be desirable and in accordance with the statutory scheme. As to the particular condition, his Honour concluded that leaving a choice of the means by which the outcome or objective of ensuring sufficient water to the mining company could not be said to be outside the statutory scheme of the relevant parts of the Act. 71Likewise, leaving to Ashton the task of determining the precise location of each gas well but, in doing so, constrained by the terms of condition 1.2 as well as its commitment embodied in the approval to comply with its statement of commitments particularly as they concern matters relating to Aboriginal heritage, does not appear to me to be even arguably outside the statutory scheme for approval of projects of this type and approval of modifications to the initial approval. That is to say, the PAC clearly had power to approve the modification with the condition directly concerning Aboriginal heritage and indirectly through the imposition on Ashton of an obligation to adhere to its statement of commitments including those matters concerning Aboriginal heritage. 72Ultimately this point was without substance.

(vii) Decision is manifestly unreasonable 73The applicant contended the decision of the PAC was vitiated by Wednesbury unreasonableness. A convenient statement of the ground is found in the joint judgment of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611 at [39] namely that the decision "was so unreasonable that no reasonable (decision-maker), acting within jurisdiction and according to law, would have come to such a conclusion". 74The building blocks for the submission that the decision was manifestly unreasonable were the matters discussed to this point under earlier headings. None were of substance. It follows this submission is of no substance.

Conclusion 75The application should be dismissed. 76The parties made written submissions after the hearing on the question of costs. The applicant submitted, in the event that the application was dismissed, there be no order for costs or alternatively each party should be ordered to pay its own costs. The first respondent submitted that costs should follow the event and the submissions of the second respondent were to the same effect. 77The applicant's submission was predicated on the assumption that the application was brought in the public interest and accordingly was public interest litigation. Reference was made by the applicant to Oshlack v Richmond River Council (1993) 193 CLR 72. It may be accepted that the special position of public interest litigation is recognized in rule 4.2 of the Land and Environment Court Rules 2007 . That provision confers or affirms the Court's discretion not to make an order requiring an unsuccessful applicant to pay costs if it is satisfied that the proceedings had been brought in the public interest. 78How the Court should deal with the question of costs in litigation which might be said to be public interest litigation, was considered by Preston J (as he then was) in Caroona Coal Action Group Inc. v Coal Mines Australia Pty Ltd (No 3) (2010) 173 LGERA 280. His Honour identifies a three-step process. The first two steps address the question of whether the proceedings have been brought in the public interest. If the answer to that is yes, the third step involves considering countervailing factors which might diminish the weight of the public interest considerations. 79I am prepared to assume that at a very high level of generalization, these proceedings are brought in the public interest. The applicant sought to argue that the approval in the present case was made on the mistaken assumption that the volume of greenhouse gas likely to be emitted if approval was given was substantially less than actual projected volumes. The applicant's case was also directed to preserving Aboriginal heritage sites. However the difficulty the applicant confronts, is that a countervailing consideration for departing from the usual costs rule that costs follow the event, is that an applicant persists with points which have no merit or issues which were not eminently arguable: Caroona Coal Action Group Inc at sub-para [61] [e]. That is the position in this matter. The only possibly arguable point concerned the absence of the internet link to appendices 1-4 of the EA. But that point, on the facts of this case, had little to do with the public interest. In this case, it was simply a technical argument based on what I have inferred was an inadvertent act on the part of the Department. 80In my opinion, the usual cost rule should apply, namely that costs follow the event. Accordingly the applicant should pay the respondents' costs. I should mention that the applicant sought a further hearing to argue the question of costs and foreshadowed affidavit evidence. However I am satisfied that the applicant has had an adequate opportunity to make submissions and advance a case on the question of costs. My determination of this issue depended on the character of the applicant's case that had been put to this point. No evidence could alter that character. A further hearing would simply unnecessarily add to the costs already incurred. 81I order the application be dismissed and the applicant pay the respondents' costs. 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: 30 November 2011