SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Limited [2013] NSWLEC 1032

SHCAG Pty Ltd v Minister for Planning and Infrastructure and Boral Cement Limited [2013] NSWLEC 1032

The proposal was refused because the proposed haulage route along Medway Road would have sufficiently detrimental amenity, dust, noise and safety impacts on Medway residents; the environmental assessment lacked adequate data to assess major and fundamental surface water and groundwater impacts; those issues could not properly be deferred to a Water Management Plan condition; the Water Management Plan remained in draft form and did not constitute an adequate adaptive management regime; and the precautionary principle was activated because uncertain risks of significant environmental harm to the aquifer and Wingecarribee River had not been adequately mitigated.

Jurisdiction
Australia
Judgment Date
27 February 2013
Procedural Posture
Class 1 Objector Appeal Under Former S75 L of the Environmental Planning and Assessment Act 1979 / Merits Appeal Requiring Assessment De Novo Against the Minister's Delegate's Approval of Major Project Application Number MP 10 0172
Outcome
Appeal upheld and Major Project Application Number MP 10_0172 refused.
Legal Topics
['part 3 a Major Project Approval' 'objector Appeal' 'ecologically Sustainable Development' 'precautionary Principle' 'adaptive Management' 'groundwater Impacts' 'surface Water Quality' 'mine Water Discharge' 'coal Haulage Amenity Impacts']
['environmental Law' 'planning Law' 'mining Law'] ['part 3 a Major Project Approval' 'objector Appeal' 'ecologically Sustainable Development' 'precautionary Principle' 'adaptive Management' 'groundwater Impacts' 'surface Water Quality' 'mine Water Discharge' 'coal Haulage Amenity Impacts']

Case Brief

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Procedural Posture

Class 1 Objector Appeal Under Former S75 L of the Environmental Planning and Assessment Act 1979 / Merits Appeal Requiring Assessment De Novo Against the Minister's Delegate's Approval of Major Project Application Number MP 10 0172

Legal Issues

  1. 1 ['Whether the continued operation of the Berrima Colliery was consistent with the principles of ecologically sustainable development, including the precautionary principle.' 'Whether the impacts of the proposal on groundwater levels, the Hawkesbury Sandstone aquifer, stygofauna and sub-surface groundwater dependent ecosystems had been adequately identified, modelled and mitigated.' 'Whether mine water discharge would adversely impact the health and water quality of the Wingecarribee River.' 'Whether unresolved surface water and groundwater impacts could properly be deferred to a Water Management Plan condition.' 'Whether the proposed coal haulage route along Medway Road would cause unacceptable amenity, dust, noise and traffic safety impacts on residents of Medway.']

Ratio Decidendi

The proposal was refused because the proposed haulage route along Medway Road would have sufficiently detrimental amenity, dust, noise and safety impacts on Medway residents; the environmental assessment lacked adequate data to assess major and fundamental surface water and groundwater impacts; those issues could not properly be deferred to a Water Management Plan condition; the Water Management Plan remained in draft form and did not constitute an adequate adaptive management regime; and the precautionary principle was activated because uncertain risks of significant environmental harm to the aquifer and Wingecarribee River had not been adequately mitigated.

Court Disposition

Appeal upheld and Major Project Application Number MP 10_0172 refused.

Orders

  • ['The appeal is upheld.' 'Major Project Application Number MP 10_0172 for the continued operation of the Berrima Colliery until 30 April 2020 is refused.' 'The exhibits, other than exhibits 1, 4, A, O, and P, are returned.']