Gray v The Minister for Planning (Anvil Hill case)

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

06/11/2006

LITIGATION TYPE

Project Approval - Mitigation, Access to Justice

SUBJECT MATTER

Coal mine, Costs

REVIEW TYPE

Judicial review

SUMMARY

Centennial Hunter Pty Ltd had applied for major projects approval for the Anvil Hill Project: a proposed open cut mine that would extract 10.5 million tonnes of coal per annum for 21 years. It was a pre-condition that an environmental assessment be submitted, and that the Director-General of the Department of Planning ('Director-General') form the view that the submitted assessment was adequate. The Director-General formed that view, and made the assessment publicly available, in late 2006. The applicant, Gray, was a member of the Hunter Community Environment Centre and "Rising Tide", an unincorporated climate change action group. He sought a declaration that the Director-General's view - that the environmental assessment was adequate - was void and without effect. Gray successfully argued that: a)the environmental assessment was inadequate for failing to account for indirect, downstream emissions from the burning of extracted coal (Scope 3 emissions) and; b) that Director-General had failed to take into account ecologically sustainable development (ESD) principles by accepting a greenhouse assessment without further analysis, or consideration of intergenerational equity or the precautionary principle. Accordingly, Pain J declared the view formed by the Director-General void and without effect. NB: Shortly after the decision, the NSW Government released a new State Environmental Planning Policy under which consent for mining activities requiring consideration of Scope 3 emissions.

In a costs hearing in respect of the first decision, the respondents argued for an apportionment of costs because: a) the successful applicant, Gray, had not obtained any 'consequential orders' (i.e. the Court made a declaration, rather than the injunction originally sought); b) had commenced proceedings 'prematurely' (i.e. before approval had been given to the Anvil Hill project) and; c) had abandoned several grounds before hearing. Pain J rejected the first two arguments, but accepted the third. Accordingly, Pain J ordered the respondents pay all of the applicant's costs but for those associated with the abandoned grounds.

CASE DOCUMENTS

Gray v The Minister for Planning [2006] NSWLEC 720; 152 LGERA 258
Gray v Minister for Planning (No 2) [2007] NSWLEC 91