KEPCO Bylong Australia Pty Ltd v Independent Planning Commission; Bylong Valley Protection Alliance Inc 

COURT OR TRIBUNAL

High Court of Australia, New South Wales Land and Environment Court, Supreme Court of New South Wales - Court of Appeal

DATE OF FIRST CLIMATE JUDGMENT

29/04/2020

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Coal mine

REVIEW TYPE

Judicial Review

SUMMARY

(Excerpt from catchwords for the first judgment) JOINDER - application for judicial review of a determination by the Independent Planning Commission to refuse State Significant Development consent to a proposed coal mine - joinder application by non-party pursuant to r 6.27 of the Uniform Civil Procedure Rules 2005 - whether appropriate to join opponent of the proposed mine as a party to the judicial review proceedings - application for joinder on the basis that it is necessary for the determination of all matters in dispute in the proceedings that the joinder applicant be joined as a contradictor - present sole respondent (the Commission) has filed a submitting appearance - applicant for joinder played a substantial role in opposing the proposed coal mine for which the applicant for judicial review sought State Significant Development consent - necessity for an active contradictor - desirability of permitting joinder on the basis of public interest issues arising from grounds pleaded in support of judicial review proceedings - whether participation as amicus curiae should be considered - applicant for joinder expressly disavows participation as amicus - not appropriate to consider possibility of participation as an amicus - appropriate to order joinder in the public interest - joinder ordered

(Excerpt from catchwords for the second judgment) JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent for new coal mine – state significant development – construction and application of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 in assessment of greenhouse gas impacts of new coal mine – no failure to refer project to Minister for Regional Water for advice as required by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 requirements in considering impacts on water resources – no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternative sources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed

(Excerpt from catchwords for third judgment) ADMINISTRATIVE LAW – judicial review – error of law – review of decision of consent authority – construction of State Environmental Planning Policy – whether decision-maker considered conditions aimed at ensuring that greenhouse gas emissions are minimised to the greatest extent practicable ADMINISTRATIVE LAW – judicial review – error of law – obligation to consider case presented by applicant – minimising scope 3 greenhouse gas emissions of thermal coal – whether refusal of proposal could lead to use of inferior resource with higher emissions ADMINISTRATIVE LAW – judicial review – error of law – reference in reasons to “no evidence” – where information before decision-maker – whether reasons indicated decision-maker not satisfied that information provided rational basis for finding sought ENVIRONMENT AND PLANNING – development application – refusal of consent – judicial review – State significant development – coal mine proposal – consent required from Independent Planning Commission – construction of Mining SEPP, cl 14 – conditions of development STATUTORY INTERPRETATION – “applicable … policies … concerning greenhouse gas emissions” – State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 14(2)

KEPCO sought special leave to appeal to the High Court of Australia and special leave was refused.

CASE DOCUMENTS

KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38
KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) [2020] NSWLEC 179
KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc [2021] NSWCA 216
KEPCO S168/2021 Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc 
Kepco Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Incorporated & Anor [2022] HCASL 8