West Coast Environmental Network Inc v West Coast Regional Council

COURT OR TRIBUNAL

Environment Court of New Zealand

DATE FILED (OR FIRST HEARING DATE)

01/08/2011

LITIGATION TYPE

Project Approval - Mitigation

SUBJECT MATTER

Coal mine

REVIEW TYPE

Merits review

SUMMARY

(Linxplus case summary from Lexis)

RESOURCE MANAGEMENT - interim decision holding consent for an open-cast coal mine likely, subject to development of appropriate conditions - two appeals against the respondents' grant of resource consents to establish and operate an open-cast coal mine called the Escarpment Mine Project (EMP) - EMP on 157ha of Crown owned land on the Denniston Plateau - not possible to remedy or mitigate completely the adverse effects of mining - applicant proposed to establish an offset mitigation and compensation package - site not an outstanding natural landscape - positive economic benefits - adverse effects on the ecology of the mine site, on a rare assemblage of native plants and fauna, some temporary and permanent landscape effects - parties agreed the proposal as a whole should be treated as a discretionary activity under s104 Resource Management Act 1991- whether consent for the proposal should be granted

HELD: consent indicated subject to further inputs from parties and work on draft conditions of consent - case finely balanced - specific issues identified - currently too many 'best endeavours' type conditions, with limited certainty of outcome - parties directed to endeavour to agree a timetable for completion of the case - leave remained to re-open the substantive hearing if Judge Newhook's decision on climate change (Buller Coal Ltd and another v West Coast ENT) was overturned on appeal - costs reserved

(Linxplus case summary from Lexis)

RESOURCE MANAGEMENT - unsuccessful application to recall second interim decision - final substantive decision - appeals against consents granted by Buller District Council and West Coast Regional Council to Buller Coal Limited (applicant) to establish and operate an open cast mine at southern end of Denniston Plateau - appeals by 2 appellants West Coast Environmental Network Inc and Royal Forest and Bird Society Inc (Forest and Bird) - second interim decision on 7 Aug 2013 found in favour of applicant's stance about form of management plans - consent likely forthcoming with certain modifications - Forest and Bird sought recall of second interim decision - Forest and Bird alleged second error of law that should have been addressed in further hearing held on 12 June 2013 - alleged HC held open to EnvC to find as fact that applicant likely to achieve consents for mining elsewhere in Denniston Biodiversity Enhancement Area (DBEA) - asked Court to reconsider whether applicant likely to be granted resource consents for mining elsewhere in DBEA and determine whether that would affect the weight given to benefits of DBEA - Forest and Bird opposed "best endeavours" condition - whether to recall second interim decision - whether to amend conditions including "best endeavours" condition - finalised substantive appeals absent the climate change issue - EnvC satisfied power to recall existed but not in this situation - HC held that Forest and Bird may have identified error of law but did not hold error material to decision or required EnvC reconsideration - not open for Court to assume whether future consent applications for mining would be granted - no certainty that consents elsewhere in DBEA could be granted or implemented - insufficient evidence to find that future mining in DBEA formed part of the future environment for consideration under s104(1) RMA - EnvC considered submissions for conditions - did not accept Forest and Bird opposition of "best endeavours" condition - satisfied that: - (i) applicant could start work such as developing plans, designs and conducting surveys prior commencement date of consent; - (ii) recommendations of Environment Manager were subject to obligations of a consent holder the Health and Safety in Employment Act 1992; - (iii) exception of up to 5ha in area to allow land disturbance effects associated with route of possible aerial conveyor - conditions strong and significant

HELD: (1) power to recall decision existed but not in this situation - application to recall second interim decision dismissed; - (2) conditions of consent largely under EnvC direction - consent granted on conditions attached; - (3) costs reserved

CASE DOCUMENTS

West Coast Environmental Network Inc v West Coast Regional Council [2013] NZEnvC 47
West Coast Environmental Network Inc v West Coast Regional Council [2013] NZEnvC 253