Posted on May 9, 2013 by

Chief Judge prevents expansion of mining activities in the Hunter Valley

In Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48, Preston CJ of the Land and Environment Court (Court) overturned the Planning Assessment Commission’s (PAC) February 2012 Part3A approval of the expansion of open cut coal mining near the town of Bulga in the Hunter Valley.

The decision, now on appeal,  is illustrative of the balancing process the Court will engage in when assessing the negative impacts of major ‘economic’ development and focused in particular on the value of proposed biodiversity offsets.

The appeal was lodged by an objector group, the Milbrodale Progress Association Inc, challenging the Project Approval granted by the PAC (as a delegate of the Minister) to permit the expansion of the Warkworth Mine, operated by Warkworth Mining Limited – a subsidiary of Rio Tinto.

Preston CJ’s decision to refuse the Part 3A project application followed  from his conclusion that it posed ‘significant, adverse, biological diversity, noise and dust, and social impacts‘ which had not been adequately addressed by the conditions of the original project approval, nor by the revised conditions put forward by the respondents in the proceedings.

The following findings were particularly relevant.

1. The Project would result in the clearing of a number of endangered ecological communities (EECs) including 68ha of Warkworth Sands Woodland – an ecological community unique to the area.
2. The strategies to manage the Project’s impact on biological diversity were inadequate, being too heavily reliant on offsets  in place of avoidance  and mitigation measures.
3. The Project would result in the clearing of half of an area previously designated as a non-disturbance area (NDA) under the original 2003 consent.
4. The Project would increase the noise levels from the mine which were already impacting on the amenity and caused sleep disruption and at times exceeded the levels permitted by the  2003 consent.
5. The proposed noise consent conditions were inadequate, based on inappropriate criteria which did not comply with the NSW Industrial Noise Policy (INP).
6. The noise criteria for the Warkworth and Mount Thorley mines were inappropriately combined, without precedent in the INP.
7. The approach of combining the Warkworth and Mount Thorley mines in setting air quality criteria and mitigation strategies would make the process of operating the mines, managing air quality, monitoring performance, and enforcing compliance, difficult.
8. The mitigation strategies for noise control would involve the acquisition of such a large number properties as to be evidence of the unacceptability of the noise impacts, and would have  a consequential social impact on the community of Bulga.
9. The economic analyses relied on by Warkworth and the Minister were of limited value in assisting the Court in the process of balancing the competing factors.
10. The economic benefits of the Project failed to outweigh the negative externalities.

Biodiversity offsets

1. The Court endorsed the ‘Principles for the Use of Biodiversity Offsets in NSW’ prepared by the Office of Environment and Heritage. Accordingly, biodiversity impact assessments  need to outline the avoidance, mitigation and offset strategies.
2. Avoidance and mitigation strategies (which reduce the negative impacts on biodiversity) are to be used in preference to compensatory offsets. The latter should only be employed when all other reasonable methods of reducing impact have been implemented.
3. The Court will interpret purported avoidance strategies strictly – it is not sufficient to agree to protect areas already preserved, or to ‘avoid’ development beyond the boundaries of development consent.
4. It is inappropriate to trade offsets across different ecological communities; an offset must compensate the same ecological community which is impacted (like-for-like offsetting).
5. Offset land must be equal in quality to the land impacted by development – quality is determined by reference to the health and abundance of ecological communities.
6. Offsets must compensate for the long-term impact to flora and fauna – evidence of the long term viability of offset land is required.
7. Offset ratios (calculated as the area offset against the area to be cleared) of 1.5:1 will be considered much too low to adequately compensate for impacts to biodiversity.
8. Direct offsets of land are more valuable than non-land compensatory measures.

Noise and social impacts

1. Noise impacts are to be assessed against the criteria outlined in the NSW Industrial Noise Policy.
2. Noise conditions imposed on a project must relate to that project specifically – it is not appropriate to combine noise criteria for different developments which would make enforcement difficult.
3. Noise mitigation strategies, particularly the acquisition of noise affected residences, has an adverse impact on residential amenity and potential social impacts as a consequence of the changing composition of the community.

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