Posted on April 29, 2014 by Frances Tse

Court upholds Warkworth mine extension refusal – Immediate and some long term implications

Following on from our earlier post which can be found here, the Court of Appeal’s decision in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 not only finds that there was no legal error in Preston CJ’s  decision to disapprove of the carrying out of the Warkworth Mine extension, it also provides some clarifications of the widely cited principle in Zhang v Canterbury City Council [2001] NSWCA 167 which deals with the weight to be afforded to DCPs when determining a development application under s79C(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

In the LEC, Preston CJ exercised the Minister’s power to refuse the mine extension application under the now repealed Part 3A of the EPA Act. Amongst other things, Preston CJ’s decision turned on his findings that:

• the project would have significant and unacceptable impacts on biological diversity including endangered ecological communities,
• it would have unacceptable noise impacts and social impacts,
• the economic analysis relied on by Warkworth was of limited value,
• the proposed conditions of approval were inadequate,
• the mitigation strategies were inadequate.

Warkworth could only succeed in the Court of Appeal if there had been legal error in Preston CJ’s decision. Warkworth relied on  13 grounds, including a denial of procedural fairness and an alleged failure of Preston CJ to properly consider all relevant matters, in particular, the Director-General’s report recommending approval of the extension. But the Court rejected all grounds of the appeal.

No doubt having regard to the economic significance of the decision, the Minister for Planning and Infrastructure and the Minister for Resources and Energy issued a media release on 7 April 2014 stating that ‘The Government will consider the implications of today’s Court of Appeal decision on Rio Tinto’s Warkworth project application’.

The immediate implication, of course, is that Preston CJ’s decision stands, including his finding that the substantial economic benefits and positive social impacts of the development fail to outweigh the ‘significant and unacceptable impacts on biological diversity, including on endangered ecological communities, noise impacts and social impacts’ . The LEC decision can be found here.

DCPs

As I indicated in the introduction, the decision discussed the oft-cited principle in Zhang v Canterbury City Council [2001] NSWCA 167.

Zhang has, implicitly at least, often been used to argue that DCP provisions should be given weight over and above the other matters required to be considered under s79C(1) of the EPA Act. This was because the Court of Appeal described the particular development control plan as a ‘fundamental element’ or a ‘focal point’ in the decision making process.

In Warkworth, the Minister and Warkworth Mining Limited relied on Zhang and other similar cases, to argue that Preston CJ failed to give substantial weight to the Director-General’s Report which recommended that approval be given to the mine extension.  This was argued to be one of the three mandatory considerations which the Minister was required to have regard to when determining a Part 3A application, and therefore deserved to be a ‘fundamental element’ or ‘focal point’ of Preston CJ’s decision. In rejecting that argument, the Court in Warkworth clarified the way in which Zhang ought to be interpreted, namely that:

• where legislation requires a decision maker to take into consideration certain matters and does not indicate the weight to be given to the consideration, the decision maker is simply required to consider each matter and the weight to be given to each is up to the decision maker,
• there is no blanket rule as to the weight to be accorded to matters that are required to be considered,
• the context of the legislation and the circumstances of each case may mean that some matters may clearly be more important than others (as it was in Zhang because the planning control under consideration related to the locational standards prescribed for brothels in Canterbury).

Points to consider

When determining development applications, consent authorities should take note that determinative weight does not need to be given to  a DCP over and above other relevant matters mentioned in s79C. The weight to be given to the matter will be a matter for the decision maker having regard to its context.

I also note that s79C(3A) now requires a consent authority to be flexible in applying the provisions of DCPs and allow reasonable alternative solutions that achieve the objects of the standards.