Posted on July 17, 2023 by Anna Sinclair, James King and Samantha Hainke
LEC upholds approval of Narrabri Coal Mine Extension as legally reasonable
In a significant recent decision, the Land and Environment Court (LEC) upheld the Independent Planning Commission of NSW’s (IPC) approval for an extension of the Narrabri Underground Mine (Mine) as legally reasonable.
The proceedings were brought by Bushfire Survivors for Climate Action (BSCA). BSCA contented that the development consent granted by the IPC (Decision) under the Environmental Planning and Assessment Act 1979 (EPA Act) for the Narrabri Underground Mine Extension (Stage 3) Project (Extension Project) was invalid on the basis that it was ‘legally unreasonable’ due to significant impacts to climate change.
The Extension Project involved extending the current mining area, the extraction of up to 11 Mt of run-of-mine coal each year, the transportation by rail to Newcastle for export and the consequent estimated greenhouse gas (GHG) emissions of 489.6 Mt of CO2-e (including Scope 3 emissions) over the next 22 years. That is roughly equivalent to Australia’s total GHG emissions in 2022 (489.6 Mt CO2-e).
BSCA alleged that the Decision was invalid on the basis that the IPC failed to make findings in the terms of the unchallenged evidence from Professor Penny Sackett (and others) (Interim Findings) in relation to the gravity of climate change impacts for NSW, Australia and the world, and the current emissions trajectory that would lead to substantially more dangerous climate change. BSCA contended, among other grounds, that in failing to make the Interim Findings the IPC acted unreasonably in that:
- the IPC was unable to properly consider the harm of the Extension Project on climate change and any attempt to do so was unreasonable;
- a finding that the approval of the of the Extension Project would be in the public interest was made without consideration of the contribution of the Extension Project to anthropogenic climate change; and
- more generally, that the decision to approve the Extension Project was fundamentally legally unreasonable in light of the evidence of harm caused by climate change evidence and the GHG Emissions due to the Extension Project.
Principles of ‘legal unreasonableness’
Justice Duggan confirmed the principle that where a statute confers a discretion upon a decision maker, it is intended that such a discretion be exercised reasonably (absent any contrary indication in the statute). If a decision-maker acts unreasonably in the exercise of its discretion, they act in excess of power and the exercise of the discretion is unlawful.
However, this review is limited to whether the decision-maker exceeded the power conferred on it. Legal unreasonableness is not proven by dissatisfaction with the decision on any other basis.
Where a statement of reasons has been prepared, a review of a decision for legal unreasonableness will be primarily undertaken with reference to the statement of reasons. A decision-maker is not required to pass comment on all of the material to which their attention has been drawn and to which they have had regard in their statement of reasons.
The question for determination in this case for each of the grounds brought by BSCA was whether in the making of the Decision, the IPC acted beyond the bounds of their power to determine a development application.
Justice Duggan noted that there are no statutory requirements relating to the provision of a statement of reasons by the IPC nor to the content of a statement of reasons. The IPC’s Statement of Reasons itself indicated that it addressed the ‘key issues’ and was not an exhaustive exploration of each and every issue raised or considered.
In those circumstances, Her Honour found that not addressing the Interim Findings could only be legally unreasonable where:
‘the making of the Interim Findings was “key” to the exercise of the decision-making in the context of the subject matter that was identified as important or “key” to an explanation of the IPC’s reasons for the Decision.’
The IPC had addressed GHG emissions and climate change as one of the key issues in its Statement of Reasons. It also accepted that GHG emissions of any scope would have an adverse impact on anthropogenic climate change. Justice Duggan found that there was no relevant factual dispute (for example, between rival expert submissions) on the material before the IPC, and so there was no requirement of reasonableness that required the IPC to expressly make the Interim Findings.
The BSCA also argued that the Interim Findings were a necessary building block in evaluating the impact of the Extension Project’s GHG emissions on the climate and so had to be referred to to properly evaluate that impact. The IPC’s Statement of Reasons stated that it had carefully considered all the public submissions before it and had taken the community’s views into account, referring specifically to impacts associated with GHG emissions. Justice Duggan found that the substance of the Interim Findings had been relevantly considered as part of the IPC’s evaluation.
Her Honour found that it was legally reasonable for the IPC not to make express findings of the type identified in the Interim Findings.
In relation to the public interest contention, Her Honour found that the EPA Act and s4.38 (Consent for State significant development) specifically, did not require climate change evidence to be given such a weight that it would overwhelm any other legally relevant consideration as was required by the BSCA submissions. As such, the decision that the Extension Project was in the public interest was not legally unreasonable.
At a more general level, Her Honour rejected the contention that the decision must be fundamentally legally unreasonable, stating that the relevant State and national policies do not require instant refusal of any development application in relation to a coal mine which would contribute to GHG emissions or climate change. A decision to allow such a development application in those circumstances was within the IPC’s power.
Justice Duggan’s decision indicates the high bar which is required in order to make out a finding of legal unreasonableness. It also confirms that while State and national policies continue to allow for the approval of the extraction of coal, which will ultimately contribute to anthropogenic climate change, such a decision is consistent with those policies, and will not be legally unreasonable on its own.
The judgment in Bushfire Survivors for Climate Action Incorporated (INC 1901160) v Narrabri Coal Operations Pty Ltd (ACN 129850139)  NSWLEC 69 can be accessed here.
If you have any questions about this blog post, please leave a comment below or contact Anna Sinclair on 02 8235 9713 or James King on 02 8235 9722.