N e w S o u t h Wa l e s L a n d a n d E n v i r o n m e n

12/23/2020 KEPCO Bylong Australia Pty Ltd v Independent Planning Commission (No 2) - NSW Caselaw

https://www.caselaw.nsw.gov.au/decision/1766eae28a4f17b378e1aaa2# 1/90

Medium Neutral Citation:

Date of orders:

Decision date:

Jurisdiction:

Before:

Decision:

Catchwords:

Legislation Cited:

KEPCO Bylong Australia Pty Ltd v IndependentPlanning Commission (No 2) [2020] NSWLEC 179

18 December 2020

18 December 2020

Class 4

Pain J

(1) The Applicant’s Further Amended Summons filed 3 June 2020 is dismissed. (2) Costs are reserved. (3) The exhibits are returned.

JUDICIAL REVIEW – challenge to decision of Independent Planning Commission to refuse development consent fornew coal mine – state significant development – construction and application of State EnvironmentalPlanning Policy (Mining, Petroleum Production andExtractive 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 StateEnvironmental Planning Policy (Mining, PetroleumProduction and Extractive Industries) 2007 – no failure to apply State Environmental Planning Policy (Mining,Petroleum Production and Extractive Industries) 2007requirements in considering impacts on water resources –no failure to accord procedural fairness to proponent in relation to Aboriginal heritage protection, alternativesources of coal, groundwater, greenhouse gas emissions in Independent Planning Commission identifying that insufficient evidence – summons dismissed

Associations Incorporation Act 2009 (NSW)

Land and Environment Court New South Wales



Cases Cited:

Environmental Planning and Assessment (Savings,Transitional and Other Provisions) Regulation 2017 (NSW) reg 19

Environmental Planning and Assessment Act 1979 (NSW) ss 1.3, 2.2, 2.7, 2.8, 2.9, 4.5, 4.6, 4.15, 4.18, 4.36, 4.38, 4.40, former ss 23B, 89D

Environmental Planning and Assessment Amendment Act 2017 (NSW)

Environmental Planning and Assessment Regulation 2000 (NSW) reg 100

Interpretation Act 1987 (NSW) s 33

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cll 2, 12AA, 12AB, 12, 12A, 13, 14, 15, 16, 17, 17B

State Environmental Planning Policy (State and RegionalDevelopment) 2011 cl 8A, Sch 1

Uniform Civil Procedure Rules 2005 (NSW) r 6.24

Al Maha v Huajan Investments (2018) 233 LGERA 170; [2018] NSWCA 245

Alcan (NT) Alumina Pty Ltd v Commissioner of TerritoryRevenue (Northern Territory) (2009) 239 CLR 27; [2009]HCA 41

Alexandria Landfill v Transport for NSW [2020] NSWCA165

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990]HCA 21

Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31

Ballas v Department of Education (State of NSW) [2020] NSWCA 86

Calardu Penrith Pty Ltd v Penrith City Council [2010]NSWLEC 50

Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981]HCA 26



Cranbrook School v Woollahra Municipal Council (2006) 66NSWLR 379; [2006] NSWCA 155

Davis v Gosford City Council (2014) 87 NSWLR 699;[2014] NSWCA 343

Ex parte King; Re Blackley (1938) 38 SR (NSW) 483

F Hoffmann-La Roche & Co AG v Secretary of State forTrade and Industry [1975] AC 295

Fattah v Minister for Home Affairs (2019) 268 FCR 33;[2019] FCAFC 31

Forgall Pty Ltd v Greater Taree City Council (2015) 209LGERA 160; [2015] NSWLEC 61

Gilbank v Bloore (No 2) [2012] NSWLEC 273

Gloucester Resources v Minister for Planning (2019) 234LGERA 257; [2019] NSWLEC 7

Gomon Pty Ltd v Council of the City of Sydney [2019] NSWLEC 116

Heatscape Pty Ltd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30

KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38

Minister Administering the Crown Lands Act 1989 v NewSouth Wales Aboriginal Land Council (2018) 231 LGERA145; [2018] NSWLEC 26

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24; [1986] HCA 40

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 1

Minister for Immigration and Citizenship v SZRKT (2013)212 FCR 99; [2013] FCA 317

Minister for Immigration and Citizenship v SZGUR (2011)241 CLR 594; [2011] HCA 1



Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30

Minister for Local Government v South Sydney CityCouncil (2002) 55 NSWLR 381; [2002] NSWCA 288

Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224

P&C Cantarella Pty Ltd v Egg Marketing Board for theState of NSW [1973] 2 NSWLR 366

Parramatta City Council v Hale (1982) 47 LGERA 319

Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000] FCA 1113

Plaintiff M61/2010E v the Commonwealth (2010) 243 CLR 319; [2010] HCA 41

Powerlift (Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40 FCR 332

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4

Project Blue Sky Inc v Australian BroadcastingAuthority (1998) 194 CLR 355; [1998] HCA 28

Re Minister for Immigration and Multicultural Affairs; Exparte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212;[2003] HCA 56

SOCARES Support Group Inc v Cessnock CityCouncil (2012) 190 LGERA 1; [2012] NSWLEC 23

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Teys Australia Southern Pty Ltd v Burns (2015) 206LGERA 186; [2015] NSWLEC 1



Category:

Parties:

Representation:

File Number(s):

Tubbo Pty Ltd v Minister Administering the WaterManagement Act 2000; Harvey v Minister Administeringthe Water Management Act 2000 (2008) 302 ALR 299; [2008] NSWCA 356

Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255

Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816;[2005] HCA 57

Weal v Bathurst City Council (2000) 111 LGERA 181;[2000] NSWCA 88

Wollar Progress Association Incorporated v Wilpingjong Coal Pty Ltd [2018] NSWLEC 92

Principal judgment

KEPCO Bylong Australia Pty Ltd (Applicant) Independent Planning Commission (First Respondent) Bylong Valley Protection Alliance Incorporated (SecondRespondent)

COUNSEL: R Lancaster SC and D Hume (Applicant) Submitting appearance (First Respondent) S Free SC and R McEwen (Second Respondent)

SOLICITORS: Minter Ellison (Applicant) Crown Solicitor’s Office (First Respondent) Environmental Defender’s Office (Second Respondent)

19/392909

JUDGMENT

Judicial review of refusal of new coal mine by Independent Planning Commission

1 The Applicant KEPCO Bylong Australia Pty Ltd (KEPCO) has commenced judicialreview proceedings challenging the refusal of a coal mine in the Bylong Valley by theFirst Respondent, the Independent Planning Commission (IPC).

2 The IPC is a corporation constituted by s 2.7(1) of the Environmental Planning andAssessment Act 1979 (NSW) (EPA Act). It is a continuation of the same legal entity asthe Planning Assessment Commission (PAC) established under s 23B of the EPA Actimmediately before the repeal of that section. The IPC has filed a submitting



appearance. The Second Respondent, the Bylong Valley Protection AllianceIncorporated (the BVPA), is a registered incorporated association under theAssociations Incorporation Act 2009 (NSW). It was joined as a party pursuant to r 6.24of the Uniform Civil Procedure Rules 2005 (NSW) in KEPCO Bylong Australia Pty Ltd vIndependent Planning Commission [2020] NSWLEC 38.

3 KEPCO’s Further Amended Summons filed 3 June 2020 seeks a declaration that thepurported determination by the IPC by way of refusal on 18 September 2019 (theRefusal Decision) in relation to State Significant Development Application No SSD6367 (the DA) lodged by KEPCO for the Bylong Coal Project (the Project) is invalid andof no effect. An order remitting the DA to the IPC, constituted by individuals different tothose who constituted it in making the Refusal Decision, for re-determination inaccordance with law is also sought.

4 There are eight grounds of judicial review (Grounds 5 and 10 were not pressed at thehearing). KEPCO alleges that by reason of the errors alleged in the grounds of review,each of which is a jurisdictional error according to KEPCO, the Refusal Decision wasinvalid and should be set aside. KEPCO bears the onus of proof on the balance ofprobabilities of establishing the errors it alleges: Gomon Pty Ltd v Council of the City ofSydney [2019] NSWLEC 116 at [2] citing SOCARES Support Group Inc v CessnockCity Council (2012) 190 LGERA 1; [2012] NSWLEC 23 at [8]; Minister for Immigrationand Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67] (Gummow J);Gilbank v Bloore (No 2) [2012] NSWLEC 273 (Gilbank v Bloore (No 2)) at [48].

Legislation

Environmental Planning and Assessment Act 1979 (NSW)

5 Relevant sections of the EPA Act as in force between 1 July 2019 and 31 October 2019provided:

Part 2 Planning administrationDivision 2.3 Independent Planning Commission…2.8 Members of Commission(1) The Independent Planning Commission is to consist of such members as areappointed by the Minister.(2) One member of the Commission is, in the instrument of appointment or asubsequent instrument, to be appointed as the chairperson of the Commission.(3) Each member is to have expertise in at least one area of planning, architecture,heritage, the environment, urban design, land economics, soil or agricultural science,hydro-geology, mining or petroleum development, traffic and transport, law, engineering,tourism or government and public administration.(4) In appointing a member of the Commission, the Minister is to have regard to theneed to have a range of expertise represented among the Commission’s members.



(5) The Minister may appoint additional members of the Commission for the purposesof exercising specific functions of the Commission. An additional member is notrequired to have expertise in an area referred to in this section but is required to haveexpertise in an area relevant to the functions the member is to exercise.(6) Without limiting subsection (5), the Minister may appoint as an additional memberfor the purposes of that subsection a person who is a member of a subcommittee of theCommission. Any such appointment may be limited to a particular matter or matters, inaddition to any limitation relating to specific functions.2.9 Functions of Commission(1) The Independent Planning Commission has the following functions:

(a) the functions of the consent authority under Part 4 for State significant orother development that are (subject to this Act) conferred on it under this Act,

…Part 4 Development assessment and consent…Division 4.2 Consent authority4.5 Designation of consent authorityFor the purposes of this Act, the consent authority is as follows:(a) in the case of State significant development—the Independent PlanningCommission (if the development is of a kind for which the Commission is declared theconsent authority by an environmental planning instrument) or the Minister (if thedevelopment is not of that kind),…4.6 Provisions relating to Independent Planning CommissionThe following consent authority functions of the Independent Planning Commission areto be exercised by the Planning Secretary on behalf of the Commission:(a) receiving development applications and determining and receiving fees for theapplications,(b) undertaking assessments of the proposed development and providing them to theCommission (but without limiting the assessments that the Commission mayundertake),(c) obtaining any concurrence, and undertaking any consultation, that the consentauthority is required to obtain or undertake,(d) carrying out the community participation requirements of Division 2.6,(e) notifying or registering the determinations of the Commission,(f) the functions under section 4.17 in relation to the provision of security,(g) the determination of applications to extend the period before consents lapse,(h) any other function prescribed by the regulations.…Division 4.3 Development that needs consent (except complying development)…4.15 Evaluation(1) Matters for consideration—general In determining a development application, aconsent authority is to take into consideration such of the following matters as are ofrelevance to the development the subject of the development application:

(a) the provisions of:(i) any environmental planning instrument, and



(ii) any proposed instrument that is or has been the subject of publicconsultation under this Act and that has been notified to the consentauthority (unless the Planning Secretary has notified the consentauthority that the making of the proposed instrument has been deferredindefinitely or has not been approved), and(iii) any development control plan, and(iiia) any planning agreement that has been entered into under section7.4, or any draft planning agreement that a developer has offered toenter into under section 7.4, and(iv) the regulations (to the extent that they prescribe matters for thepurposes of this paragraph),(v) (Repealed)that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts onboth the natural and built environments, and social and economic impacts in thelocality,(c) the suitability of the site for the development,(d) any submissions made in accordance with this Act or the regulations,(e) the public interest.

(2) Compliance with non-discretionary development standards—developmentother than complying development If an environmental planning instrument or aregulation contains non-discretionary development standards and development, notbeing complying development, the subject of a development application complies withthose standards, the consent authority:

(a) is not entitled to take those standards into further consideration indetermining the development application, and(b) must not refuse the application on the ground that the development doesnot comply with those standards, and(c) must not impose a condition of consent that has the same, or substantiallythe same, effect as those standards but is more onerous than those standards,and the discretion of the consent authority under this section and section 4.16 islimited accordingly.

(3) If an environmental planning instrument or a regulation contains non-discretionarydevelopment standards and development the subject of a development applicationdoes not comply with those standards:

(a) subsection (2) does not apply and the discretion of the consent authorityunder this section and section 4.16 is not limited as referred to in thatsubsection, and(b) a provision of an environmental planning instrument that allows flexibility inthe application of a development standard may be applied to the non-discretionary development standard.

…4.18 Post-determination notification(1) The consent authority must, in accordance with the regulations, notify itsdetermination of a development application to:

(a) the applicant, and(b) in the case of a development application for consent to carry outdesignated development, each person who made a submission under Schedule1, and(c) such other persons as are required by the regulations to be notified of thedetermination of the development application.



(2) If the consent authority is not the council, the consent authority must notify thecouncil of its determination.(3) In the case of a development application for consent to carry out designateddevelopment, the consent authority must also notify each person who made asubmission under Schedule 1 by way of objection of the person’s rights to appealagainst the determination and of the applicant’s rights to appeal against thedetermination.(4) For the purposes of this section, designated development includes Statesignificant development that would be designated development but for section 4.10(2).…Division 4.7 State significant development4.36 Development that is State significant development(1) For the purposes of this Act, State significant development is development thatis declared under this section to be State significant development.(2) A State environmental planning policy may declare any development, or any classor description of development, to be State significant development.…4.38 Consent for State significant development(1) The consent authority is to determine a development application in respect of Statesignificant development by:

(a) granting consent to the application with such modifications of the proposeddevelopment or on such conditions as the consent authority may determine, or(b) refusing consent to the application.

…(6) If the determination under section 3.34 (Gateway determination) for a planningproposal declares that the proposed instrument is principally concerned with permittingthe carrying out of State significant development that would otherwise be whollyprohibited:

(a) the proposed instrument may be made only by the Independent PlanningCommission under a delegation from the Minister, and(b) the development application for the carrying out of that development maybe determined only by the Independent Planning Commission under adelegation from the Minister.

…4.40 Evaluation of development application (s 4.15)Section 4.15 applies, subject to this Division, to the determination of the developmentapplication.…

Environmental Planning and Assessment Regulation 2000 (NSW)

6 Regulation 100 of the Environmental Planning and Assessment Regulation 2000(NSW) (EPA Regulation) as in force between 13 September 2019 and 14 November2019 provided:

Part 6 Procedures relating to development applications…Division 10 Post-determination notifications100 Notice of determination



(1) For the purposes of section 4.18 (1) of the Act, a notice of the determination of adevelopment application must contain the following information—

…(c) if the application has been refused, or granted subject to conditions (otherthan conditions prescribed under section 4.17 (11) of the Act), the consentauthority’s reasons for the refusal or for the imposition of those conditions,

…

Environmental Planning and Assessment (Savings, Transitional and Other Provisions)Regulation 2017 (NSW)

7 Regulation 19 of the Environmental Planning and Assessment (Savings, Transitionaland Other Provisions) Regulation 2017 (NSW) provides:

Part 2 Provisions consequent on enactment of Environmental Planning andAssessment Amendment Act 2017…19 References to Minister as consent authority for State significant development(1) In this clause—document includes any Act, statutory instrument, contract, agreement or otherinstrument issued or made under or for the purposes of any Act or statutory or otherinstrument.(2) A reference in section 7.14 or 7.16(3) of the Biodiversity Conservation Act 2016, orin any other document, to the Minister for Planning as consent authority for anapplication for development consent for State significant development includes areference to the Independent Planning Commission as consent authority for any suchapplication as a consequence of the enactment of section 4.5(a) of the Act by Schedule4.1 to the Environmental Planning and Assessment Amendment Act 2017.…

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries)2007

8 Relevant provisions of the State Environmental Planning Policy (Mining, PetroleumProduction and Extractive Industries) 2007 (Mining SEPP) as in force between 30August 2019 to 12 December 2019 provided:

Part 1 Preliminary…2 Aims of PolicyThe aims of this Policy are, in recognition of the importance to New South Wales ofmining, petroleum production and extractive industries—(a) to provide for the proper management and development of mineral, petroleum andextractive material resources for the purpose of promoting the social and economicwelfare of the State, and(b) to facilitate the orderly and economic use and development of land containingmineral, petroleum and extractive material resources, and(b1) to promote the development of significant mineral resources, and(c) to establish appropriate planning controls to encourage ecologically sustainabledevelopment through the environmental assessment, and sustainable management, ofdevelopment of mineral, petroleum and extractive material resources, and…



Part 3 Development applications—matters for consideration12AA (Repealed)12AB Non-discretionary development standards for mining(1) The object of this clause is to identify development standards on particular mattersrelating to mining that, if complied with, prevents the consent authority from requiringmore onerous standards for those matters (but that does not prevent the consentauthority granting consent even though any such standard is not complied with).(2) The matters set out in this clause are identified as non-discretionary developmentstandards for the purposes of section 4.15(2) and (3) of the Act in relation to thecarrying out of development for the purposes of mining.…(7) Aquifer interference Any interference with an aquifer caused by the developmentdoes not exceed the respective water table, water pressure and water qualityrequirements specified for item 1 in columns 2, 3 and 4 of Table 1 of the AquiferInterference Policy for each relevant water source listed in column 1 of that Table.….(9) In this clause—Aquifer Interference Policy means the document entitled NSW Aquifer InterferencePolicy published by the NSW Office of Water, Department of Primary Industries and inforce as at the commencement of this clause.…12 Compatibility of proposed mine, petroleum production or extractive industrywith other land usesBefore determining an application for consent for development for the purposes ofmining, petroleum production or extractive industry, the consent authority must—(a) consider—

(i) the existing uses and approved uses of land in the vicinity of thedevelopment, and(ii) whether or not the development is likely to have a significant impact on theuses that, in the opinion of the consent authority having regard to land usetrends, are likely to be the preferred uses of land in the vicinity of thedevelopment, and(iii) any ways in which the development may be incompatible with any of thoseexisting, approved or likely preferred uses, and

(b) evaluate and compare the respective public benefits of the development and theland uses referred to in paragraph (a)(i) and (ii), and(c) evaluate any measures proposed by the applicant to avoid or minimise anyincompatibility, as referred to in paragraph (a)(iii).12A Consideration of voluntary land acquisition and mitigation policy…(2) Before determining an application for consent for State significant development forthe purposes of mining, petroleum production or extractive industry, the consentauthority must consider any applicable provisions of the voluntary land acquisition andmitigation policy and, in particular—

(a) any applicable provisions of the policy for the mitigation or avoidance ofnoise or particulate matter impacts outside the land on which the developmentis to be carried out, and(b) any applicable provisions of the policy relating to the developer making anoffer to acquire land affected by those impacts.

…13 Compatibility of proposed development with mining, petroleum production orextractive industry



…(2) Before determining an application to which this clause applies, the consentauthority must—

(a) consider—(i) the existing uses and approved uses of land in the vicinity of thedevelopment, and(ii) whether or not the development is likely to have a significant impacton current or future extraction or recovery of minerals, petroleum orextractive materials (including by limiting access to, or impedingassessment of, those resources), and(iii) any ways in which the development may be incompatible with anyof those existing or approved uses or that current or future extraction orrecovery, and

(b) evaluate and compare the respective public benefits of the developmentand the uses, extraction and recovery referred to in paragraph (a) (i) and (ii),and(c) evaluate any measures proposed by the applicant to avoid or minimise anyincompatibility, as referred to in paragraph (a) (iii).

14 Natural resource management and environmental management(1) Before granting consent for development for the purposes of mining, petroleumproduction or extractive industry, the consent authority must consider whether or not theconsent should be issued subject to conditions aimed at ensuring that the developmentis undertaken in an environmentally responsible manner, including conditions to ensurethe following—

(a) that impacts on significant water resources, including surface andgroundwater resources, are avoided, or are minimised to the greatest extentpracticable,(b) that impacts on threatened species and biodiversity, are avoided, or areminimised to the greatest extent practicable,(c) that greenhouse gas emissions are minimised to the greatest extentpracticable.

(2) Without limiting subclause (1), in determining a development application fordevelopment for the purposes of mining, petroleum production or extractive industry,the consent authority must consider an assessment of the greenhouse gas emissions(including downstream emissions) of the development, and must do so having regard toany applicable State or national policies, programs or guidelines concerninggreenhouse gas emissions.(3) Without limiting subclause (1), in determining a development application fordevelopment for the purposes of mining, the consent authority must consider anycertification by the Chief Executive of the Office of Environment and Heritage or theDirector-General of the Department of Primary Industries that measures to mitigate oroffset the biodiversity impact of the proposed development will be adequate.15 Resource recovery(1) Before granting consent for development for the purposes of mining, petroleumproduction or extractive industry, the consent authority must consider the efficiency orotherwise of the development in terms of resource recovery.(2) Before granting consent for the development, the consent authority must considerwhether or not the consent should be issued subject to conditions aimed at optimisingthe efficiency of resource recovery and the reuse or recycling of material.(3) The consent authority may refuse to grant consent to development if it is notsatisfied that the development will be carried out in such a way as to optimise theefficiency of recovery of minerals, petroleum or extractive materials and to minimise thecreation of waste in association with the extraction, recovery or processing of minerals,petroleum or extractive materials.16 Transport



(1) Before granting consent for development for the purposes of mining or extractiveindustry that involves the transport of materials, the consent authority must considerwhether or not the consent should be issued subject to conditions that do any one ormore of the following—

(a) require that some or all of the transport of materials in connection with thedevelopment is not to be by public road,(b) limit or preclude truck movements, in connection with the development, thatoccur on roads in residential areas or on roads near to schools,(c) require the preparation and implementation, in relation to the development,of a code of conduct relating to the transport of materials on public roads.

(2) If the consent authority considers that the development involves the transport ofmaterials on a public road, the consent authority must, within 7 days after receiving thedevelopment application, provide a copy of the application to—

(a) each roads authority for the road, and(b) the Roads and Traffic Authority (if it is not a roads authority for the road).

17 Rehabilitation(1) Before granting consent for development for the purposes of mining, petroleumproduction or extractive industry, the consent authority must consider whether or not theconsent should be issued subject to conditions aimed at ensuring the rehabilitation ofland that will be affected by the development.(2) In particular, the consent authority must consider whether conditions of the consentshould—

(a) require the preparation of a plan that identifies the proposed end use andlandform of the land once rehabilitated, or(b) require waste generated by the development or the rehabilitation to bedealt with appropriately, or(c) require any soil contaminated as a result of the development to beremediated in accordance with relevant guidelines (including guidelines underclause 3 of Schedule 6 to the Act and the Contaminated Land Management Act1997), or(d) require steps to be taken to ensure that the state of the land, while beingrehabilitated and at the completion of the rehabilitation, does not jeopardizepublic safety.

Part 4AA Mining and petroleum development on strategic agricultural land…Division 2 Development applications17B Assessment of development applications(1) Before determining an application for development consent for mining or petroleumdevelopment that is accompanied by a gateway certificate, the consent authority must—

(a) refer the application to the Minister for Regional Water for advice regardingthe impact of the proposed development on water resources, and(b) consider—

…(ii) any written advice provided by the Minister for Regional Water inresponse to a referral under paragraph (a), and…

(2) In determining an application for development consent for mining or petroleumdevelopment that is accompanied by a gateway certificate, the consent authority mustconsider whether any recommendations set out in the certificate have or have not beenaddressed and, if addressed, the manner in which those recommendations have beenaddressed.



(3) The Minister for Regional Water, when providing advice under this clause on theimpact of the proposed development on water resources, must have regard to—

(a) the minimal impact considerations set out in the Aquifer Interference Policy,and(b) the other provisions of that Policy.

9 KEPCO lodged the DA in 2015. The IPC was appointed in 2018 as the consentauthority by virtue of cl 8A of the State Environmental Planning Policy (State andRegional Development) 2011 (State and Regional Development SEPP) as provided bys 4.5(a) of the EPA Act. Mining is specified as state significant development (SSD) inSch 1 of the State and Regional Development SEPP.

Statement of agreed facts/chronology

10 A number of background facts were helpfully agreed by the parties in the followingStatement of Agreed Facts (SOAF):

The Development Application Process1 On or around 17 January 2014, the Applicant made a written request to theSecretary of the Department of Environment & Planning (Department) for Secretary’sEnvironmental Assessment Requirements (SEARs) for the Project. This written requestwas accompanied by a document entitled “Bylong Coal Project – BackgroundDocument” dated 17 January 2014.2 On or around 12 March 2014, the Project (EPBC 2014/7133) was determined to bea ‘controlled action’ under the Commonwealth EPBC Act, and that the Project will beassessed under the bilateral agreement with NSW.3 On or around 15 April 2014, a Conditional Gateway Certificate was issued under theMining SEPP for the Project.4 On or around 23 June 2014, the Secretary of the Department wrote to the Applicantattaching the SEARs with respect to the Project.5 On or around 11 November 2014, the Secretary of the Department wrote to theApplicant attaching the (revised) SEARs with respect to the Project. The ConditionalGateway Certificate formed attachment 3 to the SEARs.6 On or around 22 July 2015, the Applicant lodged with the Department an applicationform for state significant development dated 22 July 2015 (Development Application).7 On or around 1 September 2015, the Applicant lodged with the Department adocument entitled “Bylong Coal Project – Environmental Impact Statement (EIS)” datedSeptember 2015 prepared by Hansen Bailey (EIS Main Report), which includedAppendices labelled A - AG.8 Between 23 September 2015 and 6 November 2015, the Department placed the EISMain Report and the Appendices thereto on public exhibition and received submissions.9 On 12 December 2015, the Paris Agreement was adopted by a conference of theparties to the United Nations Framework Convention on Climate Change, includingAustralia.10 In a letter dated 4 January 2016, the Deputy Secretary, Planning Services, of theNSW Department of Planning and Environment invited advice from the Minister forPrimary Industries and Minister “in accordance with clause 17B of the Mining SEPP”. Inan undated letter, which was sent at least after 12 May 2016, the Minister for PrimaryIndustries responded to the 4 January 2016 letter.11 On or around 23 March 2016, the Applicant lodged with the Department adocument entitled “Bylong Coal Project –EIS Response to Submissions” dated March2016 prepared by Hansen Bailey, which included Appendices labelled A – N.



12 On or around 19 August 2016, the Applicant lodged with the Department adocument entitled “Bylong Coal Project – EIS Supplementary Response toSubmissions” dated August 2016 prepared by Hansen Bailey, which includedAppendices labelled A – M.13 On 1 October 2016, the NSW Government published the NSW Climate ChangePolicy Framework.14 On 9 November 2016, Australia ratified the Paris Agreement.15 On or around 9 January 2017, the Minister issued a request to the PlanningAssessment Commission (PAC) under s 23D of the EP&A Act for the PAC to review theProject and hold a public hearing.16 On or around 31 March 2017, the Department released its document entitled“Preliminary Assessment Report” dated March 2017, which included Appendiceslabelled A – M.17 On 11 May 2017, the PAC held a public hearing with respect to the Project, for thepurposes of the then s 23D EP&A Act.18 On or around 27 July 2017, the PAC released its document entitled “ReviewReport” dated 25 July 2017 (PAC Review Report), which included Appendices labelled1-9.19 On or around 17 January 2018, the Applicant lodged with the Department adocument entitled “Bylong Coal Project – Response to PAC Review Report” datedJanuary 2018 prepared by Hansen Bailey, which included Appendices labelled A – X.[Revised Mine Plan included]20 On or around 29 May 2018, the Department requested further information from theApplicant, via a letter dated 28 May 2018, in relation to the potential implications ofstepping the open cut mine off Tarwyn Park.21 In response, on or around 12 July 2018, the Applicant lodged with the Departmenta document entitled “Bylong Coal Project – Supplementary Information” dated July2018 prepared by Hansen Bailey, which included Appendices labelled A – N.22 On or around 4 October 2018, the Department released its document entitled“State Significant Development – Final Assessment Report (SSD 6367)” datedOctober 2018, which included Appendices labelled A – H.23 Between 8 October 2018 and 14 November 2018, the First Respondent placed theProject on public exhibition and received submissions.24 During the months of October 2018 and November 2018, the First Respondentheld meetings with the Applicant, the public, community groups, local governments andthe Second Respondent, and conducted a site inspection.25 On or around 20 December 2018, the Department released a document entitled“Review of Economic Analysis supporting the Revised Bylong Coal Project” dated 20December 2018.26 On or around 13 February 2019, the Department provided additional information tothe First Respondent entitled “Bylong Coal Project (SSD 6367) – Request for AdditionalInformation” dated 13 February 2019, which included Appendices labelled A and B.Appendix B being a letter dated 19 December 2018 prepared by Hansen Baileyaddressing the Request for Additional Information and annexing a report prepared byAustralasian Groundwater and Environmental Consultants.27 On or around 10 March 2019, the First Respondent released a document entitled“Review of Groundwater Issues Associated with the Proposed Bylong Project” dated 5March 2019 (Independent Groundwater Review).28 On or around 12 June 2019, the First Respondent released a document entitled“Bylong Coal Project (SSD 6367) – GML Heritage Advice” dated 12 June 2019(Independent Heritage Review).29 During June 2019 the First Respondent accepted written submissions on theIndependent Heritage Review.30 On or around 6 August 2019, the First Respondent met with the Department andDepartment of Primary Industries Agriculture.



31 On or around 18 September 2019, the First Respondent refused the DevelopmentApplication, and published a document entitled “Statement of reasons for decision”(Statement of Reasons) dated 18 September 2019.32 On 13 December 2019, the Applicant filed its Class 4 Application (Summons –Judicial Review) with the Court.

11 As is clear from the above chronology of events, the assessment process has beenlengthy and extensive.

Evidence

12 KEPCO tendered volumes 1, 2, 3 and 4 of the Evidence Book (Ex A), the IPC’sStatement of Reasons (SOR) (Ex B), and the SOAF (Ex C)).

13 The BVPA tendered volumes 5 and 6 of the Evidence Book (Ex 1).

14 The evidence relied on by the parties is expanded below by reference to each of thegrounds of review alleged by KEPCO.

Statement of Reasons

15 As is clear from the SOR, in forming its decision the IPC considered the merits of both(i) the Project, and (ii) a Revised Mine Plan and a set of conditions (Final ProposedConditions), as put forward by the Department of Planning and Environment in its StateSignificant Development Final Assessment Report October 2018 (Final AssessmentReport) as a potential modification to the Project under s 4.38(1)(a) of the EPA Act (theRecommended Revised Project).

16 The IPC was under a duty to provide reasons for its decision pursuant to s 4.18(1) ofthe EPA Act (above in [5]) and reg 100(1)(c) of the EPA Regulation (above in [6]).

17 The IPC’s SOR is extensive, consisting of 819 paragraphs over 146 pages. All thegrounds are largely addressed by reference to the SOR. It is therefore extensivelyextracted below in [19].

18 The SOR is divided into eight sections.

(a) Section 1 (“Introduction”) summarises the Project before the IPCincluding a description of the site and locality.

(b) Section 2 (“Key steps in the consideration of the application”) outlines thekey steps taken in consideration of the DA, including assessment by theDepartment of Planning and Environment (Department) and the PACbefore the IPC was established.

(c) Section 3 (“The Commission’s meetings and site inspection”) describesthe inspections and meetings held by the IPC, including meetings withthe Department and with KEPCO.

(d) Section 4 (“Additional information”) describes additional informationreceived by the IPC in response to its requests for additional information.



(e) Section 5 (“Material considered by the Commission”) lists the materialconsidered by the IPC in its determination, including those items that itwas mandatory for the IPC to take into consideration. Section 5 alsooutlines relevant environmental planning instruments, including pars 102-110 which outlines applicable provisions of the Mining SEPP, and pars149-155 which describe the IPC’s consideration of “other advice”.

(f) Section 6 (“Commission’s considerations”) describes the IPC’sconsideration of, inter alia:

(i) existing, approved and likely preferred uses of land in the vicinity(agriculture, heritage, tourism, and mining), the impact of theProject on those uses, and the incompatibility or comparativebenefits of the Project (Sections 6.1.2-6.1.7, pars 193-236)concluding in pars 235-236 that the public benefits of the Projectand the Recommended Revised Project have not been proven tooutweigh the public costs of the proposed mine or the publicbenefits of the existing, approved and likely preferred uses in thevicinity;

(ii) groundwater (Section 6.2, pars 237-297) concluding in pars 288-297 that the groundwater impacts on the Project site areunacceptable;

(iii) surface water (Section 6.3, pars 298-323) concluding in pars 322-323 that the surface water impacts are acceptable andmanageable;

(iv) agriculture (Section 6.4, pars 324-376) concluding in pars 369-376that neither the Project nor the Recommended Revised Project iscompatible with the land use objectives of protecting agriculturalland;

(v) mine rehabilitation (Section 6.5, pars 377-407), concluding in pars402-407 that neither the Project or the Recommended RevisedProject meet objectives relating to the proper management ofresources by protecting, conserving and enhancing land;

(vi) heritage (Section 6.6, pars 408-488), concluding in pars 479-488that the heritage impacts of the Project and the RecommendedRevised Project would be unacceptable;

(vii) Aboriginal heritage impacts (Section 6.7, pars 489-516),concluding in pars 514-516 that there was insufficient evidence forthe IPC to form a view on the impacts on Aboriginal heritage;



(viii) biodiversity (Section 6.8, pars 517-535), concluding in par 532-535 that the Project and the Recommended Revised Projectwould result in a net loss of 288 hectares of Biophysical StrategicAgricultural Land (BSAL);

(ix) transport and traffic (Section 6.9, pars 536-558), concluding inpars 557-558 that the impacts of the Project and theRecommended Revised Project on traffic could be managed;

(x) air quality (Section 6.10, pars 559-573), concluding in par 573 thatthe air quality impacts resulting from the Project and theRecommended Revised Project are acceptable;

(xi) noise and blasting (Section 6.11, pars 574-608), concluding inpars 606-608 that the noise and blasting impacts resulting fromthe Project and the Recommended Revised Project areacceptable;

(xii) visual impact (Section 6.12, pars 609-625), concluding in pars624-625 that the visual impacts of the Project and theRecommended Revised Project can be minimised;

(xiii) subsidence (Section 6.13, pars 626-647), concluding in pars 646-647 that the subsidence impacts resulting from the Project and theRecommended Revised Project are acceptable;

(xiv) climate change (Section 6.14, pars 648-697), noting in par 687that it is required under cl 14(2) of the Mining SEPP to considergreenhouse gas (GHG) emissions in its assessment, andconcluding in pars 696-697 that (a) no offset measures areproposed by KEPCO; and (b) the IPC accepts that there is nopolicy guidance on what constitutes an acceptable, unacceptableor substantial amount of GHG emissions, nonetheless concludingthat based on the evidence before it, the contribution that theProject and the Recommended Revised Project will make toglobal GHG emissions needs to be considered by the IPC;

(xv) social impacts in the locality (Section 6.15, pars 698-735),concluding in pars 730-735 that the Project and theRecommended Revised Project will fundamentally change thenature of the Bylong Valley and that people may perceive it ashaving a negative impact on their health and wellbeing;

(xvi)



economic impacts in the locality (Section 6.16, pars 736-784),concluding in pars 779-784 that there is a reasonable level ofuncertainty in estimation of the economic benefits of the Projectand the Recommended Revised Project, meaning the economicbenefits are uncertain; and

(xvii) public interest (Section 6.17, pars 785-813), concluding in pars797-813 that the Project and the Recommended Revised Projectare inconsistent with the objects in s 1.3 (a) (to promote the socialand economic welfare of the community and a better environmentby the proper management, development and conservation of thestate’s natural and other resources), (b) (to facilitate ecologicallysustainable development by integrating relevant economic,environmental and social considerations in decision-making aboutenvironmental planning and assessment) and (f) (to promote thesustainable management of built and cultural heritage (includingAboriginal cultural heritage)) of the EPA Act and are therefore notin the public interest.

(g) Section 7 (“How the Commission took community views into account inmaking decision”) outlines how the IPC considered public submissionsand comments received as part of the exhibition of the DA.

(h) Section 8 (“Conclusion: The Commission’s findings and determination”)sets out the IPC’s conclusion in respect of the Project, finally concludingin par 819 that it “determined to refuse consent for the Project” for all thereasons outlined in the SOR.

19 Particular extracts relevant to various grounds of review are extracted below. It will alsobe necessary to consider the overall structure as summarised in the immediatelypreceding paragraph. Relevant extracts provide (figures omitted):

1 INTRODUCTION…1.2.2 Revised Mine Plan12. Following review of the Project by the former Planning Assessment Commission(PAC) in July 2017 (the PAC Review Report), and a letter from the Department to theApplicant dated 28 May 2018, the Applicant submitted a Bylong Coal Project –Supplementary Information Report (Supplementary Information Report) to theDepartment in July 2018, which provided details of a Revised Mine Plan.13. The 28 May 2018 letter stated that the Department “considers that revisions to theproposed mine plan are required to adequately avoid and minimise the potentialimpacts on the heritage values of Tarwyn Park and surrounding landscape” and that “noopen cut mining or overburden emplacement should be permitted on the Tarwyn Parkproperty; and overburden emplacement areas should be redesigned to minimise thevisual impacts and maximise the integration of the proposed final landform with thesurrounding topography”.14. The Revised Mine Plan submitted by the Applicant includes the following changes,and is illustrated in Figure 4:



g• removal of open cut mining and overburden emplacement from the TarwynPark landholding, avoiding impacts on the former Upper Bylong Catholic Churchand cemetery;• reducing the volume of overburden being handled by around 24%;• reducing the footprint of the western open cut by 22.5 ha to maintain awooded ridgeline and retain the existing views from the Tarwyn Parkhomestead;• modifying the north-western overburden emplacement area to incorporate avalley/ drainage line, to minimise visual impacts on Tarwyn Park homestead;• reducing the height and slope of the south-western overburden emplacementarea to integrate with the existing topography;• re-establishing the connection between the Upper Bylong Road and LeeCreek Road at mine closure, subject to consultation and agreement with Mid-Western Regional Council (the MWRC);• incorporating macro relief into the conceptual final landform, consistent withexisting landscape elements in the Upper Bylong Valley; and• removal of the on-site WAF to accommodate the construction workforce.

15. The Revised Mine Plan would result in approximately 1,047 ha of surfacedisturbance, compared to the Project's surface disturbance of approximately 1,160 ha.16. Further to the Revised Mine Plan, the Department recommended a set ofconditions (Final Proposed Conditions) in its Final Assessment Report to amend theProject in line with the Revised Mine Plan and prohibit the construction of the WAF andthe open cut mine on the historic Tarwyn Park property (see section 2.5 for a summaryof the Final Assessment Report). The Revised Mine Plan and the Final ProposedConditions are collectively referred to as the Recommended Revised Project.17. The Commission notes that despite providing an assessment of the Revised MinePlan, the Applicant has not formally amended its development application (seeparagraph 54). The Commission has therefore assessed the Project on the basis thatapproval is being sought for the Project as originally proposed in the EIS submitted withthe development application, as described in paragraph 11.18. The Commission has also considered the merits of the Recommended RevisedProject, as put forward by the Department in its Final Assessment Report, as a potentialmodification to the Project under section 4.38(1)(a) of the EP&A Act.…5 MATERIAL CONSIDERED BY THE COMMISSION5.1 Material before the Commission78. In this determination, the Commission has carefully considered the followingmaterial (the Material):

• the Independent Expert Scientific Committee (IESC) advice (IESC advice)dated 14 March 2014• the report by the Mining & Petroleum Gateway Panel to accompany aConditional Gateway Certificate for the Bylong Coal Project (the GatewayReport) dated 15 April 2014;• the development application, including the Revised Secretary’sEnvironmental Assessment Requirements, dated 11 November 2014;• the Bylong Coal Project Environmental Impact Statement (the EIS), datedSeptember 2015 and prepared by Hansen Baily Environmental Consultants,and its accompanying appendices;• the Department’s request to Minister for Lands and Water for advice, dated 4January 2016;• the Minister for Lands and Water advice to the Department, dated January2016;• the Bylong Coal Project: Environmental Impact Statement Response toSubmissions (the RtS), dated March 2016, and its accompanying appendices;



• the Mining & Petroleum Gateway Panel’s response to the Department, dated9 September 2016;• the Department’s State Significant Development Assessment Bylong CoalProject (SSD-6367), dated 31 March 2017;• the PAC’s Bylong Coal Project SSD6367 Review Report, dated 25 July 2017,including Appendices;• the Bylong Coal Project Response to PAC Review Report (the Applicant’sReview response), dated January 2018, and its accompanying appendices;• the Applicant’s Revised Mine Plan detailed in the report Bylong Coal Project,Supplementary Information, July 2018;• the Department’s Final Assessment Report dated October 2018;• the Microsoft Surface Pro tablet (the tablet) containing information and visualrendering regarding the Project and the Revised Mine Plan, dated 1 November2018;• information discussed with the Commission at its meeting with MWRC on 6November 2018 and provided in the transcript published on the Commission’swebsite;• information discussed with the Commission at its meeting with MuswellbrookShire Council on 12 November 2018 and provided in the transcript published onthe Commission’s website;• information discussed with the Commission at its meeting with theDepartment on 29 October 2018 and provided in the transcript published on theCommission’s website;• information discussed with the Commission at its meeting with the Applicanton 29 October 2018 and provided in the transcript published on theCommission’s website;• information discussed with the Commission at its meeting with the BVPA on12 November 2018 and provided in the transcript published on theCommission’s website;• oral submissions made by the 58 speakers at the public meeting and the3192 written comments received subsequently;• the Independent Groundwater Review prepared by GW-SW Pty Ltd, dated 5March 2019;• the Independent Economic Review prepared by CIE dated 20 December2018;• additional information provided by the Applicant including:

○ Bylong Coal Project Response to Submissions on the Greater BlueMountains World Area, dated 10 December 2018;○ Bylong Coal Project Response to Glencore Submission dated 12November 2018, dated 14 December 2018;○ Bylong Coal Project Response to Submissions in Relation toEconomic Impact Assessments, dated 18 December 2018;○ Bylong Coal Project Clarification over Meeting Transcript in Relationto Mine Plan Sought (SSD 14_6367), dated 19 December 2018;○ Bylong Coal Project Response to Submissions in Relation to WaterResources, dated 20 December 2018; and○ Bylong Coal Project Relevant Information for the IPC’s Considerationin Relation to Greenhouse Gas Emissions, dated 4 March 2019;○ Applicant’s response to the EDO NSW Submission, dated 15February 2019;○ the Department’s Bylong Coal Project (SSD 6367) – Request forAdditional Information, dated 13 February 2019, and its accompanyingappendices (the Department’s Groundwater Response);



○ Bylong Coal Project Response to GML Heritage Advice, dated 27June 2019;○ response to the Commission correspondence, dated 5 July 2019;○ comments on the Gateway Certificate, dated 23 July 2019;○ further comments on the Gateway Certificate, dated 5 August 2019;○ further comments on the Gateway Certificate, dated 13 August 2019;and○ comments on the Commission’s meeting with the Department andDPI on 6 August 2019, dated 23 August 2019;

• the independent Heritage Review prepared by GML Heritage, dated 12 June2019;• written comments received following the publication of the Heritage Reviewon the Commission’s website.• written comments received following the publication of the Commission’smedia statement relating to the expiry of the gateway certificate;• written comments received following the publication of the Applicant’scomments on the gateway certificate; and• information discussed with the Commission at its meeting with theDepartment and DPI on 6 August 2019 and provided in the transcript publishedon the Commission’s website.

…5.2 Mandatory considerations…5.2.2 Relevant Environmental Planning Instruments84. The EIPs that may apply to the Project and the Recommended Revised Projectare:

• Mid-Western Regional Local Environment Plan 2012 (MWR LEP 2012);• SEPP No. 33 – Hazardous and Offensive Development (SEPP 33);• SEPP No. 44 – Koala Habitat Protection (SEPP 44);• SEPP No. 55 – Remediation of Land (SEPP 55);• SEPP State and Regional Development 2011 (SEPP SRD);• SEPP (Infrastructure) 2007 (Infrastructure SEPP); and• Mining SEPP.

…Mining SEPP102. The relevant aims of the Mining SEPP as stated in clause 2 are:

“The aims of this Policy are, in recognition of the importance to New SouthWales of mining, petroleum production and extractive industries:(a) to provide for the proper management and development of mineral,petroleum and extractive material resources for the purpose of promoting thesocial and economic welfare of the State, and(b) to facilitate the orderly and economic use and development of landcontaining mineral, petroleum and extractive material resources, and(b1) to promote the development of significant mineral resources, and(c) to establish appropriate planning controls to encourage ecologicallysustainable development through the environmental assessment, andsustainable management, of development of mineral, petroleum and extractivematerial resources…”



103. Part 3 of the Mining SEPP lists a number of matters that a consent authority mustconsider before determining an application for development for the purposes of mining,including:

• non-discretionary development standards for mining (i.e. noise, air quality,blasting and aquifer interference);• compatibility of development with other land uses;• the Voluntary Land Acquisition and Mitigation Policy approved by the Ministerand published in the Gazette on the date on which State EnvironmentalPlanning Policy (Mining, Petroleum Production and Extractive Industries)Amendment (Air and Noise Impacts) 2018 is published on the NSW legislationwebsite (103);• compatibility of development with mining, petroleum production or extractiveindustries;• natural resource management and environmental management;• resource recovery;• transport; and• rehabilitation.

104. Clause 12AB of the Mining SEPP identifies various non-discretionarydevelopment standards for mining for the purposes of s 4.15(2) and (3) of the EPA Act(see clause 12AB(2) of Mining SEPP). The object of the clause is stated in cl 12AB(1)of the Mining SEPP:

“The object of this clause is to identify development standards on particularmatters relating ) to mining that, if complied with, prevents the consent authorityfrom requiring more onerous standards for those matters (but that does notprevent the consent authority granting consent even though any such standardis not complied with).”

105. The relevant non-discretionary standards are considered by the Commission inSection 6.106. In relation to GHG emissions, Clause 14 of the Mining SEPP states that:

“in determining a development application for development for the purposes ofmining, petroleum production or extractive industry, the consent authority mustconsider an assessment of the greenhouse gas emissions (includingdownstream emissions) of the development, and must do so having regard toany applicable State or national policies, programs or guidelines concerninggreenhouse gas emissions.”

107. The Commission notes that the term “downstream emissions” is not defined inthe Mining SEPP. The Commission understands the term to denote the greenhouse gasemissions relating to sold goods and services and thus caused by the end users’ use ofthe product. (Wollar Property Progress Association Inc v Wilpinjong Coal Pty Ltd [2018]NSWLEC 92 per Sheahan J at [126]).108. Division 2 of Part 4AA of the Mining SEPP also requires the Commission to haveregard to the minimal impact considerations set out in the NSW Aquifer InterferencePolicy 2012 (AIP) and the other provisions of the AIP. The Commission has thereforeconsidered the provisions of the AIP in Section 6.2.109. Clause 12 of the Mining SEPP requires the consent authority, before determininga development application for mining, to consider the compatibility of the proposed minewith other land uses in the vicinity of the mine. Clause 12 provides:

“Before determining an application for consent for development for the purposesof mining, petroleum production or extractive industry, the consent authoritymust:(a) consider:

(i) the existing uses and approved uses of land in the vicinity of thedevelopment, and



(ii) whether or not the development is likely to have a significant impacton the uses that, in the opinion of the consent authority having regard toland use trends, are likely to be the preferred uses of land in the vicinityof the development, and(iii) any ways in which the development may be incompatible with any ofthose existing, approved or likely preferred uses, and

(b) evaluate and compare the respective public benefits of the development andthe land uses referred to in paragraph (a) (i) and (ii), and(c) evaluate any measures proposed by the applicant to avoid or minimise anyincompatibility, as referred to in paragraph (a) (iii).”

110. The Commission has considered the existing, approved and likely preferred usesof land in the vicinity of the Project and Recommended Revised Project with respect toClause 12 of the Mining SEPP in Section 6.…Other advice149. In accordance with clause 17B(1)(b)(ii) of the Mining SEPP, the Commission hasconsidered the written advice provided by the Minister for Regional Water (MRW) datedJanuary 2016.150. Clause 17B(1)(b)(ii) of the Mining SEPP, requires the consent authority toconsider any written advice provided by the MRW in response to a referral. On 4January 2016, the Department wrote to the Minister for Lands and Water (now knownas the MRW) seeking advice on the impact of the Project on water resources. TheMinister for Lands and Water provided a response to the Department in January 2016.151. In relation to water licensing, the Minister for Lands and Water stated that theProponent has identified sufficient entitlement to account for the predicted take and useof water from alluvial groundwater source. The MRW noted that the proponent hadapplied for a licence under part 5 of the Water Act 1912 and that the application wasunder assessment.152. In relation to water table impacts, the Minister for Lands and Water stated that the“DPI Water advises that the modelling and assessment of groundwater impacts shouldbe improved to better understand the impacts and proposed management of theproject”.…5.3 Other relevant documents5.3.1 Commonwealth Approvals…5.3.4 Relevant Guidelines188. In determining this Application, the Commission has also considered the:

• Noise Policy for Industry (NPI) dated 2017;• NSW Climate Change Policy Framework dated November 2016;• NSW Aquifer Interference Policy 2012 (AIP)• VLAMP dated September 2018;• Social Impact Assessment Guidelines dated September 2017; and• 2013 Interim protocol for site verification and mapping of biophysical strategicagricultural land (the Interim BSAL Protocol)

…6 COMMISSION’S CONSIDERATIONS6.1 Existing, approved and likely preferred uses of land in the vicinity189. As presented in paragraph 104, under the Mining SEPP the Commission mustgive consideration to the existing uses and approved uses of land in the vicinity of thedevelopment, including whether or not it is likely to have a significant impact on the



uses that are likely to be the preferred uses of land in the vicinity of the developmentand any ways in which the development may be incompatible with any of those uses.…6.1.2 Existing uses193. Clause 12(a) of the Mining SEPP set out in paragraph 104 above requiresconsideration of three types of uses of land in the vicinity of the Project: existing uses,approved uses and likely preferred uses.…6.1.4 Likely preferred uses206. The Commission has adopted Preston CJ’s guidance on likely preferred uses inGloucester Resources v Minister as referring to uses of the land that, having regard toland use trends, are likely to be the preferred uses of land in the vicinity.207. The Commission considers that the MWLEP 2012 is a relevant representation ofwhat land uses are most likely to be considered the preferred uses of land in the vicinityof the Project.…Agriculture…Heritage…Tourism…Mining223 As per paragraph 87, the Commission notes that development for the purposes ofopen cut mining is permissible with consent on land zoned RU1. The Commission alsonotes that “underground mining” is not listed as a permissible or prohibited use in theMWLEP on land zoned RU1 and SP2. The Commission notes that under clause 7(1)(b)(i) of the Mining SEPP, development for the purposes of miming may be carried out onany land where agriculture or industry is a permissible land use, which includes landzoned SP2.224. The Preliminary Assessment Report states the while [sic] the Project is locatedwithin the Western Coalfield, there is no history of coal mining in the Bylong Valley. Thenearest coal mine is Wilpinjong Mine located 20km northwest of the Project Site.225. Mining would be a new land use in a predominately agricultural setting,surrounded by State Forests and National Parks. The Preliminary Assessment Reportstated that “[e]xpansion of the mining industry into the Bylong Valley area has thepotential to create land use conflicts with existing agricultural industries, including cattlegrazing operations”.226. The PAC considered that the impact of this new use would be felt across the localeconomy of the Bylong Valley”

“…the conclusion that might be reached is that any approval of the projectwould represent a fundamental shift in the valley in favour of mining as opposedto agricultural or pastoral pursuits, and that the water security on whichagricultural activities depend, may be jeopardised, particularly during extendeddry period.”

Commission’s consideration of likely preferred uses227. The Commission acknowledges that open cut mining on the Project Site ispermissible with consent, as stated in paragraphs 87 and 89. On balance, theCommission finds that agricultural and some tourism land uses are the likely preferreduses in the vicinity, having regard to:

• the objectives of zoning in the MWLEP being primarily agricultural, as well asthe maintenance of heritage and promotion of tourism (paragraph 207);



• the minimum lot sizes being suited to intensive agricultural use (paragraph209);• the prevalence of BSAL in the vicinity and on the Project Site to supportagricultural activities given that BSAL is a finite natural resource and with BSALbeing the most fertile 3.5% of soils in NSW as there are comparatively fewlocations that have access to all the relevant characteristics (see paragraph372);• the prevalence of historical items and landscapes with heritage significancein the vicinity (paragraph 217); and• the nearest coal mine being 20 km away (paragraph 224).

228. The Commission considers that these likely preferred uses of the land are alsocompatible with a further objective of the RU1 zoning to preserve the local heritage andrural landscape (see paragraph 207).6.1.5 Impact of the proposed mine on the likely preferred uses229. As stated in paragraph 109, under Clause 12 of the Mining SEPP, theCommission must consider whether the Project or Recommended Revised Project islikely to have a significant impact on the likely preferred uses in the vicinity.230. The Commission has considered the impacts further in this section of theStatement of Reasons including evaluating any measures proposed by the Applicant toavoid or minimise any incompatibility.6.1.6 The incompatibility with the existing, approved or likely preferred uses231. As stated in paragraph 109, under Clause 12(a)(iii) of the Mining SEPP theCommission must consider any ways in which the Project or Recommended RevisedProject may be incompatible with any of the existing, approved or likely preferred uses.Where there is incompatibility, under subclause 12(c) of the Mining SEPP theCommission must evaluate any measures proposed by the Applicant to avoid orminimise incompatibility.232. The Commission considers the impacts of the Project and RecommendedRevised Project in this Statement of Reasons in Section 6 and finds that, by reason ofits groundwater and agricultural impacts, and the lack of evidence to support therehabilitation to BSAL equivalent, mining will be incompatible with the existing,approved and likely preferred uses in the vicinity and that the measures proposed bythe Department and the Applicant will not avoid or minimise this incompatibility.6.1.7 The comparative public benefits of the mine and other land uses233. As stated in paragraph 109, under Subclause 12(b) of the Mining SEPP theCommission must evaluate and compare the respective public benefits of the Projectand the existing, approved and likely preferred uses of land in the vicinity.234. The Commission has considered the public benefits of the Project and finds themto be employment for up to 470 mine workers at full production, with 275 personsemployed during underground only operations and $290 million (net present value) inroyalties for the NSW Government.235. The Commission has considered the public benefits of the RecommendedRevised Project and finds them to be 805 direct and indirect jobs, $278 million (netpresent value) in royalties for the NSW Government and contribution of funding for localinfrastructure. The Commission finds the negative impacts of the RecommendedRevised Project to be the likelihood that rehabilitated land will not be at the standard ofBSAL-equivalent resulting in a permanent loss of BSAL in the Bylong Valley, long termimpacts on groundwater, contribution towards climate change through GHG emissions,impacts on intergenerational equity and adverse heritage impacts and adverse visualimpacts on the Bylong Valley landscape.236. The Commission makes findings about the public benefits of the mine and otherland uses in section 6.17.5. For the reasons given in this section, the Commission findsthat the public benefits of the Project and the Recommended Revised Project have notbeen proven to outweigh either the public costs of the proposed mine or the publicbenefits of the existing, approved and likely preferred uses in the vicinity if those useswere left unaffected by the proposed mine.…



6.2 Natural environment impacts – groundwater6.2.1 Statutory context237. Part 3 cl 14(a) of the Mining SEPP requires the consent authority to considerwhether impacts on significant water resources, including groundwater resources, havebeen avoided, or are minimised to the greatest extent practicable.238. Division 2 of Part 4AA of the Mining SEPP requires the consent authority to:

• “consider any written advice provided by the Minister for Regional Water; and• have regard to the minimal impact considerations set out in the NSE Aquiferinterference Policy 2012 (AIP) and the other provisions of the AIP”.

239. Clause 12AB(7) of the Mining SEPP requires that “[a]ny interference with anaquifer caused by the development does not exceed the respective water table, waterpressure and water quality requirements specified for item 1 in columns 2, 3 and 4 of‘Table 1 of the Aquifer Interference Policy for each relevant water source listed incolumn 1 of that Table.” And that “[t]he taking of water from all water sources must beauthorised by way of licenses or exemptions under the relevant water legislation.”240. Section 4.15 of the EP&A requires the consent authority to consider “the likelyimpacts of the development, including environmental impacts on both the natural andbuilt environments, and social and economic impacts in the locality”.…6.2.12 Commission’s consideration of the groundwater impacts of the Projectand Recommended Revised Project288. The Commission accepts the findings of the Applicant and IndependentGroundwater Review in paragraphs 251, 275 and 287 that there would be nocumulative impact on groundwater in relation to nearby mines as there is no overlap inzone of influence.289. The Commission accepts the robustness of the modelled groundwater impactspresented in the Applicant’s Bylong Coal Project Mine Plan Update GroundwaterImpact Assessment as referenced in paragraph 261.290. The Commission accepts the findings of the Applicant and IndependentGroundwater Review in paragraphs 251 and 286 that the groundwater system willreach a new equilibrium within 100-150 years.291. The Commissions [sic] agrees with the conclusions of the Applicant and theDepartment in paragraphs 265 and 269 that the projected aquifer drawdown will notexceed 2m on neighbouring properties not owned or operated by the Applicant. TheCommissions [sic] finds that the Project and the Recommended Revised Project meetthe requirements of the AIP in relation to the groundwater impacts on land that is notowned or operated by the Applicant.292. The Commission accepts the statements of the Applicant and Department inparagraphs 265 and 270 that the drawdown of the aquifer on land owned and operatedby the Applicant is projected to be greater than 2m which exceeds the maximumdrawdown thresholds in the AIP set out in paragraph 238. The Commission notes thatthe Applicant’s modelling as stated in paragraph 263 predicts a drawdown of between 2and 10m in the aquifer along the Bylong River and Lee Creek for the Project. TheCommission notes that the drawdown is predicted to be marginally less (between 0.1mand 0.2m) for the Recommended Revised Project. The Commission is of the view thatthis is a significant decline in the water table in comparison to Table 1 “The MinimalImpact Considerations for Aquifer Interference Activities” which sets out the AIP’smaximum drawdown threshold of a 2m decline.293. The Commission accepts the Department’s conclusion that the RecommendedRevised Project has slightly reduced the impacts on groundwater as stated inparagraph 274.294. The Commission notes the Department’s conclusion in paragraph 272, that theApplicant has designed the Project to avoid significant groundwater impacts. TheCommission does not support this conclusion for the reasons set out in paragraph 295,296 and 297. The Commission accepts the Department’s conclusion in paragraph 272,that the Applicant holds sufficient water licenses to account for its predicted water takein the alluvium and that the Applicant has not acquired all its entitlement in the Permianaquifer.



295. The Commission notes the Department’s conclusion in paragraph 272 that theApplicant’s management of the groundwater impacts of the Recommended RevisedProject was acceptable because the predicted impacts on water users would complywith Table 1- Minimal Impact Considerations for Aquifer Interference Activities set out inthe AIP. The Commission is of the view that this only applies to land not owned by theApplicant. As set out in paragraph 292, the drawdown of the aquifer on land owned andoperated by the Applicant is projected to be greater than 2m (up to 9m along DryCreek), exceeding the maximum drawdown thresholds in the AlP. The Commissionfinds that under Clause 12AB(7) of the Mining SEPP, this is an interference with anaquifer caused by the proposed development that does exceed the respective watertable threshold under the AIP as both considerations 1 and 2 in the AlP refer to a “2mdecline cumulatively”.296. The Commission notes that there is a breach of the AlP’s maximum drawdown asstated in paragraph 292 and therefore the AIP “make good” provisions apply as set outin paragraph 244. The Commission notes that the AIP does not define or identify what“make good provisions” are. The Commission acknowledges that the AIP states that“surrendering of water access licences is a ‘make good’ provision which may accountfor ongoing post closure take of water, provided water management costs and the netpresent value of any charges associated with this ongoing take of water and thesurrendered licences are met (p30). The Commission notes that there has been noinformation provided by the Applicant in relation to proposed “make good” measures.The Commission finds that there is uncertainty and insufficient information before it asto whether the “make good” requirements of the Project and Recommended RevisedProject are met given the exceedance in the respective water table.297. The Commission finds that the groundwater impacts on the Project Site areunacceptable for the reasons set out below:

• aquifer recharge events are infrequent leading to long term declines ingroundwater levels over prolonged dry periods, as stated in paragraph 249;• the groundwater system will reach a new equilibrium within 100-150 years asstated in paragraph 290. The Commission is of the view that this will have longterm intergenerational consequences;• drawdown at the Project Site exceeds the AIP thresholds (i.e. 2m). TheCommission notes that one area along Dry Creek will have a maximum impactof up to 9m as stated in paragraph 292.• there is uncertainty and insufficient information before it as to whether the“make good” requirements of the Project and Recommended Revised Projectare met as stated in paragraph 296; and• the predicted water seepage into the mine at cessation of mining issignificant, as stated in paragraph 251 and the length of time over which theaquifer will recover is beyond the commercial life of the mine and there will becontinued groundwater impacts at the cessation of mining, as stated inparagraph 251 and 286.

6.3 Natural environment impacts – surface water…6.14 Natural environment impacts – climate change6.14.1 Statutory context648. Part 4.15 of the EP&A Act requires the Commission to consider the likelyenvironmental impacts of the development on the natural environment.649. The following sections of the EP&A Act require the Commission to consider GHGemissions in assessing the Project:

• s 4.15(1)(a), which requires the Commission to take into consideration theprovisions of any applicable environmental planning instrument including theMining SEPP (which in tum requires the consideration of GHG emissions asexplained below).• s 4.15(1)(b), which requires the Commission to take into consideration thelikely impacts of the development, including environmental impacts which theCommission considers includes impacts of GHG emissions on climate change);and



• s 4.15(1)(e), which requires the Commission to take into consideration publicinterest, including the principles of ecologically sustainable development (ESD).

650. Section 6(2) of the Protection of the Environment Administration Act 1991, as setout in paragraph 82, states that ESD:

“…requires the effective integration of social, economic and environmentalconsiderations in decision-making processes. [ESDJ can be achieved throughthe implementation of the following principles and programs:(a) the precautionary principle-namely, that if there are threats of serious orirreversible environmental damage, lack of full scientific certainty should not beused as a reason for postponing measures to prevent environmentaldegradation.In the application of the precautionary principle, public and private decisionsshould be guided by:(i) careful evaluation to avoid, wherever practicable, serious or irreversibledamage to the environment, and(ii) an assessment of the risk-weighted consequences of various options,(b) inter-generational equity–namely, that the present generation should ensurethat the health, diversity and productivity of the environment are maintained orenhanced for the benefit of future generations;(c) conservation of biological diversity and ecological integrity; and(d) improved valuation, pricing and incentive mechanisms.”

651. Clause 1.2(2)(b), (c) and (d) of the MWRLEP 2012 states that the particular aimsof the plan include:

“(b) to encourage the proper management, development and conservation ofresources within Mid-Western Regional by protecting, enhancing andconserving:

(i) land of significance to agricultural production, and(ii) soil, water, minerals and other natural resources, and(iii) native plants and animals, and(iv) places and buildings of heritage significance, and(v) scenic values,

(c) to provide a secure future for agriculture through the protection of agriculturalland capability and by maximising opportunities for sustainable rural andprimary production pursuits,(d) to foster a sustainable and vibrant economy that supports and celebratesthe Mid Western Regional’s rural, natural and heritage attributes”

652. Clause 14 of the Mining SEPP relevantly provides:“(2) in determining a development application …. The consent authority mustconsider an assessment of the greenhouse gas emissions (includingdownstream emissions) of the development and must do so having regard toany applicable State or national policies, programs or guidelines concerninggreenhouse gas emissions.”

653. Before granting consent for development for the purposes of mining, petroleumproduction or extractive industry, the consent authority must consider whether or not theconsent should be issued subject to conditions aimed at ensuring that the developmentis undertaken in an environmentally responsible manner, including conditions to ensure:

(c) that greenhouse gas emissions are minimised to the greatest extentpracticable.

6.14.2 Applicable policies654. The Commission must consider an assessment of the GHG emissions of both theProject and the Recommended Revised Project, having regard to applicable State ornational policies, programs or guidelines concerning GHG emissions, by reason of the



application of the Mining SEPP, in accordance with section 4.15(1)(a) of the EP&A Act.655. The Mining SEPP’s reference to “State…policies” includes the NSW ClimateChange Policy Framework, which states: “The NSW Government endorses the ParisAgreement and will take action that is consistent with the level of effort to achieveAustralia’s commitments to the Paris Agreement”. Under the Paris Agreement, Australiahas committed to limit the increase in global temperature to below 2 degrees. The NSWClimate Change Policy Framework says that its “aspirational emissions savingsobjective is to achieve net-zero emissions by 2050”.656. The stated aim of the NSW Climate Change Policy Framework is to “maximisethe economic, social and environmental well-being of NSW in the context of a changingclimate and current and emerging international and national policy settings and actionsto address climate change”. The plan for implementation of the Policy includes“investigate how to embed climate change emissions savings and adaption ingovernment decision-making.”6.14.3 Applicant’s assessment of climate change impacts of the Project…6.14.4 Department’s consideration of the climate change impacts of the Project…6.14.5 The Planning Assessment Commission’s Review of the climate changeimpacts of the Project…6.14.6 Applicant’s assessment of climate change impacts of the Revised MinePlan667. ln its updated Air Quality and Greenhouse Gas Assessment (Appendix F to theSupplementary Information Report), the Applicant assessed the GHG emissions of theRevised Mine Plan. A summary of GHG emissions was attached in Appendix B, p.23.668. In the correspondence from the Applicant dated 4 March 2019, the Applicantstated that the Revised Mine Plan will reduce GHG emissions because it would removethe open cut mining off Tarwyn Park, which:

“reduces the recoverable coal resource for the Project by approximately 4.6million tonnes (Mt) of Run of Mine (ROM) coal. To deliver minor reductions inScope 1, Scope 2 and Scope 3 GHG emissions due to the reduction in coalreserve. Scope 3 (indirect) GHG emissions associated with end use of productcoal (i.e. power generation) were predicted at 197.4 mt of Co2-e.”

669. The Applicant considered that South Korea would be the jurisdiction within whichthe Scope 3 emissions from the coal mined at Bylong would occur:

“it is predicted that the product coal will wholly be sold to and used in theRepublic of Korea. It is not predicted that any product coal will be used in NSW.”

670. The Applicant considered international policy and noted that the contribution ofScope 3 emissions from the Bylong coal in South Korea “… is not incompatible withSouth Korea’s commitments under the Paris Agreement”.671. The Applicant considered that NSW would be the jurisdiction within which Scope1, Scope 2 and Scope 3 emissions “associated with the production and transport ofdiesel, supply of electricity and the transport of product coal to the Port of Newcastle”from the Bylong coal mine operations would occur and presented this amount as a totalvalue and a percentage of total State emissions:

“On an annual basis, these Scope 1, Scope 2 and Scope 3 (which occur withinNSW) emissions associated with the Project equate to approximately 0.16 MtCO2-e. This represents a negligible proportion (0.1%) of NSWs annualemissions in 2011/12…”

672. The Applicant also submitted a letter dated 8 March 2019 which responded to thesubmission made by the NSW EDO on behalf of Bylong Valley Protection in relation toGloucester Resources v Minister (outlined below in paragraph 683) stating:

• “Rocky Hill was a merits review in the Class 1 jurisdiction of the Land andEnvironment Court,



• there are difficulties relying on the findings of the decision;• no inference should be drawn from the fact the Department did not cross-examine a witness; and• the mine was refused on other grounds alone.”

673. The Applicant in its response to the submissions made by the EDO said that theApplicant had targeted the Project as “a reliable appropriate quality supply of coal for itspower station in South Korean and claimed that:

“If the Project is not approved, KEPCO will need to secure an alternative sourceof coal from elsewhere to meet its energy demands. It is possible that analternate supply may be of an inferior quality. A refusal of this Project would notin any way influence the quantity of coal forecast to be utilised in KEPCO’spower generation in the decades to come.”

674. On 4 March 2019, the Applicant provided further comments to the Commission inrelation to the Commission’s task in considering the Project’s Scope 3 GHG emissions(the “March Letter”). In this letter, the Applicant outlined the various assessments thatwere previously conducted in relation to the assessment of GHG emissions. The letteralso noted that “Scope 3 emissions associated with the transportation of product coal toport” were included within the cost benefit analysis, as questioned by the PAC in itsReview and presented in paragraph 665.675. In the March 2019 letter, the Applicant stated it is:

“committed to a number at mitigation and management measures to minimiseits GHG emissions. These measures will be described within the Air QualityManagement Plan to be prepared to the satisfaction of the DP&E. Themitigation and management measures proposed are consistent with the primaryobjective of the Emissions Reductions Fund to reduce GHG emissions.”

676. The Applicant further stated that “the total Scope 3 emissions associated with theuse of the coal from the [Recommended Revised Project] were estimated atapproximately 197.4 MtCo2-e. This value represents the total GHG emissions from enduse at product coal from the [Recommended Revised Project] equates to approximately8.6 Mt CO2-e per year.”6.14.7 Department’s consideration of the climate change impacts of theRecommended Revised Project677. In its Final Assessment Report, the Department considered the GHG emissionsbased on the Revised Mine Plan, finding:

“The Revised Mine Plan reduces Scope 1 and Scope 2 GHG emissions (directemissions and electricity consumption) by around 3% over the life of the projectto 3.4 MTCo2-e (annual average contribution reduced from 0.140Mt to0.136Mt), which is 0.03% of Australia’s commitment under the Paris Agreement.There is also a 2% reduction in Scope 3 emissions, largely due to lessextraction and transportation of coal over the life of the project.” (p.86)

678. The Department assessed the relevant objects of the EP&A Act in its FinalAssessment Report, including ESD and concluded it is satisfied that:

“the proposed modification is able to be carried out in a manner that isconsistent with the principles of ESD… the Revised Mine Plan has furtherreduced the environmental and social impacts of the project, while providing asignificant net benefit to NSW and the regional Economy.”

679. The Department considered that the NSW Climate Change Policy Framework isa “framework to guide Government in its own operations, rather than a developmentcontrol policy as such” and concluded that “the policy’s content has no direct bearing oneither the project or its determination by the Commission.” (p.86)6.14.8 Public comments on the climate change impacts of the RecommendedRevised Project680. The Commission heard concerns from speakers at the public meeting andreceived written comments regarding the contribution of the Recommended RevisedProject to climate change, the potential impacts of climate change on NSW, including byreference to the Paris Agreement and the Intergovernmental Panel on Climate



Change’s Report commissioned by the United Nations (the IPCC Report), and whetherit was in the public interest to approve a greenfield thermal coal mine. The Commissionalso heard the following concerns raised by members of the community:

“Proceeding with the Bylong mine is incompatible with meeting the goals of theParis agreement to limit global temperature increases to 1.5 degrees Celsius toa preindustrial level, and moderating the negative effects that climate changewill have on human health over the next century. (p.30 of the transcript);There is a significant body of law from both New South Wales Land andEnvironment Court and the New South Wales Court of Appeal which indicatesthat the public interest includes the consideration of the principles of ecologicallysustainable development. One of those is the principles of intergenerationalequity. I don’t have time to go into the detail of that, but climate change is thedefinitive example of the principles of intergenerational equity. (p.32 of thetranscript);the most serious and urgent environmental issue we face is climate change,and climate change is very much an issue of intergenerational equity. (p.89 ofthe transcript);What is essential is that we phase out coal, as the recent IPCC report hasstated. It appears more than cynical that the final VPA assessment report sayingthis mine was approvable was released on the same day as the IPCC report onthe need to reduce coal dependency. (p86 of the transcript);I wish to object to the Bylong Valley Coal Mine because I feel it is not anecologically sustainable development. ESD is defined in the New South WalesProtection of the Environment Act, and the Act requires that the precautionaryprinciples should be applied, that irreversible damage to the environment shouldbe avoided, but the present generation should ensure the health, diversity andproductivity of the environment are maintained for the benefit of futuregenerations, and those who generate pollution and waste should bear the costof containment, avoidance or abatement.” (p89 of the transcript).

681. As stated in paragraph 672 above, the Commission received submissions thatincluded references to and a copy of the recent decision, Gloucester Resources vMinister.682. The Commission received a letter from Lock the Gate dated 13 February 2019 inrelation to Gloucester Resources v Minister and the Commission’s consideration of theNSW Climate Change Policy Framework and Paris Agreement.683. The Commission received a submission from EDO NSW on behalf of the BVPAdated 15 February 2019, which raised climate change and Gloucester Resources vMinister, noting that this was a matter of public interest.684. A further submission from the EDO NSW on behalf of the BVPA, dated 8 March2019, raised the following issues in response to the Applicant’s letter dated 4 March2019 in relation to the Commission’s task in considering the Scope 3 GHG emissionsfrom the Project and the Recommended Revised Project:

• The Commission should consider the cumulative GHG emissions of theProject. The Court in Gloucester Resources v Minister stated: “it matters notthat this aggregate of the Project’s GHG emissions may represent a smallfraction of the global total of GHG emissions. The global problem of climatechange needs to be addressed by multiple local actions to mitigate emissionsby sources.”• A “Carbon Budget and ‘double counting’ argument” similar to the statementby the Applicant in the March letter (outlined in paragraph 673) was rejected bythe Court in Gloucester Resources v Minister, stating: “a consent authoritycannot rationally approve a development that is likely to have some identifiedenvironmental impact on the theoretical possibility that the environmental impactwill be mitigated or offset by some unspecified and uncertain action at someunspecified and uncertain time in the future”.• Preston CJ’s at [441] of Gloucester Resources v Minister referred to theconcept of a “carbon budget approach”, which is a commonly used approach todetermine whether the nationally determined contributions of the parties to theParis Agreement cumulatively will be sufficient to meet the long termtemperature goal of keeping the global temperature rise to between 1.5°C and2°C, is the carbon budget approach.



• The EDO NSW stated in its submission that in order to respect the GlobalCarbon Budget, and in order to limit global warming to non-dangerous levels,“most fossil fuel reserves will need to remain in the ground unburned”.• A “Market Substitution” argument, similar to the statements by the Applicantin the March Letter that lower quality substituted coal sourced from elsewherewill otherwise be used and lead to poorer environmental outcomes, wasrejected by the Court in Gloucester Resources v Minister because, amongstother things, there was no evidence provided to the decision maker that thiswas the case.

685. In relation to the “Market Substitution” argument, the Commission also notes thatthe Gloucester Resources v Minister Judgment appended to the EDO’s submissionstates:

“If a development will cause an environmental impact that is found to beunacceptable, the environmental impact does not become acceptable becausea hypothetical and uncertain alternative development might also cause thesame unacceptable environmental impact”. (paragraph 545)

686. In relation to the consideration of new coal mines under the NSW ClimateChange Policy, Gloucester Resources v Minister noted that, like the Paris Agreement,this Policy does not “prescribe the mechanisms by which … reductions in GHGemissions to achieve zero net emissions by 2050 are to occur. In particular, there is noproscription on approval of new sources of GHG emissions, such as new coal mines”.6.14.9 The Commission’s consideration of the climate change impacts687. Under clause 14(2) the Mining SEPP the Commission as the consent authority isrequired to consider greenhouse gas emissions including downstream emissions in itsassessment as set out in paragraph 106 and 107. Clause 14(2) also states that inconsidering GHG emissions, the Commission must “have regard to any applicableState or national policies, programs or guidelines concerning greenhouse gasemissions”. The NSW Climate Change Policy Framework outlines the States long termobjectives to achieve net-zero emissions by 2050 and to make NSW more resilient to achanging climate. The Commission is therefore of the view that the NSW ClimateChange Policy is applicable and must be considered by the Commission.688. Based on the evidence presented by the Applicant and the Department toquantify GHG emissions from the Project and Recommended Revised Project, theCommission accepts for the:

• Project: the cumulative Scope 1, Scope 2 and Scope 3 GHG emissions willbe 206,493,327 tonnes of CO2-e over the life of the Mine as set out in Table12.1 in Appendix O of the EIS; and• Recommended Revised Project: the cumulative Scope 1, Scope 2 andScope 3 GHG emissions will be 200,808,700 tonnes of Co -e as set out in theUpdated Air Quality and Greenhouse Gas report, Appendix F to theSupplementary Information Report.

689. The Commission notes that the NSW government has endorsed the ParisAgreement and set the goal of achieving net zero emissions by 2050. Neither the ParisAgreement, Australia’s Nationally Determined Contributions (NDCs) of reducing GHGemissions in Australia by 26% to 28% below 2005 levels by 2030 nor NSW’s ClimateChange Policy Framework prescribe the mechanisms by which these reductions inGHG emissions to transition to zero net emissions are to be achieved. In particular,there is no prohibition on approval of new sources of GHG emissions, such as new coalmines.690. For the purpose of the Commission’s assessment of the Project andRecommended Revised Project, it is not necessary to decide whether consideration ofthe Scope 3 emissions extends beyond New South Wales to, for example, the use ofthe coal in South Korea. That is because the Commission accepts that all of the directand indirect GHG emissions of the Project and the Recommended Revised Project, willadversely impact the NSW environment.691. The Commission agrees with Preston CJ that:

“Nevertheless, the exploitation and burning of a new fossil fuel reserve, whichwill increase GHG emissions, cannot assist in achieving the rapid and deepreductions in GHG emissions that are necessary in order to achieve “a balancebetween anthropogenic emissions by sources and removals by sinks of

2



greenhouse gases in the second half of this century” (Article 4(1) of the ParisAgreement) or the long term temperature goal of limiting the increase in globalaverage temperature to between 1.5°C and 2°C above pre-industrial levels(Article 2 of the Paris Agreement).” [525]

692. The Commission acknowledges that NSW is currently in a transition away fromthe use of fossil fuels as an energy source. In that context, the Commission is of theview that the cumulative environmental impact of the Project and RecommendedRevised Project needs to be considered when weighing the acceptability of GHGemissions associated with the mine. The Commission agrees with Preston CJ at [555]in Gloucester Resources v Minister that:

“it would be rational to refuse fossil fuel developments with greaterenvironmental, social and economic impacts than fossil fuel developments withlesser environmental, social and economic impacts. To do so not only achievesthe goal of not increasing GHG emissions by source, but also achieves thecollateral benefit of preventing those greater environmental, social andeconomic impacts.”

693. The Commission notes that the Department’s position that the Project andRecommended Revised Project’s contribution to Australian and global GHG emissionswill be very small and therefore have limited impact. However, the Commission doesnot accept the Department’s assessment that refusal would not reduce global GHGemissions, as a gap in supply will almost certainly be filled by another coal resourcelocally or overseas as no evidence to support this argument was provided to theCommission.694. The Commission does not have evidence before it to determine whether, if theProject or Recommended Revised Project is not approved, the Applicant will need tosecure an alternative source of coal and that this coal may be of an inferior quality andmay lead to poorer environmental outcomes, as was asserted in the Applicant’s letterdated 6 March 2019 and in the Department’s Preliminary Assessment Report. TheCommission agrees with Preston CJ that, in any event, an unacceptable impact doesnot become acceptable because the Applicant may end up pursuing an alternativedevelopment that has unacceptable impacts:

“If a development will cause an environmental impact that is found to beunacceptable, the environmental impact does not become acceptable becausea hypothetical and uncertain alternative development might also cause thesame unacceptable environmental impact. The environmental impact remainsunacceptable regardless of where it is caused. The potential for a hypotheticalbut uncertain alternative development to cause the same unacceptableenvironmental impact is not a reason to approve a definite development that willcertainly cause the unacceptable environmental impacts. In this case, thepotential that if the Project were not to be approved and therefore not cause theunacceptable GHG emissions and climate change impacts, some other coalmine would do so, is not a reason for approving the Project and itsunacceptable GHG emissions and climate change impacts: see Kane Bennett,“Australian climate change litigation: Assessing the impact of carbon emissions”(2016) 33 EPLJ 538 at 546 548; Justine Bell-James and Sean Ryan, “Climatechange litigation in Queensland: A case study in incrementalism” (2016) 33EPLJ 515 at 535 [Rocky Hill 545]

695. In addition, the Commission does not accept the Department’s statement inparagraph 679 that the NSW Climate Change Policy Framework has no direct bearingon the determination of the Project or the Recommended Revised Project. Clause 14(2)of the Mining SEPP requires the consent authority to have regard to that Framework asset out in paragraph 687. Likewise, the Commission does not accept that this Policyonly applies to government projects as narrowly interpreted by the Department as thereis no evidence to support this statement. The Commission considers that on the properconstruction of the NSW Climate Change Policy is applicable and must be consideredby the Commission.696. The Commission accepts that the Recommended Revised Project will slightlyreduce the GHG emissions compared to the Project as set out by the Department inparagraph 677. The Commission notes that the Applicant has committed to develop anEnergy and Greenhouse Gas Management Plan which will set out measures tominimise GHG emissions from the Project (refer to paragraph 660). The Commissionnotes that these measures appear to relate only to Scope 1 and 2 GHG emissions. TheCommission is therefore of the view that the Applicant has not minimised Scope 1, 2



and 3 GHG emissions as required under Clause 14(1)(c) of the Mining SEPP. TheCommission also notes that there are no offset measures proposed in either the Projector Recommended Revised Project from the Applicant.697. The Commission accepts that there is no policy guidance on what constitutes anacceptable, unacceptable or substantial amount of GHG emissions. Nonetheless, theCommission concludes that based on the evidence in paragraph 688 there will be acontribution to global GHG emissions that needs to be considered by the Commission.…8. CONCLUSION: THE COMMISSION’S FINDINGS AND DETERMINATION816. The Commission has considered all the Material before it, as set out in paragraph78. The Commission is required to consider the Project as submitted by the Applicant.The Commission has also considered the Recommended Revised Project as apotential modification to the Project within the meaning of section 4.38(1)(a) of theEP&A Act. The Project and Recommended Revised Project have been assessed inaccordance with the current statutory and policy framework as set out in this Statementof Reasons, notwithstanding that the Commission’s determination under section 4.38 ofthe EP&A Act is in respect of the Project only.817. The Commission has considered the merits of both the Project andRecommended Revised Project and finds that:

• neither the Project nor the Recommended Revised Project are compatiblewith land use objectives (b) and (c) of the MWR LEP 2012 and the objective ofthe CW&O Regional Plan (see paragraph 376);• the groundwater impacts would be unacceptable because: aquifer rechargeevents are infrequent leading to long term declines in groundwater levels overprolonged dry periods; drawdown at the Project Site exceeds the AIP thresholdsof 2m; the groundwater system will reach a new equilibrium within 100-150years; and there is insufficient information before the Commission and,therefore, uncertainty as to whether the “make good” requirements are met (seeparagraph 297);• the Commission does not accept that there is evidence to support theApplicant’s claim that the 423.1 ha of BSAL impacted by the Project – nor the400.43 ha of BSAL impacted by the Recommended Revised Project – can berehabilitated to BSAL-equivalent (see paragraph 402);• due to the level of disturbance and the fact that the current landscape isundisturbed, the Commission does not consider that a recreated landscape willretain the aesthetic, scenic, heritage and natural values of the current landscape(see paragraph 487);• the Tarwyn Park Complex is of heritage significance. The Commission findsthat the Project has unacceptable impacts on the heritage values of the TarwynPark Complex which have not been addressed by the Applicant. However, theCommission finds that the adverse direct impacts on the heritage values of theTarwyn Park Complex have been addressed and mitigated as far·as practicablein the Recommended Revised Project (see paragraph 483);• the Aboriginal cultural heritage assessment has not been greatly advancedsince the PAC Review Report, and therefore there is insufficient evidencebefore the Commission for it form a view on the impacts on Aboriginal heritage(see paragraph 516);• the Recommended Revised Project will slightly reduce the GHG emissionscompared to the Project. However, the Commission is of the view that theApplicant has not minimised Scope 1, 2 and 3 GHG emissions to the greatestextent practicable as required under Clause 14(1)(c) of the Mining SEPP. TheCommission also finds that there are no offset measures propose by theApplicant in either the Project or Recommended Revised Project from theApplicant (see paragraphs 696).• the cumulative environmental impact of the Project and RecommendedRevised Project needs to be considered when weighing up the acceptability ofGHG emissions associated with the mine. The Commission finds that it isrational to refuse fossil fuel developments with greater environmental, socialand economic impacts than fossil fuel developments with lesser environmental,



social and economic impacts as this not only achieves the goal of not increasingGHG emissions by source, but also achieves the collateral benefit of preventingthose greater environmental, social and economic impacts (see paragraph 692).• the Applicant has proposed sufficient measures in accordance with theBiodiversity Conservation Act 2016 to avoid, minimise and mitigate impacts tobiodiversity. However, the Commission notes that meeting these requirementswill result in the loss of 288 ha of BSAL being available for agriculture use (seeparagraph 535);• the Applicant could reinstate Equine CIC following closure of the mine andrehabilitation of the Project Site (excluding the use of 515 ha of Equine CIC forbiodiversity offsets).• the Project and Recommended Revised Project’s impacts to transport couldbe managed with appropriate conditions. The Commission accepts the findingsof ARTC confirming that the current rail network has the capacity toaccommodate the additional tonnage of product coal to be produced by theProject and Recommended Revised Project (see paragraph 557 and 558);• the air quality impacts resulting from the Project and the RecommendedRevised Project are acceptable (see paragraph 573);• noise and blasting impacts resulting from the Recommended Revised Projectwould be acceptable and that the Department’s Final Recommended Conditionsprovide appropriate safeguards for monitoring and managing impacts (seeparagraph 608);• surface water from the mine water could be effectively managed in surfacestorages and the mined underground workings without the need to discharge toreceiving waters (see paragraph 323);• suitable mitigation measures have been proposed by the Applicant toaddress the potential visual impacts of the Recommended Revised Project onsurrounding residences (see paragraphs 624 and 625);• subsidence impacts associated with the Project and the RecommendedRevised Project are able to be minimised, mitigated or at least compensated forto an acceptable standard (see paragraph 646);• the Project and the Recommended Revised Project would result in a neteconomic benefit to NSW during the operation of the mine. However, theCommission is of the view that the distribution of costs and benefits over andbeyond the life of the mine is temporally inequitable in that the economicbenefits accrue to the current generation and the environmental, agriculturaland heritage costs are borne by future generations. The Commission also findsthat there is a reasonable level of uncertainty in the estimation of the economicbenefits of the Project and Recommended Revised Project (see paragraphs 783and 784);• the Project and the Recommended Revised Project are inconsistent withobjects (a), (b) and (f) of EP&A Act (see paragraph 813); and• the Project is not in the public interest because it is contrary to the principlesof ESD – namely intergenerational equity because the predicted economicbenefits would accrue to the present generation but the long termenvironmental, heritage and agricultural costs will be borne by the futuregenerations. (see paragraphs 806).

818. In determining the development application for the Project, the Commission hastaken into account all of the matters in this Statement of Reasons, including theanticipated benefits and adverse impacts of the Project, and on balance has reachedthe following conclusion.819. For all the reasons outlined in this Statement of Reasons for Decision (not limitedto those set out in this Conclusion). The Commission has determined to refuse consentfor the Project dated 18 September 2019.

Ground 1 – error of law in relation to cl 14(1)(c) of Mining SEPP

20 The Further Amended Summons states:



15 In making the Refusal Decision, the First Respondent:(a) construed cl 14(1)(c) of the Mining SEPP as requiring an applicant fordevelopment to which cl 14(1) applied to minimise scope 1, 2 and 3 greenhousegas emissions from the project to the greatest extent practicable;(b) formed the view that the Applicant has not minimised scope 1, 2 and 3greenhouse gas emissions to the greatest extent practicable as required undercl 14(1)(c); and(c) took into account and relied upon, adversely to the Applicant, the FirstRespondent’s view that the Applicant had not complied with that requirement asa reason for making the Refusal Decision.

Particulars Statement of Reasons at [696]; [817 (seventh bullet point)].16 Clause 14(1)(c) of the Mining SEPP does not impose a requirement on anapplicant for development to which cl 14(1) applies to minimise scope 1, 2 and 3greenhouse gas emissions from the project to the greatest extent practicable.17 By its conduct pleaded in paragraph 15, the First Respondent erred in law, askeditself the wrong question and took into account an irrelevant consideration.

Evidence

21 The evidence relevant to Ground 1 referred to by the parties is contained in pars 648-697 of the SOR (Section 6.14 of the SOR “Natural environment impacts – climatechange”). Section 6.14 gives an overview of the relevant statutory context andapplicable policies before turning to KEPCO’s assessment of the climate changeimpacts of the Project, the Department’s consideration of the climate change impacts ofthe Project, the PAC’s review of KEPCO’s assessment of the climate change impacts ofthe Revised Mine Plan, the Department’s consideration of the climate change impactsof the Recommended Revised Project, and public comments regarding the climatechange impacts of the Recommended Revised Project. The IPC’s consideration of theclimate change impacts is found in pars 687-697. Of particular relevance to KEPCO’scase are pars 696 and 817 (seventh bullet point).

KEPCO’s submissions

22 Ground 1 asserts an error of law in that the IPC considered cl 14(1)(c) of the MiningSEPP imposed a compulsory requirement, as demonstrated in par 696 of the SORwhere the IPC said it was of the view that “the Applicant has not minimised Scope 1, 2and 3 GHG emissions to the greatest extent practicable as required under clause 14(1)(c) of the Mining SEPP”. Clause 14(1) does not impose a duty in fact to imposeconditions directed to the aim stipulated in subcl (c). It is a duty to consider. It is clearfrom the text of cl 14(1)(c) that it is for the consent authority to decide “whether or not”to impose conditions of the relevant kind. The clause assumes that the consentauthority, having considered the matter, might elect not to impose conditions of theidentified kind.

23



Further, cl 14(1) does not impose a duty to ensure that development is in factundertaken in an environmentally responsible manner. The IPC treated cl 14(1)(c) asimposing a substantive obligation to reduce GHG emissions to the greatest extentpracticable. It is no more than a duty to consider, and the subject of the consideration isas to whether or not conditions should be attached directed to that end. These areerrors of law as the IPC is required to correctly construe the instruments it applies:Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018]HCA 34 (Hossain) at [29]; Probuild Constructions (Aust) Pty Ltd v Shade Systems PtyLtd (2018) 264 CLR 1; [2018] HCA 4 per Gageler J at [75]-[76].

24 The SOR can be taken to be the IPC’s steps in reasoning, a statutory decision-maker,prepared pursuant to a duty to give reasons. The reasons are presumptively thedecision-maker’s actual reasons: Waterways Authority v Fitzgibbon (2005) 79 ALJR1816; [2005] HCA 57 (Waterways) cited in Alexandria Landfill v Transport for NSW[2020] NSWCA 165 at [401]. The IPC erred in the SOR in par 696, repeated in par 817(seventh bullet point), a final concluding paragraph underscoring the significance of thefinding.

25 The IPC had no authority to misconstrue (indeed, fundamentally misconstrue) theMining SEPP. Further, the IPC’s misconstruction led it to ask the wrong question and tofail to ask the correct question (see Minister for Immigration and Multicultural Affairs vYusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]). The IPC asked whether GHGemissions had been minimised to the greatest extent practicable, not whether or notconditions should attach to a consent that were directed to that end. If an error law isestablished, namely the misconstruction of the Mining SEPP, that is a jurisdictionalerror.

26 The reference to beneficial construction of reasons in Minister for Immigration andEthnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang) at271-272 has a specific meaning and was not intended to mean that any ambiguity in anadministrative decision-maker’s reasons ought to be resolved in the decision-maker’sfavour. The BVPA’s submissions impermissibly reconstruct or notionally rewrite theSOR and do not reflect the actual reasons expressed by the IPC.

27 Firstly, the BVPA’s submission that cl 14(1) arises only if the consent authority hasdecided to grant consent, a narrow construction, is wrong. That construction artificiallydivorces the task of deciding what conditions should be attached to the consent fromthe overall task of assessment and evaluation in deciding whether consent should begranted, having regard to the matters in s 4.15 of the EPA Act. The tasks cannot beseparated as the conditions attaching to a consent necessarily affect the assessment ofthe matters in s 4.15(1)(b). The obligation in s 4.15(1)(b) is to take the likely impacts ofthe proposal into account. In Weal v Bathurst City Council (2000) 111 LGERA 181;



[2000] NSWCA 88 (Weal) the Court of Appeal (CA) at [80] recognised that theconditions to be included in the consent were integral to consideration of the mandatorymatters. Wollar Progress Association Incorporated v Wilpingjong Coal Pty Ltd [2018]NSWLEC 92 (Wollar) at [141]-[159] and [168]-[174] confirms that subcll (1) and (2) ofcl 14 work together within the required assessment, aiding the consent authority in itsconsideration of what conditions should be imposed (I note that these paragraphs reliedon by KEPCO summarise submissions of the respondent company which were adoptedby Sheahan J at [183] as definitive of his findings). This confirms that the considerationof conditions is what is part and parcel of the application process.

28 Secondly, the BVPA’s approach creates tension between cl 14(1) and subcll (2) and(3), which each state “without limiting subclause (1)”. The BVPA contends that subcll(2) and (3) have broader application, yet adopts a narrower application of cl 14(1). Inaddition, when other clauses of the Mining SEPP are considered, the difference inwording between subcll (1), (2) and (3) has no moment. Clauses 12A(2) and 13(2) usethe words “before determining an application”. The words “before granting consent” areused in cl 15(1) and (2) in relation to the consideration of the efficiency of resourcerecovery. In contrast, cl 17B(2) uses the words “in determining a developmentapplication…”. Nothing arises from the different formulations. The context of the MiningSEPP does not suggest that the particular formulation of cl 14(1) is of any greatinterpretive significance. In other words, if the BVPA is correct about the distinctinterpretation of cl 14(1), the IPC would consider the DA subject only to the provisionsof the Mining SEPP that use the words “in determining the application”. Only if the IPCdetermines to grant consent does it move to consider the other topics formulated as“before granting consent”. This staged process of decision-making does not appear inthe Mining SEPP. Such an approach is inconsistent with s 4.15, as interpreted in Weal.Conditions are to be considered as part and parcel of an assessment. A bifurcation ofthe decision-making process creates substantial practical difficulties. The BVPA’sinterpretation should not be adopted.

29 Thirdly, even if the duty in cl 14(1) had not arisen, as the BVPA submits, the IPC plainlyconsidered that cl 14(1) applied. This is clear from the SOR in pars 237, 298, 696 and817, demonstrating that it did not adopt the approach contended for by the BVPA.

30 Fourthly, if the BVPA is correct that cl 14(1) never arose, then the conclusion by theIPC that the DA did not satisfy cl 14(1) cannot provide a valid reason for refusal of theDA.

31 Fifthly, in Wollar at [183] Sheahan J accepted the construction of subcll (1) and (2) incl 14 as working together with the required assessment, aiding the consent authority toconsider what relevant condition should be imposed.

32



In relation to materiality, a statutory breach is material if compliance could realisticallyhave resulted in a different decision. A failure to comply with a statutory condition to beobserved in the decision-making process is material unless complying with thecondition could have made no difference to the decision that was made: Hossain at[29]-[31], Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421;[2019] HCA 3 (SZMTA) at [45]-[46]. The error in relation to cl 14(1) was clearly material.The IPC did not say that consent should be refused irrespective of KEPCO’s perceivednon-compliance with cl 14(1)(c). The IPC expressly relied on the perceived non-compliance in its summary of reasons for refusal and stated that it was refusingconsent for “all the reasons” in the SOR, in par 817. Its general reasoning as to theacceptability of GHG emissions was intertwined with its erroneous view that it wasincumbent on KEPCO to minimise GHG emissions.

The BVPA’s submissions

33 Clause 14(1)(a) is incorrectly paraphrased in pars 696 and 817 of the SOR in that thissubclause does not operate in terms to impose any particular obligation on an applicantfor consent. The SOR, however, must be read fairly and as a whole, not focussing onloose language. The power the IPC was exercising under the EPA Act in determiningthe DA was a combination of ss 4.38 and 4.40, calling up s 4.15. Under s 4.15(a)(i), anyapplicable environmental planning instrument must be considered, which in this case isthe Mining SEPP. KEPCO has to prove that the obligation under s 4.15 miscarried interms of the alleged non-compliance with the Mining SEPP.

34 KEPCO’s construction of the Mining SEPP erroneously fails to recognise the differentobligations in subcll (1) and separately, (2) and (3) of cl 14, which, given their differentdrafting, can be assumed to intend a different result. The preconditions in subcll (2) and(3) require the IPC to consider relevant matters when determining an application, wheresubcl (1) is narrower in application, being a precondition to be satisfied upon grantingconsent. Subclause (1) may be completely irrelevant if consent is to be refused. Thesubclause is directed to the manner in which the development is to be carried out as towhether conditions should be imposed, so that when undertaken it is done in anenvironmentally responsible manner. The subclause is not directed to broadconsiderations of whether the impacts of the proposed development are acceptable orunacceptable. It operates as a precondition to the grant of a consent. It does not meanthat a consent authority will only consider these matters if it has predetermined that it isgoing to grant consent.

35 Where a consent authority determines that consent should not be granted, it would benonsensical to say that it is nevertheless obliged to consider whether conditions shouldbe imposed, as KEPCO’s approach would require.



36 KEPCO’s grounds of review fall to be determined, in large measure, by analysis of thereasons given by the IPC for refusing to grant consent to the proposed development. Inconsidering those grounds of review, it is important to recall that the reasons of anadministrative decision-maker such as the IPC are to be given a “beneficialconstruction” and should not be construed “minutely and finely with an eye keenlyattuned to the perception of error”. The Court should not be concerned with mere“looseness in the language … nor with unhappy phrasing”: Wu Shan Liang at 272, seealso 291. The SOR represents the culmination of a process of consideration of the DAover almost four years, involving the consideration of a very substantial body ofdocuments, in addition to meetings with relevant stakeholders. The SOR must be readas a whole and in the context of the entire assessment process undertaken by the IPC,as described in the SOR. The need to consider the SOR as a whole becomesparticularly significant when considering the materiality of the errors alleged by KEPCO,to the extent that they are made out at all.

37 It is not a fair reading of the lengthy reasons to seize on one statement which may be inerror and submit that it must be material to the ultimate decision reached. At pars 233-235 of the SOR, the IPC considered the comparative public benefits of the Project andother land uses, concluding in par 236 that the public benefits of the Project and theRecommended Revised Project have not been proven to outweigh the public costs ofthe proposed mine or the public benefits of the existing, approved and likely preferreduses in the vicinity. The task is as stated in Gloucester Resources v Minister forPlanning (2019) 234 LGERA 257; [2019] NSWLEC 7 (Rocky Hill) at [686], one ofbalancing the public interest in approving or disapproving a project in light of competingeconomic and other benefits and potential negative impacts. That is the exercisefundamental to the assessment of public interest. The SOR considers benefits such asjob creation, royalties, road upgrades inter alia, balanced with negatives includingadverse heritage impacts, adverse impacts on the Bylong Valley scenic landscape,contributions to climate change and impact on groundwater.

38 Section 6.14 of the SOR considers climate change as required under s 4.15 of the EPAAct. The SOR accurately identifies the statutory context including the Mining SEPP.KEPCO criticises one sentence in par 696. This is clearly an example of looseness oflanguage referred to in Wu Shan Liang. It is agreed that that sentence is inaccurate butthat is immaterial – the IPC was making observations about the limitations of theconditions that had been proposed by the Department when it came to minimising GHGemissions. To observe that KEPCO had not proffered conditions or commitments thatwould in fact, on the IPC’s assessment, minimise Scope 1, 2 and 3 GHG emissions tothe greatest extent practicable was effectively to observe that if the IPC were inclined togrant consent, it would not be in a position to impose conditions (based on what had



been suggested during the assessment process) that would in fact minimise Scope 1, 2and 3 GHG emissions to the greatest extent practicable. This reasoning was entirelyconsistent with a correct understanding of cl 14(1)(c). It is standard that draft conditionsbe brought before the IPC in this way. The reason for the IPC’s conclusion was not thatKEPCO failed to comply with some duty under cl 14(1)(c) because the developmentwhich KEPCO sought approval for was going to generate very large amounts of GHGemissions with adverse environmental impacts. The IPC was focussed on the impactsof the Project and the Revised Mine Plan. There is no relevant error demonstrated inthese paragraphs of the SOR.

39 The IPC was in particular entitled to turn its mind to the kinds of conditions that mightpotentially be available to address GHG emissions. One condition that was underconsideration, for a variety of purposes considered in the SOR, was a conditionrequiring KEPCO to implement the Recommended Revised Project rather than theoriginal Project that was in fact the subject of the DA. The background to theRecommended Revised Project is explained in pars 16-17 of the SOR. This explainsthe reference in par 696 of the SOR to the Recommended Revised Project in thecontext of cl 14(1)(c) – the IPC was recognising that at least one potential condition thatwould be considered if the IPC was inclined to grant consent would be a conditionrequiring the implementation of the Recommended Revised Project. A related pointwas KEPCO’s commitment to develop an Energy and Greenhouse Gas ManagementPlan (GHG Management Plan), as also noted in par 696 (the draft conditions ofconsent included a condition requiring compliance with the Environmental ImpactStatement (EIS), which in turn contained the GHG Management Plan). It was in thiscontext that the IPC commented that KEPCO had not “minimised Scope 1, 2 and 3GHG emissions to the greatest extent practicable as required under [cl 14(1)(c) of theMining SEPP]”. The fact that the IPC was turning its mind to the kinds of conditions thatcould potentially be imposed if consent were to be granted is further reinforced by thereference in the final sentence to the absence of offset measures being proposed byKEPCO. Offset measures are matters that need to be the subject of conditions imposedas part of a consent.

40 Weal demonstrates that as part of the consideration of impacts required by s 4.15 ofthe EPA Act, consideration should be given to the kinds of conditions that can beimposed. Weal was not considering cl 14(1)(c) or equivalent. It was concerned with thenature of the obligation to consider impacts. On its facts, consent was granted. Wollaralso provides no support for KEPCO’s construction as it was also considering a grant ofconsent so the point now in issue did not arise.

Ground 1 not established

41



The IPC referred expressly to cl 14(1)(c) in par 696 of the SOR, repeated in par 817,and did not correctly identify the obligation therein to consider whether or not consentshould be issued subject to conditions, as KEPCO submitted and the BVPA accepted.The question arises of whether, legally speaking, that error matters. The answerrequires consideration of statutory construction principles in relation to the properapplication of cl 14(1)(c) of the Mining SEPP, the IPC’s assessment as identified in theSOR and, finally, if error is found, whether it would be material justifying a declarationthat the IPC’s Refusal Decision is invalid.

Statutory construction of cl 14(1)(c)

42 At issue in Ground 1 is the construction of cl 14(1)(c) of the Mining SEPP which, byvirtue of s 4.15(1)(a)(i) of the EPA Act, the IPC was required to take into considerationin determining whether to approve or refuse development consent.

43 Principles of statutory construction require the words of a statute to be considered intheir context per Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194CLR 355; [1998] HCA 28 (Project Blue Sky) at [381]-[382] where McHugh, Gummow,Kirby and Hayne JJ stated that the “primary object of statutory construction is toconstrue the relevant provision so that it is consistent with the language and purpose ofall the provisions of the statute”, that a “legislative instrument must be construed on theprima facie basis that its provisions are intended to give effect to harmonious goals”and that “a court construing a statutory provision must strive to give meaning to everyword of the provision.” Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR1; [1997] HCA 30 at 11 also referred to the necessity of applying a construction of astatute consistent with its purpose.

44 Where words are plain and unambiguous, they should be given their ordinary andgrammatical meaning, per Cooper Brookes (Wollongong) Pty Ltd v FederalCommissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ). InAlcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27;[2009] HCA 41 at 46-47 Hayne, Heydon, Crennan and Kiefel JJ confirmed thatstatutory construction commences with a consideration of the language of the text,which may require consideration of the context, including the general purpose of theprovision and the mischief it seeks to remedy.

45 More recently these principles have been described in SZTAL v Minister for Immigrationand Border Protection (2017) 262 CLR 362; [2017] HCA 34 by Kiefel CJ, Nettle andGordon JJ at [14] (footnotes omitted) as follows:

The starting point for the ascertainment of the meaning of a statutory provision is thetext of the statute whilst, at the same time, regard is had to its context and purpose.Context should be regarded at this first stage and not at some later stage and it shouldbe regarded in its widest sense. This is not to deny the importance of the natural andordinary meaning of a word, namely how it is ordinarily understood in discourse, to theprocess of construction. Considerations of context and purpose simply recognise that,



p p p p y g ,understood in its statutory, historical or other context, some other meaning of a wordmay be suggested, and so too, if its ordinary meaning is not consistent with thestatutory purpose, that meaning must be rejected.

46 Section 33 of the Interpretation Act 1987 (NSW) requires a construction whichpromotes the purpose or object of an Act over one which would not.

47 These principles of statutory construction apply equally to the interpretation ofdelegated legislation such as environmental planning instruments, here the MiningSEPP: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006]NSWCA 155 at [36] per McColl JA. Regard can be had to the fact that such instrumentsare not drafted with the precision of legislation passed by the New South WalesParliament, justifying a practical focus in their construction, see recently Heatscape PtyLtd v Mahoney (No 2) (2016) 217 LGERA 332; [2016] NSWLEC 45 at [151].

48 Turning to cl 14(1)(c), the construction of cl 14 and the Mining SEPP as a whole isnecessary. The aims of the Mining SEPP are identified in cl 2 and include “to establishappropriate planning controls to encourage ecologically sustainable developmentthrough the environmental assessment … of development of … extractive materialresources”. Clause 14 is in Pt 3 “Development applications – matters for consideration”of the Mining SEPP. Part 3 contains clauses dealing with non-discretionarydevelopment standards for mining (cl 12AB), compatibility of a proposed mine withother land uses (cl 12), consideration of voluntary land acquisition and mitigationpolicies (cl 12A), compatibility of proposed development with mining (cl 13), resourcerecovery (cl 15), transport (cl 16) and rehabilitation (cl 17), in addition to cl 14.

49 Subclause 14(1) states in the chapeau that it imposes an obligation on a consentauthority to consider a specified matter (whether or not a consent should be issuedsubject to conditions aimed at ensuring that the development is undertaken in anenvironmentally responsible manner in relation to the matters specified in subcll (a), (b),(c)) “before granting consent for development for the purposes of mining”. Subclauses(2) and (3) impose an obligation on a consent authority to consider specified matters “indetermining a development application for development for the purposes of mining”. Asidentified in KEPCO’s submissions, other clauses in Pt 3 of the Mining SEPP use thesedifferent formulations with some slight variations. Clauses 12 and 12A(2) are wordedsimilarly to cl 14(2), all referring to matters that must be considered “before determiningan application for consent for development for the purposes of mining..”. Clause 13(2)also refers similarly to “before determining an application to which this clause applies”.Clauses 15(2), 16 and 17 are in similar terms to cl 14(1). This was submitted byKEPCO to suggest the differences in wording throughout the Mining SEPP were of noreal moment.

50



Statutory construction principles generally require that differences in wording instatutory instruments be considered. That subcl (1) does have different wording tosubcll (2) and (3) suggests that its application must be different. As the BVPAsubmitted, the wording of subcl (1) is focussed on the decision to grant consent, not thewider assessment of impact required by cl 14(2) and (3) and other similar clauses. Thevarying terminology which appears in other clauses of the Mining SEPP suggests thatthere are differences between the drafting in cl 14(1) and subcll (2) and (3) whichshould be given effect.

51 Subclauses 14(2) and (3) commence with the words “Without limiting subclause (1)…”,which KEPCO relied on to submit that the BVPA’s construction of cl 14(1) was toonarrow. KEPCO submitted these opening words of subcll (2) and (3) suggest thatcl 14(1) should be construed as having a broad application, meaning subcl (1) does notoperate separately from subcll (2) and (3). While there is some strength in thatsubmission, the overall context of Pt 3 of the Mining SEPP suggests my earlier view iscorrect. I am fortified in that conclusion by my next finding that the case law relied on byKEPCO, Weal and Wollar, provide no support for its approach to construction.

52 KEPCO relies on Weal to submit that the task of deciding to grant consent cannot bedivorced from the decision whether to impose conditions. Importantly, Weal was ajudicial review challenge to an approval of a rail freight terminal by a consent authority,a local council, where it failed to impose conditions limiting the substantial noiseimpacts. At [80], the imposition of conditions of development consent was described bythe Court of Appeal (Giles JA, Priestley JA concurring) as an integral part of theconsideration to grant development consent. The IPC has refused developmentconsent. As the BVPA submitted, it is therefore difficult to relate the findings in Weal onthe importance of development consent conditions in the event of an approval to thefacts of this matter. Weal is not authority that in deciding whether to refuse developmentconsent, development consent conditions must be considered by a consent authority asa mandatory obligation.

53 Similar observations can be made about Wollar, which was also a judicial reviewchallenge to a decision by the IPC to grant development consent to a coal mine. At[183] Sheahan J accepted a number of arguments made by the respondent miningcompany set out at [141]-[159], which included at [144] a submission that subcll (1) and(2) “work together with the required assessment aiding the consent authority toconsider what relevant conditions might/should be imposed”. A decision to refuseconsent does not necessarily give rise to the same considerations as a decision togrant consent. Wollar does not assist KEPCO’s case on this ground given its differentfacts.

54



I do not accept KEPCO’s submission that such an approach to cl 14(1) artificiallydivorces the task of deciding what conditions should attach from the overall task ofdeciding whether consent should be granted. The mandatory matters the IPC had toconsider are in s 4.15 of the EPA Act. Draft conditions of consent are not specified andmy construction of cl 14(1) of the Mining SEPP does not render them mandatoryconsiderations where the determination is refusal of consent. Draft conditions arecommonly provided in the course of a development assessment process under the EPAAct to enable the resolution of all potential matters in issue should a consent authoritydetermine that development consent will be granted. That that is sensible practice doesnot render them mandatory relevant considerations in relation to a decision to refuseconsent.

55 On the BVPA’s case, the obligation in cl 14(1)(c), properly construed, did not arise atall, as the IPC’s decision was to refuse consent for the Project as amended by theRevised Mine Plan. KEPCO submits that is either incorrect when the Mining SEPP isconstrued or, if correct, further confirms a material error by the IPC in its determinationto refuse consent, given that cl 14(1) was referred to expressly in the SOR. Given myagreement with the BVPA that cl 14(1) has a different focus to subcll (2) and (3), thatconstruction appears correct. In other words, the IPC, as part of its assessment ofwhether development consent should be granted, had to first consider all relevantissues generally as required by s 4.15 of the EPA Act, and as required by numerousprovisions in Pt 3 in the Mining SEPP. That can include consideration of draftconditions, but that is not mandatory. This construction does not give rise to animpermissible two-step process, contrary to KEPCO’s submission.

IPC’s assessment process/ Statement of Reasons consideration

56 It is now necessary to consider the IPC’s reasons in light of my findings on statutoryconstruction above. The IPC’s reasons, particularly when required by a statutoryscheme as here, should be taken as a decision-maker’s actual reasons, as held inWaterways at [130]. Statements of principle of how to consider reasons given bystatutory decision-makers include Wu Shan Liang at 272, to the effect that looselanguage should not be penalised. In Ballas v Department of Education (State of NSW)[2020] NSWCA 86 Bell P and Payne JA at [78]-[80] identified that not penalising looselanguage cannot be applied to mask jurisdictional error in a decision-maker’s reasons.Consideration of the SOR in light of all these authorities is necessary.

57 Reasons should be read fairly and as a whole. The lengthy SOR is summarised tosome degree above in [17]-[18]. There is no complaint about how the IPC described thestatutory framework for its decision in relation to the EPA Act at Section 6“Commission’s considerations” of the SOR. Section 4.15(1)(a)(i) of the EPA Act



required the IPC to have regard to applicable environmental planning instrumentswhich included the Mining SEPP, inter alia. The lengthy Section 6.14 concerningclimate change is largely extracted above in [19]. The IPC set out the statutory context,including the Mining SEPP (of which there is no criticism by KEPCO), applicablepolicies, KEPCO’s assessments of climate change impacts of the Project and morerelevantly the Revised Mine Plan, public comments and an extensive considerationsection.

58 As the SOR confirms the IPC, as part of considering the overall impact of the proposal,did consider the Final Proposed Conditions drafted by the Department for theRecommended Revised Project. As I have found above, that approach is entirelyorthodox in an assessment under s 4.15 of the EPA Act. The IPC was entitled toconsider what conditions might be imposed as part of determining whether consentshould be granted but this was not obligatory. Essentially, the offending sentence reliedon by KEPCO in par 696 is a shorthand way of summarising the IPC’s conclusions inrelation to GHG emissions, albeit inaccurately reflecting cl 14(1)(c).

59 The way that the BVPA characterised what the IPC was doing as set out in [38]-[39]above is not impermissibly rewriting what the SOR shows was the IPC’s reasoningprocess, and is accepted as what is reflected in the SOR viewed as a whole. Nojurisdictional or other fundamental legal error is reflected in the SOR.

60 This ground does impermissibly single out loose language in pars 697 and 817 andoverstates the significance of that error. Contrary to KEPCO’s reply submissions, thesingle statement is not a conclusory finding of law which infects the IPC’s approach toGHG emissions assessment. My finding does not impermissibly construe ambiguity infavour of the decision-maker.

If error, not material

61 Had I held in favour of KEPCO on this ground, the question whether such an error oflaw was material justifying a declaration of invalidity of the IPC’s determination to refuseconsent would arise. KEPCO relied on Hossain at [29]-[31] and SZMTA at [45]-[46]where Bell, Gageler and Keanne JJ in the High Court held that “a breach is material toa decision only if compliance could realistically have resulted in a different decision”.KEPCO submitted that the threshold for materiality is low. The reasoning of the IPC asdetailed in the whole SOR does not enable that threshold, if low, to be reached.

62 The IPC considered 17 separate issues in its merits assessment, as identified in thesummary of Section 6 in [18(f)] above. The SOR set out in Section 8 “Conclusion” inpar 817 a summary of various findings already made during the extensive considerationin the SOR, as detailed above in [18]. Importantly, par 819 states that the IPC’sdetermination is based on all of its reasons, not just those summarised in the



concluding Section 8, namely par 817. KEPCO relied on par 817 which identifies anumber of issues which the IPC was weighing up to submit, effectively, that an error inrelation to any matter undermined by invalidity identified therein resulted in the invalidityof the whole assessment process undertaken by the IPC.

63 The SOR makes clear throughout that there were several separate bases on which theIPC reached the conclusion to refuse consent, expressly adopting the approachidentified in Rocky Hill at [686] in par 787. A decisive conclusion in my view is that theIPC found that the Project and the Recommended Revised Project were not in thepublic interest, in Section 6.17 of the SOR. That finding alone, based on a number ofconsiderations, suggests that any error in Ground 1 would not be material. As identifiedabove, the IPC considered the public interest (Section 6.17, pars 785-813), concludingin pars 797-813 that the Project and the Recommended Revised Project areinconsistent with the objects in s 1.3 (a) (to promote the social and economic welfare ofthe community and a better environment by the proper management, development andconservation of the state's natural and other resources), (b) (to facilitate ecologicallysustainable development by integrating relevant economic, environmental and socialconsiderations in decision-making about environmental planning and assessment) and(f) (to promote the sustainable management of built and cultural heritage (includingAboriginal cultural heritage)) of the EPA Act and are therefore not in the public interest.In its consideration of the impacts of the Project and the Recommended RevisedProject on public interest, the IPC did not accept that there was evidence to supportKEPCO’s claim that the site of the development could be rehabilitated to BSAL-equivalent (par 803), found that the groundwater impacts of the Project wereunacceptable (par 804), found that the environmental impacts on groundwater andproductive agricultural land would last long after the life of the Project andRecommended Revised Project (par 805) and considered that it had not beendemonstrated that either the Project or the Recommended Revised Project wereconsistent with the principles of ecologically sustainable development (par 806) interalia. Several other significant merit issues were determined separately by the IPC tojustify its decision to refuse approval. An error as articulated in Ground 1 would not be amaterial error justifying the relief sought by KEPCO as I do not consider that wouldinvalidate the refusal of the DA by the IPC.

64 There are a number of grounds of review. Depending on whether any are successfuland on what basis, the issue of material error may need to be revisited.

65 Ground 1 is not established.

Ground 2 – failure to perform duty imposed by cl 14(1)(c) of Mining SEPP




18 On the proper construction of cl 14(1) of the Mining SEPP, where a consentauthority is considering whether to grant consent to an application for development forthe purposes of mining, petroleum production or extractive industry, the consentauthority must consider whether or not any consent should be issued subject toconditions aimed at ensuring that the development is undertaken in an environmentallyresponsible manner, including conditions to ensure that greenhouse gas emissions areminimised to the greatest extent practicable.19 In considering whether or not to grant consent to the Development Application, theconsent authority failed to perform the duty imposed by cl 14(1) of the Mining SEPP.

Evidence

67 The evidence relevant to Ground 2 referred to by the parties is contained in pars 16,40, 42, 696 and 817 of the SOR. Paragraph 16 describes the Recommended RevisedProject. Paragraphs 40 and 42 describe the Department’s Final Assessment Report.Paragraph 696 is the culmination of the IPC’s consideration of the climate changeimpacts of the Project and the Recommended Revised Project. Paragraph 817 asnoted above is the final concluding paragraph of the SOR.

68 As identified in par 16 of the SOR the Recommended Revised Project is the RevisedMine Plan identified in par 12 of the SOR, and the Final Proposed Conditions preparedby the Department.

69 I note that the Mining SEPP refers to “downstream emissions”, defined in par 107 of theSOR as the “[GHG] emissions relating to sold goods and services and thus caused bythe end users’ use of the product”. This term is used interchangeably in the evidenceand submissions with the phrase “Scope 3 emissions”, being indirect emissionsincluding those from the downstream burning of coal.


70 The IPC misconstrued cl 14(1) of the Mining SEPP. Clause 14(1)(c) imposed a duty onthe IPC to consider whether certain conditions should attach to a development consentif granted. The time for performance of that duty was when the IPC was consideringwhether or not to issue the consent. The SOR does not disclose whether the IPCconsidered whether conditions should be imposed with the aim of minimising GHGemissions. Clause 14(1)(c) required a more demanding (but not very demanding)obligation to consider the identified topic, not a narrower obligation to take into accountonly proposed conditions of consent. There is no evidence in the SOR that the IPCconsidered conditions aimed at ensuring that GHG emissions are minimised to thegreatest extent practical, and this cannot be inferred per Al Maha v Huajan Investments(2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha) Basten JA at [25].

71 In addition to conditions proposed by KEPCO and the Department which addressedScope 1 and 2 emissions reduction, KEPCO submitted in its oral submissions in replythat the IPC should have itself considered whether there were conditions which would



have advanced the objective of reducing Scope 3 emissions if consent were to begranted in order to comply with cl 14(1)(c).

72 The BVPA’s approach impermissibly seeks to reconstrue what the IPC said in the SOR.As identified in Ground 1, the argument that the clause cannot apply cannot be correct.Firstly, the IPC clearly considered cl 14(1)(c). It considered proposed conditions aimedat ensuring that GHG emissions were minimised. The duty in cl 14(1)(c) is not whollydischarged by considering draft conditions submitted to the consent authority by theDepartment or KEPCO. There is no such limitation in cl 14(1)(c) and no such limitationshould be implied. The duty to consider conditions is imposed on the consent authorityto, if necessary, propose its own conditions, accepting that obligations of proceduralfairness would arise if the IPC was to do so.


73 Ground 2 is similar to Ground 1. KEPCO’s argument in support of Ground 2 proceedsfrom the false premise that the duty imposed by cl 14(1)(c) had “arisen forperformance”. Subclauses (2) and (3) apply to a consent authority “in determining adevelopment application for development for the purposes of mining”. By contrast,cl 14(1)(c) requires a consent authority to consider the specified matters only “beforegranting consent” for development for the purposes of mining. The duty under subcl (1)never arose because it is a precondition to granting consent, and the IPC resolved notto grant consent. Ground 2 fails on that basis alone.

74 Factually, in any event, if there was an obligation to consider conditions that couldminimise GHG emissions to the greatest extent practicable, the IPC did so in par 696and considered the condition the Department proposed. The Revised Mine Plan andFinal Proposed Conditions were before the IPC, as referred to in par 16 of the SOR, asmaking up the Recommended Revised Project. The IPC engaged directly with theseconditions as is clear from the SOR in par 42 which set out conditions for rehabilitationand therefore engaged with the question of what conditions could be imposed oncarrying out the development to minimise GHG emissions to the greatest extentpracticable. Clause 14(1)(c) does not impose an obligation on the IPC to do more, suchas propose its own conditions, as KEPCO submitted. The obligation was to considerdraft conditions.


75 This ground of review overlaps with Ground 1. I have accepted above in [42]-[55] thatthe duty in cl 14(1)(c) did not arise when cl 14 is construed as a whole in the context ofthe Mining SEPP, as the IPC did not resolve to approve the Project or the



Recommended Revised Project. As I also found above, the assessment of GHGemissions by the IPC did occur as required by s 4.15(1) of the EPA Act.

76 On the assumption that that finding is not correct and the obligation in cl 14(1)(c) didarise, KEPCO’s primary argument on this ground required the construction of cl 14(1)(c) at a high level of generality and was stated with brevity. Namely, as no reference toconditions to mitigate GHG emissions as required by cl 14(1)(c) is identified in onesentence in par 696 of the SOR, the IPC failed to comply with the obligation placed onit by that subclause. That level of generality cannot survive scrutiny of what actuallyhappened, given the contents of the whole of par 696 read in the context of the SOR asa whole.

77 A fair reading of the SOR as a whole identifies that there was extensive considerationof Scope 1, 2 and 3 GHG emissions likely to be produced by the Project, and theRecommended Revised Project to a slightly lesser extent. KEPCO proposed to preparethe GHG Management Plan which would set out measures to minimise GHG emissionsfrom the Project, as recorded in par 660 of the SOR and as stated in par 696.According to the IPC in par 660, the GHG Management Plan would deal with limitingScope 1 and 2 emissions.

78 The SOR read as a whole, and as stated explicitly by the IPC in par 696, did considerKEPCO’s proposal to manage Scope 1 and 2 emissions through a management planwhich can be a condition of consent. As the BVPA submitted, the IPC did considerconditions relevant to minimising GHG emissions being those presented by KEPCOand the Department which related to Scope 1 and 2 emissions. That finding isessentially a further answer to this ground of review in that conditions to limit GHGemissions were considered by the IPC.

79 KEPCO relied on Al Maha at [25] where the Court of Appeal stated:

A failure to comply with an obligation to give reasons may itself constitute a basis forsetting aside the decision, where it can be said that giving reasons was a condition ofvalidity. (No such contention was put forward in the present case.) An alternativeconsequence is that the absence of reasons may more readily allow an inference that aparticular matter was not determined (or not considered), because the Commissionerwas required to indicate what she had decided (or considered). It was on this(evidential) approach that the applicant relied.

No absence of reasons is demonstrated in relation to cl 14(1)(c), however.

80 There is extensive discussion of Scope 3 emissions in the SOR and how these are tobe considered by the IPC. Paragraph 696 suggests that no condition was proposed bythe Department to manage Scope 3 emissions. At par 696 the IPC observed in the lastsentence that no offset measures were proposed in the Recommended Revised Projector the Project.

81



KEPCO’s submission that the IPC should have proposed a condition(s) which addressGHG emissions can only concern Scope 3 emissions, given that draft conditions werecontemplated for Scope 1 and 2 emissions as noted by the IPC. Essentially a fallbackposition that emerged in KEPCO’s oral submissions was that the obligation imposed bycl 14(1)(c) required that the IPC must draft conditions of development consent wherethese were not presented by a proponent and/or the Department, the latter being theusual course in a development assessment process of SSD.

82 There is no statutory construction basis for finding that cl 14(1)(c) required the IPC itselfto propose conditions of development consent. Such an obligation is not statedexplicitly. Nor should it be inferred in the absence of express statutory language.Contrary to KEPCO’s submission that there is no provision which limits the IPC toconsidering only those conditions proposed by KEPCO or the Department, the correctway to construe the provision is to identify that in the absence of any express wordsthere is no obligation imposed on the IPC to itself draft conditions as a mandatorymatter. The clause simply requires the consideration of conditions which ensure thatGHG emissions are minimised to the greatest extent practicable.

83 Underpinning KEPCO’s submission that there is an obligation on the IPC to itselfpropose conditions in relation to cl 14(1)(c), and by extension the matters in cl 14(1)(a)and (b), is an unstated assumption that the IPC must plug any gaps in conditions ofconsent that might arise in the development assessment process. While this ground isconsidering cl 14(1) of the Mining SEPP, that SEPP operates within the usualdevelopment assessment process for SSD required by the EPA Act. The IPC as anindependent consent authority considers what is proposed by a proponent anddetermines whether that is acceptable or not, based on a large number of factors in thiscase, and therefore whether development consent ought to be granted subject toconditions. It is not generally the job of the independent body to repair gaps in theapplication before it. Explicit statutory language changing its role in this manner wouldbe required in the EPA Act, in my view. Ultimately, the obligation of the IPC to assessarises under s 4.15(1) of the EPA Act. KEPCO’s construction of cl 14(1) arguably cutsacross that important independent assessment role under the EPA Act.

84 As a practical matter, were such an obligation to be found to be imposed on the IPC,and while KEPCO sought to minimise the obligation by stating orally this constructionwas not onerous for the IPC, I consider such an obligation would be potentially anonerous one. The usual approach to proposed conditions of consent for large SSDprojects is, as disclosed in the SOR, that they will be proposed by the Department.While the IPC’s discretion as a consent authority certainly encompasses the ability toamend any proposed conditions or draft its own, no obligation to do so arises explicitly,



or implicitly. Were it to do so, as acknowledged by KEPCO, procedural fairnessobligations are likely to arise on the part of the IPC to, as a minimum, discloseproposed conditions in a timely manner to a proponent.

85 The submission by KEPCO that cl 14(1)(c) required that the IPC itself proposeconditions, which can only be directed to limiting Scope 3 GHG emissions on the facts,assumes that such conditions are feasible. None were proposed by the Department asidentified in par 696 of the SOR. Given that Scope 3 emissions are largely GHGemissions resulting from burning mined coal elsewhere, possibly within Australia andvery likely overseas, what a consent authority in NSW can impose as feasiblemeasures in conditions of consent is a complex question. The IPC’s observation in thelast sentence of par 696 noting the absence of offset proposals reflects this complexity.

86 Clause 14(1)(c) does not say who must propose conditions of development consent.On the basis of par 696, the IPC had before it conditions directed to minimising Scope1 and 2 emissions. Paragraph 696 must be read in the context of the whole SOR.


Ground 3 – errors of law in application of cl 14(2) of Mining SEPP


20 Clause 14(2) of the Mining SEPP provides that, in determining a developmentapplication for development for the purposes of mining, petroleum production orextractive industry, the consent authority must consider an assessment of thegreenhouse gas emissions (including downstream emissions) of the development, andmust do so having regard to any applicable State or national policies, programs orguidelines concerning greenhouse gas emissions.21 A policy, program or guideline is “applicable” for the purposes of cl 14(2) only if it iscapable of being applied to the task of considering an assessment of greenhouse gasemissions in deciding whether to grant consent to a relevant development.22 On 19 June 2018, the First Respondent (formerly known as the PlanningAssessment Commission) was party to a decision of the Land and Environment Courtin which the Land and Environment Court held that:

(a) the NSW Climate Change Policy Framework, including the objective ofachieving net zero emissions by 2050 (the NSW CCP Framework); and(b) the Paris Agreement, including Australia’s Nationally DeterminedContribution under that agreement of a 26-28% reduction in Australia'semissions below 2005 levels by 2030 (the Paris Agreement), were notapplicable policies, programs or guidelines for the purposes of cl 14(2) of theMining SEPP.

Particulars Wollar Progress Association Incorporated v Wilpinjong Coal Pty Ltd [2018] NSWLEC92 at [146]-[150], [183].23 In making the Refusal Decision, the First Respondent concluded that the followingwere “applicable State or national policies, programs or guidelines, concerninggreenhouse gas emissions” for the purposes of cl 14(2) of the Mining SEPP:

(a) The NSW Climate Change Policy Framework and, in particular, thatframework so far as it identifies an objective of achieving net zero emissions by2050.

Particulars



Reasons at [655]-[656], [687], [689].(b) The Paris Agreement, and Australia’s Nationally Determined Contributionunder that agreement of a 26-28% reduction in Australia's emissions below2005 levels by 2030.

Particulars Reasons at [655], [689].24 In making the Refusal Decision, the First Respondent relied on the conclusionsreferred to in paragraph 23 adversely to the Applicant.25 The NSW CCP Framework and the Paris Agreement are not applicable State ornational policies, programs or guidelines concerning greenhouse gas emissions for thepurposes of cl 14(2) of the Mining SEPP.26 In making the Refusal Decision, the First Respondent:

(a) erred by finding that the NSW CCP Framework was an applicable State ornational policies, programs or guidelines concerning greenhouse gas emissionsfor the purposes of cl 14(2) of the Mining SEPP;(b) erred by finding that the Paris Agreement was an applicable State ornational policies, programs or guidelines concerning greenhouse gas emissionsfor the purposes of cl 14(2) of the Mining SEPP; and(c) erred in its construction of “applicable State or national policies, programsor guidelines concerning greenhouse gas emissions” for the purposes of cl14(2) of the Mining SEPP.

Evidence

89 A large part of the SOR in relation to GHG emissions is extracted above. Of particularrelevance are pars 687-697 addressing the IPC’s consideration of the climate changeimpacts of the Project and the Recommended Revised Project.

90 KEPCO took the Court to the following documents in the Evidence Book in the courseof its oral submissions on Ground 3: (i) the Paris Agreement; (ii) the NSW ClimateChange Policy Framework (NSW CCPF); (iii) EIS dated September 2015; (iv) AppendixO to EIS: Air Quality and GHG Impact Assessment (GHG Impact Assessment);(v) Department’s Final Assessment Report October 2018.

91 The BVPA relied on the GHG Impact Assessment, the NSW CCPF and the ParisAgreement. The BVPA also took the Court to various submissions and reports whichthe IPC considered in its assessment of the DA, namely:

(a) a submission prepared by Farmers for Climate Action dated 12November 2018;

(b) a submission prepared by Doctors for the Environment dated November2018;

(c) a submission prepared by the Blue Mountains Conservation Societydated 2 August 2019;

(d) a report prepared by Professor Will Steffen dated 14 November 2018(Steffen Report); and

(e)



a letter from Chalk & Behrendt acting for the Lock the Gate Alliance tothe IPC regarding its consideration of the NSW CCPF dated 13 February2019.


92 Clause 14(2) of the Mining SEPP applied and the IPC acted on that basis as can beseen in the SOR. Clause 14(2) imposes a double duty, firstly, to consider anassessment of GHG emissions and, secondly, to do so having regard to applicablestate and national policies, programs and guidelines. Firstly, in par 687, the IPCwrongly took into account GHG emissions in general rather than an assessment ofGHG emissions as the clause requires. Secondly, the IPC erroneously, from a legalperspective, applied policies which were not applicable policies for the purposes ofcl 14(2). At par 687 the IPC said (see also SOR in pars 655, 780):

The NSW Climate Change Policy Framework outlines the States [sic] long-termobjectives to achieve net-zero emissions by 2050 and to make NSW more resilient to achanging climate. The Commission is therefore of the view that the NSW ClimateChange Policy is applicable and must be considered by the Commission.

93 The IPC took the NSW CCPF into account for the purposes of cl 14(2), as is clear frompars 687 and 695 of the SOR. The NSW CCPF contains an aspirational objective. Itdoes not guide consideration of the assessment of GHG emissions as required bycl 14(2). Applying it as a policy “concerning greenhouse gas emissions” misconstruescl 14(2). The clause requires consideration of an assessment of GHG emissions. Asidentified in Wollar at [146] (adopted by Sheahan J at [183]) an assessment ofemissions is an estimation or evaluation.

94 The failure to correctly apply Wollar is a further error. It is an error for an administrativedecision-maker to disregard, and fail to apply, the conclusions of an authoritativejudicial decision: Plaintiff M61/2010E v the Commonwealth (2010) 243 CLR 319; [2010]HCA 41 (Plaintiff M61/2010E) at [87]-[88]. In Wollar at [183] Sheahan J adopted therespondent’s submissions at [147]-[148], that the NSW CCPF was not an applicablepolicy for the purposes of cl 14(2) as it was not capable of being applied to theconsideration of assessing GHG emissions. That finding was binding on the IPC inmaking this Refusal Decision, and it acted contrary to that finding. At par 107, the IPCcorrectly treated Wollar as authoritative on the meaning of downstream emissions. TheIPC nevertheless failed to apply Wollar when it came to the critical parts of itsreasoning. As the Court in Wollar had determined that the NSW CCPF was not coveredby cl 14(2) of the Mining SEPP, that became part of the rule of law that the IPC wasbound to apply.

95 Wollar was directly concerned with the very aspiration on which the IPC relied, of netzero emissions by 2050. There were two bases for Sheahan J’s conclusion that theNSW CCPF was not an applicable policy. Both were ratio decidendi and both form the



basis for the judgment: Ex parte King; Re Blackley (1938) 38 SR (NSW) 483 at 490(Jordan CJ, Davidson and Owen JJ agreeing).

96 A duty analogous to that identified in P&C Cantarella Pty Ltd v Egg Marketing Board forthe State of NSW [1973] 2 NSWLR 366 (Cantarella) at 384 to, in cases of doubt,“ascertain the law, in order to obey it, not disregard it” arises. Even if the ultimateconclusion in Wollar is not binding, the reasoning is binding.

97 The IPC also found erroneously that the Paris Agreement was an applicable policy, inpars 655 and 680.

98 As the IPC’s conclusions in relation to the NSW CCPF and Paris Agreement wereimportant to its reasoning, the error was material. It was a topic considered by the IPCin a number of places in the SOR, and involved the IPC setting itself against theDepartmental recommendation that the NSW CCPF was not relevant contextualmaterial and was not apt for the purpose of an assessment of GHG emissions.


99 KEPCO’s first argument that the IPC considered GHG emissions but failed to consideran assessment of GHG emissions as required by cl 14(2) is untenable. It is factuallywrong and impermissibly identifies a distinction without a difference. The SOR sets outthe assessment of climate change impacts of both the Project and the Revised MinePlan in pars 657-661 and 667-676. Those assessments quantified the GHG emissionsexpected to result from the development and logically and legitimately founded theIPC’s consideration of their relevance. Qualitative questions concerning thatassessment are necessary to discharge the duty imposed on the IPC, including inrelation to the imposition of conditions. To separate a single sentence in par 687 of theSOR for criticism because the words “an assessment” were not used is to adopt animpermissible approach. The only error identified is in that paragraph. In any event, therelevant part of cl 14(2) is set out in par 106 of the SOR.

100 In relation to KEPCO’s second argument, the IPC did not err in law in having regard tothe NSW CCPF in treating that as an applicable policy for the purposes of cl 14(2) ofthe Mining SEPP. Alternatively, even if not strictly applicable, it was not impermissibleas a prohibited consideration. The IPC was entitled to have regard to it.

101 As a matter of fact, the IPC did not separately treat the Paris Agreement as anapplicable policy for the purposes of cl 14(2). The references to the Paris Agreement inthe SOR (par 655) were in the context of the references within the NSW CCPF to theParis Agreement (or in the context of reference to the Paris Agreement in other materialbefore the IPC, see for example pars 670, 677, 680, 682, 684, 689, 778 and 780). Atpar 780 the IPC commented that “[t]he Paris Agreement is referred to in the NSWClimate Change Policy, which is a relevant policy consideration for this project…. This



is inconsistent with the IPC considering the Paris Agreement separately as anapplicable policy. Given the submissions received by the IPC and the references inother material to the Paris Agreement (listed in [91] above), it is unsurprising that theIPC noted the Paris Agreement in par 689, and referred to the remarks of Preston CJ inRocky Hill at [525] in par 691. However, the SOR did not indicate that the IPC treatedthe Paris Agreement as an applicable policy within the meaning of cl 14(2) of theMining SEPP.

102 As to KEPCO’s reliance on Wollar:

(a) the approach of the IPC in this case is not inconsistent with Wollar,because Wollar did not and could not determine the applicability of theNSW CCPF in all circumstances;

(b) in any event, Wollar did not authoritatively determine whether or not theNSW CCPF was an applicable policy for the purposes of considering anassessment of GHG emissions; and

(c) if Wollar did determine authoritatively that the NSW CCPF was not anapplicable policy (in a way that was not confined to the particularcircumstances of that case), Wollar was plainly wrong and should not befollowed.

103 The determination of what is an applicable policy under cl 14(2) is factually dependantand falls to be determined by the consent authority at the relevant time having regard tothe nature of the policy, assessed against the issues arising in respect of theassessment of GHG emissions in the context of the particular application before it. Thedecision in Wollar cannot determine for all time and in all circumstances that the NSWCCPF is not an applicable policy within the meaning of cl 14(2). That being the case, itwas open to the IPC to conclude that the NSW CCPF was applicable, in circumstanceswhere the material before it addressed the objectives set out within it.

104 KEPCO’s argument overstates the effect of Wollar as the reasoning has not acquired a“permanent, larger and general dimension as an aspect of the rule of law”, per PlaintiffM61/2010E at [87]. The finding is opaque.

105 The assessment referred to in cl 14(2) need not comprise a single document orestimate: see for example Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd[2019] NSWLEC 31 (Australian Coal Alliance) at [54]. The fact that a policy may be“aspirational” or sets an over-arching policy framework does not render it incapable ofbeing applied. The language of cl 14(2), referring as it does to “policies, programs orguidelines”, is consistent with a range of materials, of differing content and specificity,being relevant to the task undertaken pursuant to cl 14(2). For example, the objectivesset out in the NSW CCPF may be applicable to the question of considering the overall



aims of the NSW government, as identified in that policy (reduction of GHG emissionsand achieving goals of the Paris Agreement), and then considering the implications ofthe GHG assessment (which are not limited to KEPCO’s GHG Impact Assessment, butalso include expert evidence about that assessment). It would be open to the IPC toaccept the evidence of an expert who says that the aims of the policy cannot beachieved while approving projects that have significant emissions, having regard to theassessment of those emissions referred to in cl 14(2).

106 KEPCO’s unstated and incorrect premise is that the IPC was prohibited from taking intoaccount the NSW CCPF. The IPC was not legally prohibited from taking it into account.Indeed given that a number of submissions referred to and relied on it, the IPC wasobliged to consider it. Submissions which referred to the NSW CCPF and the ParisAgreement were made by several interested parties listed above in [91].

107 In Rocky Hill the NSW CCPF was treated as a relevant policy that assisted inassessing the significance of GHG emissions for the purposes of determiningenvironmental impacts and whether or not approval should be granted.


108 Clause 14(2) refers to “policies, programs or guidelines” relevant to the assessment ofGHG emissions. The principles of statutory construction are summarised in Ground 1above at [43]-[47] and require that the ordinary meaning of words be applied in theircontext. Such principles apply to delegated legislation such as the Mining SEPP. In theabsence of any definitions in the Mining SEPP or elsewhere, applying the plain andordinary meaning of the words “policies, programs or guidelines” in their context couldpotentially apply to a broad range of documents. The Court has not been told that anysuch documents have been identified by any statutory instrument as applicable for thepurposes of cl 14(2). The discretion of the IPC to determine what it considersappropriate is wide given this statutory context and its functions as a consent authorityunder the EPA Act, particularly in the context of development assessment under s 4.15.

109 Clause 14(2) requires an assessment of GHG emissions, including downstreamemissions, of a development having regard to any applicable state policies inter aliaconcerning GHG emissions. KEPCO’s ground focusses on the wording in the SOR.Relevant authorities concerning reasons relied on by both parties are outlined above at[24]-[26], [36] and [56]. The assessment of GHG emissions by the IPC in pars 648-697of the SOR is lengthy, partially extracted above in [19]. The IPC considered thestatutory context (see SOR pars 648-653) and applicable policies (see SOR pars 654-656). KEPCO lodged the GHG Impact Assessment prepared as part of the EIS,analysing GHG emissions of the Project and the Recommended Revised Project. TheDepartment provided its assessment in the Final Assessment Report. The IPC received



a large number of submissions which referred to the Paris Agreement and the NSWCCPF (see SOR pars 680-686). The IPC’s consideration of GHG impacts of theRecommended Revised Project is at pars 687-697.

110 KEPCO’s first criticism is that the IPC erroneously referred in par 687 to “GHGemissions” generally rather than to the “assessment of GHG emissions”, the wordingfound in cl 14(2). This was submitted to be a legal error. KEPCO’s focus on onesentence in par 687, repeated again in the concluding par 817, is not a fair reading ofthe SOR as a whole. Indeed, in the first sentence of par 687, the IPC states that it mustconsider GHG emissions in its assessment, referring in turn to par 106 (cl 14 MiningSEPP) and par 107 (downstream emissions defined). Wu Shan Liang, relied on by theBVPA above in Ground 1 as authority on the approach to construing reasons, is alsorelevant here given the extensive nature of the SOR. A fair reading of all the materialconcerning GHG emissions referred to in the SOR, as referred to in the BVPA’ssubmissions, demonstrates that the IPC understood its task was to assess GHGemissions in the context of this development. The BVPA’s submissions in [99] aboveare accepted, including that cl 14(2) is correctly identified in par 106 of the SOR.

111 The second part of KEPCO’s argument is that the IPC erroneously considered that theParis Agreement and the NSW CCPF were relevant applicable policies for thepurposes of cl 14(2) of the Mining SEPP. Considering the Paris Agreement, I agreewith the BVPA’s reasons set out in [101] above that as a matter of fact the ParisAgreement, while noted by the IPC on numerous occasions, including because anumber of public submissions referred to it, was not regarded as an applicable policy.In the SOR in Section 5.3.4 “Relevant Guidelines” the NSW CCPF is referred to, notthe Paris Agreement. This conclusion reflects a fair reading of the SOR as a whole.

112 Turning to the NSW CCPF, KEPCO criticises the IPC’s decision to consider the NSWCCPF as an applicable policy under cl 14(2) relying on Wollar, and separately thearguments made in Wollar.

113 In Wollar the applicant community group brought judicial review proceedingschallenging the approval of a coal mine by the PAC in the Mudgee area. One ground ofappeal alleged that the PAC failed to consider matters required by cl 14(2) of the MiningSEPP. The applicant submitted that the PAC failed to consider an assessment ofdownstream emissions by having regard to any applicable state or national policies,programs or guidelines before it granted consent. Such an assessment required thePAC to have regard to the Paris Agreement and the NSW CCPF as applicable state ornational policies, programs or guidelines under cl 14(2), as mandatory relevantconsiderations, in its submission. The respondent submitted that the PAC was notrequired to give reasons or explain the weight it attributed to a particular issue. It wasnot required to have regard to the two instruments referred to by the applicant as



mandatory matters. The respondent submitted that, firstly, in relation to theconsideration of applicable policies, the two instruments were not applicable as theyraise policy considerations and cannot guide the task of the consent authority inassessing development (at [141], [147]-[148]). Secondly, it submitted there was amplematerial before the PAC in relation to GHG emissions which the PAC said it took intoaccount (at [142], [151]-[159]). Thirdly, construction of cl 14(1) and (2) was consideredin relation to the assessment of emissions (at [143]-[144]).

114 Sheahan J at [183] adopted all the reasons of the company set out earlier in thejudgment at [141]-[159]. These incorporated a number of submissions addressingdifferent arguments, including the paragraphs relied on by KEPCO. That was certainlya sufficient decision, given the issues in that matter. The legal issues I am consideringare in a different context. It is fair to describe the finding in Wollar as opaque in terms ofhow it would apply to this matter. The essential issue in Wollar was whether the ParisAgreement and the NSW CCPF were mandatory relevant considerations in theassessment of GHG emissions generally. It was held they were not. A step in thereasoning of Sheahan J was accepting that they were not “applicable” national or statepolicies concerning the assessment of GHG emissions, as KEPCO relied on. Wollarwas considering GHG assessment generally, meaning Scope 1, 2 and 3 GHGemissions.

115 When the IPC’s consideration of the NSW CCPF in the SOR is fully considered as awhole, it is clear that the NSW CCPF was referred to in the context of Scope 3emissions. This is because the IPC accepted in par 697 that, based on the evidence inpar 688 which identifies the total of Scope 1, 2 and 3 GHG emissions over the life of themine, the contribution to GHG emissions of the Project and the Recommended RevisedProject should be considered. Scope 3 GHG emissions are by far the largestcontributor of GHG emissions of the Project and the Recommended Revised Project,as identified in the estimations in pars 657 and 668. The public comments on climatechange impacts of the Recommended Revised Project were summarised in pars 680-686 including in relation to Scope 3 GHG emissions, referencing the NSW CCPF. Inrelation to the IPC’s findings and determination, the IPC identifies its obligations undercl 14(2) and identifies that the NSW CCPF outlines the long-term objectives to achievenet-zero emissions by 2050 inter alia in par 687. In par 687 it also considers the policyis applicable and must be considered. The estimations of GHG emissions are acceptedin par 688. The IPC identifies that the NSW government has adopted the goal ofachieving net zero emissions by 2050 with no mechanisms prescribed for doing so inpar 689. That there is no prohibition on the approval of new sources of GHG emissionssuch as new coal mines is noted in par 689. The IPC accepts in par 690 that all directand indirect GHG emissions of the Project and the Recommended Revised Project will



adversely impact the NSW environment. The IPC cites Rocky Hill at [525] and [555]with approval in pars 691 and 692. The IPC does not accept the Department’sassessment that refusal will not reduce global GHG emissions because an alternativesource of coal will be found, in par 693. In the absence of any other statutory guidanceconcerning Scope 3 emissions, which by their nature are very broadly dispersed, andthe broad assessment responsibility of the IPC, reference to the NSW CCPF is wellwithin the exercise of the IPC’s discretion to identify any applicable policies under cl14(2). The IPC’s discretion as a consent authority is wide within the terms of s 4.15 ofthe EPA Act and under cl 14(2) of the Mining SEPP.

116 I agree with the BVPA that Wollar does not bind the IPC in exercising its discretion as aconsent authority under the EPA Act in relation to identifying the policies it considersapplicable for all aspects of considering GHG emissions for the purposes of cl 14(2).Nor do I accept the arguments made in Wollar in the context of solely Scope 3emissions and applicable policies. It follows that I do not agree with KEPCO’s relianceon Cantarella as imposing an obligation on the IPC to inquire beyond what appears inthe SOR. In Cantarella a single judge of the Supreme Court was considering regulationof the sale of eggs as it stood in 1973. The statutory framework under considerationwas completely different from the IPC’s role as a consent authority under the EPA Act.That case can provide little guidance on a duty to inquire in this context, if there wasone. Nor do I consider that Wollar is an authoritative judicial decision applying to theIPC in these circumstances. Consequently there was no failure by the IPC to correctlyapply the conclusions of an authoritative judicial decision as identified in PlaintiffM61/2010E.

117 Although KEPCO will perceive that I am departing from the reasoning and findings inWollar, I do not think it is necessary to do so expressly or by implication because howGHG issues arise in this case is relevantly different from Wollar.

If error, not material

118 Finally, as the BVPA submitted, even if the IPC was in error in relation to its approachto cl 14(2), contrary to my finding immediately above, the NSW CCPF is permissible toconsider in any event. In other words, it is not a prohibited matter. Another example ofconsideration of that policy can be found in Rocky Hill, a merits appeal matter, at [526].That decision is cited by the IPC in several paragraphs of the SOR including par 686,where the IPC referred to the consideration of the NSW CCPF in Rocky Hill, andpars 692 and 694, where the IPC agreed with the decision of Preston CJ. Under s 4.15of the EPA Act the IPC had an obligation to consider a range of environmental impactsand aspects of the public interest, as the BVPA submitted. There was extensivematerial on potential GHG emission impacts prepared by KEPCO (such as the EIS),



the Department and in numerous public submissions, many concerning Scope 3emissions and referring to the NSW CCPF. Under s 4.15 of the EPA Act this wasmaterial relevant to the IPC’s consideration.

119 In addition to my conclusion immediately above, I also considered the question ofwhether an error in relation to GHG emissions assessment under cl 14(1)(c) would bematerial in Ground 1 in [62]-[63] above. Even if an error was found in this ground, itcould not be material in a legal sense for the reasons given in relation to Ground 1 in[62]-[63].


Ground 4 – failure to refer development application to Minister for Regional Water


27 Clause 17B of the Mining SEPP applied to the determination of the DevelopmentApplication for the Project by the First Respondent. Particulars

The Development Application is an application for development consent formining or petroleum development.The Project is specified in cl 5 (Mining) of Sch 1 to State EnvironmentalPlanning Policy (State and Regional Development) 2011 (SRD SEPP).A mining lease under the Mining Act 1992 (NSW) is required to be issued toenable the Project to be carried out because there is no current mining lease inrelation to the Project.The Development Application for the Project is accompanied by a gatewaycertificate.

28 Clause 17B(1)(a) of the Mining SEPP imposed an obligation on the FirstRespondent, before determining the Development application, to:

(a) refer the application to the Minister for Regional Water for advice regardingthe impact of the proposed development on water resources; and(b) consider any written advice provided by the Minister for Regional Water inresponse to such a referral.

29 Prior to making the Refusal Decision:(a) the First Respondent did not perform its duties under cl 17B(1) of theMining SEPP; and(b) those duties were not otherwise performed.

Evidence

122 The SOR considered cl 17B of the Mining SEPP in pars 149-155 under the heading“Other advice”.

123 Two letters in the Evidence Book are relevant to this ground, relied on by both parties inthe course of argument. On 4 January 2016, the Deputy Secretary of Planning Servicesat the Department (Deputy Secretary) wrote to the Honourable Niall Blair, Minister for



Primary Industries and Minister for Lands and Water. The letter commenced byidentifying the Department as the “consent authority for the Bylong Coal Project”. Theletter stated:

Prior to determining the application for development consent for the Bylong CoalProject, the Department is required, under clause 17B(1)(a) of the State EnvironmentalPlanning Policy (Mining, Petroleum and Extractive Industries) 2007 (Mining SEPP), torefer the application to the Minister for Primary Industries for advice regarding theimpact of the proposed development on water resources.…In providing this advice, I also note that clause 17B(3) of the Mining SEPP requires theMinister for Primary Industries to have regard to the minimal impact considerations setout in the Aquifer Interference Policy, and other provisions of that policy.

124 The Minister for Primary Industries and Minister for Lands and Waters’ letter in replyaddressed water licencing considerations, water table impacts, water quality impacts,and other impacts. The letter commenced by acknowledging it was advice prepared inaccordance with cl 17B(1)(a) of the Mining SEPP:

In accordance with clause 17B(1)(a) of the State Environment Planning Policy (Mining,Petroleum Production and Extractive Industries) 2007, advice is provided based on theminimal impact considerations and other provisions of the Aquifer Interference Policy,drawing on a detailed assessment undertaken by the Department of Primary Industries(DPI) – Water.

125 As identified in the two letters, the Department wrote to the then Minister for PrimaryIndustries and Minister for Lands and Water seeking advice pursuant to cl 17B(1) of theMining SEPP in January 2016. The parties agreed that the Minister for Planning wasthe consent authority in 2016. A response from the relevant Minister was received afterJanuary 2016, agreed by the parties in the SOAF to have been sent at least after 12May 2016 (although I note that the SOR refers to this letter having been sent in January2016). In the SOR, express reference is made to that response in pars 78 and 149-155.Such a response must be considered under subcl (1)(b)(ii). There was no dispute thatthe Minister’s response satisfied subcl (3)(a) in having regard to the minimal impactconsiderations set out in the Aquifer Interference Policy (AIP). The IPC referredspecifically to cl 17B(1)(b)(ii) in par 150 of the SOR.

126 There is an error in the first line of the letter dated 4 January 2016 from theDepartment’s Deputy Secretary as it states the Department is the consent authority forthe Project. While in written submissions KEPCO sought to emphasise this error on thebasis that the Department could not be the consent authority, and that is clearly correct.Nothing arises from that error in relation to this ground, given the parties’ agreementthat the Minister responsible for the Department was the consent authority in 2016.That is stated in par 10 of the Further Amended Summons. Such a matter would bepublic knowledge and well-known to KEPCO. The Minister’s functions would as amatter of course be carried out by the Department. This does not undercut KEPCO’sprincipal point which is that the obligation under s 17B(1)(a) fell on the IPC as the



consent authority in 2018 and it did not fulfil that obligation. It does mean its speculativesubmission that the outcome might have been different if the Minister had written ratherthan the Deputy Secretary has less force.


127 Ground 4 identifies an error in the process adopted by the IPC, in failing to comply witha mandatory requirement that the consent authority refer the application in accordancewith cl 17B(1) of the Mining SEPP to the Minister for Regional Water. Clause 17B(1)(a)requires the consent authority to refer the application to the Minister for Regional Waterfor advice and consider any advice (subcl (1)(b)(ii)). The IPC as consent authority didnot refer the development consent as required by cl 17B(1)(a). Further, the IPC did notconsider the advice of the Minister for Regional Water as required by subcl (1)(b)(ii).That is a fundamental failure to comply with the obligations of the Mining SEPP, whichcreates a mandatory obligation not just to refer, but also to consider the advice inresponse to a compliant referral. The Deputy Secretary of the Department, identifyingthat Department as the consent authority, wrote to the Minister for Lands and Water,now known as the Minister for Regional Water, on 4 January 2016. The consultationrequired by cl 17B(1) never occurred – the IPC never wrote a referral and did notconsider advice in response to its own referral.

128 The error is material as the advice of the Minister considered by the IPC was dated2016, more than two and a half years before the DA was referred to the IPC on 4October 2018. A lot of additional work on groundwater impacts has been undertakensince that time. Had the advice of the Minister for Regional Water been sought by thecorrect consent authority, the IPC, at the relevant time, it could have taken into accountthat additional material.


129 KEPCO’s suggestion that there has been non-compliance with cl 17B(1) of the MiningSEPP is wholly artificial. Clause 17B(1)(a) of the Mining SEPP relevantly requires thatbefore a consent authority determines an application for development consent formining that is accompanied by a gateway certificate, that authority “must … refer theapplication to the Minister for Regional Water for advice regarding the impact of theproposed development on water resources.” On 4 January 2016 the Deputy Secretaryof the Department referred the application to the Minister for Primary Industries andMinister for Lands and Water (precursor to the Minister for Regional Water) andrequested advice as to the impact of the proposed development on water resources. Atthat time, the relevant consent authority for the purposes of cl 17B(1)(a) was theMinister for Planning and Environment, by virtue of the operation of s 89D of the EPAAct as in force at that time. It was entirely orthodox that the Minister’s Department



should undertake a referral of this kind on behalf of the Minister, noting that this is nomore than an administrative act not involving any deliberation or decision. As aconsequence, the obligation under cl 17B(1)(a) was discharged.

130 The passage of the Environmental Planning and Assessment Amendment Act 2017(NSW) (2017 EPA Amendment Act) and the transfer of responsibility for the DA to theIPC did not create any new or different obligation to undertake or repeat the act ofreferral. The transitional arrangements accompanying those amendments had theeffect of stipulating that references in any document to the Minister as consent authorityfor SSD were taken to be read as references to the IPC: see reg 19 of theEnvironmental Planning and Assessment (Savings, Transitional and Other Provisions)Regulation (extracted in [7] above). The artificiality of this point is further reinforced bythe fact that under s 4.6(c) of the EPA Act (in force at the time of the Refusal Decision),the Department’s Planning Secretary was expressly required to undertake anyconsultation that the consent authority was required to undertake.

131 All that cl 17B(1)(b)(ii) requires is that the consent authority consider any written adviceprovided by the Minister for Regional Water in response to a referral under subcl (a).This occurred in the present case – in response to the referral, the Minister for RegionalWater provided written advice and it was considered by the IPC as the consentauthority.


132 Clause 17B of the Mining SEPP sets out steps that must be followed in relation toassessing the possible impact of a proposal on water resources. The consent authoritymust refer a development application for mining to the Minister for Regional Water foradvice (subcl (a)) and consider, inter alia, the Minister for Regional Water’s writtenresponse (subcl (b)(ii)). Under subcl (3), the Minister for Regional Water must haveregard to the AIP (defined in cl 12AB(9)) when providing advice. There is no temporalrequirement in cl 17B(1)(a) and (b). At the time the relevant letter for the purposes ofcl 17B(1)(a) was written in January 2016 by his Department, the consent authority wasthe Minister for Planning and Environment. The Minister for Regional Water (thenknown as the Minister for Lands and Water) responded as required (I note that theletter is undated but it is an agreed fact it was sent at least after 12 May 2016). The IPCas consent authority from 2018 expressly considered that response as identified in pars149-155 of the SOR , extracted above in [19]. The provisions of cl 17B(1)(a) wereexpressly and correctly referred to by the IPC in par 150 of its reasons.

133 Regulation 19(1) and (2) “References to Minister as consent authority for Statesignificant development” of the Environmental Planning and Assessment (Savings,Transitional and Other Provisions) Regulation provides expressly that any reference to



the Minister for Planning in an Act is to be taken to be the IPC, as a result of theenactment of s 4.5(a) of the EPA Act. The effect of the transitional provisions is that theIPC did not have to repeat steps already taken pursuant to cl 17B(1)(a) when it becamethe consent authority for SSD, in the absence of any statutory requirement that it do so.That is the statutory answer to this ground, as the BVPA identified.

134 KEPCO’s submission that any errors would be material because the letter from theMinister for Regional Water was sent in 2016, meaning the IPC has not taken accountof additional material, is not supported by the legislative scheme in the absence of anytemporal requirement in that scheme.

135 I agree with the BVPA’s submission in [131] above, that all cl 17B(1)(b)(ii) required theIPC to consider was advice from the Minister for Regional Water provided pursuant to areferral under subcl (a). It did so in satisfaction of that requirement.

136 As already noted in [126] above, the submission made by KEPCO that a referral by asenior departmental official as opposed to the IPC might have elicited a differentresponse is speculative at best, given that the Minister for Planning was the consentauthority at that time and would be expected to act through his or her department.


Ground 6 – failure to perform duty imposed by cl 14(1)(a) of Mining SEPP


33A On the proper construction of cl 14(1)(a) of the Mining SEPP, where a consentauthority is considering whether to grant consent to an application for development forthe purposes of mining, petroleum production or extractive industry, the consentauthority must consider whether or not any consent should be issued subject toconditions aimed at ensuring that the development is undertaken in an environmentallyresponsible manner, including conditions to ensure that impacts on significant waterresources, including surface and groundwater resources, are avoided, or are minimisedto the greatest extent practicable.33B In considering whether or not to grant consent to the Development Application,the consent authority failed to perform the duty imposed by cl 14(1)(a) of the MiningSEPP.

Evidence

139 The evidence relevant to Ground 6 is contained in the SOR in pars 237-323 (consistingof Section 6.2 “Natural environment impacts – groundwater” and Section 6.3 “Naturalenvironmental impacts – surface water”). In particular, the parties’ submissions refer tothe IPC’s consideration of the groundwater impacts of the Project and RecommendedRevised Project in pars 288-297, extracted in [19] above.

140 Section 6.2 addresses the relevant statutory context and gives an overview of theGateway Certificate recommendations, Regional Plans and AIP. It then turns toKEPCO’s assessment and the Department’s assessment of the groundwater impacts ofthe Project and Revised Mine Plan, the PAC Review Report of the groundwater impacts



of the Project and Revised Mine Plan, public comments on the groundwater impacts ofthe Recommended Revised Project, and an analysis of an independent review of thegroundwater impacts of the Project. Section 6.2 concludes with the Commission’sconsideration of the groundwater impacts of the Project and Recommended RevisedProject. Section 6.3 addresses each of these topics in relation to surface water impacts.


141 Similar errors to those made in relation to cl 14(1)(c) (Grounds 1 and 2) were made bythe IPC in relation to subcl (a). Clause 14(1)(a) imposes an obligation on the consentauthority to consider whether to attach conditions aimed at ensuring that impacts onsignificant water resources are minimised. It does not impose an obligation on aconsent authority to consider whether impacts on significant water resources areavoided or are minimised to the greatest extent practicable. The IPC regarded cl 14(1)(a) as if it imposed an obligation on the proponent to do something, that affixed somestandard or criteria for the proponent to satisfy which, if not satisfied, was a basis forrefusal of the DA. This is clear from par 817 of the SOR where the effect ongroundwater became one the factors counting against the grant of consent. Similarly, inpar 237 of the SOR, the IPC misstated cl 14(1)(a), and then in par 297 found that thegroundwater impacts on the Project site were unacceptable. The IPC operated asthough there was a duty on KEPCO to minimise groundwater impacts, when on theproper understanding of cl 14(1)(a) it was a requirement that was imposed on the IPCitself to consider whether or not conditions should be imposed.

142 The IPC formed the view that the groundwater impacts of the Project would beunacceptable in part because KEPCO had not provided it with sufficient information asto whether “make good” requirements for groundwater would be met. The weight theIPC gave to this view was infected by its erroneous construction of cl 14(1)(a). TheBVPA’s submissions reconstrue the IPC’s actual reasons. If the IPC was unsure aboutthe adequacy of proposed “make good” requirements it was obliged to considerwhether the inadequacies could be addressed by conditions but did not do so.


143 Ground 6 is similar to Grounds 1, and 2. The SOR must also be read as a whole whenconsidering cl 14(1)(a). The IPC considered the question of whether conditions shouldbe imposed in relation to the impact of the Project on significant water resources. Therewas a large body of material before the IPC concerning the appropriateness of theconditions in relation to the impact on water resources.

144



Even if the paraphrasing of cl 14(1)(a) of the Mining SEPP in par 237 of the SOR hassome looseness of language, the matter must be determined as one of substancelooking at the SOR as a whole. There is no legal error disclosed when this is done.Consideration of the kinds of conditions that could potentially be imposed to addressadverse impacts on water resources is a logical extension of consideration of whetheror not there are unacceptable impacts which cannot properly be managed, mitigated oroffset. Proposed Conditions 27 and 28 both referred to alluvial aquifers. The impacts ongroundwater were engaged in the proper consideration of the DA as a whole and inanticipation of the exercise required under cl 14(1)(a). The insufficiency of evidenceconcerning the “make good” requirements was only one of several factors of particularrelevance considered in the SOR in pars 237-323 and the conclusions on theunacceptability of groundwater impacts in par 297.

145 KEPCO’s submissions in [141] above that there is a rational possibility that anerroneous construction of cl 14(1)(a) affected the IPC’s consideration of “make good”requirements is unsupported. As identified in pars 237-240 of the SOR, adverseimpacts on groundwater, including the existence of “make good” provisions, wererelevant by reason of a number of applicable instruments, including under s 4.15 of theEPA Act. The IPC’s concern was that the “make good” proposals would in fact work toaddress the adverse groundwater impacts. This did not depend upon any particularview about who was obliged to satisfy the IPC about that matter. The point was ratherthat at the end of the assessment process the IPC was in fact left in a state ofuncertainty that the “make good” requirements would be met. The IPC’s conclusion inpar 297 followed consideration of groundwater in the context of an introduction to thestatutory context encompassing a variety of different instruments. KEPCO has notdemonstrated that any error in the description of cl 14(1)(a) had any material impact onthe IPC’s conclusions in this regard.

146 KEPCO’s argument in [141] above involves an alternative way of analysing mattersthat, on KEPCO’s view of the facts, might have led to a different result. It involves amisreading of cl 14(1)(a) to the extent that it assumes that there is a general obligationto consider those matters in determining an application for consent rather than anobligation to do so “before granting consent”. It also bears little relationship to thereasoning actually followed by the IPC. It is apparent that the IPC considered therewere groundwater impacts resulting from the development that were unacceptable andthe IPC did not consider, on the material available to it, that any suitable conditions hadbeen proposed that would address those impacts to the point of rendering themacceptable.


147



The effect of cl 14(1)(a) of the Mining SEPP is not accurately set out in par 237 of theSOR, as KEPCO identifies. I have already considered the proper construction ofcl 14(1)(c) of the Mining SEPP above in Grounds 1 and 2. The focus of this ground iscl 14(1)(a) which is in similar terms to cl 14(1)(c) and requires that before grantingdevelopment consent for mining, a consent authority must consider whether consentshould be issued subject to conditions which ensure that impacts on significant waterresources are avoided or minimised to the greatest extent practicable. Relevantprinciples of statutory construction are set out above in [42]-[47]. The same conclusionsabout construction reached in Ground 1 in [48]-[55] above apply to cl 14(1)(a). Therewas no failure to fulfil any duty as none arose under cl 14(1)(a) given that the IPCdetermined to refuse approval. I also found that the IPC could, as part of its overallassessment, consider draft conditions in [55] above.

148 Relevant principles of construing reasons are also referred to above in [56]-[57]. Anyloose or inaccurate language must be considered in light of the reasons as a whole.Considering what the IPC did, as identified by the BVPA the information about andconsideration of impacts on water resources by the IPC was extensive, as identified inthe SOR at 237-323 (partially extracted above in [19]. The consideration of aquiferimpacts was extensive in pars 288-297. One inaccurate statement does not underminelegally the substance of the merit assessment undertaken by the IPC on this topic.

149 If an error had been found, it would not be material for the reasons already given inGround 1 in [62]-[63] above.


Ground 7 – failure to perform duty imposed by cl 12(a)(ii) of Mining SEPP

151 Clause 12(a)(ii) of the Mining SEPP requires consideration of whether the developmentis likely to have a significant impact on uses that are likely to be preferred uses ofnearby land, in the opinion of the consent authority, having regard to land use trends.The Further Amended Summons states:

33C The First Respondent was obliged, before determining the DevelopmentApplication, to consider whether or not the development was likely to have a significantimpact on the uses that, in the opinion of the consent authority having regard to landuse trends, are likely to be the preferred uses of land in the vicinity of the development.

ParticularsMining SEPP clause 12(a)(ii).

33D In discharging the duty described in paragraph 33C, the First Respondent wasobliged to consider “land use trends” within the meaning of cl 12(a)(ii).33E In determining the Development Application, the First Respondent failed todischarge the duties described in paragraphs 33C and 33D above.

Evidence

152



The evidence relevant to Ground 7 referred to by the parties is contained in the SOR inSection 6.1.4 “Likely preferred uses”, in pars 206-236. The likely preferred usesexamined in the SOR are agriculture (pars 209-214), heritage (pars 215-218), tourism(pars 219-222), and mining (pars 223-226). From pars 227-236 the Commission’sconsideration of likely preferred land uses is set out (extracted in [19] above). The IPCconsidered the impact of the proposed mine on the likely preferred uses, theincompatibility with the existing, approved or likely uses, and the comparative publicbenefits of the mine and other land uses.


153 Clause 12(a)(ii) imposes two requirements being: (i) an express duty imposed on theIPC to consider matters identified therein; and (ii) an obligation to form an opinion as touses that are likely to be the preferred uses of land in the vicinity of the developmentand to form an opinion having regard to land use trends. That consideration andformation of opinion must have regard to land use trends. The IPC failed to perform theduty. It was required to consider whether, irrespective of the current character andplanning controls in an area as a matter of fact, the uses of land are trending in aparticular direction. The IPC’s reasoning in pars 206-228 of the SOR concludes in par227 by listing five matters that regard was given in concluding the likely preferred usesin the vicinity. Absent is any reference to land use trends in the area, a failure to complywith the express obligation in cl 12(a)(ii).

154 The IPC did not identify anywhere in the SOR where it performed the duty to considerlikely preferred uses. The SOR sets out the process the IPC followed and, absent anydescription of carrying out this task, it is properly inferred that the IPC did not performthe duty to consider likely preferred uses.


155 This ground is a complaint about the factual conclusion the IPC came to, and thereforean impermissible complaint about the merits: Australian Coal Alliance at [73] citingMinister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224 (Walker),Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255 (Walsh)at [56]. Whether or not the words “land use trends” appear in the SOR is not to thepoint. As a matter of substance, the IPC did consider land use trends in pars 206-236of the SOR.

156 The obligation under cl 12(a)(ii) is to consider whether the development is likely to havea significant impact on the uses that are likely to be preferred uses of land in the vicinityof the development, in the opinion of the consent authority, having regard to land usetrends. The obligation to have regard to land use trends is a part of the formation of an



opinion about likely preferred uses. That in turn informs a consideration of significantimpact on land uses. The approach of the IPC in par 206 of the SOR and followingshowed a proper appreciation of this hierarchy of considerations. It was open to the IPCto consider the evidence and submissions concerning land use trends and attributeweight to them accordingly. This approach was consistent with Rocky Hill at [57], [62]-[65]. The IPC stated in par 206 that it had adopted guidance on preferred uses in RockyHill. The IPC considered the zoning of land, agriculture, heritage and mining, then theimpact of the mine on the likely preferred uses in par 229 onwards. It considered thatthere have been no significant changes to land use trends over time, with a long historyof agricultural land use. There was no error in this approach.


157 Clause 12(a) of the Mining SEPP required the IPC to consider (i) the existing andapproved uses of land in the vicinity of the Project; (ii) whether the Project is likely tohave a significant impact on preferred uses of land in the vicinity which, in the opinionof the IPC, are likely, in light of land use trends; and (iii) any ways the Project may beincompatible with any of the existing, approved, or likely preferred uses. This groundfocusses on cl 12(a)(ii). In other words, there is no criticism of the identification ofexisting and approved uses of land in the vicinity (cl 12(a)(i)), or of consideration of theways the Project may be incompatible with any of the existing, approved or likelypreferred uses (cl 12(a)(iii)).

158 Judicial review proceedings are not to be used as a vehicle for seeking to overcomemerit objections to the findings of a consent authority. The merits of a decision cannotbe considered in judicial review proceedings: Gilbank v Bloore (No 2) at [48] citingMinister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40(Peko-Wallsend) at 42; and Teys Australia Southern Pty Ltd v Burns (2015) 206LGERA 186; [2015] NSWLEC 1 at [90] citing Attorney-General (NSW) v Quin (1990)170 CLR 1; [1990] HCA 21 at 35-36 (Brennan J). Nor should reasons be consideredselectively and with an eye for error, per Wu Shan Liang at 291. A review ground whichis largely one of form over substance should not succeed. This ground essentiallyoffends these limitations. The BVPA’s criticisms can be largely adopted.

159 Considering the construction of cl 12(a)(ii), as the BVPA submitted in [156] above, theobligation on the IPC was to have regard to land use trends as part of the formation ofan opinion about likely preferred uses which is to be considered in determiningsignificant impact on land uses. The SOR from par 206 shows that the IPC understoodthat was its task.

160



In terms of the facts, the consideration of land use in the SOR is extensive. Theprovisions of cl 12(a) are set out in pars 109 and 189. The words “land use trends”appear in par 206. Likely preferred uses were expressly considered in Section 6.1.4pars 206-236 of the SOR, as extracted in part above in [19]. Section 6.1.5 titled “Impactof the proposed mine on the likely preferred uses in the vicinity” is identified as an issuethe IPC had to consider. Conclusions of incompatibility with existing, approved or likelypreferred uses is identified expressly in pars 231-232. A fair reading of the extensiveanalysis of historic, current and preferred uses of land self-evidently includesconsideration of land use trends. As the BVPA identified, the uses of land in this area ofthe Bylong Valley have been relatively static since white settlement. I adopt the BVPA’ssubmissions in [155] above that this ground is essentially a complaint about a factualconclusion and is therefore an impermissible merits complaint per Australian CoalAlliance at [73] citing Walker and Walsh at [56].

161 There is no specific requirement that the words “land use trends” appear in the IPC’sreasons. The essence of the complaint is really that the words “land use trends” do notappear in the concluding par 227 of the SOR.


Grounds 8 and 9 – legal errors in conclusion that lack of evidence on relevant mattersand irrational finding in relation to alternative supplies of coal

163 There is substantial overlap between Grounds 8 and 9 and these will be consideredtogether.

164 The Further Amended Summons states (Ground 8):

33F The First Respondent was obliged, in determining the Development Application:(a) to afford procedural fairness to the Applicant; and(b) in discharging that duty, to consider cogent evidence relevant to the issuesbefore it.

33G Further, the First Respondent was obliged, in determining the DevelopmentApplication:

(a) to afford procedural fairness to the Applicant; and(b) in discharging that duty, to advise the Applicant of any adverse conclusionat which the First Respondent had arrived which was not obviously open on theknown material.

33H Further, the First Respondent was obliged, in determining the DevelopmentApplication:

(a) to consider the likely impacts of the development the subject of theDevelopment Application; and

ParticularsEnvironmental Planning and Assessment Act 1979 (NSW) s 4.15(1)(b).(b) in discharging that duty, to acquaint itself with material relevant to the likelyimpacts of the development.

33I Further, the First Respondent was obliged, in determining the DevelopmentApplication, not to act in a manner that was legally unreasonable or irrational.



g y33J In making the Refusal Decision, the First Respondent concluded, adversely to theApplicant:

(a) that it had insufficient evidence before it to reach conclusions on certainissues; and(b) that the effect of certain evidence before it was unclear.

ParticularsSee Reasons at [516], [811] and [817] (re impacts on Aboriginal heritage) [693]-[694] (re alternative sources of coal), [696] (the finding as to the nature of theproposed GHG mitigation measures) and [296], [297] and [817] (re “make good”measures).

33K Further, in making the Refusal Decision, the First Respondent failed to considercogent evidence before it relevant to whether, absent the development, the applicantwould need to secure an alternative source of coal which would or may be of inferiorenvironmental quality.

ParticularsThe evidence not considered was:

(a) the Applicant’s letter (and attachments) dated 4 March 2019 and, in particular, theletter from the Chair of the Applicant to the First Respondent dated 4 March 2019 whichexpressly addressed the counterfactual;(b) the Department’s Preliminary Assessment Report at pages 40-41 which addressedthe counterfactual.33L Before making the Refusal Decision the First Respondent:

(a) did not advise the Applicant that it had reached the conclusions describedin paragraph 33J; and(b) did not acquaint itself with material relevant to addressing the uncertainty inthe evidence that it perceived there was.

33M Further, if the First Respondent did consider the evidence referred to inparagraph 33K, it acted unreasonably and/or irrationally in forming the view that it hadno evidence before it to determine whether, if consent were given, the Applicant willneed to secure an alternative source of coal and that this coal may be of an inferiorquality and may lead to poorer environmental outcomes.33N By reason of the matters alleged in paragraphs 33J to 33M above, the FirstRespondent breached the duties alleged in paragraphs 33F to 33I above.

165 The Further Amended Summons states (Ground 9):

Ground 9: irrational finding in relation to alternative supplies of coal33O The First Respondent was obliged, in determining the Development Application,not to make findings that were legally unreasonable and/or irrational.33P In making the Refusal Decision, the First Respondent decided that it did not haveevidence before it to determine whether, if consent were granted, the Applicant willneed to secure an alternative source of coal and that this may be of an inferior qualityand may lead to poorer environmental outcomes (the Alternative Supply Finding).

ParticularsReasons at [694].

33Q The Alternative Supply finding was unreasonable and/or irrational.Particulars

There was, on any reasonable view, evidence before the First Respondent onthat issue: see letter from Hansen Bailey to the First Respondent dated 4 March2019 (with attachments).

166



Grounds 8 and 9 necessitates consideration of the extensive process of assessmentundertaken by the IPC, including the public consultations it undertook. These aresummarised in the SOAF extracted in [10] above

167 The evidence on Grounds 8 and 9 is summarised below by reference to the followingfour topics: (i) Aboriginal heritage impacts; (ii) alternative sources of coal; (iii) lack ofcertainty as to “make good” provisions”; and (iv) nature of proposed GHG mitigationmeasures.

KEPCO’s evidence

Aboriginal heritage impacts

168 KEPCO took the Court to the PAC Review Report dated 25 July 2017 which observedat p 26 that further investigation was required to properly assess the expected impactsto Aboriginal cultural heritage.

169 Appendix U to EIS: Correspondence with the Office of Environment and Heritage(OEH) regarding Aboriginal Heritage included draft proposed Condition 44(d), designedto protect Aboriginal cultural heritage, based on a verbal agreement reached betweenthe OEH and KEPCO (incorporated into the Department’s Final Assessment Report).

Alternative sources of coal

170 KEPCO relied on the Department’s State Significant Development Assessment ReportMarch 2017 (Department Preliminary Report), specifically the observation at p 41 that“refusing the project would not reduce global greenhouse emissions, as the gap in coalsupply would almost certainly be filled by another coal resource locally”.

171 KEPCO took the Court to a letter from Hansen Bailey (KEPCO’s planners) to the IPCaddressing “relevant information for the IPC’s consideration in relation to greenhousegas emissions”, dated 4 March 2019 (with a letter from the president of KEPCO to theIPC addressing the demand for coal in Korea, inter alia, annexed) (Hansen BaileyMarch 2019 letter). The president of KEPCO noted that the construction of new coal-fired power stations in South Korea demonstrates the “ongoing demand for thermalcoal for years to come”.

Lack of certainty as to “make good” provisions

172 KEPCO relied on Appendix M to EIS: Groundwater Impact Assessment dated June2015, specifically p 140 which states:

… the groundwater system essentially re-equilibrates within 100 years of miningceasing.

173



KEPCO also took the Court to Appendix G to EIS: Review of Groundwater Impactsdated July 2018 which also states that the groundwater system would slowly recoverover a period of approximately 100 years post-mining.

174 A letter from Hansen Bailey to the IPC on “response to submissions in relation to waterresources” dated 20 December 2018 states that “any drawdown in water levels will notbe permanent and that there will be no adverse impacts post-mining”.

Nature of proposed greenhouse gas mitigation measures

175 KEPCO took the Court to its GHG Impact Assessment, specifically p 99 where Scope1, 2 and 3 emissions are defined, and its consideration of minimising emissions fromproduction of purchase materials, employee business travel, waste disposal, andcontractor-owned vehicles inter alia.

176 The Department’s Final Proposed Conditions included Condition 19(d) which states:

19. The Applicant must:…(d) implement all reasonable and feasible measures to minimise the release ofgreenhouse gas emissions from the site;

Affidavit evidence

177 Relevant to each of the four topics addressed above, KEPCO read the affidavit of MrBailey sworn 19 May 2020. Mr Bailey deposed that Hansen Bailey was engaged as thelead environmental approvals and planning consultant by KEPCO in relation to its DA.Mr Bailey had day-to-day carriage of the matter. During the course of the IPC’sassessment of the DA, KEPCO received and responded to correspondence from theIPC. From time-to-time after receiving correspondence from the IPC, KEPCOforwarded that correspondence to Hansen Bailey for advice. Mr Bailey’s practice uponreceiving such correspondence was to gather information and prepare a consideredresponse. This response was communicated back to KEPCO or directly to the IPC.

178 Mr Bailey deposed that several matters were not communicated to Hansen Bailey. MrBailey said he did not receive any communication from KEPCO or the IPC to the effectthat the IPC had formed the view that:

(a) it had insufficient evidence to form a view on the impacts of the Projecton Aboriginal heritage;

(b) it had no evidence to support the argument that a gap in supply of coalwould almost certainly be filled by another coal resource locally oroverseas;

(c)



it had no evidence to determine whether, if the Project or RecommendedRevised Project, were not approved, KEPCO would need to secure analternative source of coal that may be of inferior quality and lead to poorenvironmental outcomes;

(d) the GHG mitigation measures that KEPCO had committed to in itsproposed GHG Management Plan appeared to relate to only Scope 1and 2 GHG emissions, and that was an adverse factor;

(e) there was uncertainty and insufficient information before it as to whetherthe “make good” requirements of the Project and Recommended RevisedProject were met.

179 Mr Bailey said that had he been made aware that the IPC had formed these views, hewould have implemented his usual practice of gathering information and preparing aconsidered response to provide to the IPC.

The BVPA’s evidence


180 The BVPA relied on several documents which were submissions before the IPCaddressing the inadequacy of the assessment of Aboriginal heritage impacts, namely:

(a) the transcript of an IPC public meeting held on 7 November 2018;

(b) a written submission prepared by Hilary Crawford, a Rylstone resident,dated 12 November 2018;

(c) a written submission prepared by the Lock the Gate Alliance, dated 13November 2018;

(d) a written submission prepared by the BVPA, dated 14 November 2018;and

(e) an Expert Review of Aboriginal Cultural Heritage Assessment preparedby Peter Kuskie of South East Archaeology, dated 14 November 2018.


181 The BVPA took the Court to the Expert Review prepared by the Institute for EnergyEconomics and Financial Analysis (IEEFA), dated June 2018, which provides as follows(p 2):

The clear change in direction on energy policy by the South Korean governmentsignificantly impacts the long-term economic viability of the Bylong Coal Project in termsof the amount of coal that can be placed into the market and for how long.…



KEPCO’s letter of support for the project fails to consider the significant change in thelong-term outlook for coal demand in South Korea that has taken place since theelection of a new government in 2017.

182 The Bylong Coal Project Supplementary Information prepared by Hansen Bailey, datedJuly 2018, was prepared in response to the IEEFA Expert Review.

183 A further Reply to KEPCO’s Response to IEEFA was prepared by IEEFA, datedNovember 2018. Also prepared by IEEFA was a document titled Briefing Note: SouthKorea Shifting Further Away from Coal, dated April 2019.

184 The question of coal demand was also addressed in various submissions, including awritten submission prepared by The Australia Institute, dated November 2018.

185 A transcript of an IPC meeting held with the BVPA on 12 November 2018 records aseries of contentions to the effect that global coal demand and South Korean relianceon coal are reducing.

186 The Steffen Report also deals with the question of alternative coal sources including inpars 60-61 his observation that the argument that if the Project is not allowed toproceed another coal source will be used in its place is fundamentally flawed.

187 The Hansen Bailey March 2019 letter addresses the question of demand for coal andmaintains KEPCO’s contention that coal will be sourced elsewhere.

188 Further submissions and correspondence addressing this topic included a letter fromthe Environmental Defender’s Office (EDO) acting for the BVPA dated 8 March 2019, aletter from Hansen Bailey to the IPC on “response to EDO NSW submission dated 15February 2019”, addressing the decision in Rocky Hill, dated 8 March 2019, and a letterfrom Hansen Bailey to the IPC on “response to IPC correspondence dated 27 June2019”, addressing various public submissions, dated 5 July 2019.


189 The BVPA relied on a written submission prepared by the Lock the Gate Alliance thatwas before the IPC, dated 6 November 2015 and a later submission dated 13November 2018 which addressed the question of how the AIP applies.

190 The BVPA took the Court to a letter from Hansen Bailey to the IPC providing its“response to submissions in relation to water resources”, dated 20 December 2018.

191 Also referred to was a letter from Chalk & Behrendt acting for the “Lock the GateAlliance” to the IPC addressing the proper interpretation of cl 12AB of the Mining SEPPregarding the AIP, dated 13 February 2019.


192 The BVPA took the Court to evidence already relied on by KEPCO, namely the GHGImpact Assessment (see [175] above) and proposed Condition 19(d) (see [176] above).

193



Other relevant documents addressing the need for closer scrutiny to Scope 3 emissionsincluded the letter from Chalk & Behrendt described in [191] above and the transcript ofan IPC meeting held with the BVPA on 12 November 2018 described in [185] above.

194 The BVPA also relied on a submission prepared by Doctors for the Environment thatwas before the IPC, dated November 2018, and other submissions calling for closerscrutiny to be given to Scope 3 emissions.


195 The errors asserted in Grounds 8 and 9 are that the IPC reached conclusions adverseto KEPCO in circumstances where that was unexpected, and the IPC should havedisclosed to KEPCO the matters so that it could have addressed further submissionson the topics. Ground 8 is based on a number of well-established legal principles:

(a) As an incident of the duty to accord procedural fairness, a decision-maker “is required to advise of any adverse conclusion which has beenarrived at which would not obviously be open on the known material”:Commissioner for Australian Capital Territory v Alphaone Pty Ltd (1994)49 FCR 576 (Alphaone), 592, referred to with approval in Re Minister forImmigration and Multicultural and Indigenous Affairs; Ex parte Palme(2003) 216 CLR 212; [2003] HCA 56 at [22] (Ex parte Palme) (GleesonCJ, Gummow and Heydon JJ).

(b) The duties imposed by s 4.15(1) of the EPA Act (including, for example,the duty to consider the likely impacts of the development) carry withthem a duty on the consent authority “to acquaint itself with such materialas will permit it to consider” those of the matters which are in factmaterial: Parramatta City Council v Hale (1982) 47 LGERA 319 (Hale) at340 (Moffitt P).

(c) Consistently with the presumption that Parliament intends powers to beexercised in a legally rational or reasonable way (Minister for Immigrationand Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [24], [29],[63], and [88]-[90]), the consent authority must not act in a way that islegally unreasonable. Among the ways in which a finding will be shown tobe legally unreasonable is if there is “only one conclusion open on theevidence” and some other conclusion is reached, or if “there is no logicalconnection between the evidence and the inferences drawn”: Fattah vMinister for Home Affairs (2019) 268 FCR 33; [2019] FCAFC 31 (Fattah)at [45] (Perram, Farrell and Thawley JJ).

(d)



A decision-maker will constructively fail to exercise jurisdiction andcommit jurisdictional error if the decision-maker fails to take account ofcogent evidence providing substantial support to a person’s case:SZMTA at [13] (Bell, Gageler and Keane JJ); Minister for Immigration andCitizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at[103]-[115] (Robertson J). This is supplemented by a consent authority’sduty to “evaluate the development application (including anyaccompanying documents)”: Davis v Gosford City Council (2014) 87NSWLR 699; [2014] NSWCA 343 at [39] (Preston CJ of LEC) (Beazley Pagreeing at [1]; Ward JA agreeing at [2]).

196 The IPC’s conclusions and reasoning violated each of these principles.

197 In respect of three topics – Aboriginal heritage impacts, alternative sources of coal andproposed aquifer “make good” measures – the IPC concluded that it had insufficientevidence before it to form a view either way. In particular:

(a) in respect of Aboriginal heritage impacts, the IPC found that there was“insufficient evidence for [it] to form a view on the impacts on Aboriginalheritage”: SOR par 516; see also SOR pars 811, 817. This is despiteevidence that Aboriginal heritage had been addressed to the OEH’ssatisfaction, see [168]-[169] above;

(b) in respect of alternative sources of coal, the IPC found that it did “nothave evidence before it to determine whether, if the Project orRecommended Revised Project is not approved, the Applicant will needto secure an alternative source of coal and that this coal may be of aninferior quality”: SOR par 694. This was an aspect of the IPC’s reasoningwhich ultimately concluded in the seventh bullet point in par 817. This isdespite evidence that it was the Department’s position that refusing theProject would not reduce global GHG emissions as the gap in coalsupply would be filled by another coal resource (see [170] above), anddespite material before the IPC that coal demand in South Korea isongoing (see [171] above).

(c) in respect of “make good” measures for aquifer interference, the IPCfound that there was “uncertainty and insufficient information before it asto whether the ‘make good’ requirements of the Project andRecommended Revised Project are met given the exceedance in therespective water table”: SOR par 296; see also pars 297, 817. Notably,this was a matter relied on by the IPC in its conclusion in par 817. This isdespite evidence that 100 years post-mining there would be no adverseimpacts on groundwater (see [172]-[174] above).

198



Further, the IPC was apparently uncertain as to the scope of KEPCO’s proposed GHGmitigation measures. In par 696 of the SOR, the IPC referred to KEPCO’s GHGManagement Plan and observed that the measures in it “appear to relate only to Scope1 and 2 GHG emissions”. This was part of the IPC’s reasoning to the conclusion thatScope 3 emissions had not been minimised which, in turn, was one of the overallreasons for refusing consent: SOR par 817. This is despite evidence that Scope 3emissions were addressed in KEPCO’s GHG Impact Assessment (see [175] above)and that Condition 19(d) of the Department’s Final Proposed Conditions (see [176]above) imposed a requirement to minimise the release of GHG emissions.

199 KEPCO further submitted in relation to alternative sources of coal that the IPC’sobservation in par 694 of the SOR that it did not have evidence before it to determinewhether, if consent was granted, KEPCO would need to secure an alternative source ofcoal could not have been made if the IPC had actively intellectually engaged with thematerial before it. The material before it was plainly evidence enabling the IPC todetermine that KEPCO would need to secure an alternative source of coal which waslikely to be of lower quality. If the IPC did consider that material, its conclusion was notlegally open. On the evidence available, the only available conclusion was that therewas evidence upon which the IPC could reach a determination (whether or not thatdetermination was one favourable to KEPCO). The IPC reached an irrationalconclusion that was not supported by evidence and was manifestly wrong in fact,explicable only by a failure to consider cogent evidence before it and a legallyunreasonable failure to understand that evidence.

200 Mr Bailey’s affidavit (summarised in [177]-[179] above) identifies that if he had beentold about these issues he would have taken certain actions.


201 These grounds are essentially raising merit arguments in the guise of judicial reviewgrounds. The principles articulated by KEPCO are made in particular statutory contextsand their application must be considered with caution for that reason. Alphaoneapproved in the High Court in the unanimous decision of Gleeson CJ, Kirby, Hayne,Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural andIndigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) at [32] is cited inrelation to procedural fairness that a party must be given the opportunity to address oncritical issues that are not apparent from the natural terms of the statute under whichthe decision is being made. Each of the matters complained of in Grounds 8 and 9concern an issue that was clearly identified as critical in the assessment process andwhich KEPCO was well aware was critical. The IPC reached a conclusion that wasopen on the material before it.



202 Other principles of administrative law must also be considered, namely that proceduralfairness does not require a decision-maker to identify its thought processes or itspreliminary conclusions to an applicant for comment: Alphaone at 591-592, Powerlift(Nissan) Pty Ltd v Minister for Small Business, Constructions and Customs (1993) 40FCR 332 (Powerlift) at 365-366; Pilbara Aboriginal Land Council Aboriginal CorporationInc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539; [2000]FCA 1113 (Pilbara ALCAC) at [63]-[73]; Re Minister for Immigration and MulticulturalAffairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; [2003] HCA 60 (S154) at[54], [57]-[58].

203 Hale, relied on by KEPCO in [195(b)] above, was a very different case where the localcouncil issued development consent without being aware of a number of significantissues of traffic, parking and access. In that context, the CA held the council had anobligation to acquaint itself with matters sufficiently to be able to undertake its statutoryobligation to consider relevant impacts. The facts of this case are different in that therewas information before the IPC about each of the topics relied on in these grounds.Much of that material was voluminous. The principles in Hale did not require it to reachcertainty in respect of all the matters it considered. There is no general administrativelaw principle that a consent authority is obliged to acquaint itself with such materials aswill enable it to determine a matter. Weal also had quite different circumstances of agrant of development consent with a deferred commencement condition for a crucialimpact of noise. The fact that an insufficiency of evidence or area of uncertainty arosein relation to a matter which KEPCO knew of did not impose a duty to enquire on theIPC and did not make it inappropriate to proceed to make a final determination torefuse consent. That the IPC was uncertain about particular impacts must beunderstood in the context of its whole reasoning.

204 KEPCO’s argument that because it thought it had an agreed approach with the OEH onAboriginal heritage issues, and the Department on other topics, and so it was a surprisewhen the IPC took a different view, gives rise to no obligation on the IPC’s part. TheIPC is not bound by the Department or the OEH. It is an independent decision-maker.There were strong dissenting voices on all the issues identified in these grounds withsubmissions that the IPC should not be satisfied, even if the Department was.

205 In Walsh v Parramatta City Council at [60] Preston CJ observed:

The level of particularity with which a matter is identified in the statute may besignificant where the failure complained of is not a failure to consider a certain subjectmatter, but a failure to make some enquiry about facts said to be relevant to that subjectmatter. For the applicant to succeed, the statute must expressly or impliedly oblige thedecision maker to enquire and consider the subject matter at the level of particularityinvolved in the applicant’s submission: Foster v Minister for Customs and Justice (2000)200 CLR 442 at [23].

206



Forgall Pty Ltd v Greater Taree City Council (2015) 209 LGERA 160; [2015] NSWLEC61 at [87] also applies in this context. There were issues in play with competingcontentions before the IPC. It was on notice about how to deal with those issues, as isclear from the evidence summarised in [180]-[194] above and expanded on insubmissions from [207]-[225] below. What Mr Bailey did not say in his affidavit is thathe was not aware these were issues of controversy before the IPC. It is not a failure toaccord procedural fairness for a person unsatisfied with the ultimate conclusion to saythat if he or she had known the outcome they would have taken a different approach.


207 From the start of the assessment process the Secretary’s Environmental AssessmentRequirements (SEARs) issued by the Department required an assessment of the likelyimpacts of the Project on Aboriginal heritage. KEPCO accordingly prepared anassessment of those impacts. The PAC Review Report identified some concerns withKEPCO’s approach and the need for further investigations to occur. This was alsorecorded in correspondence with the OEH. The decision to undertake furtherassessment of Aboriginal heritage impacts after consent was granted may have beensatisfactory to the OEH but was the subject of dissent in several public comments,including submissions of the BVPA and an assessment prepared by archaeologist MrKuskie (listed above in [180(b)]-[180(d)). Concerns included that an adequateinvestigation had not been undertaken and the cumulative impacts of both the Projectand the Recommended Revised Project on Wirajduri heritage had not been addressed.

208 It was right for the IPC to conclude that there was insufficient evidence for it to form aview on the impacts of the Project on Aboriginal heritage as there had been no advancein terms of understanding what the impacts actually were following the concerns raisedby the PAC. This could have been no surprise to KEPCO as the lack of adequateevidence was precisely what the public submissions were drawing attention to.

209 The IPC discharged its duty to acquaint itself with material relevant to the exercise of itsfunction. It was logical for the IPC to reason that it could refuse consent withoutreaching a final view about the precise nature of the heritage impacts, given they couldat best only be seen as a neutral matter, not a matter that favoured the granting ofconsent. It did not draw any adverse conclusion about Aboriginal heritage impacts. It isabsurd to suggest that the IPC, having reached that view on the facts, wasnevertheless obliged to undertake some further factual inquiry in order to giveprocedural fairness to KEPCO. A situation of refusal does not give rise to the same kindof considerations in Hale and Weal where consent was granted without anunderstanding of the impacts.




210 The IPC was under no obligation to reach any more definitive conclusion about thelikelihood of KEPCO obtaining alternative sources of coal if consent were refused. TheIPC was aware that KEPCO had asserted that Scope 3 GHG emissions would beemitted irrespective of the approval because if the Project was refused it would findalternative sources of coal. KEPCO’s suggestion that it would use alternative sourcesof coal was challenged and dealt with by material before the IPC (see [181]-[188]above). KEPCO was plainly alive to the fact that this was a matter in dispute. The IPC’scomment that it “does not have evidence before it to determine whether… the Applicantwill need to secure an alternative source of coal” was not intended to indicate that it hadno evidence at all before it on the topic. It was clearly aware of KEPCO’s contentionson the point. The statement reflects that the IPC did not consider it was in a position toreach a satisfactory conclusion about whether that eventuality would in fact arise.

211 The material before the IPC addressing this contention included an Expert Reviewdated June 2018 prepared by IEEFA (see [181] above). This submission took issuewith the proposition that it was inevitable that there would be continued use of coal-powered power stations in South Korea and that the Project was needed to meetexisting coal demand. It contended that the clear change in energy policy by the SouthKorean government significantly impacts on the long-term economic viability of theProject. KEPCO’s assumed ongoing need for coal in South Korea is disputed. KEPCOresponded to some of these propositions in the submission titled Bylong Coal ProjectSupplementary Information prepared by Hansen Bailey, dated July 2018 (see [182]above).

212 The next relevant document is the Department’s Final Assessment Report in October2018. The Department expressed its views about the dispute and the competingcontentions of IEEFA and KEPCO in its response. The Department agreed withKEPCO about what was likely to happen in the future and the likely state of SouthKorean energy policy going forward.

213 A submission prepared by the Australia Institute in November 2018 which addressedthat global demand for coal was falling went to KEPCO’s proposition about thenecessity of KEPCO obtaining coal from another source (see [184] above). IEEFA puton a reply to KEPCO’s response in November 2018 which again contested the factualclaims about energy and power in South Korea. IEEFA put on a further submission, abriefing note dated April 2019 analysing South Korea’s shift further away from coal (see[183] above).

214 A meeting was held with the BVPA and the IPC on 12 November 2018. A transcript ofthat meeting records Mr Buckley’s comments on global coal demand and South Koreandependence on coal reduction. The Steffen Report (above in [186]) explains that, in Mr



Steffen’s opinion, the argument that if the Project was disallowed, another new coalresource either in Australia or overseas would be developed to take its place isfundamentally flawed.

215 The Hansen Bailey March 2019 letter addresses the question of demand for coal andmaintains the contention that KEPCO will continue to have a demand for coal and willget it elsewhere (see [187] above).

216 A few days later, Hansen Bailey sent a further letter dated 8 March 2019. Thisresponded to the EDO’s submission about Rocky Hill. It again maintained the point thatif it did not get the coal from this source, it would need to secure an alternative sourceof coal.

217 A further letter from Hansen Bailey of 5 July 2019 gave another opportunity for KEPCOto address the issue of alternative sources of coal. It had the opportunity to respond tothe various submissions on the topic and it chose to frame its response in a particularway (see [188] above).

218 These submissions and letters provide the context for what the IPC analysed in pars693 and 694 of the SOR. The IPC was well aware that it had material before it in theform of KEPCO’s contentions. The IPC did not ignore the material before it. It came tothe conclusion that it was not satisfied, based on those competing contentions, that itcould make a finding that any contention was true.

219 Any error on this point is immaterial because the IPC agreed with the approach ofPreston CJ in Rocky Hill to the effect that in any event, an unacceptable impact doesnot become acceptable because KEPCO may end up pursuing an alternativedevelopment that has unacceptable impacts (Preston CJ at [545]). The IPC consideredit appropriate to proceed without reaching any final view about the likelihood of KEPCOobtaining alternative coal of an inferior quality. The evidence on this topic to whichKEPCO points in its submissions was hypothetical and without proper substantiation.The conclusion that this evidence did not allow the IPC to be satisfied that KEPCOwould in fact proceed to secure alternative sources of inferior coal was entirely open tothe IPC. There is no substance to KEPCO’s complaint that it was denied proceduralfairness by not being given a preview of the IPC’s ultimate conclusions on that point. Itwas readily apparent that the adverse impacts in relation to this matter and the efficacyof the proposed solution were live issues for KEPCO to address. Involving furtherrounds of consultation in relation to any issue where the IPC was not inclined to bepersuaded based on the submitted material would lead to administrative paralysis.

220 In addition, contrary to the assertion in Ground 9, the finding on this point was notirrational or unreasonable. It reflected the IPC’s consideration of KEPCO’s evidence onthe topic which the IPC considered, on the merits, did not support the finding urged byKEPCO. The complaint that this finding was unreasonable or irrational was not



developed by KEPCO in submissions in a way that could satisfy the Court that any ofthe factual conclusions the IPC reached were not open to it, based on the competingcontentions that were before it.


221 The issue of “make good” provisions in relation to groundwater impacts arose in theSOR in the context of the AIP. The IPC noted that “there has been no informationprovided by the Applicant in relation to proposed ‘make good’ measures”. The IPCaccepted the submissions of KEPCO and the Department that the drawdown on theaquifer on land owned and operated by KEPCO was to be greater than two metres,which exceeds the maximum drawdown threshold in the AIP. It concluded that thedrawdown was an interference with an aquifer exceeding the respective water tablethreshold under cl 12AB(7) of the Mining SEPP. As a consequence, it came to considerthe existence of “make good” provisions at KEPCO’s suggestion. KEPCO did notaddress in detail how minimal impact considerations were addressed with respect to itsland. Whether or not “make good” provisions were adequate was addressed squarely inthe material, including whether these provisions would apply to land and bores ownedby KEPCO. The IPC was entitled to come to the conclusion on the facts that theultimate effect of the material before it was uncertain and there was insufficientevidence on that topic for it to conclude that the “make good” provisions were certainand sufficient.

222 Relevant documents that were before the IPC included submissions provided by theLock the Gate Alliance from 2015 and November 2018 (see [189] above) addressingthe application of the AIP. The Lock the Gate Alliance submitted that when you read theAIP, it applies to any water supply work, irrespective of who owns the property, wherethere is a drawdown of more than two metres. There is no justification for limiting theevaluation of the mine’s impact to land not owned by the mine. This presented aproblem for KEPCO because its response throughout the assessment process hadbeen to focus on how the AIP applied to land owned by others and its intention to makegood any problems for those landowners. Other relevant documents are outlined in[189]-[191] above.


223 The IPC’s concern is about the impact of Scope 3 emissions, namely the downstreamburning of coal which will produce something approaching 200 million tonnes of carbondioxide over the life of the Project. This is a critical environmental impact. The issueraised by KEPCO regarding Scope 3 GHG emissions is artificial. The sole basis forKEPCO’s complaint appears to be that the IPC alluded to the fact that the GHGManagement Plan seemed to relate only to Scope 1 and 2 emissions but did not



resolve one way or another whether it was so confined. In oral submissions KEPCOsuggested this was an irrational conclusion because that GHG Management Plan did infact deal with Scope 3 emissions. This is factually wrong. The types of emissionsKEPCO alluded to in making that submission were marginal in nature. The Scope 3emissions addressed in KEPCO’s GHG Management Plan are separated into indirectemissions associated with the production and transport of fuel and separately the useof thermal coal. None of the measures contemplated to minimise GHG emissionscapture off-site Scope 3 emissions. The conditions proposed by the Department alsofailed to address Scope 3 emissions. Condition 19(d) proposed by the Department wasto “implement all reasonable and feasible measures to minimise the release ofgreenhouse gas emissions from the site”. This contemplates onsite emissions whichare Scope 1 and 2, and therefore does not consider Scope 3 emissions.

224 The lack of attention to Scope 3 emissions is made clear in submissions addressed tothe IPC on this topic. Doctors for the Environment noted that Scope 3 emissions hadnot been properly addressed (see [194] above). This was picked up in meetings withthe IPC, as shown in meeting transcripts (see [193] above). The submission of Chalk &Fitzgerald on behalf of the Lock the Gate Alliance also called for closer scrutiny to beplaced on Scope 3 emissions (see [193] above). The Hansen Bailey March 2019 lettersought to engage with the criticisms that had been made about Scope 3 emissions andincompatibility of the Project with the NSW CCPF and the Paris Agreement. It is clearthat there had been a series of submissions on this topic and KEPCO had been giventhe opportunity to respond.

225 KEPCO had every opportunity to put forward a GHG Management Plan that addressedconcerns about Scope 3 emissions. In the circumstances, any supposed error in failingto reach a more certain conclusion in that regard was immaterial to the IPC’sconclusions.

Grounds 8 and 9 not established

226 I agree with the BVPA that these grounds are an attempt to canvas merit issues in theguise of judicial review grounds alleging failure to accord procedural fairness, failing toconsider cogent evidence concerning likely impacts of the proposed mine, not tellingKEPCO of adverse conclusions and irrationality in relation to the IPC’s consideration ofalternative sources of coal in particular.

227 Alphaone in the Full Federal Court, cited with approval in SZBEL by the High Court(Alphaone was identified in Ex parte Palme at [22] in setting out a party’s submissionsbut did not arise squarely in the reasoning of the High Court) can, and indeed must, beaccepted. However, the circumstances of the exhaustive assessment process outlinedin the BVPA’s submissions in the four areas identified do not come close to establishing



a denial of procedural fairness to KEPCO in the areas complained of, or to establishingthat the IPC failed to advise of an adverse conclusion not obviously open on theevidence. There is a substantial difference between the factual matters informing theauthorities relied on by KEPCO and what actually happened before the IPC inconsidering the Project and the Recommended Revised Project.

228 In Alphaone, the Commissioner for ACT Revenue appealed the successful judicialreview of their refusal to grant a licence to Alphaone Pty Ltd on the basis that it was nota fit and proper person to hold the licence it had applied for. The Full Federal Court wasaddressing the question of the extent to which a decision-maker must, as a matter offairness, invite a response from an applicant to its evaluation of an application. InSZBEL citing Alphaone at [27] to the effect that the rules of procedural fairness requirea party affected to be given the opportunity of ascertaining relevant issues and to beinformed of the nature and content of adverse material, the High Court unanimouslyheld that the Refugee Review Tribunal had not accorded procedural fairness to anapplicant because he was not given an opportunity to address it on a determinativeissue. It is useful to note that the High Court at [48] cited with approval Lord Diplock inF Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC295 (La Roche) at 369 as follows:

… the rules of natural justice do not require the decision maker to disclose what he isminded to decide so that the parties may have a further opportunity of criticising hismental processes before he reaches a final decision. If this were a rule of natural justiceonly the most talkative of judges would satisfy it and trial by jury would have to beabolished.

229 To similar effect, the BVPA cited Alphaone at 591-592, Powerlift at 365-366, PilbaraALCAC at [63]-[73], and S154 at [54], [57]-[58] in support of its submission thatprocedural fairness does not require a decision-maker to put its thought process orpreliminary conclusions to an applicant for comment.

230 It is frankly difficult to see how the Alphaone principle approved in SZBEL can apply towhat was clearly a thorough assessment process undertaken by the IPC in relation tothe four topics the subject of these two grounds, as I discuss below.

231 The nature of the development assessment and approval process under the EPA Act isimportant context informing the IPC’s obligations as the consent authority. On any view,the assessment process of this SSD proposal was exhaustive and took place over anumber of years, including in relation to the four areas the source of complaint in thesegrounds of review. The steps are summarised in the SOAF extracted in [10] above.

232 KEPCO’s submissions relied on the parts of the SOR in each of the four areascomplained of as set out in [197]-[198] above where the IPC identified there wasinsufficient evidence on a particular topic as part of determining to refuse consent. TheBVPA identified in its submissions evidence of where each of the four areas were thesubject of submissions before the IPC, drawing in turn on the evidence outlined in



[180]-[194] above. Aboriginal cultural heritage impacts were referred to in [207]-[209]above of the BVPA submissions, referring in turn to relevant evidence in [180] above.The issue of alternative sources of coal was referred to in [210]-[219] above of theBVPA submissions, referring in turn to relevant evidence in [181]-[188] above. Theissue of “make good” aquifer is referred to in [221]-[222] above of the BVPAsubmissions, referring in turn to relevant evidence in [189]-[191] above. The issue ofmitigation of GHG emissions is referred to in [223]-[225] above of the BVPAsubmissions, referring in turn to relevant evidence in [192]-[194] above.

233 KEPCO’s submissions in relation to Aboriginal cultural heritage issues are particularlyweak for the reasons given by BVPA. That an agreement had been reached by KEPCOwith the OEH as to how that issue would be managed, which effectively postponedassessment of how protection of Aboriginal cultural heritage would be dealt withaccording to the SOR in par 516 and as identified in numerous submissions to the IPC,does not bind the IPC in any way on how that issue should be determined. Nor doesthat agreement in any way require the IPC to tell KEPCO that it did not agree beforecoming to its own conclusion on the matter.

234 Considering alternative sources of coal, the complaint is twofold, a failure to accordprocedural fairness and to consider the Hansen Bailey March 2019 letter (Ground 8)and that the IPC acted irrationally (Ground 9). The latter is really a complaint that theIPC did not adopt KEPCO’s submissions on that topic based on the Hansen BaileyMarch 2019 letter. The IPC considered this letter in pars 674-676, 684 of the SOR. Inany event, this is a merits assessment matter. There was extensive competing materialbefore the IPC on that subject. It was not bound to adopt KEPCO’s consultant’sposition. Not preferring KEPCO’s view does not give rise to any basis to argueirrationality, a ground which has a high bar in order to succeed: Peko-Wallsend at 41-42. Unreasonableness is a conclusion which may be applied to a decision which lacksan evident and intelligible justification: Li at [76].

235 In relation to “make good” aquifer issues, there is extensive discussion of the issue ofwhether the obligation in the AIP applied to that part of the aquifer located on KEPCO’sland or only that located outside KEPCO’s land. Consideration of that material toconclude there was not sufficient evidence to satisfy the IPC on that matter was acourse open to it in the execution of its assessment function.

236 In relation to GHG mitigation measures, substantial material was provided to the IPCand numerous submissions were received in relation to that topic.

237 If KEPCO’s arguments are upheld, the development assessment process under theEPA Act would become unworkable in terms of resources required and time taken toreach a decision and achieving finality, a key plank of the development approvalprocess. KEPCO is the applicant for development approval. Natural justice



requirements suggest that it have adequate opportunity to present material it sees fit tothe IPC. The evidence suggests that KEPCO had more than ample opportunity topresent what it wished to the IPC on the identified topics, all of which were well knownto KEPCO. The evidence does not provide any basis for suggesting the IPC failed toevaluate the DA, including accompanying documents. There was no demonstratedfailure by the IPC to take account of cogent evidence available to it, KEPCO citingSZMTA and SZRKT for that submission – indeed, none is identified. Once again, thefacts in those cases are far removed from the IPC process of assessment I amconsidering. The cogent evidence I infer would be what Mr Bailey would have providedif asked. That material is in a different category, as I refer to next.

238 Another key submission of BVPA which I adopt is that KEPCO could not have beensurprised by the IPC considering the issues in the manner that it did. That Mr Baileycould have plugged any identified gaps in information is immaterial. A relatedsubmission of the BVPA which I accept is that there can be no failure to accordprocedural fairness to a person not satisfied with the ultimate result, here a refusal ofdevelopment consent, if that person essentially submits that they would have taken adifferent approach.

239 The quote of Lord Diplock in La Roche cited in SZBEL (above in [228]) highlights thedifficulty of KEPCO’s grounds based on failure to accord procedural fairness becauseKEPCO says it was unaware that there were areas that the IPC considered were notadequately demonstrated to its satisfaction. In Minister for Local Government v SouthSydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288, Mason P stated at[267] that to suggest there is a right for all affected parties to see all adversesubmissions of all other persons putting in submissions would be unworkable, becauseit would lead to “an infinite regression of counter-disputation”, and in Tubbo Pty Ltd vMinister Administering the Water Management Act 2000; Harvey v MinisterAdministering the Water Management Act 2000 (2008) 302 ALR 299; [2008] NSWCA356, Spigelman CJ at [84] confirmed that a decision-maker receiving submissions is notgenerally subject to a duty to disclose a proposed conclusion, unless it is of a characterthat could not reasonably be anticipated (cited in Calardu Penrith Pty Ltd v Penrith CityCouncil [2010] NSWLEC 50 per Biscoe J at [180]).

240 Returning to the authorities set out in KEPCO’s submissions, breaches of theassessment required under s 4.15 as identified in Hale do not arise on the facts here,as the BVPA submitted in [203] above. The IPC did acquaint itself with material whichenabled it to consider the material matters in issue. Once again Weal, which concerneda deferred commencement condition in a development consent, does not provide auseful description of the duty imposed on a consent authority where it determines arefusal is appropriate.



241 There was nothing legally unreasonable in the IPC’s decision-making in relation toalternative sources of coal. To assert that there was only one conclusion open on theevidence is a complaint about a merits matter, an impermissible consideration in theseproceedings. Consequently, statements in Fattah have no relevance here.

242 Grounds 8 and 9 are not established.

Conclusion

243 In my findings above I considered it necessary to address the issue of materiality inrelation to Grounds 1, 3 and 6 and have done so. I did not consider it necessary toconsider materiality in relation to Grounds 2, 4, 7, 8 and 9.

244 As KEPCO has been unsuccessful in its grounds of review its summons should bedismissed.

245 The usual costs rule in judicial review proceedings is that costs follow the event. TheBVPA (the Second Respondent) as the successful party should have its costs paid byKEPCO (the Applicant). The IPC (the First Respondent) filed a submitting appearancesave as to costs. Before making a costs order, the IPC should have the opportunity toadvise if it wishes to make any submissions on costs. If not, the costs order I haveindicated will be made. A timetable will be discussed with the parties.

Orders

246 The Court orders:

(1) The Applicant’s Further Amended Summons filed 3 June 2020 is dismissed.

(2) Costs are reserved.

(3) The exhibits are returned.

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Decision last updated: 22 December 2020

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