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The NSW Land and Environment Court has recently upheld a public interest group's appeal against Ministerial approval given for the expansion of Rio Tinto's Warkworth mine.

In 2010 Warkworth Mining lodged a major project application to expand its existing open cut coal mine in the Hunter Valley, which was ultimately approved by the Minister. Its major project status meant that it was assessed against particular provisions of the relevant legislation.

Having lodged a representation opposing the application, a local residents group, the Bulga Milbrodale Progress Association, appealed the decision, asserting that there were significant and unacceptable impacts on the community and environment.

The Court upheld the appeal and overturned the decision of the Minister. The Court concluded that the project would have significant and unacceptable impacts on biological diversity, including on endangered ecological communities, as well as unacceptable noise, dust and social impacts. The Court determined that the project was not justified on environmental, social and economic grounds.

Key findings

The Court decision was based on the following three findings:

1. The proposed conditions imposed as part of the approval, which aimed at reducing the impacts in relation to biological diversity, noise and dust, were inadequate and were unlikely to be successful in minimising the impact on the environment and the community.

2. The proposed conditions of approval would be difficult to monitor and it would therefore be problematic to ensure compliance with those conditions. There would also be significant negative impacts arising from noise and dust, visual impacts, and adverse impacts arising from a change in the composition of the community.

3. Whilst the project would have some positive social impacts on the community, including increased employment, there would be significant negative impacts arising from noise and dust, visual impacts, and adverse impacts arising from a change in the composition of the community.

This case demonstrates the difficult relationship between mining and rural activities. With the growth of mining in rural areas, it is an interesting balancing act between the benefits of mining through increased investment and employment as against the potentially detrimental impacts, in terms of impacts on farming land, impacts of noise and dust, visual impacts and other social impacts from those working in mining sites.

It is interesting to note that since the time of this appeal, the provisions of the NSW Act allowing for appeals by an objector have now been repealed, removing any right to lodge an appeal in similar matters.

Could such a scenario arise in South Australia?

In SA, the equivalent legislation is the Development Act. Under this legislation, development is divided into three main categories - Category 1, 2 and 3. It is only where a development is Category 3 that a person has any entitlement to appeal against a decision. Whether a proposed development will be a Category 3 type of development will depend on its location and the provisions of the relevant Development Plan.

In addition, for major projects (which are projects designated by the Minister as being of major environmental, social or economic importance), the Development Act already precludes any right of appeal against any decision made.

If you are interested in reading a full copy of the decision, click here.