Page 1 of 1

Bulga v Warkworth Mine Appeal - analysis by Clayton Utz

PostPosted: Tue Aug 06, 2013 12:04 am
by HVPA_research
Link to this page:,
Twitter page:
Facebook page:

* From the HVPA Mailing list
This is also worth reading…a very good, readable and detailed summary of the decision handed down by the Land and Environment Court.
Very good arguments against what the State govt is trying to do now.


Coal mine extension case has a rich seam of key lessons for environmental lawyers

Andrew Poulos in Clayton Utz Insights concluded that:
The case will be studied closely by many in the environment and planning field for the guidance it gives on the Court's role in reviewing these decisions.(our emphasis)

It is also significant to note that the decision to approve may also have been challenged on the basis that it was manifestly unreasonable. This is because the impacts of the proposed development were so significant and that the mitigation measures were insufficient to deal with those impacts that a Court may well have considered that no reasonable decision-maker could have come to the decision that the Minister came to in respect of the Warkworth mine project.

One aspect, where Rio Tinto tried to be particularly clever, was especially significant in the Justice Preston's decision:
Noise and dust impacts

One of the key issues in respect of noise was that the noise impacts were considered for both Warkworth and Mount Thorley mines. Each mine is separately owned and has its own separate consent with different noise criteria for residents in Bulga.

Warkworth submitted that the combined approach was justified because of the high number of residents that become entitled to request mitigation or land acquisition than would otherwise be the case for Warkworth alone on the 2003 consent, and noise levels are expected to drop once the operations at Mount Thorley cease.

The legal difficulty confronted by the Court is that it is required to assess the likely noise impacts of the mine that is the subject of the present application and any conditions imposed on a project approval must relate to that project and be capable of implementation by whomever is carrying out the activities authorised by the approval.

A condition imposed on an approval granted in the proceedings could not purport to impose obligations on the operator of a separate mine (Mt Thorley) that is subject to its own consent. It is unlikely that any such condition would have sufficient nexus with the Project that is the subject of the present proceedings so as to satisfy the relevant legal test which require that the conditions of consent fairly and reasonably relate to the Project. Furthermore, any approval granted to Warkworth for the proposed extension could not require or preclude the operator of Mount Thorley seeking approval to alter its operations or to extend its operations past the expected cessation of that mine in 2017.

The Court concluded that the noise criteria proposed in the conditions of the Project Approval were not appropriate. The noise impacts of the Project on the residents of Bulga would be intrusive and adversely affect their reasonable use, enjoyment and amenity of the village and the surrounding countryside. The noise mitigation strategies were unlikely to reduce noise impacts to levels that would be acceptable and, indeed, could result in greater social impacts.

Furthermore, in relation to equity issues the Court stated that "the costs resulting from the residual impacts will be borne by the residents of Bulga who are the noise receivers, but the benefits of the Project will be enjoyed by others, including Warkworth. The burdened residents of Bulga will not be compensated effectively by Warkworth. There will not be full internalisation by Warkworth of the external costs of the Project, occasioned by its noise impacts, on the Bulga residents".