Gloucester community's landmark climate change case began in NSW Land & Environment Court, August 2018

Environmental Defenders Office NSW, 14 August 2018:

CASE SUMMARY

Gloucester Resources Ltd and Stratford Pty Ltd
v Groundswell Gloucester and Dept of Planning & Environment 

The Client: Groundswell Gloucester, a residents’ community group concerned with the environmental, social and economic future of the Stroud Gloucester Valley near Barrington Tops in the upper Hunter.

The Case: Represented by EDO NSW, Groundswell Gloucester was joined to proceedings that will determine the fate of the Rocky Hill Coal project, a greenfield open-cut coal mine less than 5km from Gloucester township.

Representation: Matt Floro, solicitor for EDO NSW, has carriage of this matter for Groundswell Gloucester and our Principal Solicitor, Elaine Johnson, is the solicitor on record. We are grateful to barrister Robert White for his assistance in this matter.

Experts: Emeritus Professor Will Steffen will for the first time give evidence in an Australian court that no new fossil fuel developments can be approved if we are to avoid overspending our carbon budget. Professor Steffen is a Climate Councillor on the Climate Council of Australia, Member of the ACT Government’s Climate Change Council, and was previously a Climate Commissioner on the Australian Government’s Climate Commission.

Energy analyst Tim Buckley will explain the financial mechanisms and market changes that are driving investments away from coal and creating a risk that Rocky Hill will become a stranded asset. Tim Buckley is Director of Energy Finance Studies, Australasia, Institute of Energy Economics and Financial Analysis.

60 community objectors include farmers, doctors, Traditional Owners and young people. This is also the first time in an Australian court that young people will talk about the impact of climate change and the impact of the mine on their communities, and future generations.

Timeline:

2016 - Community celebrations after AGL withdraws its application to drill 330 coal seam gas extraction wells in the area.

December 2017 - celebrations continue when the Planning Assessment Commission (PAC) refuses consent to the Rocky Hill Coal Project proposed by Gloucester Resources Limited (GRL). The PAC found that the mine was not in the public interest because of its proximity to the town of Gloucester, significant visual impact and direct contravention of the area’s zoning plans.

The PAC also refuses consent to a Modification of the consent for the nearby Stratford mine - operated by a related company of Yancoal Australia Limited - that proposed the receipt, processing and railing of coal from the Project.  The PAC found that the Modification would have no critical purpose or utility outside the Project.

Planning Minister grants both mining companies the right to appeal the refusal of consent to the Land and Environment Court.

February 2018 - Our client, Groundswell Gloucester, seeks to be joined to the proceedings.

April 2018 - following a full-day hearing, the Land and Environment Court orders that Groundswell Gloucester be joined to the proceedings brought by GRL.
In relation to the climate change ground, on joining Groundswell Gloucester, the Court noted that:
“GRL submits that the raising of the climate issue as proposed in a domestic Court if the Intervener were joined would not serve the purpose of improving this particular planning decision; and, instead, would be a “side show and a distraction”. I do not agree.”

Our client has been permitted by the Court to present expert evidence on climate change and the social impacts of this new mine. The Court will hear anthropological evidence about the social impact of mining on the community.

This is the first time an Australian court will hear expert evidence about the urgent need to stay within the global carbon budget in the context of a proposed new coal mine.

Key dates: 
13-14 August 2018
Opening submissions at the Land and Environment Court, Macquarie Street, Sydney
15 August 2018
Site visit (parties only) Gloucester
16-17 August 2018
Hearings in Gloucester (community objectors)
20-24 & 27-31 August 2018
Submissions and expert witnesses at the Land and Environment Court, Macquarie Street, Sydney

Background

This is the first hearing of its kind since the historic Paris Agreement in which a superior jurisdiction Australian court will hear expert testimony about climate change, the carbon budget and the impacts of the burning of fossil fuels.

For years EDO NSW has supported the Gloucester community, providing legal and scientific advice. This contributed to a recommendation from the Department of Planning and Environment (DPE) in 2016 to the Planning Assessment Commission (PAC) to refuse GRL’s greenfield mine application, known as the Rocky Hill Coal Project (the Project) and the associated Stratford modification.

In December 2017, the Planning Assessment Commission (PAC) refused consent to the Project and the modification, finding they were not in the public interest because of proximity to the town of Gloucester, significant visual impact and the area’s zoning under planning laws.

In deciding how the Project and modification would be assessed, the NSW Minister for Planning granted unusual merit appeal rights to GRL and Yancoal who are now joined together in aggressively challenging the refusal in the Land and Environment Court.

Both coal companies have recruited their own legal and scientific teams. However Groundswell Gloucester was not told about the merit appeal until February, two months after GRL filed the case.

EDO NSW case page: www.edonsw.org.au/groundswell 

~~~~~~~~~~~~~~~~~~~~

Concerned citizens can donate to the Environmental Defence Fund here.