Ironstone Community Action Group Inc v. NSW Minister for Planning and Duralie Coal Pty Ltd (2011) NSWLEC 195 (10 November 2011)
This was an appeal brought by a third party objector (ICAG) against the Minister of Planning’s decision to approve the extension of an existing coal mine. The objections raised in this appeal focused on the impacts of the coal mine extension on biodiversity (especially the threatened Giant Barred Frog), water quality impacts, health impacts from particulate matter, noise pollution, and dust emissions.
The Court determined that approval should be granted to the extension, but imposed extensive additional conditions on the approval based upon a precautionary approach. These additional conditions, the Court explained, “provide for greater and more certain conservation of threatened species and biological diversity in the area, protection of water quality, control of particulate emissions, mitigation of noise generated by the mine and noise and dust generated by the transportation of coal by train. These conditions go further than those imposed by the Minister for Planning in his approval of 26 November 2010. The conditions adopt a precautionary approach. They address the concerns raised of inadequacy of assessment by requiring more comprehensive, detailed and on-going assessment of impacts on threatened species, biodiversity, water quality and particulate emissions; set performance standards; require a stepwise approach to implementation, monitoring and adaptive management; and require greater transparency and accountability. These safeguards will, with a higher degree of probability, deliver a stronger link and an appropriate balance, at the landscape level, between the orderly and economic use of the mineral resource, yielding economic and social benefits including export revenue and royalties and direct employment, and the protection and conservation of the area’s biodiversity and environment.” Para. 6.
One of the issues related to the health risks from small-sized particulate matter (PM 2.5). Paras. 186-204. The Court held that the evidence did not establish a sufficiently likely risk to human health from the levels of PM 2.5 emissions likely to be generated by the mine extension. Para. 202. However, as part of the conditions of approval, the Court imposed extensive air quality avoidance and mitigation measures which, in its view, would satisfactorily address particulate matter and dust emissions from the extension project. “Although these conditions of approval do not specifically address particulate matter of PM 2.5 size, nevertheless, because the measures address all particulate matter and dust emissions, and set criteria for particulate matter with a diameter less than 10 micrometers (PM 10), they necessarily include PM 2.5 and will avoid and mitigate PM 2.5 emissions and their adverse impacts, including on human health.” Para. 204.
In addition, the Court imposed a condition on the proponent to complete a study, within 3 months, of the dust emissions from trains carrying uncovered coal. The study had to identify any mitigation measures and the DG could direct the proponent to implement these measures. Paras. 219-223.