Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48:

 

Residents of the village of Bulga presented an external merits review application to the Land and Environment Court of New South Wales (LECNSW) to challenge an administrative decision of the Minister for Planning and Infrastructure granting approval to a proposed expansion project for an existing open cut coal mine operated by Warkworth Mining Limited.  The residents claimed the proposed project would cause unacceptable impacts on biological diversity and on the community of Bulga and the full costs would not be internalized by the project.

 

After carefully evaluating the costs and benefits of the proposed expansion project, the LECNSW determined that the proposed project would cause unacceptable environmental and social impacts and that the approval conditions would be inadequate to satisfactorily offset such impacts, so it decided to refuse Warkworth’s expansion project proposal and replace the administrative decision with its refusal.  Paras. 14-20, 498-500.  The decision is fairly long (72 pages) and includes separate detailed Parts discussing the impacts of most concern to the LECNSW: biological diversity, noise and dust impacts, social impacts, and economic concerns.  

 

Regarding the impacts of the proposed project on biodiversity, the LECNSW determined the proposed “compensatory measures would not adequately compensate for the significant impacts that the Project would have on the extant [endangered ecological communities] in the disturbance area.”  Para. 255.

 

Regarding noise impacts, the LECNSW concluded that, “[e]ven if it can be accepted that the mines are operating within the noise limits required under the existing consents or proposed under the new conditions, … the noise levels of the present operations of the mine are at a level sufficient to impact on amenity, including sleep disruption” and “[t]he noise mitigation strategies proposed in the approval conditions are not likely to reduce noise levels to the project­specific noise levels recommended by the [NSW Industrial Noise Policy] or to levels that have acceptable impacts on the residents.”  Para. 275 & 385.  Moreover, “the extensive noise control at receivers, being mitigation treatment and acquisition of properties in Bulga, is likely to cause social impacts.”  Para. 385.  Thus, the LECNSW decided, “no confident conclusion can be drawn that the noise impacts of the Project will be acceptable.”  Id.

 

Regarding dust impacts, the LECNSW concluded that “no confident conclusion can be reached that the air quality impacts of the Project will be acceptable in practice” because the proposed combination of “the air quality criteria for the Warkworth and Mount Thorley mines is of doubtful legal validity but in any event is likely to be difficult to monitor and enforce compliance.”  Paras. 401 & 403.

 

As for social impacts, the LECNSW concluded that “the Project would have some positive social impacts, particularly in the form of continuing employment in the local and broader community, but there will be significant negative social impacts arising from continuation of adverse impacts of noise and dust, visual impacts, and adverse impacts arising from a change in the composition of the Bulga community. Those impacts must be taken into account in the consideration of all the relevant factors in determining whether the Project should be approved.”  Para. 445.  In its discussion of negative social impacts, the LECNSW considers evidence of “solastalgia,” meaning: “the pain or sickness caused by the ongoing loss of solace and the sense of desolation connected to the present state of one's home and territory. It is the 'lived experience' of negative environmental change manifest as an attack on one's sense of place. It is characteristically a chronic condition tied to the gradual erosion of the sense of belonging (identity) to a particular place and a feeling of distress (psychological desolation) about its transformation (loss of wellbeing). In direct contrast to the dislocated spatial and temporal dimensions of nostalgia, it is the homesickness you have when you are still located within your home environment[.]”  Para. 420.

 

Regarding economic concerns, the LECNSW found several deficiencies in the two economic assessments of the project provided in the EA: (1) an Input­Output Analysis (IO), and (2) a Benefit Cost Analysis (BCA), which incorporated a Choice Modelling study (a type of non-market valuation of the main intangible environmental, cultural and social impacts).  Regarding the IO, the LECNSW determined that the estimated economic benefit to result from the project is based on unreasonable employment assumptions and, more fundamentally, “[t]he IO analysis only looks to economic impacts, not environmental or social impacts, and then only to economic impacts measured by reference to goods and services with a market value, not those without a market value.”  Paras. 459-463.  Regarding the BCA, the LECNSW found eight primary deficiencies: (1) the distribution of the Choice Modelling surveys to NSW households was too limited (“the broader Australian community could well place values on the ecological and Aboriginal cultural heritage impacts”); (2) deficiencies in the information provided to survey respondents that materially affect the reliability of the choices made and values ascribed by the respondents; (3) the Choice Modelling survey attributed inadequate values to the choices; (4) matters relevant to biodiversity, ecological integrity, noise, dust, and social impacts were not included in the Choice Modelling survey or the BCA; (5) relevant non­market impacts and values were not considered, or not adequately considered, in the BCA; (6) the polycentricity of the issues was not accounted for in the Choice Modelling survey; (7) the approach to weighting and balancing in the BCA and the Choice Modelling study is different than that required and supplants the weighing and balancing functions of the approval authority; and, (8) the BCA and the Choice Modelling study did not consider issues of equity or distributive justice (“failures to consider adequately inter­generational and intra­generational equity limit the utility of the BCA and Choice Modelling to the Court for the purposes of evaluating, weighting and balancing the relevant matters to be considered in determining the Project Application”).  Paras. 469-495.  Accordingly, the LECNSW decided that the economic assessments do not support the conclusion that the economic benefits of the project outweigh the environmental, social and other costs.  Para. 450.

 

Both Warkworth and the Minister of Planning appealed the LECNSW decision and the NSW Court of Appeal dismissed their appeals.  See Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105.

Date of the Resource: 
Monday, April 15, 2013
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