Gloucester Resources Limited v. Minister for Planning - Other

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Gloucester Resources Limited v. Minister for Planning - decision

Filing Year For Action

On December 19, 2017, Gloucester Resources Limited sued the Minister of Planning, appealing the denial of the company’s application to construct an open cut coal mine in New South Wales, the Rocky Hill Coal Project, which proposed to produce 21 million tonnes of coal over a period of 16 years. The Land & Environment Court of New South Wales upheld the government’s denial of the application. The court found that the project was not in the public interest after weighing costs and benefits of the project, including the climate change impacts of the mine’s direct and indirect greenhouse gas emissions. Under Section 4.15(1) of the Environmental Planning & Assessment Act (the EPA), the government is to consider the public interest as part of its review of a development application.

The Department of Planning denied the Rocky Hill Coal Project application in December 2017. After Gloucester Resources Limited appealed the decision, a local community action group called Gloucester Groundswell Inc. was joined to the litigation. The Minister and Groundswell argued that the Rocky Hill Project application should be denied due to the: 
1) incompatibility of the proposed mine with the existing, approved and likely preferred uses of nearby land; 
2) the adverse visual impacts of the mine; 
3) the adverse social impacts of the mine; 
4) the uncertainty surrounding the economic and public benefits of the mine which were not shown to be greater than the public costs of the mine; and 
5) the Rocky Hill Coal Project is not in the public interest because of the matters in (1) to (4) above and “it is contrary to the principles of ecologically sustainable development because the direct and indirect greenhouse gas emissions of the mine will contribute to climate change.”

As part of its consideration of climate change impacts, the court held that both upstream and downstream emissions of the project should be considered by the Planning Department because the EPA and its regulations require consideration of “the principles of ecologically sustainable development” (“ESD”) which can encompass climate change impacts. The court also pointed to the requirements under the EPA to consider “any environmental planning instrument” and cited language in the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) of 2009 and the 2010 Gloucester Local Environmental Plan as including consideration of ESD and the cumulative greenhouse gas emissions associated with a project. The court recognized the link between these emissions and climate change, remaining unpersuaded by petitioner’s arguments related to market substitution, carbon leakage, the theoretical possibility that other projects would offset these emissions, and the inefficiency of this denial as a mechanism for global abatement of emissions. 

After weighing the costs and benefits of the project, the court upheld the government’s denial of the application, finding “that the negative impacts of the Project, including the planning impacts on the existing, approved and likely preferred land uses, the visual impacts, the amenity impacts of noise and dust that cause social impacts, other social impacts, and climate change impacts, outweigh the economic and other public benefits of the Project.” While not foreclosing all mining projects, the court ruled that this project was not a “sustainable use” because of the combination of climate change impacts of the project and the high environmental and social costs of locating a coal mine in this particular location. 

Gloucester Resources Limited did not file an appeal by the court-designated deadline of May 8, 2019.


Gloucester Resources Limited v. Minister for Planning

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

This sector involves the wholesale and retail selling of goods.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

A subsidy is a direct or indirect payment to individuals or businesses, typically provided as a government cash payment or a specific tax reduction.

Tradable permits are market-based tools that grant permission for specific activities, frequently used to regulate emissions. These permits can be issued within a trading system to manage environmental impacts.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Direct investments by the governments using public funds. This can be to support climate initiatives or integrate climate into other projects.

Activities of businesses and institutions that provide financial services and products to individuals and organisations.

The activities of industries that transforms raw materials into finished goods through industrial processes.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Activities that provide lodging, food, and entertainment services to guests, including hotels, restaurants, and resorts.

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

This sector creates and distributes information and entertainment through television, radio, print, and digital platforms.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Actions and measures to adapt and increase resilience of societies and the economy to climate change.

Activities that relate to the production of goods and services from forests.

A financial institution that manages a country's currency and can promote climate-related initiatives through green monetary policy and other means.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

Action or measure that increases resilience of societal, cultural and natural heritage to climate change impacts.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

Removing subsidies can help reduce costs, better align economic incentives with environmental goals, and promote equity. This can mitigate environmental harm and discourage harmful behaviour. However, it may also end support for renewable energy development or negatively impact communities, households, and businesses.

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Production of electricity and heat from solar irradiation.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

A company that is owned wholly or partially by the state, typically operating in key sectors.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

A loan is a policy instrument where funds are provided to a borrower with the expectation of repaying the principal plus interest.

A policy instrument designed to support the development and acceleration of renewable energy sources by providing a guaranteed, above-market price for producers.

An agency providing government-backed financing, guarantees, and insurance to support domestic companies' international exports, that can play a role in financing climate-related projects.

This sector involves activities to move goods and people, alongside the storage of products.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Gloucester Resources Limited v. Minister for Planning - Other

Target

Policy instrument

Risk

Impacted group

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance