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Gloucester Resources Limited v Minister of Planning

8 February 2019

New South Wales Court of Appeal (Australia) 

Citation: [2019] NSWLEC 7

Decision date: 8 February 2019

Judge: Preston CJ

In this matter, the New South Wales Court of Appeal upheld the decision of New South Wales Minister of Planning to refuse the Rocky Hill Coal Project proposed by Gloucester Resources Limited (GRL). The reasons given for the refusal of the project included the incompatibility of the mine with current land uses, the visual impact of the mine, the social and cultural impact of the mine, and significantly, the climate change impact of the proposed mine. The court held that both the direct and the indirect greenhouse gas (GHG) emissions of the mine should be considered by decision-makers; that is to say, not only the GHG emissions from the mining operation, but also the GHG emissions from the transportation and combustion of coal. The Court also rejected arguments by GRL relating to carbon storage, “carbon leakage”, “market substitution” and an argument that coking coal is necessary for smelting processes. Furthermore, the Court found that the economic benefits of the mine, as assessed by GRL’s consultant, were uncertain and overstated.

The Court concluded that the likely impacts of the mine outweighed the potential economic and public benefits. It held as follows:

“In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.”

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Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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