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2 Aug 13
Amendments to the Mining SEPP

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On 29 July 2013 the New South Wales Department of Planning and Infrastructure (DOPI) released proposed amendments to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) that makes the significance of a resource the principal consideration for consent authorities under Part 3 of the Mining SEPP for all development applications for mining purposes.  The amendments also prohibit consent authorities from refusing developments on the basis of certain non-discretionary development standards relating to cumulative noise level, cumulative air quality, air-blast pressure, ground vibration and aquifer interference if the proposed development satisfies the development standards in the Mining SEPP.

Significance of the resource

Under the amendments, in considering the provisions of the Mining SEPP under section 79C of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A) for the purposes of determining a development application for mining purposes, the significance of the resource will be the consent authority’s principal consideration in so far as consideration of the Mining SEPP is concerned.

The weight given to the other matters for consideration under the Mining SEPP (which includes the compatibility of the proposed mine with other land uses, the efficiency of the resource recovery, the assessment of natural resource and environmental management, and a consideration of transport and rehabilitation issues) must be proportionate to that matter’s importance in comparison with the significance of the resource.

The consent authority must still take into account all other factors in section 79C of the EP&A in determining the application, including environmental impacts on both the natural and built environments, social and economic impacts in the locality, the suitability of the site for development, and the public interest. This involves the ‘balancing exercise’ which figured prominently in the recent Land and Environment Court decision in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 (Warkworth).

Economic benefits

In assessing the significance of the resource a consent authority will be able to have regard to the economic benefits to the State and the region of developing the resource and also the advice of the Director General of the Department of Trade and Investment, Regional Infrastructure and Services (DTIRIS) on the significance of the resource in comparison with other resources across New South Wales.  In providing advice, the Director-General of DTIRIS can consider the size, quality and availability of the resource, the proximity and access of the land to existing or proposed infrastructure, the relationship of the resource to any existing mine, and if other industries or projects are dependant on the development of the resource.

Response to the Warkworth decision

By making the significance of the resource a key issue of consideration in the decision making process, the amendments respond, in part, to Chief Judge Preston’s decision to uphold an appeal against a decision by the Planning Assessment Commission (PAC) to approve the expansion of the existing Warkworth coal mine in Warkworth.  In ‘dissaproving’ the Warkworth project, Preston CJ focused on five key matters: biological diversity and offsets, noise, dust, social impact, and economic analysis.

Policy aims and environmental management

The amendments also insert a new aim into the Mining SEPP (being to promote the development of significant mineral resources), and makes it mandatory for the consent authority to consider the Mining SEPP aims in determining applications.  A new sub-clause will also be included in clause 14 of the Mining SEPP relating to the assessment by consent authorities of natural resource and environmental management, mandating that in determining a development application for development for the purposes of mining the consent authority must consider any certification of the Office of Environment and Heritage that measures to mitigate or offset the biodiversity impact of the proposed development will be adequate.

Non-discretionary development standards

The amendments also insert non-discretionary development standards that, if met for development for mining purposes, prohibit consent authorities from refusing consent on the specific grounds to which each standard relates.  The standards include cumulative noise levels, cumulative air quality levels, air blast overpressure, ground vibration and aquifer interference.  In addition to prohibiting consent authorities from relying on the non-discretionary standards in refusing development applications, section 79C of the EP&A ensures consent authorities must not impose conditions of consent that that have the same, or substantially the same effect as those standards but are more onerous than the standards.

Outcomes

The amendments appear to directly address a perceived failure by Preston CJ in Warkworth to balance the economic benefits of the proposed mine expansion against social and environmental impacts.  DOPI will receive comments on the proposed amendments until 12 August 2013. With the Warkworth appeal being heard in the NSW Court of Appeal during the week commencing 12 August 2013 it will be interesting to see what effect, if any, the proposed amendments to the Mining SEPP will have on the Court and hence the outcome of the appeal. 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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