On 8 February 2019 the Chief Justice Preston of the Land and Environment Court refused to grant development consent to a new proposed open cut coal mine near Gloucester in the NSW mid-north coast1.
The decision led to numerous media articles claiming it was a landmark decision because of its refusal based on the likely greenhouse gases that would be emitted when the coal is used to make steel rather than directly by the coal mining operation itself.
In my view, the lessons and implications are less about indirect greenhouse gas emissions because that was not the primary reason for the mine being rejected, rather it was the visual and social impacts.
This article focusses on the Chief Justice’s reasoning with respect to visual impacts. A subsequent article will focus on the social impacts.
The proposed new mine
Gloucester Resources Limited (GRL) lodged a development application in 2012 seeking development consent for an open cut coal mine over 832ha (of which 500ha would be disturbed) that would produce 21 million tonnes of coal over a period of 21 years. The application was amended in 2016 and in 2017 the Department of Planning in its assessment report recommended refusal and later that year the Planning Assessment Commission (as delegate of the Minister for Planning) refused consent.
GRL appealed to the Land and Environment Court against the Minister’s decision and a local community action group, Groundswell Gloucester Incorporated was joined as a second respondent on its own application.
Contentions against the mine were broad and did not just relate to climate change
The two respondents raised numerous contentions as to why the Court should reject GRL’s proposal for a mine. They were summarised in the judgement as:
- Incompatibility of the proposed mine with the existing, approved and likely preferred uses of land in the vicinity of the proposed mine
- Adverse visual impacts
- Adverse social impacts caused by the noise, dust and visual impacts
- The economic and public benefits of the mine are uncertain, overstated and not shown to be greater than the public costs of the mine
- It is contrary to the public interest including because it is contrary to the principles of ecological sustainable development, namely direct and indirect greenhouse gas emissions will contribute to climate change.
The visual impacts were high in an area of high sensitivity and justified refusal
The Chief Judge concluded that the proposed mine will have a “high visual effect, because of the high visual contrast between the proposed mine and the existing visual environment…..The viewpoints, both in public and private properties, have high visual sensitivity. The combined impact is….. a high visual impact…This high visual impact in turn has a significant impact on and is incompatible with the land uses carried out on the land.”: [217-218].
All of these findings were noted by His Honour as consistent with the Department’s assessment report and the Commission’s decision. His Honour said that these visual impacts justify refusal of consent for the mine: [222]. The visual impacts were night lighting, the dynamic changes in view settings as construction and mining progress over time, the overburden emplacements and rehabilitated mine as well as the visual amenity barriers themselves, will contrast with the existing and surrounding landscapes in both size, shape, colour and vegetation.
The keys to His Honour’s reasoning were the area had a high visual sensitivity because:
- the majority of the mine was within the E2 environmental management zone not a rural zone,
- the majority of the community including Council were opposed to the mine [113]
- the landscape has a cultural association and importance to Aboriginal people [120].
His Honour considered (among other things) that the visual impacts as assessed by the mine’s experts were deficient [140], that they had downplayed the landscape context such as by characterising it as “readily replaceable agricultural land” [122-123] and they had overstated the effectiveness of the amenity barriers being the bunds or hills built to block views to the open cut mine.
Lessons
The judgement is a warning on assessments that attempt to narrow the visual impact assessment to an apparently quantitative matrix of view lines, positions and sensitivities. Given that constructing the matrix as well as the inputs require subjective judgements, all of these must be justified and defensible. Further, it should never be assumed that the measures in place to mitigate visual impacts will not have an adverse effect themselves.
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