NSW Court finds environmental impacts of transmission lines a mandatory consideration for mining development

In Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (the Proceedings) the New South Wales Court of Appeal (the Court) heard a matter which considered:

1. whether a power transmission line required for a mine was part of a ‘single proposed development’ under section 4.38(4) of the Environmental Planning and Assessment Act 1979 (NSW) (the Act); and
2. whether the environmental impact of that transmission line was a mandatory consideration for the Independent Planning Commission (‘IPC’) when granting development consent.

Background

On 14 May 2020, Bowdens Silver Pty Ltd (Respondent) lodged a development application and Environmental Impact Statement (EIS) with the IPC for the State significant development of an open cut silver, lead and zinc mine. At this time the Respondent submitted that a 132kV power transmission line was required but would be the subject of a separate Part 5 application.

In June 2021, RW Corkery & Co Pty Ltd submitted a report on behalf of the Respondent in response to public submissions on the EIS which reiterated the intention to prepare a Part 5 application for power supply via a 66kV powerline and submitted that the precise alignment of the powerline had not be decided and was subject to ongoing consultation with landholders (June 2021 Submissions).

In December 2022 the NSW Department of Planning and Environment provided its ‘State Significant Development Assessment Report’ to the IPC (Department’s Report). The Department’s Report restated the Respondent’s June 2021 Submissions and acknowledged public concerns raised about the potential impacts of the powerline on biodiversity, but stated the impacts would be separately considered as part of any application to develop the powerline.

The Proceedings

Bingman Catchment Landcare Group applied for judicial review of the IPC’s development consent which had been granted without considering the likely effects of the electrical supply line, specifically the environmental impact of the electricity transmission line required to supply power to the mine. The primary judge dismissed the application as the lack of certainty regarding the route of the transmission line meant its ‘likely impacts’ could not be a mandatory relevant consideration for the IPC when granting development consent.

On appeal, the Court thought the June 2021 Submissions exhibited a degree of confusion as, if the proposed transmission line was part of a single proposed development along with the mine, then development consent from the IPC would be required. Part 5 of the Act does not provide a process for “approval” of a power line, as it excludes anything which requires development consent under Part 4 of the Act.

Relevantly, s 2.46(1)(ii) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) provides that development of the installation or upgrading of electricity lines at a voltage of 66kV or less is an ‘exempt development’. An ‘exempt development’ does not ordinarily require development consent under Part 4 of the Act.

The IPC’s assessment report did not consider any environmental impact of the transmission line, and did not consider whether any environmental impact of a transmission line was too remote from its consideration. The Court suggested this was misguided as the 66kV transmission line was ‘exempt development’ and “approval” was not required.

The Court concluded that the IPC erred in law by not considering the offsite impacts of the mine, including the possible routes of a transmission line, and that this error could not be excused because the Respondent chose not to provide the necessary information and, therefore, for the impacts to not be assessed.

Further, the primary judge was found to have erred in concluding that the only purpose of s 4.38(4) of the Act was to facilitate determination of whether development should be granted, when in fact its purpose is to require the IPC to be the consent authority for development that would not otherwise require development consent.

The Court also considered the primary judge erred in concluding that the 66kV power line was not part of a single proposed development that is ‘state significant development’ within the meaning of s 4.38(4) of the Act and, as a result, the likely environmental impacts were not directly captured under s4.15(1)(b) of the Act.

The Court found that, as the proposed mine required electrical power to be delivered through an off-site transmission line, the likely impacts of that transmission line were a mandatory consideration for the IPC.

The Court further considered that, while declaring the development consent void would reopen the development application for further consideration, this was not onerous enough to decline making such a declaration. The Court found this consistent with the objects of the Act, the purpose of s4.15(1), and consequential of the Respondents decision to proceed on the basis that consent to the transmission line would not be required from the IPC but be subject to Part 5 approval.

In dissent regarding appropriate orders to be made, Price AJA considered that, as the Respondent may make further applications to the IPC, the development consent should be suspended to allow the IPC to consider the impacts of the power line.

Commentary

Although the independent planning committee process may vary from state to state, it is important to remember that the onus is on the applicant to provide the relevant State Department and IPC with all necessary information to make their decision, It is also incumbent on the applicant to ensure all parties are updated as developments occur to mandatory considerations in the approval process.