19 Dec 2013

Mining case reaffirms the importance of defining the case in merit appeals

by Graeme Dennis, Nick Thomas, Joanna Zhou

Parties should consider carefully the issues they want to contest and ensure that those issues are identified in the Statement of Facts and Contentions.

In the recent case of Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203, the New South Wales Land and Environment Court reaffirmed the importance of defining the case in a merit appeal in the Court.

The Court overturned a decision of its own Commissioners because they had determined a merits appeal on issues which the parties to that appeal had not addressed as part of the scope of the appeal. In doing so, the Court has provided a useful reminder to litigating parties of the importance of ensuring their case clearly addresses the key issues they want it to, and has given parties some certainty about the case they need to meet.

The Berrima Colliery seeks planning approval

The Berrima Colliery is an underground mine which has been in continuous production since the 1920's and is one of the oldest operating collieries in New South Wales. The introduction of Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) effectively meant that planning approval would be required for the continued operation of the colliery.[1]

Boral Cement Limited applied for approval of the continued operation of the Berrima Colliery until 30 April 2020, and an increase of production at the site. The Planning Assessment Commission (PAC) granted Part 3A approval, as delegate to the NSW Planning and Infrastructure Minister.

The Southern Highlands Coal Action Group Pty Ltd (SHCAG), an objector to the Part 3A application, appealed the merits of the PAC decision to the Land and Environment Court, and this meant the Court had to re-determine Boral's Part 3A application. Two Commissioners of the Court heard the appeal.

In accordance with the Court rules, SHCAG prepared a detailed Statement of Facts and Contentions (SOFC), which raised specific issues for resolution in the appeal, mainly in relation to impacts on water quality and aquatic ecosystems, and Boral and the Minister prepared a SOFC in reply. The parties engaged experts who gave evidence on these issues in considerable detail, and made oral and written submissions on these issues.

Some local resident objectors also gave evidence, as is usually the case in merit appeals, and they raised other issues such as traffic, noise and dust impacts associated with a haulage road for the colliery. The parties did not address those issues specifically, but provided draft conditions of approval to deal with them if the Court were to grant approval, and they also pointed out parts of the Part 3A application documents which addressed those issues.

The Commissioners upheld SHCAG's appeal and overturned the PAC decision based on the findings that:

  • the noise, dust and traffic impacts from the haulage road would have had sufficient detrimental impact on the amenity of the local residents, which warrants refusal of the proposal; and
  • the draft Water Management Plan forming part of Boral's proposal did not provide an adaptive management regime to address groundwater impacts and therefore there was insufficient information to conclude that the groundwater impacts of the proposal would be managed adequately.

Boral and the Minister appealed the Commissioners' decision primarily on the grounds that procedural fairness had not been afforded to the Minister and Boral.

The scope of the case is very important

Justice Pain, deciding the appeal, held that the Commissioners had denied Boral and the Minister procedural fairness because they determined the appeal on an issue which was not in the SOFC or addressed specifically by the parties, and the Commissioners had not told the parties they might determine the appeal on the issue.

Her Honour acknowledged that, on a merit appeal, the Commissioners had to re-determine Boral's application on the merits, and that could involve a reconsideration of any of the merit issues which Boral's application raised. However, she also accepted that it is "unworkable" to expect the parties to prepare a case on every single issue which the Commissioners might consider.

The purpose of the Court rules requiring the parties to prepare SOFCs is to identify the issues on which the parties need to make their case, and, if the Commissioners are considering making a decision on other issues, they must tell the parties so that they can prepare on those issues as well.

In this case, the haulage road impacts were not in the SOFC. Boral and the Minister argued, and Justice Pain accepted, that, if they had known the haulage road was such a significant issue for the Commissioners, they could have obtained expert evidence and made submissions about it, and tested the residents' evidence about it.

The Court must focus on the key issues and consider the parties' evidence

On the determination concerning the Water Management Plan, Justice Pain found that the Commissioners did not exercise their jurisdiction to determine the key water-related issues, and denied procedural fairness to Boral and the Minister, as the "necessary process of reasoning did not occur", for two reasons:

  • The Commissioners failed to identify and address the issues for a merits appeal which were essentially, what the water and aquatic ecosystem impacts were and whether they would be acceptably managed. Instead, they focused on whether the Plan was an "adaptive management regime". In such a complex matter, there needed to be an "evaluating and balancing" of "a number of issues in determining what the environmental and other impacts are"; and
  • there was an "absence of consideration" in examining the substantial expert evidence given in relation to water management issues.

Although the original decision was overturned, Justice Pain was not permitted to rule on merits of the SHCAG appeal. She therefore remitted the matter to a Commissioner of the Land and Environment Court for re-determination, taking into consideration her findings.

However, by this point the Berrima Colliery had already announced that it would close, partly because of the uncertainty of whether the relevant approvals would be granted.


The key message for merits appeals in future is that the parties should consider carefully the issues they want to contest and ensure that those issues are identified in the SOFC. This allows all parties to see clearly what they must address in the appeal.

This has always been the purpose of a SOFC, but there is sometimes a tendency to water down the importance of SOFCs in merit appeals. Justice Pain's decision reminds us that SOFC are there for good reason, and they should be used properly. This should provide more certainty and efficiency in running merit appeals.

The case also provides useful guidance on the importance of ensuring that the issues in the appeal are clearly explained and the expert evidence clearly addresses those issues.

 Thanks to David Hamer for his help in writing this article.

[1] Although Part 3A of the EPA Act has been repealed, the relevant provisions of the EPA which replaced it also would require planning approval for the continued operation of the colliery. Back to article

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.