Community group joins judicial review challenge to NSW mine refusal

The Bylong Valley Protection Alliance (Alliance) has been joined as a party in judicial review proceedings in the NSW Land and Environment Court (Court) challenging the refusal of development consent for a coal mine in Bylong Valley, NSW.

Snapshot

• The Court has joined the Alliance as a party to judicial review proceedings on public interest grounds and because of its role in objecting to the mine.
• The proponent was unable to seek a protective costs order against the Alliance, which means that the Alliance may seek costs in the proceedings.

Background

On 18 September 2019, the NSW Independent Planning Commission (IPC) refused consent to State significant development application 6367 submitted by KEPCO Bylong Australia Ltd (Company) for an open cut and underground coal mine. See our earlier blogpost on the refusal decision here.

On 16 December 2019, the Company commenced judicial review (Class 4) proceedings in the Court challenging the refusal.

On 13 February 2020, the Alliance sought to be joined as a respondent in the proceedings.

Joinder application on public interest grounds

The Alliance submitted that it should be joined on the basis that:

• it played a significant role in opposing the mine before the IPC;
• its joinder was necessary for the determination of all issues in the proceedings;
• the declaratory relief sought by the Company should not be granted without a proper contradictor. The IPC could not be a proper contradictor because of its duty of impartiality; and
• it was an ‘interested party’ within the meaning of rule 59.3 of the Uniform Civil Procedure Rules 2005 (NSW) and it was in the public interest to do so.

In response, the Company submitted that:

• the Alliance’s interests were not directly affected by the proceedings;
• joinder was not necessary to ensure there was a contradictor (the Alliance could appear on an amicus basis); and
• if the Alliance were joined on the basis of its substantial role before the IPC, this would ‘open the floodgates’ to any person who objected to the mine needing to be joined as a party.

The Court found that the Alliance should be joined on public interest grounds and because of its significant role in the IPC’s processes. The Court rejected the ‘floodgates’ argument.

Protective costs order refused

The Company submitted that should the Alliance be joined, it should be prohibited from seeking costs of the substantive proceedings from the Company.

The Court found that there was no basis for making such an order, instead finding that ‘when a person or entity is joined as a respondent to proceedings, it is joined for all purposes’ (emphasis added).

Next steps

The proceedings are listed for hearing in August 2020.

We will continue to monitor the proceedings and report on any key developments.

See the full decision here: KEPCO Bylong Australia Pty Ltd v Independent Planning Commission [2020] NSWLEC 38.

By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Brigitte Rheinberger, Solicitor.

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