Lock the Gate Alliance has launched a legal challenge against the NSW Planning Department over its refusal to release documents under freedom of information laws that shed light on recent approvals of controversial coal mine expansions.
Lock the Gate attempted to obtain legal advice provided to the department by coal mining companies whose significant expansions were controversially approved through the “modification” of an existing approval. Lock the Gate believes this advice influenced the Planning Department to assess these coal projects as modifications rather than as new developments.
Expanding coal mines via modifications means coal mine developers avoid having their plans determined by the independent decision maker - the Independent Planning Commission - and substantially limits public participation.
Lock the Gate argues many of these mine expansions, such as Boggabri modification eight, would otherwise have been sent to the Independent Planning Commission for decision, due to their increased impacts on communities, water, and the climate, and the high level of public opposition.
A representative from the Department of Planning’s information access team first rejected Lock the Gate’s original FOI application for these documents, claiming the advice was protected under “legal professional privilege,” because the Planning Department shared a “common interest” with these mine developers.
After an unsuccessful internal review of this decision, Lock the Gate then applied to the independent Information and Privacy Commissioner, which found the department’s claim that the documents were protected by legal professional privilege was not justified and recommended they make a new decision. However, the Planning Department rejected this finding and refused to release the documents. See Background.
Lock the Gate Alliance, represented by the Environmental Defenders Office, has launched a challenge in the NSW Civil and Administrative Tribunal. A hearing will be held today (10 June).
Lock the Gate Alliance Head of Research and Investigations Georgina Woods said: “The NSW public has a right to know if big coal mine developers are influencing the NSW Minns Government and its Planning Department, leading to coal projects being assessed under a less transparent, less accessible process.
“There are 10 coal projects undergoing or awaiting assessment as modifications, and we want to make sure they are subject to the highest level of scrutiny available in NSW.
“The NSW Government must give full consideration to the impacts large coal mine expansions are having on communities, water, farmland, the environment, and climate, and let the public participate in decision-making.
“The continued expansion of coal mining and its greenhouse pollution is endangering the wellbeing of the public and economic future of other industries right across NSW.
“These expanded coal mining proposals should not be snuck through the system without scrutiny and public debate about who is paying the cost for coal mining industry pollution.”
ENDS
Background:
In its rejection of the Information and Privacy Commissioner’s recommendation that the Planning Department make a new decision, the department said (full email trail available on request):
“The (Information and Privacy Commissioner) has wasted both yours and our time by ignoring the public interest test that the Department already applied to the documents as an alternative to the conclusive presumption on the ground of legal privilege... Consultation with the third parties confirmed their strong objections to release and their understanding that the documents were provided in confidence. The internal reviewer felt that the strength of these considerations against release outweighed the public interest in favour.”
The legal advices relate to the following projects:
-
Document 1: Boggabri Mod 8 – Increase in depth of mining (MP09_0182-Mod-8)
-
Document 2: Bloomfield Colliery Continuation Project Mod 5 (MP07-0087-Mod-5)
-
Document 3: Wongawilli Colliery Mod 2 (MP09_0161-Mod 2)
-
Document 6: Modifications in relation to the Greater Ravensworth Area Water and Tailings Sharing System, which affect the Liddell Coal Operations, Mt Owen Continued Operations Project, and Ravensworth Operations, all owned by Glencore Coal Pty Ltd. Mt Owen Continued Operations Project (Mod 7) - GRAWTS Stage 2 (SSD-5850-Mod-7); Ravensworth Coal (Mod 4) - GRAWTS Stage 2 (MP09_0176-Mod-4); Liddell Coal (Mod 8) - GRAWTS Stage 2 (DA-305-11-01-Mod-8)
-
Document 7: HVO South Mod 6 – Ammonium Nitrate Emulsion Plant��(MP06_0261-Mod-6)
-
Document 8: HVO South Mod 8 - HDAN Storage (MP06-0261-Mod-8)