This submitter appeal was against the respondent’s approval of an application for a development permit for a material change of use for an extractive industry and environmentally relevant activities (extraction and screening) in respect of a former gold mine which ceased operation 25 years ago leaving behind approximately 4 million tonnes of gravel in a heap pile, together with mining infrastructure. The site is listed on the Environmental Management Register (EMR) because of notifiable activities having been carried out (mine waste and minerals processing). The co-respondent by election was a concurrence agency to whom the development application was referred in relation to matters within the jurisdiction of the Department of Transport and Main Roads (proximity to a State-controlled road) and the Department of Environment and Heritage Protection (the environmentally relevant activities). The co-respondent supported approval of the application.
The appeal was unusual because:
1) It did not involve issues concerning the impacts of on-site activities. Instead, the controversy surrounded the potential for the material, once it had been exported from the site, to cause environmental and land contamination, human health, ecological and/or environmental issues (including in relation to the control of the material, once it has left the site) elsewhere.
2) Since the implementation of the Planning & Environment Court’s system of expert meetings and joint reports, the extent of disagreement amongst experts appointed in a given case, particularly from scientific fields of expertise, has typically significantly narrowed through that process, leaving the Court to determine a confined range of residual areas of disagreement. Further, disputes about testing regimes and methodology have become rare, since the experts can usually agree on such matters and carry out testing which satisfies them. This case was an exception. The experts, particularly those who participated in the joint environmental and land contamination report (ELCJR), remained in disagreement in almost all respects, including as to the adequacy of testing. Quite exceptionally, the Court was ultimately invited to make adverse findings about the credibility of 3 of the experts who participated in the ELCJR.
John Ware (with D Gore QC) appeared for the co-respondent, instructed by Thynne & Macartney.
The judgment is available here.