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No appeal filed against ‘groundbreaking’ climate change judgment

Gloucester Resources Limited will not file an appeal against the refusal by the Land and Environment Court to allow the company to build a new open-cut coal mine in the Upper Hunter Valley, meaning the decision to refuse the mine on climate change grounds will stand.

user iconJerome Doraisamy 10 May 2019 The Bar
David Morris
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In early February of this year, the Land and Environment Court refused consent for the proposed Rocky Hill coal mine on the basis of its climate change impacts – a decision which Gloucester Resources Limited initially sought to fight, by virtue of having issued a Notice of Intention to Appeal with Groundswell Gloucester.

However, this week, the miner said it would not file an appeal.

The Rocky Hill judgment was “never radical”, Environmental Defenders Office NSW said in a statement.


“It builds on existing case law around ecologically sustainable development and incorporates the science of the ‘carbon budget’ – the logical (and vital) next step for this area of law.”

EDO NSW chief executive David Morris said the “groundbreaking” judgment would thus stand, marking a “final conclusion to a long process”.

“It’s been a long, arduous – but ultimately successful – road. It’s a sweet moment for our client and a huge win for the lawyers who have toiled long and hard on their behalf. The judgment is a game changer – both for what it says about climate change and also social and cultural heritage impacts,” he said.

“There’s no longer any doubt hanging over the legality of that decision. The focus must now shift to the government’s response, which should be to codify the reasoning adopted by Chief Judge Brian Preston, providing certainty to industry and other communities like the one in Gloucester”.

Groundswell Gloucester chairperson Julie Lyford added: “The community of Gloucester and most importantly the affected residents are absolutely delighted that they can now get on with their lives.”

“The uncertainty and anxious waiting is over. The decade-long fight to protect our homes, families and the beautiful Gloucester valley has been arduous and distressing. The community can now move forward with progressive and sustainable industry,” she said.

At the time of the decision, Lawyers Weekly reported that while mainstream media outlets had cried “judicial overreach”, the EDO felt that the judgment would be “quite influential” in future such cases.

“Some of the findings the Chief Judge made were that he has accepted the evidence of our expert climate scientist in that there was a need to respect the global carbon budget, acknowledging that there is a finite amount of carbon that can be put into the atmosphere if we can limit climate change to relatively safe levels,” EDO acting principal Brendan Dobbie said.

“In accepting that concept, the judge recognised that most existing fossil fuel reserves will have to be left unburnt if we are to stay within that budget.”

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