The NSW Bar Association has expressed its concern around claims alleging judicial overreach in a recent NSW decision to disallow the development of a Hunter Valley mine.
The outcome of Gloucester Resources Ltd v Minister for Planning, as considered by Chief Justice Brian Preston, has seen media coverage call the decision “a worrying example of judicial overreach” and “against the national interest”, which the association highlighted in a statement released on 13 February.
Gloucester Resources Ltd had brought its matter before the Land and Environment Court to try to overturn a decision of the minister for planning that refused development consent for a new open-cut mine near Gloucester.
NSW Bar Association president Tim Game SC explained that “in assessing such a development application the court is required to take into account many factors including environmental impact”.
“The Chief Judge, referring to relevant legislative provisions, planning instruments and case law, gave detailed reasons as to why he was obliged to consider climate change in that environmental assessment,” he noted, before he acknowledged that Chief Justice Preston would have been in error had he failed to do so.
“Expert scientific evidence of the impact the mine would have on climate change was before the court and both sides made submissions as to its relevance and weight,” Mr Game SC continued.
“In a 700-paragraph judgment, climate change was one factor (albeit a significant one) amongst many factors the Chief Judge considered.”
In the long and detailed judgement, the president also explained that the judge had refused the application “for its significant and unacceptable planning, visual and social impacts”.
“The green-house gas emissions provided a further reason for refusal.”
In the statement from the association, the president also called out “an attack on the character of the Chief Judge” by one newspaper, that had referred to the Chief Judge as having co-founded the Environmental Defenders Office (which represented a party in the proceedings) and made reference to extra-judicial papers given by the Chief Judge that may give an impression of bias on the subject of climate change.
Mr Game SC called the referral “troubling”, despite the association’s acknowledgement that the newspaper was nevertheless “appropriately eschewing an assertion of bias”, according to the NSW Bar.
“The Chief Judge’s remarkable and extensive career within the land and environment jurisdiction highlights his commitment, expertise and suitability as a judicial officer of the court,” Mr Game SC continued.
“If there was any concern about judicial bias, it was open to the parties to raise that and ask the judge to recuse himself, as the Attorney-General Mark Speakman SC has already noted,” he then explained.