The High Court has refused to hear an appeal sought by the proponents of the Bylong coal mine project who wanted to overturn state planning refusal, potentially killing off the project for good.
Korean electricity utility Kepco had applied for planning approvals to build the Bylong coal mine, around 160km north-west of Newcastle, which would have delivered up to 120 million tonnes of thermal coal over a 25-year operating life. The coal was destined for coal generators in South Korea.
In 2019, the NSW Independent Planning Commission (IPC) refused to grant development approval to the Bylong project, citing the potential impacts on the regions water resources, agricultural land and the project’s potential contribution to worsening climate change.
The NSW IPC described the global warming implications of the project has “problematical”.
Kepco sought to overturn the NSW IPC’s decision to refuse planning approvals, initially through the NSW Land and Environment Court and then through the New South Wales Court of Appeal, both of which upheld the refusal.
This week, Kepco applied to the High Court for special leave that would allow it to appeal the NSW IPC’s decision.
On Thursday morning, the High Court declined to grant Kepco special leave to appeal, effectively preventing the challenge from being heard by the court and providing a definitive affirmation of the IPC’s decision.
It’s the end of the road for Kepco in terms of the planning process, leaving it to decide whether it will abandon the project altogether, or start the process afresh with a revised mine proposal.
Philiips Kennedy, the president of the Bylong Valley Protection Alliance, the lead respondent to the High Court appeal, said Kepco needed to accept that the project was effectively dead.
“Kepco must not submit a revised project, it must not delay, it must only sell its land back to the farming families of Australia and leave the Bylong Valley for good,” Kennedy said.
“This company has been told it cannot build its mine by the Independent Planning Commission and three courts, including the highest court in the country.”
“The Bylong Valley community only wants some certainty, and we’re looking forward to that with this win. We want to plan our future on our farms, and we look forward to continuing to supply Australians with food, fibre, and fodder from an agricultural powerhouse with the best soils in the country,” Kennedy added.
The Bylong Valley Protection Alliance had been represented by the Environmental Defenders Office, which said the High Court’s decision amounted to a David verses Goliath victory for the environment group.
“The battle to protect the beautiful Bylong Valley from this coal mine is over,” EDO managing lawyer Rana Koroglu said. “We could not be more delighted for our clients, the Bylong Valley Protection Alliance, who have dedicated years of their lives to challenging this destructive and inappropriate coal mine proposal.”
“The IPC’s decision to refuse this mine was sound. It was based on the evidence and the science, including evidence about the ‘problematical’ greenhouse gas emissions. The decision was tested to its limits and in every appeal the IPC’s decision has been upheld, defended by the EDO and BVPA.”
“This project would have generated over 200 million tonnes of greenhouse gas emissions. It would have been an affront to global efforts to limit climate change, particularly when South Korea itself has recently made strong commitments to reduce its greenhouse gas emissions,” Koroglu added.
The legal victory represents another major milestone for climate litigation, with Australia’s highest court uploading the ability of planning authorities to stop the development of new fossil fuel projects when they are deemed to pose an risk to the environment.
In a statement, a spokesperson for KEPCO said the company would consider its next steps after the High Court’s decision.
“KEPCO is disappointed with the High Court’s decision to dismiss the special leave application. KEPCO will now take some time to consider its next steps,” the spokesperson said.
