Opinion | Peter Brammall LL.B., Strategic Support Officer, LandTrack Systems
The views expressed are the author’s and do not necessarily reflect those of LandTrack Systems or Datamine.
I was reading the High Court’s recent Mount Pleasant decision and kept coming back to two questions. How far should a NSW mining approval extend? And who carries the cost when an approved project spends years in court?
The people living beside a mine are entitled to challenge its expansion. The people whose livelihoods depend on it have an equal right to ask what happens to Muswellbrook if the expansion does not proceed.
That second question deserves more attention. For employees, contractors and local businesses, a mine approval represents wages, equipment purchases, apprenticeships and decisions about whether to stay in the district.
The figures are substantial. NSW’s assessment of Mount Pleasant’s separate six-year extension to 2032 estimated approximately 555 continuing operational jobs and a $776 million net benefit to the NSW economy, expressed in net present value terms. Those estimates concern that extension, not the larger proposal to continue until 2048.
Before considering what should change, it is worth understanding how the dispute reached the High Court.
In September 2022, the Independent Planning Commission approved MACH Energy’s proposal to increase Mount Pleasant’s permitted extraction rate from 10.5 million to 21 million tonnes annually and extend mining until December 2048. The approval followed departmental assessment, public hearings and submissions, and included environmental conditions.
The Denman Aberdeen Muswellbrook Scone Healthy Environment Group—DAMS HEG—challenged the approval. It lost in the Land and Environment Court, succeeded in the NSW Court of Appeal, and defended that result when MACH appealed to the High Court. On 7 October 2026, the High Court dismissed MACH’s appeal.
The reason is important. The High Court unanimously found that the Commission had complied with section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979. The decisive majority finding concerned its failure to consider conditions aimed at minimising downstream greenhouse gas emissions under the Resources and Energy SEPP.
Those downstream emissions fall within Scope 3. For Mount Pleasant, they principally arise when customers burn the coal, generally overseas.
Chief Justice Gageler and Justice Jagot dissented. They considered that the Commission had discharged its obligation. Their disagreement with the majority concerned what the Commission had considered, rather than whether overseas emissions were excluded from the legislation.
I favour their assessment of the Commission’s reasons. My more fundamental objection, however, is to requiring this exercise in a NSW development approval.
A mine operator should answer for its operations. Dust, noise, groundwater, rehabilitation, fugitive methane and emissions associated with operating the mine are proper subjects for assessment.
Once the coal is sold overseas, other decisions come into play. The customer decides which plant to operate, which technology to install and how to comply with its own country’s laws.
Requiring a NSW authority to consider conditions on an Australian mine is not the same as directly regulating an overseas power station. An exporter may influence its customers through contractual restrictions, product specifications or decisions about whom it supplies.
But that distinction does not resolve my objection. It still makes approval of an Australian mine depend on consideration of how its products will be used under another country’s regulatory system.
The Court did not require refusal of the project or a particular emissions outcome. Nevertheless, the obligation to consider conditions is significant: failure to perform it properly can invalidate an approval.
The strongest argument against my position is that carbon dioxide does not stop at national borders. I accept that. A global problem nevertheless requires a workable allocation of responsibility.
If Australia wants to restrict coal exports because of their eventual use, that policy should be debated openly. Workers, investors and trading partners should be able to identify the rule before a development application is lodged.
There is also a distinction between restricting Australian production and reducing worldwide consumption. A customer may respond to a supply restriction by buying coal elsewhere. Whether refusing a particular project reduces global emissions, and by how much, requires evidence. The reduction cannot simply be assumed.
The immediate legal difficulty lies in clause 2.20 of the Resources and Energy SEPP. It expressly includes downstream emissions in the assessment process and requires consideration of conditions to minimise greenhouse gas emissions. The majority read those obligations together. The Court had a textual basis for its conclusion.
If we object to that result, we should change the wording.
I would amend the Environmental Planning and Assessment Act itself and make corresponding amendments to clause 2.20. The amendment should expressly exclude emissions from the overseas combustion or use of exported products—and the climate effects attributed to those emissions—from development consent decisions.
It should cover both assessment and conditions. Simply deleting the reference to downstream emissions from the SEPP could leave room for the same argument under general environmental impact or public interest provisions.
Assessment of Australian mining operations, their electricity supply and domestic activities would remain. The change would draw a specific boundary around overseas product use.
NSW has considered a related reform before. The Environmental Planning and Assessment Amendment (Territorial Limits) Bill 2019 proposed restrictions on consent conditions addressing overseas impacts and removal of the express downstream emissions reference from the former Mining SEPP. It lapsed in February 2023.
I would revisit that proposal, with wording covering both assessment and conditions. Preventing a condition would achieve little if consent could still be refused on the same ground.
There has now been a further development. On 19 October, the NSW Government announced legislation intended to authorise production of up to 16.5 million tonnes annually until 2032, subject to a legally binding workforce guarantee. The Government says the intervention would protect approximately 400 jobs. It also proposes additional Scope 3 conditions. The legislation has been announced, rather than passed.
That may address Mount Pleasant’s immediate operating position. It does not establish the broader boundary I believe is needed.
The mine already has a separate approval to operate until 2032. The High Court decision did not close it. But permission to continue operating and certainty about production levels and a longer expansion are different matters.
A worker considering an apprenticeship, a contractor buying equipment and a family taking on a mortgage all need some confidence about what comes next.
DAMS HEG has made its case through the courts. The courts have interpreted the legislation. Parliament should now decide whether a NSW development approval is the appropriate place to address emissions from the overseas use of Australian exports.
In my view, it should draw that boundary expressly. Muswellbrook deserves to know where it stands.
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