Can Peabody’s mine ignore our drinking water? Yes, it can
Today's op ed is by Luke Gelder, the Wollongong resident with a background in environmental and planning law who recently founded the Illawarra Environment Network
Under NSW planning law, if you are a mining company, and you want to extend or expand an existing mine in a drinking water catchment, you are not required to make sure that your mine does not pollute drinking water.
The Illawarra’s drinking water largely comes from the Sydney Drinking Water Catchment area (you can find the map on the NSW Spatial Viewer website). Currently, the test for assessing the impact of a development in the Sydney Drinking Water Catchment is called the Neutral or Beneficial Effect (NorBE), which was weakened after changes to the test in 2017.
Currently under this test, development applications are required to make sure their impacts have either a neutral or beneficial effect to the water catchment it is in.
But the catch is, if you are only modifying an existing development, you can ignore this test.
Peabody Energy Australia Pty Ltd has just put forward a new modification application through its subsidiary, Metropolitan Collieries Pty Ltd, to expand its longwall mining operations in Helensburgh, within the drinking water catchment.
Longwall mining is the process of using a machine to drill down into the coal seam and mining out the coal with machinery. The tunnels collapse behind the machine which can have consequences such as subsidence and fracturing to the land, or rivers, above the mine leading to contamination and water pollution. Peabody has been fined in the past for polluting the Royal National Park – you can find more about those incidents in this piece by the editor of Wild magazine.
Metropolitan Mine is currently permitted to operate until 2032. This application seeks to extend its operation until 2044 by making 22 more longwall mines and extracting an additional 31 million tonnes of coal. This modification application is also subject to the approval of a previous modification application lodged on 30 June 2026 to expand one longwall, make another, and lay the footings for three more (this application is now called Stage 1 and is still waiting to be approved or refused).
As this application is modifying the existing mine approved in 2009, this application does not need to legally consider whether the new longwall mines will have a neutral of beneficial effect on the Sydney Drinking Water Catchment, which we drink from and flows into the Royal National Park.
Peabody is currently preparing its environmental reports ahead of formally lodging its application, in which they are not required to consider the NorBE test.
Once lodged, the modification application will go on public exhibition for people to make submissions on the application, before being assessed by either the NSW Minister for Planning, currently Wollongong MP Paul Scully, or be assessed by Independent Planning Commission (IPC), if it is referred to them.
You can learn more about the latest modification application here, read another article covering the reaction to this expansion here, or use the links below to see what the law says on modification applications in water catchments.
Footnotes
1 See Part 6.5 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (link)
2 See footnote 1 and section 3.26(2A) of the Environmental Planning and Assessment Act 1979 (link)
3 Link to NSW Planning Portal Stage 2 Modification Application (link)
4 Link to MSW Planning Portal Stage 1 Modification Application (link)
About the writer
Luke Gelder is a local Illawarra resident and community organiser with several environmental, climate and renewable energy groups. Luke has a background in environmental and planning law and has recently founded the Illawarra Environment Network.
Note: This article does not constitute legal advice.
