The departments of planning and roads confirmed power to close Wallaby Scrub Road was in Singleton Council’s hands, despite legal advice to councillors if they did not close the road so Mount Thorley Warkworth coal mine could expand, a government authority such as the Roads and Traffic Authority could do so.

Councillors have resolved not to close the road.

Without the closure, and despite any state approval for the extension of Mount Thorley Warkworth mine, Coal & Allied’s plans for open-cut mining as proposed in its application to the Department of Planning cannot go ahead. The extension application will be determined by the Planning Assessment Commission.

In a statement to the Newcastle Herald the Department of Planning confirmed ‘‘neither the Department of Planning and Infrastructure, nor the Minister for Planning and Infrastructure, are able to overrule the council’s decision to support or not to support the road closure’’.

In response to a question about whether Roads Minister Duncan Gay or his department could overrule the council, a spokesperson for Mr Gay said ‘‘any proposal for the closure of Wallaby Scrub Road under Part 4 of the Roads Act 1993 would be determined by the Minister for Primary Industries but would require the consent of Singleton Council’’.

Singleton councillors resolved on Monday to seek independent legal advice after Cr Nichols challenged advice from council’s solicitors, Sparke Helmore, that if council continued to oppose the road closure a government authority could close the road by other means.

Sparke Helmore rejected complaints by Singleton deputy mayor Paul Nichols it had a conflict of interest over its advice to the council on the status of Wallaby Scrub Road. Sparke Helmore partner Daryl Gray said it had not given advice, or had advice sought from it, from any mining company in relation to Wallaby Scrub Road.