Muswellbrook Council is taking a second mining company to court over consent conditions

MUSWELLBROOK Shire Council has launched legal action against BHP Billiton’s Mt Arthur Coal and the NSW Department of Planning in the second court case in a week to enforce mine consent conditions.

The council alleges the mine has breached a 2014 Planning Assessment Commission consent condition requiring rehabilitation of the mine site to include progressive “micro-relief”, where mined areas are required to more closely resemble the pre-mined state.

It also alleges the NSW Department of Planning allowed the mine to release a revised rehabilitation strategy in May which failed to comply with the PAC condition. Such a move was “not legally open” to the department, the council alleges in a statement of claim to the Land and Environment Court.

The action comes just one week after the council initiated NSW Supreme Court action against Hong Kong-based mining company Ridgelands Coal Resources over a secret $5 million community fund agreement signed with a former NSW government minister in 2013.

The Ridgelands case was launched after company representatives made an unsolicited offer of $500,000 to the council on July 26, seven months before a 5-year exploration licence over Wybong land expires.

An agreement with former NSW government Chris Hartcher – which the council was unaware of until the $500,000 offer – required Ridgelands to establish and promote a $5 million fund for community projects “as soon as reasonably practical” after the exploration licence was signed, and for it to run over five years from 2013.

The secret deal was described by former Muswellbrook councillor and Wybong resident Christine Phelps as “the NSW Government and the mining industry in cahoots again to shaft the community”.

In 2015 Muswellbrook the council complained to the Environment Protection Authority and mayor Martin Rush warned that Mt Arthur coal mine had “serious questions to answer” about whether it was complying with the PAC’s 2014 rehabilitation condition.

“The community will not tolerate any attempt by the Department of Planning or the Department of Trade and Investment to water down the conditions of the mining approval to allow the mine to rehabilitate without micro-relief,” Mr Rush said.

“The condition applies to the whole of the mine, including the western overburden emplacement facing the town of Muswellbrook and along Denman Road.”

The community will not tolerate any attempt by the Department of Planning or the Department of Trade and Investment to water down the conditions of the mining approval to allow the mine to rehabilitate without micro-relief. - Muswellbrook mayor Martin Rush

The PAC’s 2014 approval required Mt Arthur to substantially improve rehabilitation standards to provide reduced slopes and “natural” drainage lines in final landforms to prevent water scouring. The PAC adopted the council's submission for improved rehabilitation because it would “strengthen” the company's “obligations in relation to the final landform of the mine site”, including areas where mining had already occurred.

The council’s 2015 complaint led to “regulator engagement and consultation” and the release of a revised rehabilitation strategy in May, in which Mt Arthur ruled out micro-relief rehabilitation of parts of the mine site that pre-dated the 2014 PAC approval.

The strategy included a goal to “create a safe, stable, non-polluting and sustainable landscape that achieves the intended final land uses and is consistent with key stakeholder agreed social and environmental values”.

In the strategy Mt Arthur said it had developed the goal to meet the long-term expectations of regulators and stakeholders, to provide a final landform of “sustainable benefit to the region”.

“The goal aligns with the requirements of the project approval and elaborates the intent of these requirements rather than disparaging their purpose,” Mt Arthur said.

“The goal cannot easily be directly measured, but rather, requires the components of the rehabilitation hierarchy to show progress to the goal. When the rehabilitation objectives are achieved the goal is shown to have been achieved.”

In its summons this week the council sought a declaration from the court that the strategy does not comply with the PAC condition, that the Department of Planning’s acceptance of the strategy is void, that Mt Arthur Coal prepare a new rehabilitation strategy to comply with the original consent and cease rehabilitation works until the matter is determined.

It will be the subject of a directions hearing in September.

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