MUSWELLBROOK Shire Council has had an early win in a legal case against BHP and the NSW Department of Planning that is shaping up as a test of the independence of the NSW Planning Assessment Commission and the enforceability of its consent conditions.
The council alleges BHP is not complying with PAC consent conditions from 2014 requiring rehabilitation of the giant Mount Arthur open cut coal mine using processes that would leave the final site more closely imitating the natural landscape.
But BHP and the Department of Planning argue the PAC condition did not set an objective test for appropriate rehabilitation of the site but required a subjective decision by the secretary of the Department of Planning, who approved BHP’s rehabilitation strategy for Mount Arthur in June.
BHP’s Hunter Valley Energy Coal, which operates Mount Arthur, and the Department of Planning both opposed Muswellbrook Council’s application to the PAC in 2014 to have the “natural micro-relief” rehabilitation process incorporated across the mine site as a whole, and into its conditions of consent.
But 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”.
The council argues the Department of Planning’s acceptance of a rehabilitation strategy that only includes “natural micro-relief” processes in newly-mined areas raises questions about the independence of the PAC and whether its conditions will be enforced by the NSW Government.
In December NSW Land and Environment Court Chief Justice Brian Preston granted a council application to have an expert witness give evidence about the standard of rehabilitation at Mount Arthur and whether it meets the PAC’s conditions.
Justice Preston rejected Hunter Valley Energy Coal’s application to have the council pay its costs for the interim hearing.
Justice Preston noted the council’s claim that the strategy signed off by the Department of Planning in June “is replete with statements that the rehabilitation measures proposed are preliminary and provisional and may be changed” and was a “strategy to strategise” about site rehabilitation, and not a rehabilitation strategy.
In response Hunter Valley Energy Coal and the Department of Planning argued “whether the rehabilitation strategy complies is a matter for the secretary (of the Department of Planning) to be satisfied”.
The council responded that it was “manifestly unreasonable” for the Department of Planning to sign off on the rehabilitation strategy because “the mine site as a whole will not be left safe, stable and non-polluting and will not have final landforms incorporating natural micro-relief and natural drainage lines to integrate with the surrounding landforms”.
Justice Preston allowed the council’s expert evidence to be served on BHP and the department and said it was open to both parties to object to the evidence forming part of a hearing, expected in mid-2018.
Justice Preston said he did not accept that allowing the expert evidence to be served would “lead to the incurring of unnecessary delay or cost”.
Lock the Gate campaign coordinator Georgina Woods said it was important that Muswellbrook Council test the “very important conditions” imposed on Mount Arthur by the PAC, and “really inappropriate and very disappointing” that the department was “taking sides” with BHP.
“The mine is so close to Muswellbrook and such a large operation that the rehabilitation program is material to the wellbeing of Muswellbrook as a whole, both now and into the future once mining ceases,” Ms Woods said.
“The community should be able to expect the department to make mines comply with best practice rehabilitation and pressure mines to meet conditions of consent, not support them by trying to reduce one of the very important conditions of consent imposed by the PAC in 2014.”
It was deeply concerning that a regional council had to take court action against a company to enforce a state government commission’s consent condition, and a state department joined the matter against the council, she said.