3 September 2019
[MUSWELLBROOK SHIRE COUNCIL v
HUNTER VALLEY ENERGY COAL PTY LIMITED  NSWCA 216]
At the outset it is important to note that the dispute between the parties has its origin in what Basten JA described in his reasons as a: “shoddily prepared” Project Modification Approval by the then NSW Department of Planning and Environment for the then Planning Assessment Commission.
It was, as the Court of Appeal pointed out, “an important document” – after all, it was the document by which the State Government controlled the development of the largest mine in NSW in order to protect the impact of that mine on the community of Muswellbrook.
Council had argued before the Planning Assessment Commission, that BHP should be required to reshape the whole of its mine using ‘natural landform’ techniques. Council was successful in that submission and obtained a condition which required:
Extract of Table 14 from Condition 42
Mine site (as a whole)
- Safe, stable and non-polluting
- Final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms
The condition should have ensured that Muswellbrook residents were left with a best practice rehabilitated final landform.
BHP, however, rather than respect that condition and deliver best practice rehabilitation insisted it would not revisit its past rehabilitation and, instead, ignore the condition and leave its inferior rehabilitation to remain in place for ever.
The then Secretary of the Department of Planning, who had responsibility for ensuring that the community of Muswellbrook was protected from inferior practice rehabilitation, delegated her responsibility to a subordinate who then excused BHP from delivering natural form rehabilitation to its spoil heaps by approving a Rehabilitation Strategy that did not required it on the visual dump facing the town of Muswellbrook.
It is important to note that the State Government denies councils the ability to apply for merit reviews of mining outcomes they consider to have undesirable impacts on their communities. Councils are limited, therefore, to administrative appeals. The State Government, however, allows mining companies the benefit of full merit appeals against decisions about which they are not happy. As a result, councils continue to fight for their communities with one hand tied behind their backs. In that regard, the first instance judge was at pains to point out the decision might have been different had he been considering the question on merit.
Council respects the decision of the Court of Appeal and thanks it for its careful consideration of the matter.
The community has been woefully let down today by the NSW Department of Planning, Industry and Environment and the Planning Assessment Commission as a result of their shoddy drafting of an important document. It is right and proper that the Court of Appeal should admonish the Department for taking an active role in the litigation in support of BHP and impose cost consequences as a result of the Department’s decision to do so.
The community has been let down by a State Government and a Minister that continue to prioritise the interests of mining companies against the interests of small regional communities by denying councils the right to merit appeals whilst giving those rights to international mining companies.
As a result of the State Government’s policies, and a worst practice mining company in BHP, Muswellbrook residents will now be left to view an inappropriately rehabilitated, in BHP’s words, “visual dump” forever.
The Court of Appeal left open the possibility that the Minister’s delegation in giving effect to the Project Modification Approval might not have been valid and Council is considering that issue.
Council notes that it has provisioned for costs and is confident, as a result of its successful appeal of the costs orders and the order requiring the Department of Planning and Environment to contribute to its costs, that its existing provision for costs will be comfortably adequate.
For further information: Martin Rush 0437 571 184