MUSWELLBROOK Shire Council has been ordered to pay the Department of Planning and BHP's legal costs after its failed bid to improve rehabilitation of the Mount Arthur coal mine.
Land and Environment Court Justice John Robson last week ordered the council to pay the costs for the original hearing of the rehabilitation issue in 2018, and the council's recent application to have the department and BHP pay their own legal costs.
Justice Robson found while the council harboured a "genuine concern" rehabilitation of the massive mine site near Muswellbrook town was not being conducted appropriately, the public interest issue was not significant enough to warrant relieving the council of paying all legal costs after it lost the case.
The council initiated legal action against Mount Arthur coal mine in August, 2017 following a complaint to the Department of Planning that it was not enforcing a 2014 condition of consent at the mine site. The condition required the mine to rehabilitate areas using a contemporary natural landform system that leaves overburden embankments in a more natural state, rather than traditional benched, with more natural water flows to reduce erosion.
The council argued the 2014 condition required the mine to apply the method across the entire mine site, rather than a "showcase" area within the rehabilitation strategy accepted by the Department of Planning.
An expert for Mount Arthur told the Land and Environment Court it would cost BHP more than $107 million to "retrospectively" rehabilitate areas that had already been rehabilitated using the traditional benching method.
Council lost the case in December after Justice Robson found the 2014 approval did not require Mount Arthur to re-disturb formerly rehabilitated mine areas, "irrespective of whether better environmental outcomes might be achieved by doing so".
Justice Robson accepted Mount Arthur's rehabilitation strategy was an "aspirational" document responding to the department's requirements that rehabilitated mine sites should be safe, stable, non-polluting, vegetated, and final void high walls should minimise instability risk "to the greatest extent practicable".
The Department of Planning's acceptance of an "aspirational" strategy was legally reasonable, in part because mining and rehabilitation are "dynamic and ongoing", Justice Robson said.
Justice Robson said there was no indication the Department of Planning had "embraced" the "more exacting conditions" supported by the council.
"I accept that the proper rehabilitation of the mine is a significant matter for future generations and that council harbours a genuine concern that such rehabilitation is not being conducted appropriately," Justice Robson said.
"I note that the court has not been asked to make an adjudication of the merits of the scheme of rehabilitation being undertaken at the mine or on the appropriate standards of mining rehabilitation more generally. It is always open to Parliament and the relevant consent authorities to impose more stringent conditions and rigorous processes in respect of rehabilitation," he said.
BHP defended its rehabilitation of the mine in a statement in December after the original decision.
"We are currently using leading practice landform design and this underpins the effective revegetation process. Rehabilitation is inspected by government annually and assessed against criteria that has been developed in consultation with the community," a BHP spokesperson said.