Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2) - [2014] NSWLEC 129

Land and Environment Court

New South Wales

Case Title: Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2)

Medium Neutral Citation: [2014] NSWLEC 129

Hearing Date(s): 2-4, 6, 9-13, 16-19 September 2013, directions 10 March 2014, further submissions and directions 20 March 2014, directions 10 April 2014, directions 16 May 2014, written submissions 30 May, 17 June, 26 June and 2 July 2014

Decision Date: 27 August 2014

Jurisdiction: Class 1

Before: Pain J

Decision:
See paragraph 530

Catchwords: APPEAL - objector appeal against Planning Assessment Commission's decision to approve an open-cut coal mine under Part 3A of the Environmental Planning and Assessment Act 1979 - impact on Aboriginal cultural heritage - impact on the long term functionality of agricultural land - impact on groundwater - protection of downstream water users - air quality health impacts and social and economic effects of mitigation measures - economic modelling of costs and benefits - conditional approval possible

Legislation Cited: Commons Management Act 1989 s 4, s 14,
Crown Lands Act 1989
Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002
Environmental Planning and Assessment Act 1979 s 4, Pt 3A, s 75J, s 75L, s 75R, cl 2 Sch 6A, cl 3 Sch 6A
Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011
Environmental Planning and Assessment Regulation 2000 cl 8F, Sch 3
Land and Environment Court Act 1979 s 17, s 39
Mining Act 1992
National Environment Protection Council Act 1994 (Cth) s 15
National Parks and Wildlife Act 1974 s 84, s 90A
Protection of the Environment Administration Act 1991 s 6
Protection of the Environment Operations Act 1997
Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002
Singleton Local Environmental Plan 1996 Pt 3
State Environmental Planning Policy (Major Projects) 2005 cl 6, Sch 1 cl 5
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 12, cl 14
Uniform Civil Procedure Rules 2005 Sch 7 cl 5
Water Management Act 2000 s 60A
Water Management (General) Regulation 2004 (repealed)
Water Management (General) Regulation 2011 cl 18, Sch 1, Sch 5 Pt 1 cl 12

Cases Cited: Anderson v Director-General of the Department of Environment and Conservation [2006] NSWLEC 12; (2006) 144 LGERA 43
Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249
Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538
Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 422
Gray v Minister for Planning [2006] NSWLEC 270; (2006) 152 LGERA 258
Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221
Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 3) [2014] NSWLEC 130
Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195
Olofsson v Minister for Primary Industries (No 2) [2011] NSWLEC 181
Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195
White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales [2011] NNTTA 110

Category: Principal judgment

Parties: Hunter Environment Lobby Inc (Applicant)
Minister for Planning and Infrastructure (First Respondent)
Ashton Coal Operations Pty Ltd (Second Respondent)

Representation

- Counsel: Mr R D White with Ms C Novak (Applicant)
Mr S Free with Mr N Kelly (First Respondent)
Mr A Galasso SC with Mr C Ireland (Second Respondent)

- Solicitors: Environmental Defender's Office (Applicant)
Legal Services Branch, Department of Planning and Infrastructure (First Respondent)
McCullough Robertson Lawyers (Second Respondent)

File Number(s): 11154 of 2012

JUDGMENT

Merits appeal in relation to open cut coal mine

The Minister for Planning and Infrastructure (the Minister) through his delegate the Planning Assessment Commission (PAC) approved the South-East Open-Cut coal mine project (the SEOC project) subject to conditions on 4 October 2012 (project approval). The project application was made by the Second Respondent, Ashton Coal Operations Pty Ltd (Ashton). This is an objector appeal under s 75L (now repealed) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the approval. The Applicant the Hunter Environment Lobby Inc sought an order that major project application, number MP 08_0182, be refused on several merit grounds.
I thank Commissioner O'Neill for her assistance in this matter. This matter has been considered in the context of the statutory framework addressed by the parties at the substantive hearing.
The Court went on a view of the proposed mine site and the surrounding area. It heard evidence from numerous residents in Camberwell on 3 and 4 September 2013 and from a number of objectors at Singleton Court House on 4 September 2013.

The SEOC project site

The SEOC project site is located in the Singleton local government area (LGA), approximately 12km north-west of Singleton, in the Hunter Valley, New South Wales. The SEOC project site is bounded to the west and north-west by Glennies Creek, which flows into the Hunter River about 2km south of the SEOC project site. The SEOC project site is located in the lower reaches of the Glennies Creek catchment, which has a total area of approximately 515 sq km and is part of the Hunter River catchment.
The SEOC project site is located immediately to the south of Camberwell village and the New England Highway and covers approximately 315ha. Camberwell village is north of the New England Highway. The SEOC project site is approximately 2.5km south-east of Ashton's existing coal handling processing plant (CHPP). It includes an area of privately owned land the property of Mrs Wendy Bowman.
Camberwell village has 56 residences. Four are privately owned and the remaining residential properties are owned by Ashton. All permanently occupied residential properties within Camberwell are located north of the New England Highway. Camberwell does not contain any retail shops, commercial offices, schools or recreation facilities. Ashton also owns some properties south of the New England Highway, which are currently used for temporary housing of contractors and employees. Ashton submitted that this use will cease as soon as construction of the project commences.

The SEOC project proposal

The project is for an open cut coal mine. The total size of the resource to be extracted is 16.5 million tonnes (Mt) of run-of-mine (ROM) coal. The setback between the proposed mine pit and the high bank of Glennies Creek was increased from 150m to 200m and the setback from the northern site boundary was increased by the PAC. The conditions of approval restrict construction works and mining operations, apart from ROM coal handling, conveyor transport from the CHPP and maintenance to day and evening periods during the first two years of mining and allow mining operations to take place until 31 December 2025.
Further details of the SEOC project were set out in the Minister's and Ashton's submissions. Glennies Creek lies to the west of the SEOC project. Mining of the SEOC project will proceed from north to south, with initial overburden placed along the northern boundary of the open cut to form an environmental bund adjacent to the New England Highway. In-pit emplacement of overburden will commence as soon as is feasible. The bund is expected to reach its maximum height in one to two years, and will be rehabilitated progressively following its construction, resulting in the bund and the northern face of the emplacement vegetated within 12 months of emplacement. The mine is expected to yield 3.6 Mtpa ROM coal using a truck and excavator extraction method. At the time of the Director-General's report the total size of the resource to be extracted was 16.5 Mt ROM coal. The precise impact of the increased setback on the amount of the resource to be extracted has not been quantified.
The SEOC project will comprise seven years of active mining, seven years of reject emplacement and four years of site rehabilitation. Rehabilitation will be undertaken during and after mining, and will be ongoing as mining progresses from north to south. It is aimed at achieving in a naturally moulded landscape an integrated array of habitat connectivity corridors and effectively rehabilitated farm land.
The shape and character of the final rehabilitated landform is shown in the plan and cross-section views at exhibit A volume 4 pages 3016-3021. The final void constitutes an evaporative sink of around 700m in width, and is intended to allow natural evaporation from the surface and transpiration from specially selected salt tolerant vegetation to maintain a groundwater flow into the pit and away from Glennies Creek. Saline water from the mining operation will flow to this pit.
The project comprises the following documents and plans:
(a)Environmental Assessment Report dated November 2009;
(b)Response to Submissions dated June 2010;
(c)Additional Information and Project Changes dated January 2011;
(d)Amended plans submitted to the PAC and annexed to its determination report of 4 October 2012, comprising the correspondence (and attachments to the correspondence) of 21 May 2012, 8 June 2012, 27 June 2012, 31 July 2012, and 5 September 2012; and
(e)Statement of commitments (as set out in appendix 3 to the project approval).

Ashton currently operates the Ashton Coal Project (ACP) which is located approximately 14km north-west of Singleton in the Camberwell district of the Hunter Valley, NSW and comprises:
(a)the North East Open Cut coal mine (NEOC mine), which is located directly to the north of Camberwell village. The extraction of coal from the NEOC mine ceased on 24 September 2011 and the NEOC mine final void is currently being used for reject disposal. Rehabilitation of the final void will be completed after the end of underground mining at the ACP. Rehabilitation of the out of pit emplacement areas was completed in April 2012;
(b)the Ashton Underground mine (Underground mine), which uses longwall extraction methods and is located to the south-west of Camberwell village; and
(c)the Ashton CHPP, which processes the ROM coal and loads product coal onto trains for transport to the port at Newcastle and is located to the north-west of Camberwell village.

Part 3A Project Application and the appeal

The Project Application was submitted to the Director-General of Planning by Ashton, on 11 March 2009, with a preliminary Environmental Assessment (EA) dated February 2009. The project was considered under Pt 3A of the EPA Act, as it came within cl 5(1)(a) of Sch 1 of the State Environmental Planning Policy (Major Projects) 2005 at the time the application was made (confirmed by the Director-General as delegate of the Minister in a Record of the Minister's opinion for the purposes of cl 6(1) of the State Environmental Planning Policy (Major Projects) 2005 dated 4 September 2009). Part 3A was repealed by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011, the relevant parts of which commenced on 1 October 2011. As an approved project, it is within the definition of transitional Part 3A projects in cl 2(1)(a) of Sch 6A of the EPA Act titled Transitional arrangements - repeal of Part 3A. Part 3A continues to apply to this project under cl 3(1) of Sch 6A of the EPA Act.
The Minister's power and of the delegate the PAC to grant approval was grounded in s 75J which provided:
75J Giving of approval by Minister to carry out project
(1) If:
(a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and
(b) the Director-General has given his or her report on the project to the Minister,
the Minister may approve or disapprove of the carrying out of the project.
(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:
(a) the Director-General's report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and
(b) ...
(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.
(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.
(5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).
Under the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) cl 8F(1)(c) owner's consent is not required for an activity of this kind. The SEOC project site extends over land not owned by Ashton.
The appeal is under Pt 3A Div 2 s 75L (since repealed). The entitlement to appeal under s 75L arises where a project would have been designated development if not coming within Pt 3A, is not a critical infrastructure project, there has not been approval of a concept plan for the project under Div 3, and the project has not been the subject of PAC review. Schedule 3 of the EPA Regulation provides that open cut coal mines processing more than 500 tonnes of coal per day or that disturb more than 4ha of land are designated development. The project satisfies these criteria, has not been declared critical infrastructure and does not involve a concept plan or PAC review. There is no challenge to the Applicant's right to bring these proceedings.
The Court has power to determine the appeal under s 75L pursuant to s 17(d) of the Land and Environment CourtAct 1979 (the Court Act). Under s 39 of the Court Act the Court has all the functions and discretions which the Minister had in relation to the matter. Accordingly, the Court has the power to modify, refuse or approve the project unaltered pursuant to s 75J. Section 39(4) of the Court Act states the Court is required to have regard to any relevant Act and instruments made under any such Act, the circumstances of the case and the public interest. This is a de novo hearing, as provided for in s 39(3) of the Court Act.

Non-binding instruments which can be considered

Section 75R relevantly provided:
(1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project).
(2) Part 3 and State environmental planning policies apply to:
(a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and
(b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.
(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.
...
The State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) is not a mandatory consideration but may be taken into account in determining this application; Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195 at [25]. Clause 12 specifies matters a consent authority should take into account when considering a development application for mining and provides:
Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must:
(a) consider:
(i) the existing uses and approved uses of land in the vicinity of the development, and
(ii) whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and
(iii) any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and
(b) evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a) (i) and (ii), and
(c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii).
Clause 14 of the Mining SEPP provides:
(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following:
(a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,
(b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,
(c) that greenhouse gas emissions are minimised to the greatest extent practicable.
(2) Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.
Environmental planning instruments (EPIs) may be taken into account under s 75J(3), but are not binding under s 75R(3). Consequently, the Singleton Local Environmental Plan 1996 (Singleton LEP) may be considered. The project site is zoned 1(a) (Rural Zone) under the Singleton LEP. Mining is permissible in this zone with development consent. The objectives of the 1(a) (Rural Zone) are set out in the Rural Zoning Table, Pt 3 of the Singleton LEP which states:
(a) to protect and conserve agricultural land and to encourage continuing viable and sustainable agricultural land use,
(b) to promote the protection and preservation of natural ecological systems and processes,
(c) to allow mining where environmental impacts do not exceed acceptable limits and the land is satisfactorily rehabilitated after mining,
(d) to maintain the scenic amenity and landscape quality of the area,
(e) to provide for the proper and co-ordinated use of rivers and water catchment areas,
(f) to promote provision of roads that are compatible with the nature and intensity of development and the character of the area.

Issues

The issues in the matter can be summarised as:
(1)Whether the SEOC project will have a significant impact on Aboriginal cultural heritage on the SEOC project site and in the vicinity, and whether this is contrary to the public interest and the principle of intergenerational equity (Aboriginal cultural heritage);
(2)Whether the SEOC project will have an adverse impact on the potential for sustained agricultural production on the SEOC project site, and whether this is contrary to the principle of intergenerational equity (land rehabilitation);
(3)Whether the SEOC project fails to address medium to long term risks to landscape functionality (including water quantity, water quality and land quality) and whether this is contrary to the precautionary principle and the principle of intergenerational equity (groundwater). Whether the SEOC project fails to adequately protect the health of the Hunter River and associated tributaries downstream of the SEOC project site, and the communities and environments that depend on that system and whether this is contrary to the precautionary principle, intergenerational equity and the principle of conservation of biological diversity and ecological integrity (water licensing and the Hunter River Salinity Trading Scheme (HRSTS));
(4)Whether the SEOC project will have a significant impact on the health and wellbeing of the residents of Camberwell and other residents in the vicinity of the SEOC project site, and whether this is contrary to the public interest, the precautionary principle and the principle of intergenerational equity (health and air quality);
(5)Whether noise and dust conditions and mitigation strategies under the project approval will result in unacceptable social impacts, and whether this is contrary to the public interest and to the principle of intergenerational equity (social);
(6)Whether the SEOC project will result in significant social, environmental and economic costs that have not been adequately addressed for the project, contrary to ecologically sustainable development (ESD) and the public interest (economic);
(7)Whether the Court would be slow to grant approval due to the need to acquire some of the land on which the SEOC project is to be carried out by reason of the uncertainty this will cause landowners (landholder uncertainty);
(8)Whether the SEOC project will have a significant impact on the historic and social values of the common at property 167L, contrary to the principle of intergenerational equity (the Commons issue); and
(9)Whether the actual or potential environmental harm of the SEOC project, and the consequential economic and social harm, outweighs the social and economic benefits of the SEOC project and whether this is contrary to ESD and the public interest (proportionality).

The Minister and Ashton submitted that conditional approval should be granted as none of the issues identified by the Applicant warrant refusal. To the extent there are likely impacts on the environment these can be satisfactorily mitigated as identified in the proposed conditions, a number of which have been amended in accordance with expert evidence given during the hearing.
The Applicant relied on principles such as the precautionary principle, intergenerational equity and the conservation of biological diversity which are recognised collectively as principles aimed at the achievement of ESD. ESD is referred to in the definitions section (s 4) of the EPA Act as having the same meaning as in s 6(2) of the Protection of the Environment Administration Act 1991. It is there described as requiring the "effective integration of economic and environmental considerations in decision-making processes" which can be achieved through the implementation of the principles relied on by the Applicant. The precautionary principle is defined as:
... if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and
(ii) an assessment of the risk-weighted consequences of various options, ...
The principle of inter-generational equity is defined as "the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations". The conservation of biological diversity and ecological integrity should be a fundamental consideration. These principles have been discussed in a number of cases of this Court such as TelstraCorporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 at [107]-[183], Gray v Minister for Planning [2006] NSWLEC 270; (2006) 152 LGERA 258 at [118]-[144] and Anderson v Director-General of the Department of Environment and Conservation [2006] NSWLEC 12; (2006) 144 LGERA 43 at [199].

Impact on Aboriginal cultural heritage

The Applicant contended that the SEOC project will have a significant impact on Aboriginal cultural heritage on the SEOC project site and in the vicinity of the project site, contrary to the public interest and the principle of intergenerational equity (Amended Statement of Facts and Contentions (ASOFC) par 59):
a) The project site is at the heart of a complex, multi-layered cultural landscape of value to contemporary Aboriginal culture, including:
i) biophysical attributes (drainage systems, fauna, geology and soils);
ii) material traces of traditional Wonnarua people;
iii) historical associations and experiential reference points of the members of the Plains Clans of the Wonnarua Peoples (PCWP);
b) The project site includes three sites assessed to be highly significant, 18 sites of moderate to high significance, and 60-65 sites of low significance;
c) These cultural sites, and the value of the project site as part of the cultural landscape, will be lost as a result of the mining of the project site;
d) The mitigation strategies and conditions under the project approval fail to adequately protect the cultural values of the project site, in particular to the descendants of the PCWP.
The Minister and Ashton dispute the contentions made by the Applicant in par 59 of its ASOFC in their ASOFCs in reply. I note that the evidence refers to Wonnarua, Wanaruah and Wonaruah as different spellings of the relevant clan name.
Project approval conditions proposed by the Minister require preparation and implementation of an Aboriginal Heritage Conservation Strategy (AHCS) for the Ashton complex and its associated biodiversity offset areas to the satisfaction of the Director-General (condition 47, Sch 3); the preparation and implementation of a heritage management plan for the Ashton mine complex to the satisfaction of the Director-General including an archaeological salvage program for the project disturbance area and a description of the measures that would be implemented for the protection, monitoring and management of Aboriginal sites outside the project disturbance area (condition 51, Sch 3); and an archaeological survey of the revised corridor for the transmission line prior to carrying out development in the transmission line realignment corridor (condition 49, Sch 3). Condition 48 of Sch 3 does not allow Ashton to harm any Aboriginal objects contained in the Southern Conservation Area.
The Plains Clan of the Wonnarua Peoples (PCWP) which was formed in 2010 is registered as a native title claimant. The Future Act Determination White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales [2011] NNTTA 110 was provided to the Court. The National Native Title Tribunal considered the SEOC project area in that statutory context. The National Native Title Tribunal held at [97] that there was scant evidence of the exercise of any registered native title rights and interests on the area of the proposed tenement. There was no substantial evidence of the life, culture and traditions of the claimant group either generally or in the area of the proposed tenement. There was no evidence that the subject land had been accessed by members of the native title party or that there are any areas or sites of particular significance on or near the proposed tenement. The proposed future act could be done without the imposition of conditions (at [101]).
The parties referred to the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance 1999 (the Burra Charter) (exhibit A, vol 5, tab 96).
While the Burra Charter and its accompanying guidelines are not statutory documents, they are recognised as setting a standard for cultural heritage management in Australia and a key reference for those who make decisions about, or undertake works to places of cultural significance, including owners, managers and custodians (p 4170).

National Parks and Wildlife Act 1974

Section 84 of the National Parks and Wildlife Act 1974 (NPW Act) provides:
84 Aboriginal places
The Minister may, by order published in the Gazette, declare any place specified or described in the order, being a place that, in the opinion of the Minister, is or was of special significance with respect to Aboriginal culture, to be an Aboriginal place for the purposes of this Act.

Insite Report (Exhibit 1A, vol 3, tab 26)

The consultation process undertaken during the preparation of the Aboriginal Archaeological Assessment, prepared by Insite Heritage Pty Ltd dated 5 November 2009, which was Appendix 13 of the EA (exhibit 1A, vol 3, tab 26) (Insite Report) was conducted by Wells Environmental Services, as consultants, and Ashton. Letters of notification of the SEOC project and a request for the contact details of Aboriginal stakeholder groups who may have an interest in the project were sent to a number of relevant government departments and to all stakeholders known to Ashton, and advertisements inviting registration of interests from community stakeholder groups and individuals were placed in the public notices section of local and Sydney newspapers. A total of 21 registrations of interest were received for the SEOC project and these stakeholder groups were invited to participate in the field work on a roster basis of three days per group (exhibit 4A). The stakeholder groups were provided with a draft copy of the Insite Report and their responses to the draft copy are included in Appendix D of the Insite Report.
The Insite Report records 85 sites on the SEOC project site, of which three sites have been identified as being of high significance (exhibit 1A, vol 3, tab 26, p 60). All sites have been assessed for scientific significance, public significance, cultural significance and representative significance. The three sites identified as being of high significance have been graded against the three criteria as follows:

Site type	Scientific significance	Public significance	Representative significance
SA2/3	artefact scatter	high	moderate	moderate
SA9/2	artefact scatter	high	moderate-high	moderate
SA11/6	artefact scatter	high	high	high

The Insite Report includes, in Appendix D (exhibit 4A), a number of responses from the Aboriginal stakeholders to the findings of the Insite Report. The Insite Report refers to Appendix D for the significance assessment regarding the cultural significance of the sites.
The Insite Report includes, in Appendix H, the Aboriginal Site Recording Forms completed by Ms Suzie Worth on behalf of the Wanaruah Local Aboriginal Land Council dated December 2008 for a number of the archaeological resource sites and submitted to the NSW Department of Environment and Conservation (now the Office of Environment and Heritage (OEH)) for inclusion in the Aboriginal Heritage Information Management System (AHIMS) Register. There is no evidence before the Court concerning the result of the submission of the Aboriginal Site Recording Forms completed by Ms Worth.

Site visit

The Court, in the company of the parties and their experts visited a number of sites within and in the vicinity of the SEOC project site, including archaeological resource sites identified in the Insite Report. Mrs Maria Stocks (Aboriginal stakeholder) gave evidence on site. The sites visited by the Court included the following, identified on map 6 location and site inspection (MFI 2):
(a)Inspection site 15: St Clement's Anglican Church, Camberwell;
(b)Inspection site 16: identified as SA2/3 by the Insite Report (Fig 10, p 62);
(c)Inspection site 17: identified as SA11/6 by the Insite Report (Fig 10, p 62);
(d)Inspection site 18;
(e)Inspection site 19;
(f)Inspection site 20: identified as SA9/2 by the Insite Report (Fig 10, p 62); and
(g)Inspection site 21.
Of the above sites visited by the Court, all the sites, except inspection site 15, are within the SEOC project area. Inspection sites 17 and 20 are located within the area identified as the location of the pit and inspection sites 16 and 18 are located within the area identified as the location of the environmental bund (MFI 2, Map 6).
The area of Glennies Creek adjoining Mrs Wendy Bowman's property was also viewed.

Expert Evidence

Dr Maria Cotter (on behalf of the Applicant) and Dr Johan Kamminga (on behalf of Ashton) provided expert Aboriginal cultural heritage evidence.
Dr Maria Cotter affirmed an affidavit dated 3 June 2013. Dr Cotter is a qualified geoarchaeologist and Aboriginal cultural heritage management specialist with 20 years experience in the survey, assessment and management of Aboriginal cultural heritage within NSW. She has had specific experience in documentation and assessment of the Aboriginal cultural heritage values of the traditional lands of the PCWP and is currently employed as the Cultural Landscape Programs Manager of Tocomwall Pty Ltd. The Director of Tocomwall Pty Ltd is Mr Scott Franks (Dr Cotter affidavit 3 June 2013 par 3). Mr Franks swore affidavits read in these proceedings and is an Aboriginal stakeholder member of the PCWP.
In her affidavit, Dr Cotter lists a number of places that are of importance to the PCWP (Dr Cotter affidavit par 51-64). These places are not located on the SEOC project site, except for locale K (Camberwell Common) which is said to have contemporary significance to the PCWP, and are within a 20km radius of the SEOC project site (TS 433/19). Dr Cotter described these places in oral evidence as "physical manifestation or points of reference in the landscape" (TS 432/26-27). Dr Cotter said that few of these places were identified by the Insite Report, despite being of cultural heritage value to the PCWP (TS 432/28-29). According to Dr Cotter, the archaeological resource sites on the SEOC project site, identified in the Insite Report, form part of the wider cultural landscape of importance to the PCWP, including Glennies Creek, "which clearly runs through the SEOC [project site, and] is a dreaming track" (TS 432/50-433/4).
Dr Johan Kamminga affirmed an affidavit dated 5 July 2013. Dr Kamminga is a consultant archaeologist with over 40 years of archaeological experience in archaeological research and Aboriginal heritage consulting, with expertise in prehistory and stone artefacts (Dr Kamminga affidavit resume p 1). Dr Kamminga's report can be summarised as follows:
(a)The Aboriginal stakeholder consultation process undertaken during the preparation of the Insite Report was adequate (par 26);
(b)The assessment of scientific (archaeological) value in the Insite Report was rated too highly (par 34);
(c)The potential for high scientific value of the stone artefacts identified on the SEOC project site is not demonstrated (par 34);
(d)The survey markers on the SEOC project site for the identification of archaeological sites were adequately positioned (par 39);
(e)The identified "grinding grooves" in exposed sandstone, by the Insite Report, are likely to be scour marks created by a plough tine (par 47); and
(f)Dr Cotter does not demonstrate in her report that the SEOC project area achieves a level of cultural significance that warrants consideration for listing as a potential area of significance (par 56(a)) and the evidentiary standards applied by Dr Cotter have not met the usual standards of proof required by the OEH to register a place as an Aboriginal place on the AHIMS register (par 56(b)).
Dr Cotter and Dr Kamminga provided a joint report, dated 15 August 2013 (exhibit K) in which the fundamental disagreement between the experts is whether or not the SEOC project will have an unacceptable impact on indigenous cultural heritage values and places within the SEOC project site and the vicinity of the project site. The experts, who agreed on very little, disagreed on the following relevant topics:
(a)the adherence of the Insite Report to the principles and preamble of the Burra Charter;
(b)the adequacy of the consultation process during the preparation of the Insite Report with the Aboriginal community stakeholders;
(c)the locations of the sites identified by the Insite Report and the consequent reliability of the Insite Report;
(d)the adequacy of the Insite Report in considering the cumulative impacts of mining on the Aboriginal archaeological resource;
(e)the adequacy of the assessment of archaeological significance in the Insite Report; and
(f)impact of the SEOC project on the Aboriginal cultural heritage values of the SEOC project site and its surrounds
In oral evidence, Dr Kamminga described the difference between his and Dr Cotter's backgrounds as follows (TS 430/1-11):
[Dr Cotter] has written a PhD on cultural landscape and it's clearly her passion and she's very skilled in the analysis and description of cultural landscape and she has a great commitment to that area of Aboriginal heritage. My own background is a generalist background. I write and do research in a large range of areas... I have fundamental research experience and my PhD is on Aboriginal stone artefacts, which is largely what we are dealing with in terms of physical remains within the SEOC area. I have probably examined about a million stone artefacts in my career and microscopically would be well over 100,000 to 200,000.
Dr Cotter described the difference between her approach and that of Dr Kamminga (and the Insite Report) as follows (TS 436/30-43):
I believe that the fundamental difference is the fact that [Dr Kamminga] has focused on the archaeological resources and indeed on the evaluation of the value, for example, of the sites in regard to archaeological models of research and prediction. I, on the other hand, recognise and do recognise those stone artefacts, but I also believe that there are a wider range of Aboriginal cultural values, values that are recognised and emphasised by OEH that have not been considered and I do think that that is the fundamental difference... So I believe that it is a fundamental placement of emphasis on the archaeology versus the wider Aboriginal cultural landscape...

The Plains Clans of the Wonnarua People (and Dr Cotter's objectivity)

Dr Cotter said in oral evidence that the PCWP represents "four heads of family", which she described as "one cultural group" (TS 440/23-25). They are the descendents of Mary Shoe or Henry "Harry" Taggart (Dr Cotter affidavit par 28) and are represented by Mrs Maria Stocks (Mrs Barbara Foot's daughter), Mr Rob Lester, Mrs Rhonda Ward, Mr Charlie Franks and Mr Scott Franks (Dr Cotter affidavit par 29). Dr Cotter confirmed in oral evidence that the PCWP did not exist as a group at the time of the preparation of the Insite Report dated November 2009 (TS 487/26).
Dr Cotter confirmed in oral evidence that she is employed by Mr Scott Franks, Director of Tocomwall Pty Ltd and one of the four heads of family of the PCWP (TS 489/29). In cross-examination, counsel for Ashton asked Dr Cotter how she grappled with the concept of objectivity in giving evidence before this Court in circumstances where she is employed by one of the Aboriginal stakeholders and as Tocomwall Pty Ltd performs contract Aboriginal archaeological work for mines in the locality. Dr Cotter replied as follows (TS 489/44-490/1):
Because I am a professional providing professional viewpoints in regard to a cultural heritage that are independent of my boss insofar as if he says something that I don't agree with in a professional sense I tell him so. I find it a strange statement in some ways to be actually asked about that because I believe what I have provided is effective independent information as so far as it can be done and that's the point I do make in my affidavit. Unless people have attempted to make and achieve a relationship with individuals, it's very hard to find out the information that's required.

Adherence of the Insite Report to the principles of the Burra Charter

According to Dr Cotter, the Insite Report is not consistent with a number of the principles of the Burra Charter, as the Burra Charter defines cultural significance as "aesthetic, historic, scientific, social or spiritual value for past, present or future generations" (exhibit A, vol 5, tab 96, p 4171) and the Insite Report focuses exclusively on the determination of the archaeological (scientific) value of Aboriginal objects and only provides a limited appraisal of other values identified in the Burra Charter such as aesthetic, social or historic values (exhibit K, p 2).
Dr Cotter considers that the Insite Report assumes "a predetermined trajectory of full mine impact" and does not assess whether the three archaeological sites identified as being of high significance should be conserved in situ (Dr Cotter affidavit par 101). The Insite Report assumption that the only options are mitigation measures, including salvaging the archaeological resource, is, according to Dr Cotter, contrary to Articles 4.1 and 6.1 of the Burra Charter, which state that cultural significance is best understood by collecting and analysing information before making decisions (Dr Cotter affidavit par 102). In Dr Cotter's opinion, salvaging the archaeological resource does not preserve the multiple layers of meaning embodied in the site itself, which is the key to the cultural heritage values held by the PCWP in relation to the SEOC project site (Dr Cotter affidavit par 104).
Dr Cotter considers that the Insite Report does not address the full range of Aboriginal cultural values for Aboriginal people and this is contrary to Article 24 of the Burra Charter, which states that significant associations and meanings between people and a place should be respected (Dr Cotter affidavit par 108).

Dr Kamminga considers that the Insite Report meets the requirements of the Burra Charter and the Draft Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation, July 2005 published by the OEH (TS 420/23-29 and Dr Kamminga affidavit par 26).

The adequacy of the consultation process

Dr Cotter considers that the consultation process undertaken during the preparation of the Insite Report was inadequate, for example, the cultural heritage values enunciated by Aunty Barb Foot (Mrs Barbara Foot) were not adequately considered by the Insite Report (exhibit K, p 3).
Dr Cotter said in oral evidence that the notification of an Aboriginal Stakeholder Register which commenced the consultation process (an example of the letter sent to parties that had responded to newspaper advertisements is included in the Insite Report at p 84-85) referred to "archaeological survey" and "archaeological investigations" and the emphasis on the word "archaeology" drew out a particular group of Aboriginal people with a particular purpose (TS 486/1-2). According to Dr Cotter, the majority of responses were from those working as Aboriginal cultural heritage consultants (TS 485/44). Dr Cotter confirmed in oral evidence that a number of the registered groups consulted during the preparation of the Insite Report in 2008 did contain individuals who later became members of the PCWP when it was formed in 2010, including Mr Scott Franks, Mrs Barbara Foot and Mrs Rhonda Ward (TS 487/33-34, 40-43, 488/4-8,18-22).
Dr Kamminga is satisfied that the Aboriginal stakeholder consultation carried out for the Insite Report was satisfactory and in his view this is evidenced by the number of local Aboriginal organisations that registered an interest and participated in the review and input process during the preparation of the Insite Report (Dr Kamminga affidavit par 25). He understands that 17 of the 21 registered stakeholders participated in the fieldwork and most also provided sociocultural information, or expressed views about further consultation and other expectations (Dr Kamminga affidavit par 23).

The identification of the Aboriginal archaeology sites by the Insite Report

In Dr Cotter's opinion, the survey pegs on the SEOC project site are not located in a position to adequately designate the archaeological site they refer to in the Insite Report. She considers that as a possible consequence, the original recording and assessment of the archaeological evidence was in error, hence the data cannot be relied upon and the inaccurate position of the pegs makes future identification and management of the archaeological resource difficult (Dr Cotter affidavit par 96-98).
Dr Kamminga considers that the pegs are sufficiently close to the archaeological site and that, together with the description of the site, it is not difficult to locate each one. In oral evidence, Dr Kamminga said that it is common and accepted practice for a consultant archaeologist to take a single GPS reading when recording a stone artefact scatter (TS 421/17-19). As the Insite Report field survey was carried out in 2008, it is also possible that small stone objects have moved due to erosion, rain splash, wind blown dust, stock trampling or seasonal and annual vegetation growth (TS 421/6).

Impact of the project on Aboriginal cultural heritage values and places within the SEOC project site and the vicinity of the project site including the adequacy of the assessment of archaeological significance by the Insite Report

Dr Cotter considers that the Insite Report focuses exclusively on the determination of the archaeological (scientific) value of Aboriginal objects and only provides a limited appraisal of other Aboriginal cultural heritage values (exhibit K, p 2).
Dr Kamminga considers that the assessment of significance in the Insite Report is satisfactory and that the cultural significance of the SEOC project site is expressed in the stakeholder responses in Appendix D of the Insite Report (TS 471/44-45).
In Dr Cotter's opinion, the surface and sub-surface archaeology that exists within the SEOC project site is of high research potential (exhibit K, p 15). However, Dr Cotter considers that the significance of the SEOC project site is that it is a component of a larger cultural landscape of value to the PCWP. She explains this as follows (exhibit K, p 22):
The SEOC is an integral part of a cultural landscape of substantial (and well sub-stantiated [sic]) cultural value to the PCWP. It is at the epicentre of all realms of their cultural existence; it [is] from within this landscape that they have and continue to derive intimate social and spiritual knowledge from which they are able to comprehend their beginnings and belongings. The landscape of the SEOC and surrounds is part of a rare heritage landscape with cultural attributes and signs that are uniquely known and understood by the PCWP who demonstrate a cultural connectivity with this place that extends from at least a time before first sovereignty to the present.
Dr Cotter said in oral evidence that Aboriginal people are the primary determinants of the value of their heritage (TS 433/36-37) and that if the PCWP hold values in the landscape that are not held by other Aboriginal parties, this does not make these values invalid or unreliable (TS 433/44-45). Dr Cotter said that the impact of open cut mining on the PCWP cultural values will be catastrophic and absolute because a key component of the cultural importance of the area is its physical location and complementary setting (TS 434/17). Dr Cotter considers that the SEOC project site is sufficiently important that it should be retained and considered for listing as a unique Aboriginal cultural landscape of State heritage significance (TS 436/5-8). Dr Cotter confirmed in oral evidence that when she has referred to cultural significance on the SEOC project site, she was referring to the values held by the PCWP (TS 487/4).
Dr Kamminga said in oral evidence that there is nothing remarkable about the stone artefact scatters in the SEOC project area and he questions the high significance that has been attributed to a number of the Aboriginal sites on the SEOC project site. In his opinion, Aboriginal stone artefacts are ubiquitous in the Hunter Valley, as they are found everywhere and are virtually indestructible (TS 420/13-19). Dr Kamminga considers that the proposed disturbance by mining of the physical evidence (essentially stone artefacts and stone manuports) of past Aboriginal presence and activity within the SEOC project area is very unlikely to constitute a significant cumulative impact on Aboriginal cultural heritage in national, state, or local contexts (exhibit K, p 10).
According to Dr Kamminga, a recorded relatively high density of stone artefacts by itself should not be interpreted as meaning that an area or deposit of stone artefacts must have a high scientific value, because the assessment of scientific value turns on a number of considerations, such as rarity of items, the integrity of the sedimentary context from which the stone artefacts have been recovered, whether the artefacts or sites can be reliably and/or precisely dated and whether the sites are common or rare, to list only a few. In Dr Kamminga's opinion, the Insite Report has rated the scientific value (assessed research potential) of the archaeological resource too highly, as archaeologists in the field are often not able to distinguish between the different types of fractured stone and consequently overrate its scientific value (Dr Kamminga affidavit par 27-28, 34). Dr Kamminga's reasons that the assessed scientific value of the archaeological resource on the SEOC project site is not adequately demonstrated are as follows (Dr Kamminga affidavit par 34(a)-(f)):
(a)The impacts of farming since the 1880s has resulted in a general reduction of the archaeological value of the cultural horizon on the SEOC project site;
(b)The range of stone types found on the SEOC project site reflect common stone artefact types that are standard for the region;
(c)There is low to negligible potential of encountering Aboriginal sites or stone objects belonging to the Pleistocene era (before circa 10,000 years ago);
(d)There is no likelihood of encountering Aboriginal artefacts made of organic materials;
(e)The Insite Report has given undue weight to the "artefact density" in the assessment of scientific value, when in fact scientific value turns on a number of considerations; and
(f)The Insite Report relies heavily and uncritically on the 2002 Witter Report (exhibit A, vol 5, tab 101).
Dr Kamminga does not agree with the significance attributed to the Aboriginal objects and cultural landscape by the Applicant (Applicant's ASOFC par 59). According to Dr Kamminga, the object of sound cultural heritage management is not to identify whether a cultural landscape will be impacted, but rather to determine whether a proposal will impact on places or values of particular significance and if so, how these impacts should be managed. It is therefore necessary to first determine the level of cultural significance of the SEOC project site (Dr Kamminga affidavit par 52). In Dr Kamminga's opinion, Dr Cotter has failed to provide an adequate assessment of the impacts of the SEOC project on what she describes as the cultural landscape (Dr Kamminga affidavit par 57).
Dr Kamminga said in oral evidence, in response to Dr Cotter's assertions regarding the PCWP's cultural values in the landscape which include the SEOC project site, that it was hard for him to come to grips with Dr Cotter's evidence regarding the significance of the cultural landscape, as he cannot identify reliable and credible evidence for the significance of cultural landscape in the SEOC project area (TS 430/34-35) and he does not see a general consensus or widespread belief amongst the Aboriginal stakeholders in the existence of, for instance, a dreaming trail (TS 431/30-33). Dr Kamminga said the following in oral evidence in regard to Dr Cotter's evidence (TS 432/2-8):
the whole of Australia is a cultural landscape, not only for Aboriginal people, but for British settlers, for Italian people, for Chinese and so forth. The cultural landscape doesn't have a particular end. Maria [Dr Cotter] has drawn a very long bow on this issue and so I simply disagree fundamentally in terms of the reconstruction of a cultural landscape and this being intrinsic and absolutely and utterly essential, or even necessarily that the cultural landscape is credible.

The Aboriginal Heritage Information Management System

The OEH maintains the AHIMS register, which is a register of notified Aboriginal objects and Declared Aboriginal Places in NSW. Notified Aboriginal objects are Aboriginal objects that have been found and notified to the OEH by members of the public or professionals. Aboriginal objects may exist on a parcel of land even though they have not been notified to the OEH and included in the AHIMS register. Declared Aboriginal Places are places of special cultural significance to the Aboriginal people in NSW because of their spiritual, ceremonial, historical, social, or educational values. The NSW Atlas of Aboriginal Places (OEH) includes all Declared Aboriginal Places.
There are no Declared Aboriginal Places within the SEOC project site included on the AHIMS register (Insite Report Figure 3 p 17) or in the NSW Atlas of Aboriginal Places. Mr Scott Franks has nominated an area (in the vicinity of the SEOC project site) as a Declared Aboriginal Place. The nomination form, "Aboriginal Place Program Nomination Form", dated 24 July 2013, was attached to his affidavit dated 1 August 2013. The supporting plan tendered (exhibit T) separately identifies the sites of significance referred to in Dr Cotter's report. None are on the SEOC project site. The closest is Glennies Creek which adjoins the SEOC project site.
None of the archaeological resource sites identified in the Insite Report and submitted to the OEH by Ms Suzie Worth of the Wanaruah Local Aboriginal Land Council have been included on the AHIMS register as a Declared Aboriginal Place. St Clement's Anglican Church, Camberwell, has recently been included as a Declared Aboriginal Place (TS 422/13).
According to Dr Kamminga, the Declared Aboriginal Places on the AHIMS register and NSW Atlas of Aboriginal Places cannot be considered an exhaustive list of places that might reach the threshold for declaration as Declared Aboriginal Places in NSW, however a review of the AHIMS register is relevant in providing an objective measure of the thresholds required for a place to be considered a Declared Aboriginal Place under the NPW Act. The OEH applies strict evidentiary criteria for the entry of a place on to the AHIMS register as a Declared Aboriginal Place and it contains just nine places within 100km of the SEOC project area and each of these places required a high level of cultural significance and evidentiary proof in order to be registered. In Dr Kamminga's opinion, the level of cultural significance described by Dr Cotter does not meet, nor come close to, the threshold for considering the SEOC project area to be a potential area of significance and the evidentiary standards applied by Dr Cotter have not met the usual standards of proof required by the OEH to register a place as a Declared Aboriginal Place (Dr Kamminga affidavit par 55-56). Dr Cotter considers the SEOC project site is sufficiently important for listing as a Declared Aboriginal Place.

Evidence of Aboriginal stakeholders

Mr Lawrence Perry affirmed an affidavit dated 20 June 2013. Mr Perry is a member of the Gringai Clan (one of the clans that collectively make up the Wonnarua People) and the Gringai clan country is the northern part of the Hunter Valley, including Glennies Creek (Mr Perry affidavit par 1). Mr Perry is the Acting Chief Executive Officer of the Wonnarua National Aboriginal Corporation and he has carried out the duties of this position since 2008 (Mr Perry affidavit par 3). Mr Perry is a co-director of Yunaga Mine Services, a company that provides land care management, employment and training for Aboriginal people in the Singleton area, with a focus on engaging contracts in the mining sector (Mr Perry affidavit par 4). Mr Perry has participated in similar consultation and field work for other mining companies in the Hunter Valley (Mr Perry affidavit par 11).
According to Mr Perry, the SEOC project site is not considered to be an Aboriginal place of high significance, however the Wonnarua National Aboriginal Corporation does place high cultural significance on Glennies Creek itself and he understands that Glennies Creek will not be impacted by the SEOC project (Mr Perry affidavit par 13). In Mr Perry's opinion, the Insite Report's methodology and consultation with Aboriginal stakeholders was done in a manner that respected their cultural heritage (Mr Perry affidavit par 15). Mr Perry is satisfied the SEOC project is acceptable on the basis that Aboriginal stakeholders are involved in the development of a heritage management plan and they are able to participate in the salvaging of artefacts (Mr Perry affidavit par 16).
Mr Scott Franks affirmed two affidavits dated 17 May 2013 and 1 August 2013. Mr Franks is a Traditional Owner and registered Native Title Clamant for the land on which the SEOC project site is situated (Mr Franks affidavit 17.5.13 par 1). He is one of four heads of family of the PCWP and is authorised to speak on behalf of his family line (Mr Franks affidavit 17.5.13 par 3). Mr Franks disagrees with Mr Perry's description of the clans that make up the Wonnarua people (Mr Franks affidavit 1.8.13 par 6). In Mr Franks' opinion, the Gringai group does not have rights to speak for Country in or around the Singleton area, including the SEOC project site (Mr Franks affidavit 1.8.13 par 10).
According to Mr Franks, the ancestors of the PCWP travelled through Wonnarua Country performing important cultural ceremonies, including initiations along ceremonial tracks, or songlines. Part of the songline of his ancestors runs along Glennies Creek on the western side. The SEOC project site makes up half of one whole place along the songlines of his ancestors and the place is of high cultural significance to him and the PCWP. The other half of the place is the area over the Underground mine (Mr Franks affidavit 17.5.13 par 11(a), (d) and (e)). If the SEOC project proceeds, Mr Franks believes this will sever his songline (Mr Franks affidavit 17.5.13 par 17). Mr Franks has nominated an area that includes the SEOC project site as a Declared Aboriginal Place.

Submissions

The Applicant submitted the following:
(a)Aboriginal cultural heritage consists of places, objects and features which are of significance to Aboriginal people because of their traditions, observances, lore, customs, beliefs and history.
(b)Aboriginal cultural heritage is dynamic and may comprise physical (tangible) or non-physical (intangible) elements.
(c)Aboriginal cultural heritage also relates to the connection and sense of belonging that people have with the landscape and with each other.
(d)Aboriginal cultural heritage is not confined to sites. It includes people's memories, storylines, ceremonies, language and ways of doing things that continue to enrich local knowledge about the cultural landscape.
(e)Aboriginal cultural heritage provides essential links between the past and present: it is an intrinsic part of Aboriginal people's cultural identity, connection and sense of belonging to Country.
Mrs Maria Stocks and Mr Franks have given evidence of the significance of the SEOC project site to the cultural heritage values of the PCWP. Dr Cotter's evidence confirms the significance of the site. The AHCS should not be implemented, as approving the SEOC project will cause harm to important Aboriginal sites and objects. Further, there has been no assessment of the proposed route for transmission lines on the other side of Glennies Creek.
The Minister submitted that having regard to the evidence now put before the Court, nothing flows from the Applicant's complaint about the previous process of consultation undertaken in the preparation of the EA. The Court is concerned with the substantive question of whether the SEOC project will have adverse impacts on Aboriginal cultural heritage of a kind that would warrant refusal of approval for the SEOC project or imposition of further conditions. The Applicant has addressed that question directly by leading evidence which is intended to prove such adverse impacts. In the circumstances the Court will not be assisted by a debate about the adequacy of past procedures.
The Applicant's evidence points to places/locales of cultural significance in the area near the SEOC project site, but not within the SEOC project site or in areas that will be directly affected by the SEOC project. This is apparent from Dr Cotter's report. The list of "PCWP Specific Connections to the SEOC and its Surrounds" in par 51-64 consists, with one exception, entirely of sites that are outside the SEOC project site. In most cases the sites in question are a long distance away (TS 477/10-480/28). The point of contemporary significance referred to in par 63 would not be a sound basis to conclude that that particular place, let alone the entire SEOC project site, has high cultural significance (particularly given the outcome of the application in question). The cultural significance of Glennies Creek does not serve to establish that the adjacent SEOC project site is itself a place of high cultural significance. Contrary to the Applicant's submission Dr Cotter does not opine that the SEOC project site was a focal point of habitation, ceremony and resource exploitation. Rather, Dr Cotter was describing Glennies Creek, Bowman's Creek and other nearby creeks (Dr Cotter affidavit at par 47).

As was made clear in the cross-examination of Dr Cotter, the effect of her evidence is that the region surrounding the places of significance is a landscape of cultural significance to the PCWP (TS 494/23-495/41). In assessing such a claim the observation of Dr Kamminga in his report is significant. Because of the very breadth of the concept of cultural landscape, sound cultural heritage management requires an assessment of how a proposal will impact on places of particular significance.
Nothing in the Applicant's evidence demonstrates that the SEOC project will have direct adverse impacts on areas of high cultural significance of a kind that would justify refusal of approval. The Director-General's Report recognised that the SEOC project would result in unavoidable impacts adjacent to areas of high significance and adjacent to the existing Southern Conservation Area (exhibit A, vol 1, tab 7 p 525). In order to "compensate for these additional impacts" the Department of Planning and Infrastructure ((the Department) now an Agency known as Planning and Infrastructure) proposed conditions requiring Ashton to review and expand the existing conservation arrangements for the mine complex in consultation with the Aboriginal community, the Department and the OEH. This condition (which became condition 47 in Sch 3) is an appropriate response to the overall heritage impacts affected by the SEOC project and the broader Ashton Coal Complex. The Court should not accept the much broader proposition advanced by the Applicant that all of the areas adjacent to Glennies Creek (including in this case the SEOC project area which is more than 200m from Glennies Creek) are part of a general place or setting of high cultural significance. As to the suggested impact of the transmission line in relation to Glennies Creek, given the low impact of such a facility the Court should be satisfied that proposed condition 49 is adequate to minimise any adverse impact on Aboriginal cultural heritage.
Ashton submitted that it was required by the Department to revise the proposed corridor for the transmission line which required relocation out of the Southern Voluntary Conservation Area. In relation to the revised corridor for the transmission line to the west of Glennies Creek, condition 49 in Sch 3 requires an archaeological survey of the transmission line corridor in consultation with the Aboriginal community. The final design must include all reasonable and feasible measures to minimise impacts to Aboriginal objects and submit detailed plans to the Director-General for approval. It should also be noted that the land subject to the revised route of the corridor west of Glennies Creek has been surveyed and studied by Witter (2002), as regards the Northern area (cf pages 21-22 Insite Report) (TS 466/30-42), and in the Insite Report as regards the area east of Glennies Creek (p 30-32 referring to Site SA12).
Dr Kamminga specifically confirmed that he had considered Aboriginal cultural landscape issues and could not identify credible evidence for the significance of cultural landscape in the SEOC project area (TS 430/35- 432/15).
Dr Cotter's expressions of opinion about Aboriginal cultural landscape issues are based on discussions with a small group of four families which has labelled itself the PCWP. That is not the only group representing the Wonnarua People. As observed by Dr Kamminga, the concept of cultural landscape is very broad and the whole or large parts of Australia can legitimately be considered as cultural landscape for Aboriginal people, and others who have settled here. In essence, Dr Cotter's evidence restates this indisputable proposition, and provides anecdotal examples of the connection of several families with various parts of the landscape over the last 100 years or so. Many of the events recorded by Dr Cotter based on what she has been told relate to matters, which while historically fascinating, are entirely unrelated to anything in the nature of traditional Aboriginal ceremony or life (for example, local Aboriginal men volunteering for service in the First World War and being killed on the Western Front) (TS 481/35-50, 482/1-21). Many of her recorded events and allegedly significant places are not relevant to these proceedings as they lay entirely outside the SEOC project site (TS 477-478). Dr Cotter has not limited her analysis to the SEOC project site but has, unhelpfully, included locations up to 20km from the SEOC project site. Indeed, Dr Cotter confirmed that she has specifically resisted the demands of relevance, instead believing the SEOC project site boundaries to be an imposition on the amorphous and untrammelled conception of Aboriginal culture to which she adheres.
Ashton submitted that much of Dr Cotter's written and oral evidence lacks scientific rigour sufficient for this Court to make any proper conclusion as to its assertions and in the main borders on a kind of storytelling (although no doubt a genuine expression of Dr Cotter's expert opinion and beliefs).
Ashton submitted that the PCWP did not exist at the time of the preparation of the Insite Report, as the PCWP was formed in 2010. Mrs Barbara Foot of Wanaruah Custodians, later a member of the PCWP, did participate in the consultation process, as evidenced by a letter written on her behalf by an officer of the OEH (exhibit 4A, p 143-4) and the acknowledgement of the contents of that correspondence by the Insite Report (p 10).
Ashton submitted that the size of scatter sites are noted in the Insite Report (p 199-200, p 214, p 252) and that some archaeological resource sites are as large as 100 x 50sqm (SA5/11) and are denoted by a single GPS reading. A description of the archaeological resource and its location is included in addition to the GPS reading, provides sufficient detail for the archaeological resource to be located on site.
Ashton submitted that any impacts on Aboriginal cultural heritage will be acceptably managed in accordance with the AHCS (condition 47 of Sch 3), which will be developed by a qualified archaeologist on behalf of Ashton in consultation with the local Aboriginal community, the Department and the OEH.

Findings on Aboriginal cultural heritage

Adherence of Insite Report to Burra Charter/Draft Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation

The Director-General's Requirements (DGRs) for the SEOC project (exhibit 1A, vol 1, tab 13) identified "Heritage - both Aboriginal and non-Aboriginal" as a key issue to be addressed by the EA (p 4). The Policies, Guidelines and Plans Ashton was to have regard to included the following:
(a)Draft Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation (DEC, 2005) (draft Guidelines for consultation, now Aboriginal cultural heritage consultation requirements for proponents 2010);
(b)The Burra Charter; and
(c)NSW Heritage Manual (NSW Heritage Office and the Department of Urban Affairs and Planning).
The Burra Charter (exhibit A, vol 5, tab 96, p 4165-4193) is an overarching document which sets a standard of practice for those who provide advice, make decisions about, or undertake works to places of cultural significance, including owners, managers and custodians (exhibit A, vol 5, tab 96, p 4170). The Burra Charter starts from a premise of a place being of cultural significance and provides the principles for managing and interpreting places of cultural significance. It provides a broad overview of the heritage context for heritage significance although it is not directed to assessment particularly. The Burra Charter (exhibit A, vol 5, tab 96, p 4170) states that it should be read as a whole as many articles are interdependent and were referred to by the experts as summarised above in their evidence.
The NSW Heritage Manual includes assessing heritage significance, which identifies a process of investigating, assessing and managing heritage significance. Heritage significance assessment criteria include historic, aesthetic, social, scientific, rarity and representative criteria. Gradings of significance are also specified. Of greater relevance in this matter are the draft Guidelines for consultation which address Aboriginal heritage assessment directly, including a wide definition of Aboriginal cultural heritage in s 1.3 consisting of physical and non-physical elements (exhibit A, vol 5, tab 102, p 4462). An assessment process includes identifying Aboriginal cultural heritage through consulting Aboriginal people with cultural knowledge or responsibilities for country (p 4463). Assessment information requirements include social/cultural, landscape, archival documentation and archaeological elements (p 4464-4465). The final 2010 version (exhibit A, vol 5, tab 104) requires similar information about cultural heritage assessment of places, not just objects.
The Insite Report is called Aboriginal Archaeological Assessment and the contents of the substantive report reflect the terms of reference from Ashton to undertake an Aboriginal archaeological heritage assessment. The cultural significance of the identified archaeological sites is determined, according to the Report at p 59, by the community reports (largely those of Aboriginal stakeholders) in their responses in writing contained in Appendix D (exhibit 4A). The Insite Report does consider a range of assessment criteria beyond scientific significance in the context of the archaeological surveys undertaken. The Insite Report includes (table 6, p 59) a table listing the archaeological resource sites and grades their significance against the criteria of scientific, public and representative. However, Aboriginal cultural heritage assessment requires a broader assessment and analysis than reflected in the Insite Report, including intangible aspects of culture, not just objects, as recognised in Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 at [82]-[83]. That case was considering a different statutory regime, namely an application for an Aboriginal Heritage Impact Permit (AHIP) under s 90A of the NPW Act by Ashton in relation to an area in Camberwell above the Underground mine. The observations of the Commissioners about the broad considerations relevant to the assessment of Aboriginal cultural heritage are pertinent to this matter also and at [82] refer to the Aboriginal cultural heritage consultation requirements for proponents in the 2010 guidelines (par 87(a)) in doing so.
I accept Dr Cotter's opinion that the Insite Report does focus on the archaeological resource on the SEOC project site and is too narrow an assessment of Aboriginal cultural heritage given the requirements of the draft Guidelines for consultation in particular, and the broader guidance contained in the Burra Charter and the relevant part of the NSW Heritage Manual.
The terms of reference for the Insite Report were too narrow, focusing on objects not places, and do not reflect the requirements for Aboriginal cultural assessment required by any of the three heritage documents required to be addressed in the DGRs. Arguably there was a failure to assess the significance of all relevant aspects of Aboriginal cultural heritage on the SEOC project site by the Insite Report as required by the relevant guidelines.

The adequacy of the consultation process

Dr Cotter identified in oral evidence that individual members of the PCWP participated in the consultation process during the preparation of the Insite Report, notwithstanding that some of these individuals do not agree with all the findings of the Insite Report. I note that the PCWP as a group did not exist at the time of preparation of the Insite Report.
The emphasis on the word archaeology in the notification letters to Aboriginal stakeholders sent by Insite reflects their overly narrow terms of reference (Insite Report p 84-85). The letters from registered Aboriginal stakeholders in response to the draft report, contained in Appendix D of the Insite Report (exhibit 4A), addressed both the future management of the archaeological resource on the SEOC project site and wider social and cultural values related to the SEOC project site and environs. That response during the consultation process with Aboriginal community members and businesses articulated wider cultural significance values associated with the Camberwell area, which includes the SEOC project site, was due to Aboriginal respondents not limiting themselves in responding to the archaeological sites alone. As identified during the hearing, the Insite Report does include references to the historical and cultural aspects of the area around the SEOC project site, generally focussed on the significance of the Glennies Creek area.
Community consultation with the registered Aboriginal stakeholders during the preparation of the Insite Report was not undertaken in accordance with the relevant guidelines at the time of the preparation of the Insite Report as required by the DGRs (exhibit 1A, vol 1, tab 13, p 7), being the draft Guidelines for consultation (exhibit A, vol 5, tab 102). On the basis of all of the evidence including the content of the whole Insite Report and the responses received in the public consultation process, wider aspects of Aboriginal cultural heritage were recorded. As I have evidence before me which addresses Aboriginal cultural heritage broadly in the sense referred to by the Burra Charter, the NSW Heritage Manual and the draft Guidelines for consultation this failure should not give rise to a refusal. However, Ashton must do better in future in this area of assessment to ensure its consultants are provided with sufficiently broad terms of reference.

The identification of Aboriginal archaeological sites by the Insite Report

In my view, the explanation provided by Dr Kamminga regarding the position of survey pegs in relation to individual archaeological resource sites is reasonable and informed by his extensive expertise in the area of Aboriginal archaeology. I note that some of the archaeological resource sites identified by the Insite Report cover a significantly large area and a single peg can only indicate an approximate position of the scatter as a result. I do not accept Dr Cotter's view that the data in the Insite Report cannot be relied upon.

For the following reasons I do not consider Dr Cotter's evidence and opinion demonstrates that the SEOC project site is of substantial significance for Aboriginal cultural heritage. Dr Cotter confirmed in oral evidence that she is employed by Tocomwall Pty Ltd, a company of which Mr Scott Franks is a director. Mr Franks is one of the four heads of family of the PCWP (TS 489/29). In my view, this commercial relationship does potentially compromise the perception of Dr Cotter's independence in providing expert evidence in this matter. Dr Cotter's opinion regarding the significance of the cultural landscape on and in the vicinity of the SEOC project site solely reflects the views of the PCWP, as stated in her oral evidence (TS 487/4). Mr Perry's affidavit demonstrates that there are differing views amongst Aboriginal people in the Camberwell area of the significance of the SEOC project site for Aboriginal cultural heritage. There is universal agreement that Glennies Creek and its banks have significance for Aboriginal cultural heritage. That lies outside the SEOC project site.
The Expert Witness Code of Conduct (Sch 7 Uniform Civil Procedure Rules 2005) requires in cl 5 that an expert must include in a report the facts and assumptions of fact and the expert's reasons for each opinion expressed.
Dr Cotter has provided her opinion based on a thorough search of the Aboriginal use of the area surrounding the SEOC project site, which largely relies on interviews conducted with Aboriginal people who are members of the four families of the PCWP. There is no evidence, such as descriptions and explanations of cultural or other use of the SEOC project site by Aboriginal people, in particular by PCWP descendants, in her report. During the view by the Court of the SEOC project site Dr Cotter speculated that areas of the site may have been used for food gathering and other domestic activities. I surmise that it is highly likely the activities she referred to occurred across much of the surrounding landscape. The SEOC project site and its surrounding landscape is highly modified by European agricultural practices which I surmise have been conducted in that area for many, many decades.
Dr Cotter's report mostly considers the surrounds of the SEOC project site. The report quotes extensively what PCWP members said to Dr Cotter about the area around the SEOC project site because according to Dr Cotter the best evidence of Aboriginal cultural heritage is obtained from Aboriginal people. While that can be accepted, Dr Cotter appeared to link any association with the general area near the site in a 20km radius as supporting a conclusion that the SEOC project site is of cultural significance. All except one of the 15 locations referred to in her report as having significance for Aboriginal cultural heritage are not on the SEOC project site. Some of these locations are at some distance from the SEOC project site, such as Shadlows Lane and locales Q, S, T, U, V and X which are described as places adjoining Glennies Creek near Mount Olive where PCWP members have lived or now live. One location near the SEOC project site is at or near Glennies Creek, which will be undisturbed as it is outside the project site. The same locations are the subject of the application by Mr Franks on behalf of the PCWP for an area to be declared an Aboriginal Place. The area in that application extends some 20km along Glennies Creek from the SEOC project site.
The only site identified in Dr Cotter's report within the SEOC project site is the Camberwell Common (locale K) (The complicated history of this land and the finding that it is not now a common is referred to elsewhere in this judgment). This is described as having contemporary significance to the PCWP as it was the place in 2010 over which they successfully registered their first Native Title application. Registration, I was informed, required information sufficient to meet a prima facie threshold to be provided. That material is not provided in this case. As identified above in par 29, the Future Act Determination which followed that registration found there was scant evidence of the exercise of any native title rights and interests on the land the subject of the native title claim, which I infer included the common, such as evidence of the life, culture and traditions of the PCWP. I find myself in a similar position as the Native Title Tribunal given the lack of such material before me. In the absence of any evidence to substantiate the common as having greater cultural significance I am unable to attribute any weight to that matter.
If the role of an expert on Aboriginal cultural heritage is to collate experiences of Aboriginal people, it is also necessary to undertake an analysis of the experiences and link these to the relevant land in issue if an expressed opinion is to be useful to this Court. Any association of a PCWP member with the general area around the SEOC project site was referred to, regardless of timing, for example the World War I experiences of a member and his relative who lived in the Camberwell area are identified by Dr Cotter. The criticism of Ashton's set out in par 82 based on this material is valid. No cultural or other experiences of Aboriginal people on the SEOC project site were identified in Dr Cotter's report. The archaeological sites identified by the Insite Report on the SEOC project site were not identified as sites of cultural significance in Dr Cotter's report. I find her evidence undiscerning and therefore unconvincing. Ashton's criticisms of Dr Cotter's report set out at par 83 are justified.

Mrs Bowman has been approached by Ashton twice to sell property 129 but has refused because she is aware that the waterway on property 129 is very important to people downstream and she believes there is a real risk that water in Glennies Creek will be damaged by the SEOC project. She has observed animals including quolls, kangaroos, echidnas, squirrel gliders, possums and goannas on property 129 and other parts of the SEOC project site. She wants to ensure that the area of native vegetation along the ridge next to property 129 is kept as a wildlife refuge. She is concerned that if the SEOC project goes ahead the animals will be trapped. She loves living at property 129 and wants to save it for future generations. If the SEOC project does not go ahead she will keep living at property 129.

Property 130 - Mr Bowman's farm

The Court also heard evidence from Mr Alistair Bowman at his property (property 130 in the SEOC Project Schedule). Mr and Mrs Maytom live on property 130 as property managers. The farm provides milk for 3,000 families and some cattle are exported. There are 80 milking cows and others for beef. Mrs Maytom stated that if dust gets into the vat the milk gets dusty and would have to be disposed of as it would not be taken off site. She said a seal could be placed over the hose that goes into the vat but the door to the milking shed could not be kept shut constantly because they move in and out a lot and there needs to be ventilation. Mr Bowman stated that disposing of milk is difficult and the company Dairy Farmers determines whether the milk is dirty. Mr Bowman stated that they have not had to dump milk from the new vat which was installed three years ago at a cost of $150,000 and will take ten years to pay off. Mr Bowman and Mrs Maytom both raised water security concerns.
Mr Bowman affirmed an affidavit dated 15 May 2013. He annexes a copy of a submission prepared by Orbit Planning on his behalf identifying the economic impact of the SEOC project on his property. Mr Bowman and his sister Ms Elizabeth Bowman own land in the Camberwell area. His family has continuously farmed in the Camberwell district since around the 1820s. The current income earned by the farming operation is around $750,000 per annum. Most of the income earned is spent locally. He has sought to continuously improve the property and business and plans to further improve the farming operation and property in Camberwell.
Mr Bowman believes that if the SEOC project is approved it will destroy his business, the reasons for which are described in the Orbit Planning submissions. Mr Bowman could not operate the farm at property 130 without the managers living there, which would not be possible if the SEOC project is approved. If the managers at property 130 are lost this would have flow on effects for Mr Bowman's other dairies and the herd on the nearby lots because property 130 is the main income stream for the business. If the SEOC project is approved, the blasting and vibrations would likely affect his dairy operation by creating an unpleasant, distracting and potentially unsafe working environment for staff in the milking shed (which is about 500m from the pit), upsetting cows and calves and altering their behaviour.
Mr Bowman does not wish to sell his properties to Ashton because they are not just a business for him. Because of his family connection to the land he feels he is a custodian of it and feels a heavy responsibility to maintain, improve and pass on the land to future generations. If the SEOC project does not go ahead Mr Bowman intends to continue with his business and pass it on to one of his sons.
Mrs Maytom affirmed an affidavit dated 15 May 2013. Mrs Maytom states that she and her husband have been working for Mr Bowman since 1998. She lives on property 130 with her husband and four children. Her two eldest children also work on the farm, her youngest children are in school. Mrs Maytom outlines her observations of the air quality, health and blasting effects of mining in Camberwell. She also outlines why she wants to stay at property 130.
Since the NEOC mine began Mrs Maytom has observed very thick dust in the house. She has observed that when her eldest son stays in Camberwell his asthma is very bad and needs to use his Ventolin regularly. In 2011 he went to Dubbo for eight weeks and did not need to use his Ventolin but when he came back to Camberwell his asthma returned. Since mining began in Camberwell Mrs Maytom has observed that on some days the water in Glennies Creek is clear and other days is cloudy with coal dust making it too dirty for her to use which is particularly problematic for washing white laundry. Since mining started in Camberwell Mrs Maytom has experienced the house being shaken from the blasting and items falling from her bookshelf and breaking.
Mrs Maytom has stayed in Camberwell because she needs to earn enough money to support her family. She does not know how her family would survive if they were unable to continue farming at property 130. She does not believe it would be possible to live on a different property and continue farming property 130 because in her experience farming is a 24 hour a day job. She also prefers living in the countryside and does not want to return to town.
If the SEOC project goes ahead Mrs Maytom will move away from Camberwell because she is concerned about the increased risk to her home and family from dust, noise and blasting. She does not know where she would take her family, her husband has been a dairy farmer his whole life and their family's income depends on the business at property 130.
Over the last year Mrs Maytom has been searching for rural properties in the Singleton Shire and further away but has been unable to find anything equivalent to property 130. She believes that it would be disruptive to her two school age children to move and it would split up her family as she has relatives in the Singleton area.

Properties 111 and 114 - Mr Bruce Richards and family

Mr Bruce Richards stated that someone cannot make a living on a property that is 270ha, that income needs to be supplemented. Mr Watling, his son in law who lives in the vicinity of Camberwell, believes there is a silent majority that want the mine.
Mr Bruce Richards affirmed an affidavit dated 20 June 2013. He has lived in and around Camberwell village his whole working life and believes he has a strong family connection to the area. He operates a beef cattle farm on agricultural land near Glennies Creek which is adjacent to a number of mines. He has spent 40 years working on and off for coal mines in the area.
Based on his experience of living in Camberwell village, he does not believe that the SEOC project will affect his way of life and through his observations of the NEOC and other mines surrounding Camberwell, any potential noise and dust impacts can be managed through approval conditions. It has been his experience that any impacts from the NEOC mine to his property have been promptly managed to a high level by Ashton when he raised his concerns with them.
Mr Bruce Richards believes that the SEOC project will not have any significant noise impacts on Camberwell village due to the mitigation measures proposed. From his experience living near the NEOC mine which stopped operations at 10pm this was an effective way to manage noise and would be appropriate for the SEOC project. He also believes that the project approval conditions relating to air quality will satisfactorily control dust emissions.
Concerning water quality Mr Bruce Richards states that his children have grown up near a number of mines and they have been healthy. Ashton cleans their water tank. In relation to the cloudiness of Glennies Creek, Mr Bruce Richards believes this is from carp disturbing the mud at the bottom of the creek, not coal dust. He has not noticed any dust impacts on his cattle. He believes that the community dynamics in Camberwell changed long before Ashton began operating near Camberwell. He believes the SEOC project will bring direct and indirect economic benefits to Camberwell and Singleton, and his family would benefit from this.
Mr Mark Richards affirmed an affidavit dated 20 June 2013. He states that the mining industry assists farmers in that they can supplement their incomes through work as contractors in the mines. The NEOC mine was considered one of the best mines to work for because its shifts catered to farmers and families. He believes the SEOC project should go ahead for job creation and it would mean he could earn a steady income again. He states there is a lack of community connectedness in Camberwell. He believes Camberwell has benefited from mining such as through the upgrading of roads. He has not had any health issues and his cattle have not been impacted by dust.
Mr Watling affirmed an affidavit dated 20 June 2013. He believes Ashton's rehabilitation efforts and intentions are first rate. He and his family have had no health problems or dust issues in their water. He believes the SEOC project will help provide jobs for people locally who are struggling to find work.

Camberwell Church

Mrs MacBain, a historian, gave a statement to the Court at St Clements Church. She recounted the history of Camberwell, the importance of the Camberwell common and her concerns about a burial ground which has not been identified and explored. She wants the heritage of Camberwell to be protected and she believes there is a great feeling of loss of place occurring in the community.

Property 18 in village - Ms Turner

The Court viewed Ms Turner's property and heard her evidence. Ms Turner also affirmed an affidavit dated 15 May 2013. She believes mining has had a negative impact on the village and the SEOC project will destroy the village. She has seen negative impacts from blasting, dust, on the water she uses, lighting from mining, and noise. Ms Turner will not move if the SEOC project is approved but she may be forced to move if the impacts are too great.

Property 23 in village - Mr Lane

The Court viewed Mr Lane's property and heard him give evidence there.

Property 34 in village - Mr and Mrs Olofsson

The Court viewed Mr and Mrs Olofsson's property. Mrs Olofsson read a statement on behalf of her husband. Mr Olofsson is concerned about blasting and the lack of cumulative assessment. Mrs Olofsson then gave evidence, she is very concerned about the lack of cumulative assessment. Access to monitoring data on dust and noise must be provided through Government Information Public Access to the Department and the EPA which application costs $50. The rehabilitation on the NEOC mine increased the shape of the valley and where the noise and dust goes.
Mrs Olofsson affirmed three affidavits dated 17 May 2013, 30 July 2013 and 21 August 2013. In her affidavit dated 17 May 2013 she states that she believes that prior to the NEOC mine Camberwell was a close knit community. Since the NEOC mine she has observed negative impacts from noise, dust, blasting, organic growth media used in rehabilitation, and changes in the community. She would move if the SEOC project is approved and would not take the option of being relocated for seven years.
In her affidavit dated 30 July 2013 she outlines her dealings on behalf of the Camberwell common, social events that have occurred in Camberwell and her concerns about Ashton operating outside the conditions of approval for the NEOC mine. In her affidavit dated 21 August 2013 she outlines the improvements on property 167L and what that land has been used for.

Property 35 in village - Mr and Mrs de Jong

The Court viewed Mr and Mrs de Jong's property and heard Mr de Jong give evidence there. Mr de Jong is very concerned about relocating for seven years, he does not want to split up his family or lose his beautiful vegetable garden.
Mrs de Jong affirmed an affidavit dated 14 May 2013. She feels there has been a loss of community and negative impacts of dust, blasting, noise and water supply from the NEOC mine. In 2008 her drinking water was declared undrinkable because of mineral pollution from the mines, a copy of the report by the Sydney West Area Health Service is annexed to her affidavit. She wants to continue living close to her family who are all in the area. She would not take up the option of a seven year relocation.

Mason Dieu - Mr Shearer

The Court viewed Mr Shearer's property in Mason Dieu and heard him give evidence there. Mr Shearer believes too many mines have been given approval to mine in too small an area. He has concerns about dust, drinking water, water quality for irrigation and light impacts. Maison Dieu is a locality several kilometres south of Camberwell.

Ms Melanie Long, who resides in Camberwell, affirmed an affidavit dated 20 June 2013. She does not believe the SEOC project will have an impact on her way of life as they are already surrounded by other mines.
Ms Nancy Montgomery affirmed an affidavit dated 20 June 2013. She lives in Camberwell village. As she and her family do not have any health problems caused by the existing mines she thinks it unlikely that she will suffer any health problems from the SEOC project. She believes that the SEOC project stopping operation at 10pm during the first two years will reduce any noise impacts for residents of the village. She supports the SEOC project because she believes it will bring people back to the Camberwell area, particularly those who lost their jobs once the NEOC mine closed. She does not believe that the vibe of the Camberwell community will change if the SEOC project is approved.
Mr Scotney Moore, Environmental and Community Relations Coordinator for Ashton, affirmed an affidavit dated 27 June 2013. He details the properties owned by Ashton in Camberwell, the money spent on major renovations and maintenance, and the works undertaken on those properties.

Evidence in Singleton Court House

A number of objectors gave evidence in the Singleton Court House. Mr John Drinan of the Singleton Healthy Environment Group detailed the outcomes of their investigations into air quality and health in the area. He also outlined their concerns about air quality in the area.
Mr Ian Moore of Jerrys Plains is concerned about the destruction of alluvial lands and putting aquifers at risk. Mr John Redgrove a dairy farmer at Scotts Flat is concerned about the impact on water quality for the dairy industry and the destruction of alluvial lands.
Ms Prue Bodsworth of the Wilderness Society Newcastle expressed concerns that:
(a)The impact of clearing 25ha by the SEOC project of the endangered ecological community Central Hunter Ironbark-Spotted Grey-Gum Box Forest which provides one of the few remaining vegetation corridors in the lower Glennies Creek catchment. The area provides habitat for the endangered spotted-tailed quoil, four threatened birds and three threatened micro-bats. The flora and fauna assessment was inadequate because there was no formal trapping.
(b)The inadequacy of the proposed offset area. The loss of 50 hollow bearing tress is not being offset which could result in local extinctions. The majority of the offset areas are over mine rehabilitated areas which are poor quality and the proposed biodiversity offset of 44ha of like for like vegetation is entirely inadequate.
Mr Peter Dixon-Hughes gave evidence representing the NSW Farmers Federation. He is concerned about the conservation of colluvial and alluvial lands for agriculture.
In relation to the concerns raised by lay witnesses, those related to water and air quality impacts and loss of agricultural land have been considered in earlier sections of the judgment. In relation to loss of an endangered ecological community the Applicant did not address this as an issue and at this stage the Court does not have any specific evidence before it on that issue. I will ask the Respondents to clarify what is intended in relation to the offset area in the context of the concerns raised by Ms Bodsworth.

Conditional approval possible

The Court must undertake a wide ranging consideration of matters relevant to the exercise of its discretion whether to approve the SEOC project. Under s 75J(2) the Court should consider the Director-General's report which has been done with references to that report in the judgment where relevant. As this is a merits appeal in which various environmental, social and economic issues are identified by the parties' submissions and extensive conditions to manage the impacts are proposed, it is necessary to evaluate all of these matters collectively to determine if it is in the public interest to approve the SEOC project. Part of that weighing up of merit issues requires consideration of the ESD principles which have also been referred to throughout the judgment. The Court has not concluded that there are likely to be threats of serious or irreversible environmental damage in relation to any of the issues identified by the Applicant. The most serious predicted impact is to the air quality of the five (Table 1) rural properties immediately surrounding the SEOC project site, which I discuss below.
Impacts of concern are the predicted air quality impacts and the potential social and economic effects of dealing with these for (Camberwell village and) the surrounding rural area. I do not agree with the Applicant that the only obvious avenue by which to avoid unacceptable impacts would be to require the removal of all residents from the area, which is not a measure the Court has power to effect in any event.
The Court has concluded that some issues are not a basis for refusal of the SEOC project. The impact on Aboriginal cultural heritage on the SEOC project site to the extent this is reflected in the identified archaeological sites does not warrant refusal and conditions of approval can be made to adequately deal with this matter. Loss of viable agricultural land is minimal and is not a basis for refusal provided that appropriate conditions are imposed. There is little risk of harm to the HRSTS resulting from the SEOC project if implemented in accordance with the proposed conditions which include the LPB and final void. These same measures and the adequate hydrogeological modelling suggest that the level of impact on groundwater and surface water sources will be acceptable provided the conditions imposed are rigorous. More discussion on the conditions necessary in the event that the modelling forecasts are not as predicted will be undertaken with the parties.
One matter I have not dealt with earlier in the judgment is that part of the Applicant's case which alleged a failure to comply with EPIs, being the Singleton LEP and the Mining SEPP identified in par 19-21. These instruments are not binding on the Court but may be taken into account as part of its deliberations. The matters identified in cl 12 of the Mining SEPP have been considered to the extent they are relevant in this case. The matters identified in cl 14 of the Mining SEPP (par 20) have been considered to the extent they have been raised by the Applicant in these proceedings in relation to the consideration of impacts on significant water resources (subcl 1(a)). No issues in relation to biodiversity impacts or greenhouse gas emissions have been identified by the Applicant. There is consideration and assessment of these topics in the DGRs, the EA prepared on behalf of Ashton and in the Director-General's report. In relation to the objects of the 1(a) Rural zone in the Singleton LEP, the issue of agricultural viability, the use of rivers and water catchments and the maintenance of landscape quality have been considered in the course of this merits appeal. There is no basis for refusal of the SEOC project based on matters identified in these EPIs.

Rural properties

The air quality impacts have been exhaustively discussed in the section considering air quality above. In relation to properties outside Camberwell village, Dr Bridgman and Mr Todoroski agreed that (exhibit H par 85):
The SEOC mine would result in large impacts at several residences located outside of Camberwell village. These residences are located within the mine boundary or to the NW or SE of the SEOC mine. Due to their NW or SE position relative to the mine, these receptors would experience high levels of dust from the mine and also high levels of dust borne on the prevailing winds due to existing conditions. It is not possible to reasonably prevent the impacts at these few receptor locations. These receptors are identified as RXXXXX [sic] and are afforded acquisition rights.

The PAC considered that the direct impacts on viable rural properties on the SEOC project site (Mrs Bowman's property) and to the south of the site are substantial. Several of these properties, including a large integrated dairying operation, are predicted to be adversely affected during the mining process and will need to be acquired or be offered the option of acquisition by Ashton. The PAC considered that multiple parcels of land combined into an integrated agricultural enterprise must be considered as a single entity for acquisition for dust or noise impacts provided the parcels are in reasonably close proximity to each other. This requirement was included in the approval conditions (exhibit A, vol 3, tab 30, p 2733).
The draft conditions identify eight parcels of rural land which are air quality impacted listed in Table 1 of Sch 3 which must be acquired by Ashton on the request of the landowner. The conditions relating to minimum air quality requirements do not apply to these properties (particularly conditions 22 and 23). Five of the identified parcels of land contain a dwelling, properties 83, 120, 121, 129 and 130. As property 130 contains two dwellings, a total of six dwellings will be impacted. The Court was referred during the hearing to other examples where similar conditions have been imposed in relation to other mining proposals to enable the resource to be won in circumstances where other private properties not owned by the mine were affected.
The Applicant criticised the proposed conditions as the acquisition properties are excluded from the obligation placed on Ashton to ensure that all reasonable and feasible avoidance and mitigation measures are employed in condition 22 and the air quality criteria in condition 23. The SEOC project cannot proceed unless these conditions do not apply to these properties. As the number of properties affected is small and other measures in addition to acquisition are offered by way of amelioration to be paid for by Ashton, the necessary balance between winning this resource, which is in a fixed location, and imposing appropriate conditions is acceptable subject to what I say below in relation to economic impacts on neighbouring rural properties wishing to remain in business during the operation of the SEOC project and once it has ceased.

Camberwell village

I concluded at par 377 that the SEOC project is not predicted to cause serious health problems for residents of Camberwell village and will not result in unacceptable impacts in the village. The mining will have some amenity impacts as there will be some increased dust based on the modelling undertaken. There are likely to be some impacts on the air quality of residents in the village but the extent of any health impacts is inherently difficult to quantify. The impact will be of relatively short duration as it is not expected to occur for the whole seven years of mining activity, and will change over that time given the change in distance of the pit from the village. The modelling suggests that the greatest negative impacts on air quality will be in year five. The Director-General's report explains that these residents were afforded special rights in recognition of the moderate dust impacts and other noise and visual impacts they may experience (exhibit A, vol 1, tab 7, p 507). The imposition of conditions affording special rights to residents does not signal unacceptable air quality impacts.
The effect of the proposed conditions is that, notwithstanding the absence of unacceptable impacts, residents of the few properties in Camberwell village not owned by Ashton have the option to seek alternative temporary accommodation at Ashton's expense and/or mitigatory measures at their homes at Ashton's expense. These properties are identified in Table 2 in Sch 3 and the possibility of acquisition of their properties by Ashton is presently identified in somewhat general terms in the Statement of Commitments. That right to request acquisition by Ashton should be located more explicitly in the conditions. The conditions must also provide for adequate reimbursement of accommodation costs in the wider Singleton area.

Ashton owned land

There are different conditions for mine-owned land, which is extensive in and around the village and likely to be tenanted. Condition 24 of Sch 3 enables Ashton to exceed dust criteria at mine-owned properties if a tenant has been notified of health risks; the tenant of land owned by Ashton can move without penalty with adequate notice and Ashton must use its best endeavours to provide assistance with relocation and sourcing of alternative accommodation; mitigation measures can be installed at the tenant's request; monitoring of air quality is undertaken and monitoring data provided to the tenant in order to allow them to make an informed decision. The Court does not consider it is acceptable to treat tenanted properties owned by Ashton whether in Camberwell village or surrounds differently to other properties in terms of protection to be afforded to those residents. While I do not understand that approach to be problematic in the village there may be operational issues with the properties outside the village which I need to further discuss with the parties before finalising the conditions. Ashton advised (as identified in par 6) that temporarily occupied properties south of the New England Highway would be vacated if mining commenced.

Postpone commencement under approval

The Applicant submitted that approval is not in the public interest because the SEOC project in effect requires Mrs Bowman's land to be acquired. Mrs Bowman has stated she has no intention of selling her property to Ashton. I have already held that is not a matter that is determinative of this appeal except that I must determine whether to accept the Applicant's proposed condition that no mining should commence before a mining licence is granted and/or Mrs Bowman's property is purchased. The Court needs to better understand the operational impacts of this approach before determining a final condition of approval.
A related issue is that of landholder uncertainty identified by the Applicant and set out above at par 392. As the Respondents submitted there will be less uncertainty if approval is granted so that I do not consider that is a matter which is relevant to my consideration.

Social effects (Camberwell village viability)

There are varying views within Camberwell village and surrounds about the advantages and disadvantages of the SEOC project. The few residents in the village living in their own house, four households visited on the view, oppose the SEOC project because of their concerns about air quality and noise impacts with related concerns about health. Mr and Mrs de Jong do not wish to move for several years while the mine is operating. The concerns about air quality and serious health impacts are not supported by the air quality modelling evidence before the Court. The Court has not been provided with expert evidence on noise by the Applicant and notes that there are conditions which deal with the amelioration of this. Most notably the mine will not operate at night during the first two years of the proposed seven year operating period. Other residents such as the Richards family, Mrs Long and Mrs Montgomery look forward to the potential job opportunities afforded by the SEOC project which will provide much needed jobs and income. They do not have the same concerns about health impacts and consider there will be social benefits for Camberwell as people will return to the village as a result of the mining activity.
There are possible social impacts resulting from changes in the social makeup of Camberwell if properties are acquired voluntarily by Ashton. If all households take up the option of acquisition then Camberwell village and surrounds will be entirely owned by Ashton with further loss of that community. This is recognised in the Director-General's report which states that while this impact is recognised, Ashton has already acquired the majority of property in the village so that the impact has largely occurred. That reflects the current position. The vast majority of properties in Camberwell village and a number in its surrounds are owned by Ashton. According to the Director-General's report (exhibit A, vol 1, tab 7, p 532), of 56 residences in the village all but seven are owned by Ashton. The evidence of land ownership before the Court was that four houses in the village are not owned by Ashton with a couple of additional lots on which no house was located were also not owned by Ashton. The evidence before the Court suggests that the amenity impacts on the few remaining residents in Camberwell village will be moderate and so may not necessarily result in those property owners taking up acquisition rights. That is ultimately a matter for those residents to choose instead of availing themselves of mitigating measures at their properties.
Whether all residents of the five neighbouring rural properties avail themselves of acquisition rights by Ashton is unknown as the Court did not hear from them all.
The mine footprint will be located over the historic common area the significance of which was referred to by Mrs Olofsson and Mrs MacBain, historian, and in the report of Dr Cotter in relation to more contemporary Aboriginal cultural heritage of PCWP members. That area is no longer a common but is Crown land the intended utilisation of which is presently unclear. While the loss of the former common site will occur if the SEOC project proceeds the Camberwell community has not been able to access that area since its status as a common was revoked in 2010. An alternative common area has been identified. The proposed conditions of approval include a heritage management plan which will include detailed archival recording of heritage items within the area and will include the preparation of an oral history of Camberwell in consultation with past and present residents of the village. These proposals are appropriate given the existing extensive impacts of mining on the village community.
Ashton is also required to undertake a village enhancement plan with identified measures to enhance the village environment such as a park, riparian vegetation, footpaths and cycleway, and tree plantings. These conditions do address to some extent the possible social impacts which may result from the SEOC project and will contribute to the preservation of the social history of the village and surrounds.

Negative economic impacts on rural neighbours

The SEOC project will have negative economic impacts on neighbouring rural properties. The SEOC project has potentially major environmental and economic impacts on Mr Bowman's property. Land identified as suitable for acquisition includes his farm manager's house. Mrs Maytom provided an affidavit about the impossibility of managing the dairying operation if she was unable to live at the property. Her difficulties in relocating are also identified. Measures in the conditions to address these impacts are warranted and will require further discussion with the parties as identified in Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 3) [2014] NSWLEC 130.

Overall conclusion

It is difficult to weigh up economic benefits which are identified in the modelling undertaken by Dr Fahrer with negative impacts which are likely to arise if the mitigation measures to deal with air quality are implemented with consequential social impacts. Further loss of social cohesion for the existing Camberwell community is a possible outcome if these measures are implemented but whether that eventuates is unknowable. Loss of social cohesion resulting from long term residents leaving has already largely occurred in the village. Additional residents may come to the area in search of employment at the SEOC project. The change in the social fabric of Camberwell has been ongoing for some time.
The loss of production from Mrs Bowman's property and the loss for seven years from other rural properties is taken into account in the economic modelling, and the return to the NSW and Commonwealth governments in terms of royalties and other taxes remains substantial. The localised employment benefits were discussed in the economics section of the judgment.
On balance I consider that approval can be granted but that approval must be subject to adequate conditions about which a number of issues of clarification and possible alteration remain. A number of changes to conditions were made in the course of the hearing. Further consideration of the conditions in light of matters raised in the judgment and at the end of the hearing is necessary before the Court can grant conditional approval. A timetable for discussion of issues related to the conditions will be discussed with the parties. Final orders in relation to disposition of the appeal will be made when conditions have been finalised.
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Case Title:	Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 2)
Medium Neutral Citation:	[2014] NSWLEC 129
Hearing Date(s):	2-4, 6, 9-13, 16-19 September 2013, directions 10 March 2014, further submissions and directions 20 March 2014, directions 10 April 2014, directions 16 May 2014, written submissions 30 May, 17 June, 26 June and 2 July 2014
Decision Date:	27 August 2014
Jurisdiction:	Class 1
Before:	Pain J
Decision:	See paragraph 530
Catchwords:	APPEAL - objector appeal against Planning Assessment Commission's decision to approve an open-cut coal mine under Part 3A of the Environmental Planning and Assessment Act 1979 - impact on Aboriginal cultural heritage - impact on the long term functionality of agricultural land - impact on groundwater - protection of downstream water users - air quality health impacts and social and economic effects of mitigation measures - economic modelling of costs and benefits - conditional approval possible
Legislation Cited:	Commons Management Act 1989 s 4, s 14, Crown Lands Act 1989 Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002 Environmental Planning and Assessment Act 1979 s 4, Pt 3A, s 75J, s 75L, s 75R, cl 2 Sch 6A, cl 3 Sch 6A Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 Environmental Planning and Assessment Regulation 2000 cl 8F, Sch 3 Land and Environment Court Act 1979 s 17, s 39 Mining Act 1992 National Environment Protection Council Act 1994 (Cth) s 15 National Parks and Wildlife Act 1974 s 84, s 90A Protection of the Environment Administration Act 1991 s 6 Protection of the Environment Operations Act 1997 Protection of the Environment Operations (Hunter River Salinity Trading Scheme) Regulation 2002 Singleton Local Environmental Plan 1996 Pt 3 State Environmental Planning Policy (Major Projects) 2005 cl 6, Sch 1 cl 5 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 12, cl 14 Uniform Civil Procedure Rules 2005 Sch 7 cl 5 Water Management Act 2000 s 60A Water Management (General) Regulation 2004 (repealed) Water Management (General) Regulation 2011 cl 18, Sch 1, Sch 5 Pt 1 cl 12
Cases Cited:	Anderson v Director-General of the Department of Environment and Conservation [2006] NSWLEC 12; (2006) 144 LGERA 43 Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC 538 Grace Bros Pty Ltd v Willoughby Municipal Council (1981) 44 LGRA 422 Gray v Minister for Planning [2006] NSWLEC 270; (2006) 152 LGERA 258 Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 Hunter Environment Lobby Inc v Minister for Planning and Infrastructure (No 3) [2014] NSWLEC 130 Ironstone Community Action Group Inc v NSW Minister for Planning [2011] NSWLEC 195 Olofsson v Minister for Primary Industries (No 2) [2011] NSWLEC 181 Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales [2011] NNTTA 110
Category:	Principal judgment
Parties:	Hunter Environment Lobby Inc (Applicant) Minister for Planning and Infrastructure (First Respondent) Ashton Coal Operations Pty Ltd (Second Respondent)
Representation
- Counsel:	Mr R D White with Ms C Novak (Applicant) Mr S Free with Mr N Kelly (First Respondent) Mr A Galasso SC with Mr C Ireland (Second Respondent)
- Solicitors:	Environmental Defender's Office (Applicant) Legal Services Branch, Department of Planning and Infrastructure (First Respondent) McCullough Robertson Lawyers (Second Respondent)
File Number(s):	11154 of 2012