Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3)

[2018] NSWLEC 193

Land and Environment Court

New South Wales

Medium Neutral Citation:

Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 3) [2018] NSWLEC 193

Hearing dates:

17-20 September, 7-8 November 2018, further written submissions 13 November 2018

Date of orders:

30 November 2018

Decision date:

30 November 2018

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [345]

Catchwords:

JUDICIAL REVIEW – whether condition of mine approval requiring rehabilitation strategy to be prepared imports objective requirements as to content of the strategy – whether rehabilitation strategy meets the definition of rehabilitation strategy in the conditions of consent – whether Secretary was able to form opinion of satisfaction in respect of the strategy prepared

 

JUDICIAL REVIEW – whether Secretary failed to take mandatory considerations into account – whether Secretary’s state of satisfaction with respect to rehabilitation strategy was legally unreasonable

 

EVIDENCE – admissibility of expert evidence – criteria which need to be established for expert evidence to be admitted – considerations which go to admissibility – considerations which go to weight

  PLANNING AND ENVIRONMENT – construction of development consents – whether document explicitly incorporated into development consent – circumstances in which it is appropriate to consider extrinsic material in construing development consent

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW) ss 4.17, 9.46, 75R, 75W, 80A
Evidence Act 1995 (NSW) ss 76, 79
Interpretation Act 1987 (NSW) s 3

Cases Cited:

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Foley v Padley (1984) 154 CLR 349; [1984] HCA 50
Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
GPT RE Limited v Belmorgan Property Development Pty Limited (2008) 72 NSWLR 647; [2008] NSWCA 256
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; [1986] HCA 60
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52
Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184
Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 2) [2018] NSWLEC 53
Parramatta City Council v Hale (1982) 47 LGRA 319
Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202
Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198
Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors (1999) 46 NSWLR 55; [1999] NSWCA 8
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158
Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245
Woolworths Ltd v Pallas Newco Pty Ltd & Anor (2004) 61 NSWLR 707; [2004] NSWCA 422
Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2

Texts Cited:

Macquarie Dictionary, (6th ed, 2013)

Category:

Principal judgment

Parties:

Muswellbrook Shire Council (Applicant)
Hunter Valley Energy Coal Pty Ltd (First Respondent)
The Secretary, Department of Planning and Environment (Second Respondent)

Representation:

Counsel:
P Tomasetti SC with R Lovas (Applicant)
R Lancaster SC with C Trahanas (First Respondent)
N Kelly (Second Respondent)

  Solicitors:
Moray & Agnew Lawyers (Applicant)
King & Wood Mallesons (First Respondent)
Department of Planning and Environment (Second Respondent)

File Number(s):

2017/00236338

Publication restriction:

Nil

JUDGMENT

Introduction

1. Before the Court are Class 4 judicial review and civil enforcement proceedings commenced by way of summons filed on 3 August 2017, pursuant to which Muswellbrook Shire Council (‘Council’) seeks declaratory and consequential relief against Hunter Valley Energy Coal Pty Ltd (‘HVEC’) and the Secretary, Department of Planning and Environment (‘Secretary’).

2. The relief is sought in relation to the Mt Arthur Coal Rehabilitation Strategy prepared by HVEC and dated 26 May 2017 (‘Rehabilitation Strategy’) and rehabilitation works being carried out in reliance upon it. Council alleges that the Rehabilitation Strategy does not comply with Condition 42 of schedule 3 (‘Condition 42’) of the Project Approval for the Mt Arthur Coal Mine – Open Cut Modification Project dated 26 September 2014 (‘Modified Project Approval’).

3. Conditions 41A and 42 of schedule 3 of the Modified Project Approval provide:

41A.   The Proponent shall rehabilitate the site to the satisfaction of the DRE [Division of Resources and Energy, within the Department of Trade and Investment, Regional Infrastructure and Services]. The rehabilitation must comply with the objectives in Table 14, and be consistent with the rehabilitation plan shown in Appendix 7 and the final landform plan shown in Appendix 8.

…

Rehabilitation Strategy

42.   The Proponent shall prepare a revised Rehabilitation Strategy for the Mt Arthur mine complex to the satisfaction of the Secretary. This strategy must:

a)    be prepared in consultation with the DRE and Council, and be submitted to the Secretary for approval by the end of September 2015, unless otherwise agreed with the Secretary;

b)   investigate options for:

•   increasing the area to be rehabilitated to woodland on the site;

•   reducing the size of the final voids on site; and

•   beneficial future land use of disturbed areas, including voids;

c)   describe and justify the proposed rehabilitation plan for the site, including the final landform and land use; and

d)   include detailed rehabilitation objectives for the site that comply with and building on the objectives in Table 14.

Note: The strategy should build on the rehabilitation plan in Appendix 7

4. Table 14, referred to in conditions 41A and 42(d), is in the following terms:

Feature

Objective

Mine site (as a whole)

• Safe, stable and non-polluting

• Final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms

Final voids

•   Designed as long-term groundwater sinks and to maximise groundwater flows across back-filled pits to the final voids

•   Minimise to the greatest extent practicable:

   ৹   The size and depth of the final voids

   ৹   The drainage catchment of final voids

   ৹   Any high wall instability risk

   ৹   Risk of flood interaction.

Agricultural land

•   Rehabilitate at least 33 hectares of Class II agricultural capability land in the area identified in the rehabilitation plan (see Appendix 7)

•   Rehabilitate other areas identified for agricultural use in the rehabilitation plan to sufficient agricultural capability to support grazing

Revegetation areas

•   Restore at least 2.642 hectares of self-sustaining woodland ecosystems in accordance with the rehabilitation plan, including at least 500 hectares of White Box Yellow Box Blakely’s Red Gum Woodland.

Creek diversions and realignments

•   Flows to mimic pre-development flows for all flood events up to and including the 1 in 100 year ARI

•   Incorporate erosion control measures based on vegetation and engineering revetments

•   Incorporate structures for aquatic habitat

•   Revegetate with suitable native species

Surface infrastructure

•   To be decommissioned and removed, unless DRE agrees otherwise

Community

•   Ensure public safety

•   Minimise the adverse socio-economic effects associated with mine closure

5. The Secretary has purported to approve the Rehabilitation Strategy in accordance with Condition 42. As will become apparent, the compliance of that decision, and the Rehabilitation Strategy itself, with the conditions of the Modified Project Approval forms the subject matter of these proceedings.

6. The proceedings have a somewhat lengthy procedural history. In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184, Preston CJ of LEC granted Council leave to rely on an amended summons and leave to file expert evidence.

7. In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 2) [2018] NSWLEC 53, I granted Council leave to further amend its summons in response to the expert evidence which had been prepared and filed. This had the consequence that the original hearing dates were vacated.

8. In summary, the proceedings relate to Council’s contentions that:

1. HVEC prepared a revised Rehabilitation Strategy that did not comply with the objective requirements of Condition 42 of the Modified Project Approval; and

2. The Secretary had no jurisdiction to be satisfied with a Rehabilitation Strategy that did not meet the objective requirements of Condition 42 of the Modified Project Approval. Her purported state of satisfaction was therefore ultra vires.

9. For the reasons that follow, I have determined that Council has not made out any of its grounds of challenge with the consequence that the proceedings must be dismissed.

Background

10. In order to understand the nature of the dispute between the parties, some understanding of the history and background of mining at Mt Arthur is necessary.

11. Coal mining began at the Mt Arthur Coal Mine (‘mine’) in the early 1960s. The mine has been modified and expanded on a number of occasions. It is currently approved for both open cut and underground mining operations and is operated by HVEC.

12. On 24 September 2010, the Minister for Planning (‘Minister’) granted approval under what was then Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) to consolidate its open cut mining operations and some related activities at the mine (‘Project Approval’).

13. On 24 September 2011, the Minister delegated the function of approving requests to modify a project approval pursuant to s 75W of the EPA Act to the Planning and Assessment Commission (‘PAC’). The delegation came into effect on 1 October 2011.

14. In 2013, HVEC lodged an application to modify the terms of the Project Approval under s 75W of the EPA Act. On 29 May 2014, the application was referred to the PAC because Council objected to the proposal and more than 25 submissions in the nature of an objection to the proposal were submitted by members of the public.

15. On 26 September 2014, the PAC issued the Modified Project Approval pursuant to s 75J of the EPA Act. As noted above at [3], the Modified Project Approval included conditions 41A and 42, the alleged non-compliance with which is the subject of these proceedings.

16. On 26 May 2017, HVEC prepared the Rehabilitation Strategy purportedly to address Condition 42. The Rehabilitation Strategy was submitted to the Secretary. On 7 June 2017, the Secretary’s nominee, Howard Reed, Director of Resources Assessment, approved the Rehabilitation Strategy subject to minor amendments (‘Strategy Approval’).

17. The Strategy Approval stated that the Department of Planning and Environment (‘Department’) was “satisfied that the Rehabilitation Strategy meets the requirements of the conditions of approval”. It also noted HVEC’s commitment “to undertake further technical studies to inform future improvements to landform and final void designs, as well as options for final land uses, and to submit this revised version of the Rehabilitation Strategy to the Department for review in 2018”.

18. The Rehabilitation Strategy was made publicly available on HVEC’s website on 9 June 2017. Relevantly to the present proceedings, the Rehabilitation Strategy does not intend to retrospectively apply micro-relief to emplacements which were rehabilitated prior to 26 September 2014.

19. The revised version of the strategy foreshadowed by the Strategy Approval was submitted to the Department on 29 June 2018. The Secretary has deferred making any assessment in relation to the revised strategy pending the outcome of these proceedings.

20. I note at the outset that two terms of a technical nature are of particular significance in the context of these proceedings: “overburden emplacements” and “final voids”. Overburden refers to extractions from the mine which are emplaced onsite rather than on-sold or otherwise removed. The expression final void refers to a void left by mining operations at the time of mine closure.

21. As noted above, the proceedings brought by Council are both civil enforcement proceedings and judicial review proceedings. Council is concerned that the rehabilitation presently being carried out by HVEC purportedly in accordance with the conditions of the Modified Project Approval is not being conducted appropriately. The civil enforcement aspect is to restrain and remedy the alleged breaches of the EPA Act pursuant to s 9.46 of the Act, which provides:

9.46   Orders of the Court (cf previous s 124)

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

…

22. In essence, Council alleges that HVEC is not carrying out the rehabilitation works in accordance with the conditions of consent and that the works should therefore be restrained. Before examining the positions of the parties in detail, some close examination of the relevant documents is required.

The Modified Project Approval

23. The Modified Project Approval contains five schedules, a definitions section and ten appendices. The first schedule identifies the Project Approval as being the approval to which the Modified Project Approval applies. The second schedule sets out administrative conditions; the third schedule sets out environmental performance conditions (Condition 42 is part of this schedule); the fourth schedule provides additional procedures; and the fifth schedule sets out requirements for environmental management, reporting and auditing.

24. The definitions section relevantly defines “Mt Arthur mine complex” as “the combined operations of the project (including the former Mt Arthur North mine, Bayswater No. 2 mine, Bayswater No. 3 mine and the South Pit Extension Project), and the Mt Arthur Underground Project”; “Rehabilitation” as “the treatment or management of land disturbed by the project for the purpose of establishing a safe, stable and non-polluting environment”; “Secretary” as “Secretary of the Department, or nominee”; and “Site” as “the land referred to in schedule 1 and listed in Appendix 1”.

25. Schedule 2 of the Modified Project Approval begins with the following relevant conditions:

OBLIGATION TO MINIMISE HARM TO THE ENVIRONMENT

1.    In addition to meeting the specified performance criteria established under this approval, the Proponent shall implement all reasonable and feasible measures to prevent and/or minimise any material harm to the environment that may result from the construction, operation, or rehabilitation of the project.

TERMS OF APPROVAL

2.   The Proponent shall carry out the project generally in accordance with the:

(a)   EA; and

(b)   conditions of this approval.

Note: The general layout of the project is shown in Appendix 2.

3.   If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency.

4.   The Proponent shall comply with any reasonable requirement/s of the Secretary arising from:

(a)   any reports, strategies, plans, programs, reviews, audits or correspondence that are submitted in accordance with this approval;

(b)   any reports, reviews or audits commissioned by the Department regarding compliance with this approval; and

(c)   the implementation of any actions or measures contained in these documents.

…

26. Condition 8 of schedule 2 provides:

SURRENDER OF CONSENTS

8.   By the end of September 2011, or as otherwise agreed by the Secretary, the Proponent shall surrender all existing development consents/approvals for the project in accordance with sections 75YA and 104A of the EP&A Act, and to the satisfaction of the Secretary.

Notes:

•   This approval will apply to all components of the Mt Arthur mine complex’s open cut operations from the date of approval. The existing management and monitoring plans/strategies/programs/protocols/committees of the project will continue to apply until the approval of the comparable plan/strategy/program/protocol/committee under this approval;

•   The existing approvals are identified in Appendix 3.

27. A number of the conditions in schedule 3 of the Modified Project Approval refer to a state of satisfaction being reached by the Secretary. For example, condition 23 provides:

…

23.   The Proponent shall:

(a)   implement best practice air quality management, including all reasonable and feasible measures to minimise offsite odour, fume and dust emissions of the Mt Arthur mine complex;

(b)   implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site;

(c)   minimise any visible air pollution generated by the Mt Arthur mine complex;

(d)   minimise the surface disturbance on the site;

(e)   operate a comprehensive air quality management system that uses a combination of predictive meteorological forecasting and real-time air quality monitoring data to guide the day to day planning of mining operations and the implementation of both proactive and reactive air quality mitigation measures to ensure compliance with the relevant conditions of this approval;

(f)    minimise the air quality impacts of the project during adverse meteorological conditions and extraordinary events (see Note d above under Table 8); and

(g)   co-ordinate air quality management at the Mt Arthur mine complex with air quality management at the Drayton, Mangoola and Bengalla mines to minimise cumulative air quality impacts,

to the satisfaction of the Secretary.

…

28. To similar effect, condition 29 provides:

…

29.   The Proponent shall prepare and implement a Water Management Plan for the Mt Arthur mine complex to the satisfaction of the Secretary. This plan must:

(a)   be prepared in consultation with NOW and the EPA; and

(b)   include a:

•   Site Water Balance;

•   Erosion and Sediment Control Plan;

•   Surface Water Monitoring Program;

•   Groundwater Monitoring Program; and

•   Surface and Ground Water Response Plan

…

29. Conditions 30 to 34 provide requirements for each of the Site Water Balance; the Erosion and Sediment Control Plan; the Surface Water Monitoring Program; the Groundwater Monitoring Program; and the Surface and Ground Water Response Plan respectively. The conditions are formulated in terms of a list of requirements as to what the respective plan “must” achieve or include.

30. Similarly, condition 40 requires HVEC to prepare and implement a Biodiversity Management Plan to the satisfaction of the Secretary, and includes detailed stipulations as to how the plan “must” be prepared and the requirements as to what it “must” include.

29. Conditions 41A and 42 are extracted above at [3]. They are immediately followed by conditions 43 and 44, which provide:

…

Progressive Rehabilitation

43.   The Proponent shall carry out rehabilitation progressively, that is, as soon as reasonably practicable following disturbance (particularly on the face of emplacements that are visible off-site). Interim stabilisation measures must be implemented where reasonable and feasible to control dust emissions in disturbed areas that are not active and which are not ready for final rehabilitation.

Note: It is accepted that parts of the site that are progressively rehabilitated may be subject to further disturbance in the future.

Rehabilitation Management Plan

44.   The Proponent shall prepare and implement a Rehabilitation Management Plan for the Mt Arthur mine complex to the satisfaction of the DRE. This plan must:

(a)   [be] submitted to DRE for approval by 30 September 2015;

(b)   be prepared in consultation with the Department, NOW, OEH and Council;

(c)   be prepared in accordance with relevant DRE guidelines;

(d)   describe how the rehabilitation of the site would be integrated with the implementation of the biodiversity offset strategy;

(e)   include detailed performance and completion criteria for evaluating the performance of the rehabilitation of the site and triggering remedial action (if necessary);

(f)    describe the measures that would be implemented to ensure compliance with the relevant conditions of this approval, and address all aspects of rehabilitation including mine closure, final landform including final voids, and final land use;

(g)   include interim rehabilitation where necessary to minimise the area exposed for dust generation;

(h)   include a research program that seeks to improve the understanding and application of rehabilitation techniques and methods in the Hunter Valley;

(i)    include a program to monitor, independently audit and report on the effectiveness of the measures, and progress against the detailed performance and completion criteria; and

(j)    build to the maximum extent practicable on other management plans required under this approval.

…

32. Condition 3 in schedule 5 of the Modified Project Approval requires HVEC to review the environmental performance of the project to the satisfaction of the Secretary. Condition 4 in schedule 5 provides as follows:

…

Revision of Strategies, Plans and Programs

4.   Within 3 months of:

(a)   the submission of an annual review under condition 3 above;

(b)   the submission of an incident report under condition 7 below;

(c)   the submission of an audit under condition 9 below;

(d)   any modification to the conditions of this approval,

the Proponent shall review, and if necessary, revise, the strategies, plans, and programs required under this approval to the satisfaction of the Secretary. Where this review leads to revisions in any such document, then within four weeks of the review the revised document must be submitted to the Secretary for approval.

Note: This is to ensure the strategies, plans and programs are updated on a regular basis, and incorporate any recommended measures to improve the environmental performance of the project.

…

33. Condition 9 of schedule 5 relevantly provides:

…

9.   By the end of June 2014, and every 3 years thereafter, unless the Secretary directs otherwise, the Proponent shall commission and pay the full cost of an Independent Environmental Audit of the project. This audit must:

…

(d)   review the adequacy of strategies, plans or program required under the abovementioned approvals…

…

34. After schedule 5, the ten appendices are attached, comprising:

1. A schedule of land to which the Modified Project Approval applies;

2. Project layout plans;

3. A list of previous environmental assessments;

4. Receiver location plans;

5. A map showing the blast control area;

6. A map showing Hunter River and Saddlers Creek “alluvials”;

7. A biodiversity offset strategy and rehabilitation plan;

8. A final landform plan;

9. The general terms of the planning agreement; and

10. A noise compliance assessment.

The Environmental Assessments

35. As noted above at [25], condition 2 in schedule 2 of the Modified Project Approval requires HVEC to carry out the project “generally in accordance” with “the EA” and the “conditions of this approval”. The term “EA” is defined in the Modified Project Approval as follows:

a)   the Environmental Assessment titled Mt Arthur Coal Consolidation Project Environmental Assessment (6 volumes), prepared by Hansen Bailey and dated November 2009, including the Response to Submissions dated February 2010; and

b)   the Environmental Assessment titled Mt Arthur Coal Open Cut Modification – Environmental Assessment (2 volumes), prepared by Resource Strategies Pty Ltd and dated April 2013, including the Response to Submissions dated September 2013

36. As also noted at [25], condition 3 in schedule 2 of the Modified Project Approval provides:

If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency.

37. The reference to “the EA” in condition 2 must be read as a reference to two discrete documents which, by virtue of condition 3, have a subordinate function to the conditions of the consent proper in that the conditions shall prevail to the extent of any inconsistency: the Environmental Assessment prepared in 2009 for the 2010 Project Approval (‘2010 EA’) and the Environmental Assessment prepared in in 2013 respect of the 2014 Modified Project Approval (‘2014 EA’). Where appropriate, I will refer to these two documents together as ‘the EAs’.

38. The 2010 EA is a 228 page document with a further 18 appendices. The Executive Summary provides the following under the heading “Rehabilitation and Final Landform” (at p xvii-xviii):

Rehabilitation and Final Landform

Mt Arthur Coal has extensive experience in achieving successful mine rehabilitation, with rehabilitation works being completed for various mining areas onsite over the last 45 years. Rehabilitated areas will continue to be managed in accordance with the methods currently in place at Mt Arthur Coal under the Environmental Management System which includes commitments to progressive rehabilitation and monitoring.

Sufficient coal reserves exist within Mt Arthur Coal’s mining and exploration leases to enable coal mining beyond 2022 pending the granting of future Planning Approvals. In the unlikely event that mining does cease at Mt Arthur Coal in 2022, a strategy has been developed to ensure the minimisation of mine void areas and the creation of an acceptable post mining landform. This includes a Conceptual Final Landform which has been developed for the Project consistent with the Department of Primary Industry’s Synoptic Plan that aims to link existing vegetation communities within and surrounding the Environmental Assessment Boundary with rehabilitation areas to provide corridors for the movement of fauna.

The translocation of topsoil and vegetative material containing an appropriate seed bank to rehabilitation areas will be undertaken to assist in the recreation of 500 hectares of Box Gum Woodland understorey.

39. At p 36 of the 2010 EA, the location of mining activities and consequential position of overburden is explained in the following terms:

As indicated in the above figures, mining operations will predominantly continue in the north of the operation and the South Pit extension mining areas, as currently approved. The Project extends coal extraction to the north to Macleans Hill (leaving the eastern flank intact) and further west impacting upon Edderton Road. Coal extraction continues in the Saddler’s Pit area (Bayswater No 3), in the southern half of the operation, whilst an out-of-pit overburden emplacement area is to be established in the south west of the operation, above the approved MAU development area. An additional overburden emplacement area may also become available in the already disturbed Macquarie Generation conveyor corridor.

The Belmont Pit mining area to the west of Edderton Road (as approved in the Bayswater No 3 Development Consent) will be maintained to allow access to the Glen Munro Seam as described in the MAU Project Approval.

The existing overburden emplacement area will be increased to an average upper height of approximately RL 360 m, whilst two additional crests up to height of approximately RL 375 m have been incorporated on the overburden emplacement area for visual amenity (see Figure 8, Figure 9 and Figure 10).

40. Figures 8, 9 and 10 of the 2010 EA, which are conceptual mine plans for 2011, 2016 and 2022 respectively and identify areas as “existing rehabilitation” and “proposed rehabilitation” as at each date. HVEC submits that it is clear from these figures that, apart from the existing emplacements which were to be subject to further overburden being added, areas of “existing rehabilitation” were not proposed to be re-disturbed.

41. The 2014 EA is a 164 page document with a further 12 appendices and 3 attachments. The Executive Summary provides the following explanation of the mine’s rehabilitation (at p ES-6):

ES7 REHABILITATION

The Modification would result in a reduction in the number and overall catchment area of the final voids, through the backfilling of the Saddlers Pit Void.

Existing rehabilitation strategies and plans would continue to apply for the Modification.

HVEC’s rehabilitation research, design, planning, approval and implementation will be informed by its proposed Future Landscapes Design Project (FLDP).

The key objective of the FLDP is to create a final landform design that addresses stakeholder concerns, is safe and stable, reduces ongoing maintenance, and minimises impact on coal production or operational efficiencies during its development.

It is anticipated that the design phase of the FLDP would be completed in approximately 18 months. The FLDP is a separate project to the Modification.

42. Section 4 of the 2014 EA deals with the assessment of the Modified Project Approval’s visual impact. At p 4-58, mitigation measures to the visual effects created by the mine are described in the following terms:

The Consolidation Project EA (HVEC, 2009) included a Visual Impact Assessment (Integral, 2009) (herein referred to as the 2009 VIA). The

assessment concluded that the Consolidation Project would create visual impacts beyond those experienced by the previously approved mine plans, however, these impacts would be reduced over the life of the Consolidation Project and would occur within the same timeframe as the previous approvals.

Notwithstanding, the 2009 VIA described that additional crests would be built into the final overburden emplacement area landform as a visual mitigation measure viz. The OEA [overburden emplacement area] at Mt Arthur North will be increased to an average height of RL 360 m. Additional crests on the OEAs have been incorporated to a maximum height of RL 375 m in two locations as a result of design workshops with mine planners and visual impact specialists in order to improve visual amenity and result in a less engineered appearance of the final landform (italics in original).

43. Section 5 of the 2014 EA deals with the approach to rehabilitation and mine closure. At p 5-3, reference is made to the Mt Arthur Coal Biodiversity and Rehabilitation Management Plan:

5.1.3   Biodiversity and Rehabilitation Management Plan

The Mt Arthur Coal BRMP (BHP Billiton, 2012h) has been prepared in order to address Conditions 40 and 44, Schedule 3 of the Mt Arthur Coal Mine Consolidation Project Conditions of Project Approval. The Rehabilitation Strategy provides the overarching concepts for decision making in terms of landscape and land use for Mt Arthur Coal, whilst the BRMP and other relevant management plans provide specific details for management.

The BRMP (BHP Billiton, 2012h) has been developed to ensure that the post-mining landscape of the site and associated offset areas provide for:

•   pastoral, recreation and wildlife habitat opportunities with due consideration to visual amenity aligned to the surrounding landscapes;

•   successful design and rehabilitation of landforms to ensure structural stability, revegetation success and containment of wastes; and

•   post-mining land use compatible with surrounding land uses to provide suitable environmental and community benefits.

44. On p 5-6, the overburden emplacement areas are described in the following terms:

Overburden Emplacement Area

The key components of the final landform over the areas of active mining and overburden emplacement include (BHP Billiton, 2012j):

•   Mt Arthur North overburden emplacement height to an average height of 360 m AHD (maximum height of 375 m AHD to create visual relief on the overburden emplacement area);

•   development of Bayswater No 3 (Saddlers Pit) overburden emplacement height up to 250 m AHD;

•   development of Drayton sub-lease emplacement area up to an elevation of 290 m AHD (part of South Pit extension); and

•   development of an out-of-pit overburden emplacement area up to an elevation of 360 m AHD.

Coarse reject will continue to be co-disposed within overburden emplacement areas or utilised in the construction of the tailings dams, stockpiles, pads or other site based infrastructure.

The conceptual final landform design for the Mt Arthur Coal Mine has been developed to maximise consistency with the surrounding landscapes and ensure long-term sustainability and stability, with a maximum design height of approximately 375 m AHD and slopes generally less than 10° (and up to a maximum slope of 18°). In accordance with HVEC’s objectives for mine rehabilitation, the final landform will be designed to promote visual characteristics that are consistent with the surrounding environment and to result in a class of land capability that is comparable to that of the pre-mining landscape (HVEC, 2009).

45. At p 5-8, the 2014 EA describes the changes to the existing rehabilitation plans that would be brought about by the Modified Project Approval:

5.2 REHABILITATION CHANGES RELEVANT TO THE MODIFICATION

Figure 5-2 shows the proposed Rehabilitation Plan and Offset Strategy for the Modification. The Modification would result in very few changes to the Rehabilitation and Offset Strategies and the changes that would occur are as follows:

•   Saddlers final void would be filled in as a result of continued investigation by Mt Arthur Coal.

•   Additional offset areas would be incorporated into the existing Saddlers Creek offset area.

•   Reclassification of some Post Mined Lands

-   Pasture to Post Mined Lands – Woodland.

•   Reclassification of some Post Mined Lands

-   Woodland to Post Mined Lands – Pasture.

•   Following completion of mining, Whites Creek would be re-established to drain off-site in accordance with existing conceptual rehabilitation principles.

As the Modification involves only minor changes to the Rehabilitation and Offset Strategies, the existing rehabilitation techniques as outlined in the

Rehabilitation Strategy, BRMP and this document would continue to be implemented for the modification. The Rehabilitation Strategy, BRMP and any other relevant plan or strategy would be revised, in consultation with the relevant authorities, upon approval of the Modification in order to accommodate the changes outlined above and shown on Figure 5-2.

Consistent with the above, the overall number of final voids would be reduced by filling in the Saddlers final void. As described in Appendix C, the McDonalds and Belmont voids would be used as water storages throughout operations and post-mining.

The Rehabilitation Strategy

46. The Rehabilitation Strategy opens with what is described as “brief description” as follows:

The Rehabilitation Strategy (the Strategy) is the standard for rehabilitation at Hunter Valley Energy Coal Pty Ltd (HVEC). The Strategy provides a framework for landform design and revegetation aligned with Regulator and community expectations.

The goal of the Strategy is to provide a framework to “Create a safe, stable, non-polluting and sustainable landscape that achieves the intended final land uses and is consistent with key stakeholder agreed social and environmental values.” The goal seeks to align with the Project Approval (PA) requirements, rather than disparaging their purpose.

47. On p 4 of the Rehabilitation Strategy, the “intent” of the document is described in the following terms:

The Mt Arthur Coal Rehabilitation Strategy (the Strategy) has been developed to address Condition 42 of Schedule 3 of Project Approval 09_0062 MOD 1 Mt Arthur Coal Mine – Open Cut Modification Project dated 26 September 2014 (the Project Approval) which was issued to Hunter Valley Energy Coal Pty Ltd (HVEC) by the NSW Department of Planning and Environment (DPE).

The Strategy was developed using guidance from state and federal government guidelines and stakeholder consultation. The goal of the Strategy is to provide a framework to “Create a safe, stable, non-polluting and sustainable landscape that achieves the intended final land uses and is consistent with key stakeholder agreed social and environmental values” in accordance with the requirements of the Project Approval. Furthermore [sic]

48. The word “furthermore” at the end of the second paragraph on p 4 is presumably included in error.

49. Part 1 of the Rehabilitation Strategy is styled the “introduction” and is contained on pp 6 to 8. Given the centrality of the Rehabilitation Strategy to the dispute between the parties, I extract the introduction at some length:

The Strategy has been developed taking into account the Australian Government handbook for Leading Practice Sustainable Development Program for the Mining Industry, Mine Rehabilitation 2016. The Strategy provides the overarching standard for decision making in terms of rehabilitated landscape and complements the Mt Arthur Coal Conceptual Mine Closure Plan. The Rehabilitation Management Plan / Mining Operations Plan (MOP), Biodiversity Management Plan, and other relevant plans provide further specific details for management and monitoring of rehabilitation aspects at Mt Arthur Coal. Appendix 2 provides a guide to the relevant Project Approval conditions that pertain to the Strategy.

The rehabilitation process at Mt Arthur Coal (Figure 1), is as follows:

•   the Strategy is a business level document that prescribes the overall rehabilitation approach at Mt Arthur Coal, including the goal, objectives, and criteria for rehabilitation, that the Closure Plan, Rehabilitation Management Plan, Biodiversity Management Plan and Rehabilitation and Ecological Monitoring Procedure are based upon;

•   The closure planning process develops life of asset design that incorporates emplacements, voids and rehabilitation.

•   the long-term mine planning process updates the mining plan, for the five year planning horizon;

•   the mid-term planning process adds the detail for the first two years of the 5 year plan, which is included in the MOP therefore integrating The Strategy with the five year mining plan;

•   the short term planning process involves the landform emplacement, shaping, top soiling, seeding and or planting generally on a one to two year timeframe.

•   monitoring and management of the rehabilitation is managed through the Rehabilitation and Ecological Monitoring Procedure process. These monitoring and management processes are the primary action to ensure rehabilitation is functioning as stated in the Strategy and the MOP.

•   the information from the monitoring and management is then presented in the Annual Environment Management Report (AEMR). Opportunities for improvement identified through the monitoring process are also presented in the AEMR and relevant plans updated as required.

…

In 2013, Mt Arthur Coal instigated a report into the Future landscapes design project (FLDP). The Landloch Pty Ltd (2014) FLDP report set out to research a rehabilitation landform design that would address stakeholder requirements for both functionality and aesthetics. To do this, the project used material characterisation and runoff/erosion modelling to develop landform "rules" that Mt Arthur Coal could use to develop acceptable designs. Landform evolution modelling was then used to assess and refine the designs. The outcomes of the Landloch Pty Ltd FLDP report were used for the development of a geomorphological design using the Applied Geofluv™ landform approach (Geofluv), as further described in this Strategy.

This Strategy has been developed to ensure that the post mining landform supports the selected agricultural post-mining landuses and enhancing habitat value of the woodland areas integrated into the wider agricultural landscape. Due consideration to visual amenity has been integrated into the Strategy, together with minimisation of visual impact during mining operations, and blending the post-mining landform with surrounding un-mined topography. The post-mining landform will also allow for grazing in selected areas, with the re-establishment of land capability classes generally equivalent to pre-mining.

The Strategy also aims to increase native woodland areas at the end of mine life, and enhance regional habitat linkages between remnant onsite native vegetation communities, offset areas, rehabilitated mined land and offsite vegetation areas. This is consistent with the general vegetation strategies found in the Synoptic Plan, which is currently under review. Following community and stakeholder consultation, the Strategy generally reflects community expectations for the final landform design and rehabilitation.

Land use options are a dynamic aspect of mine rehabilitation due to changing expectations and technology. Landforms need to be designed with future land use in mind but are limited by the information and approvals available at any point in time. Mt Arthur Coal use strategic consultation and engagement to maintain up to date landform design and land use.

The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach and the design has been included in the Strategy. The Geofluv approach shown in the Strategy will be applied to emplacements where the design meets requirements for stability, rehabilitation and approved land uses. Design and construction of emplacement areas following the Project Approval Mod1 will be continued using the same Geofluv approach where appropriate. Pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief. The design is expected to evolve with experience and monitoring of the emplacements and therefore the design shown in the Strategy is indicative only. Updated designs for remaining emplacements will be included in subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval.

Mt Arthur Coal has a firm commitment to minimising the impact of its operations on the environment and community, and has a comprehensive Environmental Management System (EMS) in place to fulfil this commitment. This Strategy is a component of the Mt Arthur Coal EMS. Further detailed procedures relating to rehabilitation to support this Strategy are outlined in the MOP (which satisfies the requirement for a Rehabilitation Management Plan under Schedule 3 Condition 44 of PA09_0062 MOD1), the Conceptual Mine Closure Plan, the Biodiversity Management Plan and Mt Arthur Coal’s Rehabilitation and Ecological Monitoring Procedure (MAC-ENC-PRO-080).

50. As will be explained later in the judgment, the penultimate paragraph of the introduction, and in particular the fact that “Pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief”, is of significant concern to Council.

51. Part 2 of the Rehabilitation Strategy is entitled “Project Area” and contains a number of figures, including Figure 3 and Figure 4. Figure 3 is described as “a diagrammatic representation of the post mining landscape of the Project Approval area and surrounding lands which remains generally in accordance with the concept strategy depicted in Appendix 7 of the Project Approval”.

52. Figure 4 is described as “a diagrammatic representation of the post mining land capabilities and land uses of the Project Approval area and surrounding lands which reflects Mt Arthur Coal’s commitment to achieve post mining land capabilities that are comparable to pre-mining land capabilities and remains generally in accordance with the requirements of the Project Approval”.

53. Part 3 of the Rehabilitation Strategy involves the identification of various “domains” within the site based on their current mining use and proposed final land use. The domains identified in the Rehabilitation Strategy are listed on p 13 as follows:

Mining and Rehabilitation domains (Secondary)

•   Open Cut Void;

•   Overburden Emplacement;

•   Infrastructure Areas;

•   Tailings Storage Facility;

•   Water Management;

•   Rehabilitated areas; and

•   Non-operational lands.

Post mining land use domains (Primary)

•   Final Void;

•   Rehabilitation Area – Pasture;

•   Rehabilitation Area – Native Woodland;

•   Rehabilitation Area – Box Gum Woodland; and

•   Offset Areas.

54. Part 3.4 of the Rehabilitation Strategy provides as follows with respect to the “Overburden Emplacement Areas”:

3.4    Overburden Emplacement Areas

As noted in Section 5.1.1 of the 2013 EA, the overall objective of the rehabilitation program is to achieve landuse capability following the cessation of mining that is comparable to pre-mining landuse and considers stakeholder’s interests. Additionally, it is proposed to increase the percentage of native woodland to improve habitat value with minimum areas defined in the Biodiversity Management Plan, which also aligns with stakeholder interests. Ongoing investigation into final land use including the opportunity of further woodland planting will be updated to the strategy as investigations are completed.

The key components of the final proposed landform as defined in the EA pertaining to the areas of active mining and overburden emplacement include:

•   Mt Arthur North overburden emplacement height to an average of RL 360m (maximum height of RL 375m AHD to create visual relief on the overburden emplacement area);

•   Bayswater No 3 (Saddlers Pit) overburden emplacement height up to RL 250 m AHD;

•   Drayton sub-lease emplacement area up to RL 290m AHD (part of South Pit extension);

•   Development of out-of-pit overburden emplacement areas up to RL 360m AHD.

The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach. The Geofluv approach shown in the Strategy will be applied to emplacements where the design is shown to meet requirements for stability, rehabilitation, economic and approved land uses. Further detailed design of emplacement areas, to be established following the Project Approval Mod1, will be developed using the same Geofluv approach where appropriate. Updated designs for these remaining emplacements will be included in a subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval. Pre-Project Approval Mod1 emplacements will not be retrospectively modified to include Geofluv design or natural relief.

55. Part 3.7 of the Rehabilitation Strategy deals with the final voids as follows:

3.7   Final Void

The final voids are currently proposed to be used for water storage post-mining. Void locations and respective catchment boundaries within the conceptual final landform are shown in Figure 3. Alternate uses for the voids will be considered as part of the Final Void Management Plan to be developed and submitted by 30 June 2018. Catchment areas of the final voids will be minimised post-mining to protect against flooding from the lease area, with surface flow runoff from most rehabilitated and revegetated areas being directed to the local drainage network. All areas, with the exception of the final void catchments, will be free draining. The aim of this drainage design is to maintain effective catchment contribution and yield to the Hunter River following the cessation of mining.

A Final Void Management Plan will be prepared in accordance with regulatory requirements as part of the closure planning process to integrate the documentation of void management strategies. The final void plan will be developed by 30 June 2018 in consultation with regulators and stakeholders and may be updated as further research and stakeholder expectations change. The final void plan will be included as part of a subsequent revision to the Strategy, which will be submitted to DPE by 30 June 2018 for review and approval or in consultation with DPE a revised timeline may be made.

56. Part 4 of the Rehabilitation Strategy is entitled “rehabilitation goal, objectives, completion criteria and performance indicators”. It contains the following introduction:

The Project Approval Objectives are the overarching rehabilitation requirement that Mt Arthur Coal is required to meet in order to relinquish rehabilitated lands. The Project Approval Table 14 is shown in Appendix 3 and these objectives have been linked to the detailed objectives developed for Mt Arthur Coal as shown in Table 4.

Mt Arthur Coal has developed the following goal, rehabilitation objectives, completion criteria and performance indicators to meet the overarching rehabilitation requirements of the existing Project Approval, the EA and Directors General’s Report. These criteria and indicators are underpinned by a range of management documents, including industry standards, BHP Billiton “Our Requirements” and Mt Arthur Coal plans and procedures. These documents will complement the Strategy, and provide for a dynamic review point, with progress against the document requirements updated to the Annual Environmental Management Report (AEMR) and MOP. The rehabilitation management and performance indicators are aligned to the completion criteria and defined in more detail within the MOP rehabilitation tables. Together these criteria aim to demonstrate rehabilitation compliance and success.

57. Table 4 of the Rehabilitation Strategy is contained within Part 4 and lists approval objectives, closure domains (primary), detailed objectives, completion criteria and performance/leading indicators in respect of each identified “approval feature” (which adopts the “feature” descriptors in Table 14 referred to in Condition 42 and reproduced at [4] above), including “mine site (as a whole)”, “final voids”, “creek diversions and realignments”, and “community”.

58. Part 5 of the Rehabilitation Strategy is entitled “consultation with stakeholders”. It states, inter alia, that:

Mt Arthur Coal will continue consultation throughout the life of the mine with neighbouring operations, agency and community stakeholders, to optimise landscape and landuse outcomes through implementation of this Strategy. Mt Arthur Coal commits to engage with local stakeholders regarding proposed operations, potential impacts and management, and opportunities.

59. Part 6 of the Rehabilitation Strategy is entitled “rehabilitation strategy key components”. Part 6.2 (which repeats, in part, the earlier passage from the Rehabilitation Strategy extracted above at [55]) relates to the final voids and provides as follows:

6.2    Final Voids

A Final Void Management Plan will be prepared in accordance with regulatory requirements and refined as part of the closure planning process to integrate the documentation of void management strategies. The final void plan will be included as part of a subsequent revision to the Strategy, which will be submitted to DPE by 30 June 2018 for review and approval.

The final voids are currently proposed to be used for water storage post-mining. Void locations and respective catchment boundaries within the conceptual final landform are shown in Figure 3 and 4. Alternate uses for the voids will be considered as part of the Final Void Plan. Catchment areas of the final voids will be minimised postmining to protect against external flooding, with surface flow runoff from most rehabilitated and revegetated areas being directed to the local natural drainage network. All areas, with the exception of the final void catchments, will be free draining. The aim of this drainage design is to maintain effective catchment contribution and yield to the Hunter River following the cessation of mining.

Active open cut voids will preferentially be made available for further mining options, including overburden or tailings emplacement, short-term storage of clean or mine water, or access to potential underground operations.

The Environment Assessment design was to include low wall slopes of the final void landform with an overall slope of around 18 degrees. The final void landform will be rehabilitated with vegetation species and diversity that are appropriate for the complex landform. The highwall will also be rehabilitated using the best reasonable and feasible rehabilitation technologies available and re-vegetated with species that are appropriate for its stability, aspect, and water retention capabilities.

Design alternatives for the final void will continually be evaluated and will be prepared as part of the closure planning process at Mt Arthur Coal. Regardless of the final design alternative selected, the location and use of the final void will be outside the 100-year recurrence interval flood prone area of the Hunter River. Appropriate measures will be used to limit access to steep areas around the final void to restrict cattle, pedestrian and vehicle access. These measures may include large rock placement, landform shaping, or fencing as agreed with relevant government authorities, stakeholders and potential end users.

60. Part 6.3 relates to the overburden emplacement areas and provides:

6.3   Overburden Emplacement Areas

As noted in Section 5.1.1 of the 2013 EA, the overall objective of the rehabilitation program is to achieve landuse capability following the cessation of mining that is comparable to pre-mining landuse capability and considers stakeholder’s interests. Additionally, it is proposed to increase the percentage of native woodland to improve habitat value which also aligns with stakeholder interests. This is in the form of shade trees and shelter belts.

The FLDP is an initiative to investigate, develop and deliver a more integrated landform that is compatible with the surrounding natural landscape. This project has defined criteria for the development of a stable emplacement design. The FLDP focus areas include:

•   micro topographic relief research and geomorphological consideration

•   landform height and stability

•   dump development viability

•   hydrology, soil stability

•   erosion control

•   vegetation and ecosystem function design

•   visual relief and simulated noise and air quality consideration during dump development

The proposed design methodology chosen is an adaptation of the Geofluv™ approach. The Geofluv™ approach uses the characteristics of stable natural alluvial landforms in the local environment as an analogue on which to base the design of overburden landforms. Importantly, the approach does not replicate existing landforms, but rather uses the key characteristics that make these landforms stable in a new design. Natural landforms in alluvial materials are characterised by an integrated network of drainage channel, typically with slopes initially convex close to ridge lines, becoming concave and progressively flattening with increasing catchment area.

The landform design has been developed based on the following criteria:

•   Use of a risk based approach to the hazards that exist – both in terms of environmental factors and safety matters;

•   Consideration of the construction and design of the holding structure for tailings and emplacement material;

•   Characterisation of emplacement and capping materials; and

•   Location of appropriate capping materials.

Future use of areas disturbed by active mining is closely linked to landform design and general vegetation strategies found in the Synoptic Plan. The EA states ‘The conceptual final landform provides an integrated landscape that is consistent with the Synoptic Plan and aims to link existing vegetation communities with mine rehabilitation areas to provide fauna movement corridors for the movement of fauna. These proposed corridors are consistent with, and will further complement both the Synoptic Plan and the final landforms of surrounding mining operations (Figure 5-1 in the EA).

As a consequence, the following emerge as important closure objectives:

•   restoration of mined land to achieve visual amenity;

•   biodiversity conservation; and

•   ecologically sustainable land management practices.

Figure 3 and 4 provide diagrammatic representations of the post mining land uses and vegetation linkages.

An integral part of the rehabilitation program is the characterisation of the reject emplacement, overburden and soil materials. Initial pasture and cover crop sowings will temporarily stabilise steep slopes prior to tree plantings and sowings. Native grass species typical of the local area will be used in pastoral grassland establishment. Improved (exotic) pastures and occasional forage crops will also be considered on areas of class IV land (refer Section 5.1.8 of the 2013 EA).

For woodland establishment, different species combinations will be used to establish communities in accordance with the dominant species characterising those stated in Project Approval Condition 38 (a) and (b) which focus on the establishment of significantly threatened plant communities and species. Other vegetation communities will include areas sown to exotic and native grasses, and native woodland and box gum communities which will achieve Synoptic Plan linkages as well as function as woodlot and windbreaks for stocked areas.

As proposed in the 2013 EA (Section 5.1.3), the final land uses of the rehabilitated site will include pastoral and wildlife habitat opportunities with due consideration to visual amenity aligned to the surrounding landscapes. The construction of the final landform design includes the following:

•   on the steeper outer slopes such as MacLeans overburden emplacement area, material will be placed in benches and then dozed into place, while on the upper surface such as for Main overburden emplacement area, the material can be placed and shaped using GPS equipment;

•   rock will need to be placed into some of the steeper drainage lines, not as a highly engineered drop structure but rather as an integrated surface in the manner of a typical valley creek, with a GIS layer to be provided indicating the areas of erosion risk as part of the final design; and

•   the design approach moves away from specifying maximum slopes, since it is not the steepness of the slope alone that represents an erosion risk, but rather a combination of the catchment area and slope.

The method used to quantify erosion risk incorporates both catchment and slope. The design seeks to minimise the extent of slopes steeper than 1:3 (v:h) to facilitate ease of construction. Importantly, there is a trade-off between steepness of slope, the extent to which water is shed to the drainage lines, and overall volumes. Balancing these requirements has resulted in some steep slopes remaining in the final landform with slopes between 1:3 and 1:2 (v:h), comprising around 6 percent of the total Applied Geofluv™ landform. These areas are mainly on the banks of drainage lines, or the upper slopes of some of the steeper areas.

While the site has committed to building these new geomorphological based landform designs, it is important to emphasise that the design will require the refinement and optimisation of the landforms as construction experience is obtained at Mt Arthur Coal. This will include evaluating the performance of the rocky materials selected for erosion protection in the drainage lines, revegetation strategies in and around the drainage lines and on the general slopes, and evaluation of the performance of the different soil types at Mt Arthur Coal in varying slope and catchment area configurations.

Management measures designed to reduce the visual impact created by the overburden emplacement have been incorporated into the mine plan. Such measures include:

•   The integration of tree corridors on overburden emplacements as part of progressive rehabilitation;

•   The retention of the eastern flank of MacLean’s Hill to assist in creating landscape diversity at the foot of overburden emplacements;

•   Modifying final void high walls and low wall slopes to minimise final disturbance;

•   Incorporating micro relief features throughout overburden emplacements to provide an enhanced naturally appearing landform and fauna habitat;

•   The practical consideration of ‘Geofluv type’ designs on emplacements to sustainably manage water and create a natural looking and stable landform;

•   The strategic design and rehabilitation of overburden emplacements for increased visual shielding of operations;

•   Establishing visual and ecological planting patterns of native trees to achieve landscape patterns that complement the existing spatial distribution of tree and grass cover in a grazing landscape; and

•   Minimising exposure of work areas to sensitive receivers where possible, largely through the timely rehabilitation of visible overburden emplacements.

Visual montages have been developed to show Geofluv aspects for several locations around the Mt Arthur Coal Mine to visualise predicted final landform appearance during and after completion. The visual montage is not an exact depiction as vegetation and landform will evolve during the planning and implementation process. The visual locations used (as indicated in red in Figure 5) are Muswellbrook Racecourse (north), Denman Rd (west), Golden Hwy – Saddlers Creek (south west), Muswellbrook Ironbark Ridge – Yammanie Way (north east) and Iron Bark Rd (north east). Figure 6 to 10 below give an indication of the predicted visual amenity of the proposed final landforms. These figures are not an exact rendition of the final landform. Labels have been included to provide further context to the location of the final landform.

61. Part 6 of the Rehabilitation Strategy contains a number of photographs and photomontages showing how the overburden emplacements currently appear from various vantage points and how it is proposed they will look once the remediation works have been completed.

62. Part 7 of the Rehabilitation Strategy is entitled “surface water management”, Part 8 is entitled “characterisation of soils and overburden”, Part 9 is entitled “clearing and reuse of vegetation” and Part 10 is entitled “revegetation”.

63. Part 11 of the Rehabilitation Strategy refers to the Rehabilitation Management Plan (frequently referred to in the material as the Mining Operations Plan or ‘MOP’) which is prepared in accordance with condition 44 of the Modified Project Approval. Part 11 describes the role of the MOP in the following terms:

The MOP (which satisfies the requirement for a Rehabilitation Management Plan under Schedule 3 Condition 44 of PA09_0062 MOD1) describes a range of factors or limitations likely to affect plant growth and how these will be addressed including:

•   Landform factors;

•   Soil/overburden conditions;

•   Surface water management;

•   Erosion and sediment control;

•   Weeds/biological issues;

•   Soil compaction;

•   Climate and weather;

•   Research program related to techniques used in the rehabilitation program; and

•   Grazing/feral animal threats.

The primary revegetation considerations generally include:

•   Species selection;

•   Sowing rates and species proportions;

•   Tube stock densities;

•   Consideration of habitat augmentation;

•   Seed pre-treatment requirements;

•   Seed spreading and planting techniques;

•   Soil amelioration and fertilizer requirements;

•   Use of temporary cover crops to assist soil stabilisation;

•   Protection from vertebrate pest species, domesticated stock and unauthorised access; and

•   Maintenance requirements.

The Strategy and associated MOP, together with the BMP focus on the re-establishment of:

•   significant and/or threatened plant communities, including:

৹   Upper Hunter White Box – Ironbark Grassy Woodland;

৹   Central Hunter Box – Ironbark Woodland;

৹   Central Hunter Ironbark – Spotted Grey-Gum Box Forest;

৹   Narrabeen Footslopes Slaty Box Woodland;

৹   Hunter Floodplain Red Gum Woodland Complex;

৹   White Box Yellow Box Blakely’s Red Gum Woodland;

৹   Hunter Lowlands Red Gum Forest; and

•   significant and/or threatened plant species, including:

৹   River Red Gum (Eucalyptus camaldulensis);

৹   Pine Donkey Orchid (Diuris tricolor);

৹   Tiger Orchid (Cymbidium canaliculatum); and

৹   Weeping Myall (Acacia pendula); and

•   habitat for significant and/or threatened animal species.

64. Part 12 of the Rehabilitation Strategy is entitled “management and monitoring”. It provides:

It is essential to monitor rehabilitation development and address rehabilitated areas that are not meeting the criteria presented in Tables 5-1 and 5-2 of the 2013 EA or the requirements of the Project Approval. As such, identification of ongoing maintenance is an important objective of the monitoring programme and the continual improvement process. Good initial planning and practice will minimise the need for remedial maintenance. The Rehabilitation and Ecological Monitoring Procedure is the primary document for monitoring and management of the rehabilitation process.

Until mining leases are relinquished, periodic field inspections will be undertaken of site-wide rehabilitated areas. These inspections will assess maintenance requirements, such as revegetation works, sedimentation and erosion control, and site safety. Monitoring program results, maintenance activities, and any refinement of rehabilitation or monitoring methodology will be reported in the site’s AEMR. Further details on the monitoring, site security and maintenance programs are provided in the MOP.

65. Part 13 of the Rehabilitation Strategy contemplates review of the strategy. It provides as follows:

Any required amendments identified during the review will be consulted with relevant stakeholders and updated in a revision of the strategy and resubmitted to the DPE for approval.

Study on voids, including use opportunities will be completed by 30 June 2018. The study is aimed at understanding the completion options and management related to those options. Specifically stability, land use, cost and safety will be considered in the study which will result in a better understanding for both regulators and stakeholders. The study will then provide a framework for discussion with regulators and stakeholders to continually evaluate the best options for voids.

Study on landform design, opportunity and location will be made in 2018 with the intent of updating detailed design of short to mid-term landforms. The design will complement the current geomorphological landform design. The design will be included into future Strategy updates and MOP versions. Longer term design will not be completed in detailed design due to the dynamic nature of expectations and technology.

Any other major amendments to the Strategy that affect its application or that of the MOP, will be undertaken in consultation with the appropriate regulatory authorities and stakeholders.

66. Part 14 of the Rehabilitation Strategy is a bibliography. It then contains the following appendices:

1. Document Control Authorisation;

2. Regulatory conditions (including Condition 42 of the Modified Project Approval);

3. Mt Arthur Coal Rehabilitation Program completion criteria;

4. Topography erosion factors; and

5. Correspondence records.

67. As noted above at [19], a revised version of the Rehabilitation Strategy has been prepared by HVEC and sent to the Secretary. However, the Secretary has deferred consideration of the revised strategy pending the determination of these proceedings.

Evidence

68. A court book and an evidence book comprising two volumes of material were prepared by the parties. Various individual documents in the evidence book comprising planning assessment and determination documents, including the Rehabilitation Strategy itself, were separately tendered by Council and HVEC.

69. In addition to the documents contained in the evidence book, HVEC relied upon an affidavit of Nigel Smith, dated 30 July 2018, relating to the costs of rehabilitation and ceasing the rehabilitation works currently being undertaken; a USB drive containing a further bundle of tender documents; printed extracts from the EAs; trade and investment guidelines prepared by the NSW Government; a printout from the “Landform” webpage; and copies of two emails.

70. The Secretary also relied upon a USB drive containing a bundle of tender documents and read an affidavit of Timothy Walls dated 26 July 2018. The two respondents agreed a statement of facts.

71. Council additionally relied upon a copy of the respondents’ agreed statement of facts which was marked-up to reflect those parts which Council did not agree (which became an exhibit in the proceedings) and an amended statement of the Secretary in answer to interrogatories.

72. In respect of expert evidence, Council called Dr Cherie McCullough who prepared a primary report dated 2 March 2018 and two further reports dated 4 April 2018 and 24 August 2018 respectively. HVEC called Mr Rod Masters who prepared a report which was undated, and Mr Michael McLeary, an expert in environmental management, who prepared a report dated 30 July 2018.

73. Each of Dr McCullough and Mr Masters has relevant expertise in relation to mine rehabilitation and gave concurrent evidence during the hearing. Mr McLeary also gave oral evidence.

74. There was an ongoing disagreement as to the admissibility and utility of much of the evidence which was sought to be relied upon in the proceedings. The principal position of HVEC remains that the expert evidence is irrelevant to the determination of the issues in the proceedings.

75. In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184, Preston J gave Council leave to serve expert evidence, noting at [43] that expert evidence can be relevant to claims of legal unreasonableness and at [45] that the evidence could be useful in respect of the civil enforcement aspects of Council’s case if Council is successful in respect of its arguments as to the construction of Condition 42. At [47], his Honour emphasised that questions as to the admissibility of the expert evidence should wait for the final hearing of the matter.

76. In the event, the parties agreed that an appropriate course was for the material to be received subject to objection. Questions of admissibility and the weight that should be given to the expert evidence in the circumstances are matters I address later in the judgment.

77. Before I address the admissibility of the evidence sought to be relied upon, some description of its nature and scope is helpful.

The expert evidence of Dr McCullough

78. Dr McCullough was asked to provide her opinion on a number of matters including what a number of technical terms mean, her understanding of the “Geofluv” landform design software package, whether the word “landforms” in condition 41A, Condition 42 and Table 14 was synonymous with or included “emplacements”, her view of the proper construction of conditions of the Modified Project Approval, whether it was possible by reference to the Rehabilitation Strategy or her own observations to determine which overburden emplacements were “Pre-Project Approval emplacements” and “Pre-Project Approval Mod 1 emplacements”, and to the extent to which she was able to identify these emplacements, whether they had already been rehabilitated in compliance with the objectives shown in Table 14.

79. Dr McCullough opines the following definitions of the technical terms which appear in or are referred to in Condition 42 and Table 14 and to which she was referred:

[Final landforms:] This is a well-established term in mine rehabilitation practice meaning constructed landforms, especially those above grade (DMP & EPA, 2015) but also often including pit lakes (McCullough & Van Etten, 2011), that are in place at mine closure. Typically large waste landforms such as waste dumps/emplacements and tailings storage facilities (ICMM, 2008; Alkane Resources, 2014; DIIS, 2016c).

[Natural micro-relief:] “Natural micro-relief” is not a term commonly used by mining rehabilitation practitioners. However, micro-relief has been described as small-scale variations in topography (Coles & McDonnell, 2018) and drainage directions (Jensen et al., 2003). Often appearing as small lines of ridges and furrows (Coles & McDonnell, 2018) on a contour map and often of no more than a metre or so in height and/or depth (Balázs et al., 2015). Micro-relief of soils, at the centimetre or decimetre scale, carries and temporarily stores water flow (McIlwee et al., 2017), controlling erosion processes (Bullard et al., 2018). Micro-relief is synonymous with the term “micro-topography” where small changes in topography e.g., mounds and depressions (Resource Strategies, 2015), exert a strong influence on revegetation community structure and species distribution (Komiyama et al., 1996; Ma et al., 2010).

In this context of mining rehabilitation, “natural” micro-relief would reasonably be understood to be engineered micro-relief that emulates pre-mining small-scale topography variation encountered on surrounding pre-mining disturbance landforms; be they historical landforms before mining began, or analogue landforms that surround the mine site (Glencore, 2016; Salon et al., 2016).

Fluvial geomorphological design methods such as GeoFluv™ often incorporate micro-relief in their design processes (Glencore, 2017).

[Natural drainage lines:] Lotic (flowing) waterways that may be permanent, seasonal or even ephemeral (Chalmers & Wheeler, 1997) but that are similar in shape and function to those that existed prior to mining disturbance or are analogous with those of surrounding pre-mining disturbance landforms (Hunter Valley Energy Coal, 2015). Formed as a result of, and contributing toward, landform geomorphology, including micro-relief (Lund & McCullough, 2011; DIIS, 2016d). Mining activity may intersect pre-existing flow paths, disrupting regional fluvial geomorphological function. Rehabilitated drainage lines on constructed landforms is intended to address these small scale impacts in addition to broader catchment hydrological function (BHP Billiton Mitsubishi Alliance, 2009a, b).

[Surrounding landforms:] Landforms outside of the mine project area (Jones & Salmon, 2012; DIIS, 2016b) typically of significance for overall visual aesthetics and compatibility (Environment Australia, 1998) of the waste landform into the broader landscape (MEND, 1995; Jones & Salmon, 2012). Although these landforms may have already been disturbed to some degree by anthropogenic activities, they are considered different to constructed or ‘engineered’ landforms such as are found on mine sites (Pearce & Barteaux, 2014).

[Emplacements:] Mining landforms constructed from mine wastes (NSW Trade and Investment, 2013), especially overburden waste rock (Environment Australia, 2002; Li et al., 2015; Landers et al., 2017) and tailings (Summerhayes, 1998).

[Natural relief:] The original ground level (Hazelwood Mine Fire Inquiry, 2016) often expressed as the pre-mining difference in height between the uppermost and lowermost elevations in a region (Hancock et al., 2003; Hollinsgworth, 2010). However, when used in the Rehabilitation Strategy, a different definition appears.

The Rehabilitation Strategy states “…Geofluv™ design or other natural relief…” (per page 8, para 5, Rehabilitation Strategy) which implies that “natural relief” constitutes variation in small-scale topography synonymous with the micro-relief approach of GeoFluv™.

Often undulating natural relief matches either pre-mining topographic variety or that of surrounding landforms (Ayres et al., 2006). Human activities often modify this topography, mining included (Krivtsov et al., 2005).

80. Dr McCullough explains that Geofluv is a trademark for a specific fluvial geomorphic landform design algorithm. Essentially, it is intended to design a landscape that will convey runoff water in the way a regionally representative “natural” landform would. Dr McCullough explains that Geofluv develops drainage patterns that are dendritic, following typical increasing order of stream as water flows along a landform.

81. Dr McCullough explains that the expression “Geofluv™ design” pertains to the application of Geofluv. It is a design that considers features very similar to the natural surrounding landscape such as alluvial flats, low hills, ridgelines and valleys. A Geofluv design is one in which the design intention was to produce not only a functional landform that is naturally stable against erosion, but one that is also economical to construct.

82. In Dr McCullough’s opinion, the term “landforms” as used in conditions 41A and 42 in schedule 3 of the Modified Project Approval, includes emplacements. She states that when she inspected the site, BHP site-inspection staff confirmed that the term “emplacements” was synonymous with “landforms”.

83. In answer to a question as to whether or not retrospectively modifying an emplacement to include Geofluv design or other natural relief amounts to not modifying a “final landform to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms” contrary to the objectives in Table 14, Dr McCullough states that it did. She assumes for the purposes of answering this question that the landforms referred to do not already reasonably demonstrate natural micro-relief.

84. Dr McCullough explains that, in her view, the Modified Project Approval conditions are designed to apply to the mine as a whole and that there is no basis for the Rehabilitation Strategy’s exclusion of pre-modification emplacements. She could not determine any logical or factual basis upon which the date of 26 September 2014 (the date of the Modified Project Approval) was chosen as the date by reference to which pre-existing emplacements would not be further rehabilitated. She opines that for HVEC to choose that date is contrary to the terms of the Modified Project Approval and inimical to the conditions set out in Table 14 applying to the “mine site (as a whole)”.

85. In particular, Dr McCullough opines that Table 14 states that the mine site as a whole should be stable but that the Rehabilitation Strategy does not contain any detail as to how stability will be achieved across the mine, particularly to the pre-modification emplacements; that Table 14 states that the mine site as a whole should be non-polluting but that emplacements not primarily designed with fluvial geomorphological processes are prone to erosion; that Table 14 requires the mine site as a whole to have final landforms designed to incorporate natural micro-relief and natural drainage lines but that the Rehabilitation Strategy limits micro-relief and natural drainage to new landforms only; and that the Rehabilitation Strategy contains scant detail with respect to final voids, creek diversions and realignments, and the socio-economic effects of mine closure.

86. Dr McCullough opines that the Rehabilitation Strategy does not provide any clear explanation of which emplacements are covered by the terms “Pre-Project Approval emplacements” and “Pre-Project Approval Mod 1 emplacements” but that the terms appear to be treated synonymously throughout the document.

87. Dr McCullough opines that the reader of the Rehabilitation Strategy will understand that “Pre-Project Approval emplacements” refers to emplacements other than those of the MacLeans emplacement in the north of the mine area and that those emplacements will not be subject to any further rehabilitation. She gives two reasons for this:

1. Remote imagery of the state of construction at 1 January 2014 and 18 October 2013 (Figure 5 in the Rehabilitation Strategy) indicates that a number of emplacements were already under construction or were constructed and revegetated prior to 26 September 2014; and

2. Figure 11 of the Rehabilitation Strategy shows four broad emplacement areas, three of which are additional to the MacLeans emplacement area:

319. It is clear that the bar is set high, a proposition confirmed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (‘Li’). At [30], French CJ said:

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.” As Professor Galligan wrote:

“The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.” (Citations omitted).

…

320. At [68], the plurality, comprising Hayne, Kiefel and Bell JJ, said:

Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.

321. At [76], the plurality continued:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

322. Legal unreasonableness was more recently considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (‘SZVFW’). At [10]-[11], Kiefel CJ said:

[10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case.

[11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies (citations omitted).

323. At [52], Gageler J said:

Expression of the standard of legal reasonableness in terms of the minimum to be expected of any “reasonable repository of the power” in the circumstances of the impugned decision or action has the benefit of emphasising both the “extremely confined” scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words (citation omitted).

324. At [78]-[80], Nettle and Gordon JJ said:

[78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

[79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.

[80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review (citations omitted).

325. At [82]-[84], Nettle and Gordon JJ continued:

[82] Nor is the abuse of statutory power limited to a decision which may be described as “manifestly unreasonable”, or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no “evident and intelligible justification” for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, “[r]eview by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

[83] Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. In that situation, the court is not undertaking merits review of an exercise of a discretionary power by a decision-maker. Rather, the court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable.

[84] Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power (citations omitted).

326. It is clear, and not disputed by any of the parties, that for a decision to exceed the power conferred upon the decision-maker by reason of its legal unreasonableness is a very high bar.

327. Council submits that no reasonable decision-maker could ever be satisfied with the Rehabilitation Strategy for any of the following reasons:

1. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having a safe mine site (as a whole);

2. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having a stable mine site (as a whole);

3. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having a non-polluting mine site (as a whole);

4. Moreover, it fails to identify what pollution risks from the mine site as a whole might exist, how the risk are or were to be ascertained and then managed;

5. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms;

6. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the final voids minimise to the greatest extent practicable any high wall instability risk;

7. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the final voids minimise to the greatest extent practicable the risk of flood interaction;

8. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the creek diversions and realignments incorporate structures for aquatic habitat;

9. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the creek diversions and realignments revegetated with suitable native species;

10. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having public safety ensured;

11. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the adverse socio-economic side effects associated with mine closure minimised;

12. It defers to an unidentified decision-maker to decide what rehabilitation approach is considered “appropriate”. Council submits that this is an unlawful deferral of the Secretary’s function;

13. It introduces four “requirements” of stability, rehabilitation, economic and approved land use which are not rationally justified within the Rehabilitation Strategy;

14. It fails to identify which emplacements will actually be subject to the four requirements mentioned in (13);

15. It defers some of its essential elements to a subsequent version of the Rehabilitation Strategy to be submitted in 2018 for review and approval and presumes that it will be approved;

16. It provides that the Goefluv approach will only be applied to MacLeans Hill and even then only if a “non-existent ‘design’ allows for it”. Council submits that this is objectively irrational;

17. It fails to identify any lawful (or rational) basis why HVEC chose to apply the Geofluv approach only to emplacements that post-date 26 September 2014; and

18. It expressly prefers one equally co-extensive requirement of Table 14 over another.

328. I note at the outset that matters (1) to (3), (5) to (11) and (17) to (18) are among the matters in respect of which I concluded the Rehabilitation Strategy objectively complies with the requirements of Condition 42 and Table 14 in the course of my consideration above at [253]-[306]. Given those findings, I would not (and could not) find that the Secretary’s decision to be satisfied in respect of those matters is legally unreasonable.

329. HVEC submits that, given the high bar set for a finding of legal unreasonableness, Council has not discharged its onus by merely alleging a lack of detail in the Rehabilitation Strategy.

330. Further, HVEC submits:

1. Insofar as Council complains about the Secretary’s state of satisfaction being unreasonable because the Rehabilitation Strategy did not provide detail about pollution risks, the Rehabilitation Strategy addresses the objective that the mine site as a whole be safe, stable and non-polluting. The Rehabilitation Strategy was not required to provide specific measures for ascertaining and managing pollution risks; such requirements are left for the Rehabilitation Management Plan by virtue of condition 44 of schedule 3;

2. Insofar as Council complains about the Secretary’s state of satisfaction being unreasonable because the Rehabilitation Strategy did not contain sufficient information about Geofluv and the factors to be considered in determining whether it is to be applied, the Rehabilitation Strategy does not need to specify details and the Secretary was entitled to be satisfied that it set out an appropriate guideline for the use of Geofluv having regard to the fact that rehabilitation is an iterative and ongoing process;

3. Insofar as Council complains about the Secretary’s state of satisfaction being unreasonable because the Rehabilitation Strategy did not identify which emplacements will be designed with Geofluv, because only the MacLeans Hill emplacement will be designed with Geofluv or because there is no basis for not rehabilitating the pre-existing emplacements, HVEC submits that there is no basis for any of these allegations. HVEC submits the Rehabilitation Strategy identifies the areas already rehabilitated, that MacLeans Hill is being used as a “showcase”, not as the only emplacement to which the Geofluv approach will be applied, and the Modified Project Approval does not require the pre-existing emplacements to be rehabilitated;

4. Deferral of the design of remaining emplacements was not unreasonable in the circumstances that rehabilitation is ongoing; HVEC was using Geofluv for the first time at the mine and the Rehabilitation Strategy is a “strategy”; and

5. In respect of the allegation that the Rehabilitation Strategy prefers one co-extensive requirement of Table 14, there was nothing unreasonable about the Secretary approving a Rehabilitation Strategy which provided that vegetation in creek lines should not undermine stability.

331. I accept the submissions of HVEC. I do not consider that there are grounds for impugning the decision of the Secretary on grounds of legal unreasonableness. In reaching that conclusion, I have considered the parties’ submissions and the relevant expert evidence.

332. I consider that the objectives contained in the Rehabilitation Strategy are properly directed towards the identification and reduction of pollution risks. As Mr Masters observed, the Rehabilitation Strategy contains eight detailed performance criteria associated with the objective that the mine site as a whole be safe, stable, and non-polluting and that it contain final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms.

333. I accept the submission of HVEC that it is open on the terms of the Modified Project Approval to defer consideration of the discrete pollution risks to the MOP. That is not to say that the Rehabilitation Strategy could not have contained more detail. The Court is not asked to make a finding on the merits of the Rehabilitation Strategy but merely to determine whether the Secretary’s state of satisfaction was legally unreasonable.

334. In relation to Council’s complaint that the Rehabilitation Strategy defers consideration as to what rehabilitation approach is considered “appropriate”, I consider that this must be examined in the context of the fact that the Geofluv approach has not been previously employed at the mine by HVEC. In those circumstances, it is not irrational to await the results of its use before committing to using it more broadly on the site and certainly not irrational in the sense considered by the High Court in Li.

335. Similarly, whilst it might be desirable that the introduction of the criteria of “stability, rehabilitation, economic and approved land use” was explained or justified more expansively within the Rehabilitation Strategy, it can hardly be thought that they are irrational considerations in the requisite sense. They are objectives in respect of which the Secretary was entitled to form a state of satisfaction.

336. Moreover, I do not accept that the Rehabilitation Strategy fails to identify the parts of the mine which are to be subject to further rehabilitation although more clarity in relation to this would have been preferable. Figure 4 in the Rehabilitation Strategy depicts post-mining land use capabilities and showed areas of “existing rehabilitation” as at April 2017 (the date of the figure). The type of the rehabilitation is also shown as are areas of “active mining” and “overburden emplacement” which was not yet rehabilitated.

337. I accept, as was submitted by HVEC, that given the Rehabilitation Strategy makes it clear that pre-existing emplacements (which are depicted as “existing rehabilitation”) are not intended to be further disturbed, it is possible to conclude on the basis of Figure 4 that it is the areas of “overburden emplacement” which the Rehabilitation Strategy envisages will be rehabilitated with the Geofluv approach where the “design meets requirements for stability, rehabilitation, economic and approved land uses”.

338. This reading of the Rehabilitation Strategy does require the reader to interpret the areas of “existing rehabilitation” as being coterminous with the emplacements which were pre-existing at 24 September 2014. The Rehabilitation Strategy does not make this link explicit and greater clarity would have been desirable. However, reading the document carefully and having regard to the evidence of Dr McCullough who stated that she was able to identify the existing areas of rehabilitation from the aerial photographs in the Rehabilitation Strategy (at Tcpt, 20 September 2018, p 252 (3-12)), I would not conclude that the Rehabilitation Strategy was objectively deficient or non-compliant with Condition 42 on this basis or that the Secretary’s state of satisfaction was legally unreasonable.

339. I also do not consider that the fact that the Rehabilitation Strategy defers some matters for later consideration makes the Secretary’s decision irrational in either an ordinary or legal sense. In this regard, it is important to remember that mining is ongoing and that the Modified Project Approval envisages that Rehabilitation will be an ongoing and dynamic process to which adjustments will be required to be made over time.

340. In relation to all of the grounds upon which Council contends the Secretary’s state of satisfaction is legally unreasonable, it is important to bear in mind the proper construction of the conditions of the Modified Project Approval considered as a whole. When regard is had to the fact that the Rehabilitation Strategy is intended to be a high level document and that rehabilitation is an ongoing process, I do not consider that any of the claimed grounds approach the level of irrationality articulated by the High Court in Li and SDZVFW which are required for a claim of legal unreasonableness to succeed.

The Court’s discretion

341. In the circumstances of my findings, it is not necessary to consider whether I would have exercised my discretion to provide the relief sought by Council.

Conclusion

342. For the above reasons, I have determined that Council has failed to make out any of its pleaded grounds of challenge with the consequence that its summons must be dismissed. The ordinary order is for costs to follow the event, but as I have not heard the parties on the question of costs, I shall defer making that order for 28 days should the parties wish to make any alternative order.

343. Finally, I note that the Court has not been asked to make an adjudication of the merits of the scheme of rehabilitation being undertaken at the mine or on the appropriate standard of mining rehabilitation more generally. I accept that the proper rehabilitation of the mine is a significant matter for future generations and that Council harbours a genuine concern that such rehabilitation is not being conducted appropriately. To a very great extent, those are matters of policy which are not the proper domain of the Court in judicial review proceedings (as opposed to the jurisdiction of this Court in merit appeals).

344. It is always open to Parliament and the relevant consent authorities to impose more stringent conditions and rigorous processes in respect of rehabilitation. Suffice it to say, I have not found any indication from the terms of the Modified Project Approval that the more exacting conditions contended for by Council have been embraced by the consent authority. In particular, I have not found that previously disturbed and rehabilitated embankments are required to be re-disturbed by the Modified Project Approval, irrespective of whether better environmental outcomes might be achieved by doing so.

Orders

345. The Court orders that:

1. The applicant’s summons is dismissed.

2. The applicant is to pay the first and second respondents’ costs unless an alternative order is sought within 28 days.

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Annexure A (232 KB, pdf)

Decision last updated: 30 November 2018