Court victory again for Bulga residents over coal mine expansion
Update 19 Nov 2014
The NSW Dept of Planning has recommended the approval of the Warkworth coal mine expansion by Rio Tinto near the village of Bulga, despite two court decisions against the project. The NSW Planning and Assessment Commission (PAC) will now decide on the project in the coming months. A PAC public hearing will be held in Singleton on Dec 18. However a PAC public hearing removes the community's right to a merits legal challenge to the project if it is approved.
7 April 2014
The NSW Court of Appeal today ruled in favour of the residents of the Hunter Valley village of Bulga and the protection of a rare forest containing endangered plants and animals, by upholding the refusal of an open cut coal mine expansion.
The Court of Appeal today unanimously dismissed, with costs, an appeal by Warkworth Mining Ltd (owned by Rio Tinto) and the NSW Government against a NSW Land and Environment Court decision last year that refused the mine expansion.
The Court today rejected all arguments put by Rio and the NSW Government that alleged that the NSW Land and Environment Court made errors of law.
Environmental law experts, EDO NSW, represented the Bulga community. Principal Solicitor, Sue Higginson, said: “this is a terrific win for the community and public interest law.
“The Court of Appeal found no fault with the Land and Environment Court decision that the economic benefits of the coal mine did not outweigh the significant impacts on Bulga residents and the destruction of rare forests containing endangered plant and animal species”.
Rio Tinto was seeking to open cut mine a biodiversity offset area, containing an endangered ecological community, the Warkworth Sands Woodland, and threatened animal species including the squirrel glider and the speckled warbler. This woodland is unique to the area and only 13 per cent of the original forest remains.
Rio Tinto had previously promised to permanently protect this area, under an agreement with the NSW government, as part of the existing approval from 2003.The protected area also includes Saddleback Ridge which provides a buffer between the mine and Bulga.
Significantly, the Land and Environment Court previously found Rio Tinto’s economic modelling deficient in many ways, including its methodology that over-estimated the benefits of the mine.
Ms Higginson said: “the Land and Environment Court decision now affirmed by the Court of Appeal will be relevant to the merit assessment of any future application to mine on this site”.
However Ms Higginson warned the Bulga case is likely to be the last of its kind. “The type of legal challenge used in the Bulga case, known as objector or merits appeals, is becoming a thing of the past in NSW.
“The NSW Government now routinely requires the project approval body, the Planning Assessment Commission (PAC), to hold a public hearing into all mining applications before they are approved. This then rules out any appeal to Land and Environment Court on the overall merits of a project.”
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