MOUNT Pleasant coal mine owner MACH Energy has won a legal challenge that would have stopped the project in its tracks only months after paying $220 million for the site, after a NSW Land and Environment Court judge ruled former owner Rio Tinto had not let a December, 1999 consent lapse.
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Justice Nicola Pain found engineering and construction work occurred before consent would have lapsed in February, 2005, and construction of a dam on the site was not a “sham” to meet development consent conditions.
Upper Hunter Sustainable Industries Association, with strong links to the thoroughbred industry, was ordered to pay MACH Energy’s legal costs after arguing MACH Energy could not mine a site where consent had lapsed 12 years earlier.
Justice Pain on July 19 accepted association arguments that Rio Tinto failed to undertake a significant number of reports and consultations between 1999 and the consent lapse date of 2005.
But the association lost its case in part because of a letter to Rio Tinto in October, 2004 from David Kitto, a delegate for Director-General of the Department of Planning, noting that stage 1 works on the mine site outside Muswellbrook, including a dam, constituted physical commencement of the consent.
Mr Kitto noted that all conditions of consent that had to be completed before construction were satisfied, despite acknowledging that some outstanding plans needed to be revised and resubmitted, and some required consultations had not taken place.
“The conditions of consent allowed for such an approach in that variation to the consent was possible if the Director-General agreed,” Justice Pain noted.
“As MACH submitted, a number of the same conditions identify that compliance with the condition is expressed as including ‘to the satisfaction of the Director-General’ or as ‘agreed by the Director-General’.”
MACH Energy completed its $220 million purchase of Mount Pleasant from Rio Tinto on August 4, 2016. It has approval to produce up to 10.5 million tonnes of run of mine (ROM) thermal coal for international markets. It has reserves of 474 million tonnes.
In September, 2016 MACH Energy commenced a mining operations plan due for completion in December this year, and completed at least 13 environmental management plans for noise, air quality, blasting and other requirements of the original 1999 consent.
Mount Pleasant managing director Scott Winter, a former Tinkler Group executive, told the Muswellbrook Chronicle in 2016 that production and construction at the site would be “in accordance with consent approval”, despite significant changes in community and environmental expectations since the 1999 approval.
“We have a fully-approved mine and we intend to work within our consent guidelines and there will be monitoring, evaluation and reporting,” he said.
MACH Energy is part of the Indonesian Salim Group.