Marianna Papadakis Reporter

Marianna writes for The Australian Financial Review and Business Review Weekly from the Sydney newsroom. She has an interest in legal affairs, technology and business.

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UPDATED: Southern Highlands residents group claims Berrima Colliery win against Boral

Published 28 February 2013 14:43, Updated 01 March 2013 09:30

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The NSW Land and Environment Court has upheld an appeal by a residents’ action group against building and construction materials company Boral Cement Limited for the expansion of its Berrima colliery.

But the case has broader implications for miners that attempt to wash over environmental conditions with adaptive management strategies or water management plans in seeking approvals for their major projects in NSW.

The Southern Highland Coal Action Group (SHCAG) won its appeal preventing Boral from proceeding with plans to expand its Berrima Colliery.

The colliery is in the town of Medway, around seven kilometres west of Berrima and is among the oldest in the state, having started operations in the 1870s.

The NSW Planning Assessment Commission approved the expansion in June, 2012.

It would have cost around $4 million but would have increased Boral’s coal output to 460,000 tonnes a year.

The colliery is operated by Delta Mining Pty Ltd and currently produces 220,000 tonnes a year with extraction using the board and pillar method, but it has a capacity to produce up to 500,000 tonnes a year.

Berrima colliery operations manager Stuart Hutchings said it was assessing its options in light of the “disappointing decision”.

“It’s been part of the local community for more than 100 years and directly employs 40 people,” he said.

“It is the primary source of energy for the nearby Berrima cement works, which in turn directly employs another 130 people and is a large contributor to the local community.”

NSW planning and infrastructure minister Brad Hazzard said it was “concerning” that 160 people would lose their jobs and he was seeking legal advice on “what was appropriate for the government”.

But a more pressing concern for miners is the bar the ruling sets for monitoring data that assesses, for example, the risk to ground water hydrology.

The court found there was a lack of data to support an assessment of the impacts of the proposal on surface water and ground water in Boral’s project application.

“The surface and ground water issues are major and fundamental issues in regard to this proposal and they cannot be left for later resolution, as consideration of the impacts and the means of controlling those impacts is important, when weighing up all relevant matters for consideration in determining this proposal,” the judgment said.

It said: “[T]he risk of significant environmental harm remains uncertain and is not mitigated by an adaptive management regime.”

Principal solicitor at the Environmental Defenders Office, Kirsty Ruddock said every case would be determined on its facts, but the case set a high bar for miners in submitting their environment assessment reports to planning authorities.

“The court said that baseline data must be done properly before it considers whether a project is acceptable or not,” Ruddock said.

“You can’t manage environmental impacts later on through a water management plan if you don’t know what the impacts are at the start.”

The EDO lodged the appeal on behalf of SHCAG in August, 2012.

SHCAG had argued Boral’s expansion plans would affect the ground water and result in pollutants being discharged into the Wingecarribee River.

SHCAG coordinator Tim Frost said the judgment could put Hume Coal’s proposals for longwall coal mining in the Southern Highlands into “disarray”.

Hume Coal, a joint initiative of POSCO and Cockatoo Coal, is currently seeking land access agreements with residents for coal exploration in an 89 square kilometre area of the Southern Highlands.

“Rather than mining companies having open slather to go ahead and mine, using adaptive management strategies – the fix it after you’ve broken it approach, and under resourced private individuals having to oppose mining giants in courts, it is now up to the mining companies to prove that they will not damage the environment,” he said.

“This shift in the onus of proof has major implications for mining in water catchment areas, near aquifers, in residential areas and in productive farm lands.”

Hume Coal is pursuing a court injunction against a Medway couple residents Ross and Margaret Alexander who are blockading the company’s access to their land for coal exploration.

A Hume Coal spokeswoman said the judgment had no bearing on the company’s work and that it was in the process of conducting a comprehensive two-year water monitoring study.

“The study is designed to meet the government’s aquifer interference policy,” the spokeswoman said.

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