Rio Tinto loses Mt Thorley Warkworth appeal

The Supreme Court has sided with the Land and Environment Court and ruled that Rio Tinto is not allowed to go ahead with its expansion of Mt Thorley Warkworth mine.

Planning consent for the expansion was given by the New South Wales government, but was then overturned in April 2013 by the Land and Environment Court because the mine would create unacceptable noise and dust problems for nearby residents in Bulga.

Both Rio Tinto and the NSW government filed a joint appeal in the Supreme Court just weeks later.

In a move that foreshadowed the court of appeal's decision, earlier this month Rio submitted two new development applications for the same site.

Rio Tinto Coal Australia managing director Chris Salisbury said the mine is under considerable financial pressure and had no option but to go back with a longer term consent approval.

The company says the new applications will provide it with an integrated operation which can sustain mining within the existing footprint for the next 30 years.

It says the plan means the 1300 employees and contractors who work at the site will have job security.

Vice president of the Bulga Milbrodale Progress Association, John Krey, said Rio’s resubmitted application made the Supreme Court win "a hollow victory", SMH reported.

"This should be the end of it but it's not," Krey said outside court.

Krey said the community would call on Planning Minister Brad Hazzard to dismiss Rio’s latest mine expansion plans, which are almost identical to the one rejected by the courts.

"I think that the State Government and their keenness to please the mine is going to be the end of Bulga,” he said.

"We'll be looking straight at a mine and it works 24 hours a day, 365 days a year.

"This is no longer the countryside that we came to, this is now becoming an industrial area."

The mine is now within six kilometres of Bulga and would have “gradually’’ moved to within  2.6 kilometres of the village by 2035 if the extension goes ahead.

Current planning approvals mean the mine can only sustain existing production and employment levels until the end of 2015.

“Beyond this point, the width of the main pit at the mine will be cut significantly, leading to a drop in production and affecting its economic viability,” Salisbury said.

Rio Tinto has attempted to sweeten the deal with a biodiversity offset package which includes a donation of 1800 hectares of land to be made a national park.

The company has also said it will upgrade its diesel powered heavy equipment with noise attenuation kits by the end of 2016 and offer voluntary acquisition to those residents who were granted acquisition rights under the 2012 Warkworth planning approval.

However Krey said these promises will not help to sway opposition to the project.

“These new plans totally ignore everything the judge said, it’s exactly the same footprint, same demolition of the Warkworth Woodlands and there is absolutely no protection provided for our community,” Krey said.

“We won a merits based appeal in the Land and Environment Court and now the company is coming back with the same plans having not heeded a word that was said in the court’s judgement."

Krey said the community had spent about $100,000 fighting the mine expansion, including about $30,000 in the Supreme Court.

Rio Tinto was ordered to pay Bulga Milbrodale Progress Association’s costs.

Responding to today’s decision, Rio subsidiary Coal & Allied vowed to progress with the new mining application as a matter of urgency.

 “Today’s decision by the court comes as no surprise, given the limited scope of the appeal available to us,” Salisbury said.

 "A single Land and Environment Court judge disagreed with the outcome of a rigorous planning process that had determined that this mine extension was in the overall public interest.

“The Court effectively overruled the decisions made by the independent Planning Assessment Commission and the Government departments charged with assessing whether projects should be approved, based on an individual’s own interpretation of highly technical subject matter, rather than any errors in law or procedure.

“It should also not be forgotten that the Federal Government has issued an approval for the project under its Federal environmental legislation.

“All of these issues were unfortunately outside the legal scope available to us for appeal to the Court of Appeal.”

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