Mining Company Fined for Stockpiling Material Outside Approved Project Area

In a decision handed down by Chief Justice Preston of the Land and Environment Court on 25 August 2014, a coal company has been fined $82,000 for placing a large stockpile of processed "interburden" material in a disused rock quarry, in breach of the approval that was granted for an open cut coal mine: See Secretary, Department of Planning and Environment v Boggabri Coal Pty Limited, (2014) NSWLEC 154 (25 August 2014).  The case can be found at the following link:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=174356

The offence arose from the fact that the quarry where the stockpile was established was located outside the area that was approved for the carrying out of works associated with the mine.  At the time that the original development consent was issued for the mine, the terms of the consent approved the use of a block of land in conjunction with the mining operations, but did not delineate which portions of this land could be used for mine infrastructure. However. a modification to the consent included project layout plans which specified that only a part of the subject land could be utilised. The approved area did not include the inactive rock quarry.  Thus, while there was a lack of clarity in the original approval as to whether the quarry could be affected by further mining operations, the plans approved in conjunction with the amended approval plainly specified that it could not be used.

Although the stockpile that was created at the quarry was quite sizable - it contained 90,000 cubic metres of material - no evidence was produced by the prosecutor that the stockpile had caused, or was likely to cause, harm to the environment (there was no evidence, for example, that any material had been eroded from the stockpile or had been washed into local waterways.  Nonetheless, the fine imposed by Justice Preston was significantly larger than penalties that have been imposed by the Court in other cases where there has been evidence of actual environmental.

It appears that a significant factor in the determination of the penalty in this case was the "harm to the regulatory scheme" of the Environmental Planning and Assessment Act that was occasioned by the use of land for mining support facilities without the prior grant of development approval.  In his analysis of the "objective seriousness of the offence", Chief Justice Preston observed that the unauthorised use of the quarry had deprived the "consent authority" of the opportunity to perform an environmental assessment of the possible impacts of the stockpile, and to impose conditions to prevent or minimise adverse impacts.

The result in this case brings home the point that persons carrying out activities under the authority of an amended development consent - particularly major works like a mine - must use care to ascertain whether the amended approval restricts activities that otherwise could have been lawfully carried out lawfully under an original approval, and must closely adhere to the terms and limitations of the amended approval if they wish to avoid the risk of a penalty action by the regulator.