Andy Scouller is a wash plant manager at New Acland Coal Mine. Picture: Annette Dew
Andy Scouller is a wash plant manager at New Acland Coal Mine. Picture: Annette Dew

Court of Appeal hands down decision on New Acland expansion

THE Court of Appeal has ordered applications for a mining lease and an amended environmental authority for New Acland Coal Mine's Stage 3 expansion be referred back to the Land Court. 

In a judgement handed down today, President of the Court of Appeal Justice Walter Sofronoff, Judge of Appeal Justice Anthe Philippides and Judge of the Trial Division Justice Martin Burns rejected both grounds of the Oakey Coal Action Alliance's appeal.

The OCAA was appealing Justice Helen Bowskill's 2018 judicial review, which had overturned the 2017 Land Court decision that recommended the $1 billion expansion not be approved. 

In his judgement, Justice Sofronoff said grounds one and two of the Oakey Coal Action Alliance's appeal - that the jurisdiction of the Land Court permitted it to consider the issue of groundwater and Her Honour erred in coming to the contrary conclusion; and that Her Honour was wrong to conclude that the Member's reasons were inadequate - "must be rejected". 

"In my respectful opinion, Bowskill J was right in her conclusion that it was outside the jurisdiction of the Land Court in this case to consider the effects of the proposed mining activities upon groundwater," Justice Sofronoff said.

Justice Sofronoff also found that contrary to Justice Bowskill's findings in her judicial review, some aspects of Land Court member Paul Smith's 2017 decision constituted "matters that would give rise to a reasonable apprehension in an objective lay observer that the Member might not have brought an impartial and dispassionate mind to bear upon his task".

"Bowskill J had set aside the Member's order and had remitted the referrals back to the Land Court," he said.

"Having regard to Her Honour's rejection of the respondent's case on apprehended bias, Her Honour made orders that would have permitted some of the findings of the Member to be maintained when the matter was to be reheard."

Justice Sofronoff said those orders were "no longer possible". 

He ordered New Acland Coal's applications be referred back to the Land Court and the Oakey Coal Action Alliance pay New Acland Coal's costs. 

Justice Philippides and Burns agreed with Justice Sofronoff's reasons. 

Speaking after the judgement delivery, Oakey Coal Action Alliance president Paul King said the process "was back to square one". 

"The court of appeal has nullified the previous land court hearings. So it all has to be re-heard," he said.

"That'll be a big strain, but we're up to the task."

Mr King said his organisation "would have to consider the full implications of the Court of Appeal's hearing over the next week or so".

He also noted that New Acland Coal still needed to obtain an Associated Water Licence from the State Government.

New Acland Coal Mine owner New Hope Group announced a halt in its trading on the ASX this morning, pending a statement. 

But the company did not make a statement to the ASX before close of trade. 

A New Hope Group spokesman said the issue before the court was a separate matter to the company's outstanding approvals.

"We still require the mining lease and associated water licence from the State Government," he said.

"We don't have those, so at this stage there'll still be 150 redundancies at New Acland Coal Mine."

New Hope had said if it did not have its outstanding approvals by September 1, it would have to make redundant 150 workers.

Last week, the State Minister for Natural Resources and Mines Dr Anthony Lynham said: "The Government is awaiting the decision of the Court of Appeal before deciding on matters relating to the New Acland Mine expansion."