Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd

Land and Environment Court (NSW)|2018-11-08|Before: Robson J

Hale (1982) 47 LGRA 319 Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198 Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors (1999) 46 NSWLR 55; [1999] NSWCA 8 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Woolworths Ltd v Pallas Newco Pty Ltd & Anor (2004) 61 NSWLR 707; [2004] NSWCA 422 Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2 Texts Cited: Macquarie Dictionary, (6th ed, 2013) Category: Principal judgment Parties: Muswellbrook Shire Council (Applicant) Hunter Valley Energy Coal Pty Ltd (First Respondent) The Secretary, Department of Planning and Environment (Second Respondent) Representation: Counsel: P Tomasetti SC with R Lovas (Applicant) R Lancaster SC with C Trahanas (First Respondent) N Kelly (Second Respondent)

Solicitors: Moray & Agnew Lawyers (Applicant) King & Wood Mallesons (First Respondent) Department of Planning and Environment (Second Respondent) File Number(s): 2017/00236338 Publication restriction: Nil

Introduction

Before the Court are Class 4 judicial review and civil enforcement proceedings commenced by way of summons filed on 3 August 2017, pursuant to which Muswellbrook Shire Council ('Council') seeks declaratory and consequential relief against Hunter Valley Energy Coal Pty Ltd ('HVEC') and the Secretary, Department of Planning and Environment ('Secretary').
The relief is sought in relation to the Mt Arthur Coal Rehabilitation Strategy prepared by HVEC and dated 26 May 2017 ('Rehabilitation Strategy') and rehabilitation works being carried out in reliance upon it. Council alleges that the Rehabilitation Strategy does not comply with Condition 42 of schedule 3 ('Condition 42') of the Project Approval for the Mt Arthur Coal Mine - Open Cut Modification Project dated 26 September 2014 ('Modified Project Approval').
Conditions 41A and 42 of schedule 3 of the Modified Project Approval provide: 41A. The Proponent shall rehabilitate the site to the satisfaction of the DRE [Division of Resources and Energy, within the Department of Trade and Investment, Regional Infrastructure and Services]. The rehabilitation must comply with the objectives in Table 14, and be consistent with the rehabilitation plan shown in Appendix 7 and the final landform plan shown in Appendix 8. … Rehabilitation Strategy 42. The Proponent shall prepare a revised Rehabilitation Strategy for the Mt Arthur mine complex to the satisfaction of the Secretary. This strategy must: a) be prepared in consultation with the DRE and Council, and be submitted to the Secretary for approval by the end of September 2015, unless otherwise agreed with the Secretary; b) investigate options for: • increasing the area to be rehabilitated to woodland on the site; • reducing the size of the final voids on site; and • beneficial future land use of disturbed areas, including voids; c) describe and justify the proposed rehabilitation plan for the site, including the final landform and land use; and d) include detailed rehabilitation objectives for the site that comply with and building on the objectives in Table 14. Note: The strategy should build on the rehabilitation plan in Appendix 7
Table 14, referred to in conditions 41A and 42(d), is in the following terms: Feature Objective Mine site (as a whole) • Safe, stable and non-polluting • Final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms • Designed as long-term groundwater sinks and to maximise groundwater flows across back-filled pits to the final voids • Minimise to the greatest extent practicable: Final voids ৹ The size and depth of the final voids ৹ The drainage catchment of final voids ৹ Any high wall instability risk ৹ Risk of flood interaction. Agricultural land • Rehabilitate at least 33 hectares of Class II agricultural capability land in the area identified in the rehabilitation plan (see Appendix 7) • Rehabilitate other areas identified for agricultural use in the rehabilitation plan to sufficient agricultural capability to support grazing Revegetation areas • Restore at least 2.642 hectares of self-sustaining woodland ecosystems in accordance with the rehabilitation plan, including at least 500 hectares of White Box Yellow Box Blakely's Red Gum Woodland. • Flows to mimic pre-development flows for all flood events up to and including the 1 in 100 year ARI Creek diversions and realignments • Incorporate erosion control measures based on vegetation and engineering revetments • Incorporate structures for aquatic habitat • Revegetate with suitable native species Surface infrastructure • To be decommissioned and removed, unless DRE agrees otherwise Community • Ensure public safety • Minimise the adverse socio-economic effects associated with mine closure

The Secretary has purported to approve the Rehabilitation Strategy in accordance with Condition 42. As will become apparent, the compliance of that decision, and the Rehabilitation Strategy itself, with the conditions of the Modified Project Approval forms the subject matter of these proceedings.
The proceedings have a somewhat lengthy procedural history. In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184, Preston CJ of LEC granted Council leave to rely on an amended summons and leave to file expert evidence.
In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd (No 2) [2018] NSWLEC 53, I granted Council leave to further amend its summons in response to the expert evidence which had been prepared and filed. This had the consequence that the original hearing dates were vacated.
In summary, the proceedings relate to Council's contentions that: 1. HVEC prepared a revised Rehabilitation Strategy that did not comply with the objective requirements of Condition 42 of the Modified Project Approval; and 2. The Secretary had no jurisdiction to be satisfied with a Rehabilitation Strategy that did not meet the objective requirements of Condition 42 of the Modified Project Approval. Her purported state of satisfaction was therefore ultra vires.
For the reasons that follow, I have determined that Council has not made out any of its grounds of challenge with the consequence that the proceedings must be dismissed.

Background

In order to understand the nature of the dispute between the parties, some understanding of the history and background of mining at Mt Arthur is necessary.
Coal mining began at the Mt Arthur Coal Mine ('mine') in the early 1960s. The mine has been modified and expanded on a number of occasions. It is currently approved for both open cut and underground mining operations and is operated by HVEC.
On 24 September 2010, the Minister for Planning ('Minister') granted approval under what was then Pt 3A of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') to consolidate its open cut mining operations and some related activities at the mine ('Project Approval').
On 24 September 2011, the Minister delegated the function of approving requests to modify a project approval pursuant to s 75W of the EPA Act to the Planning and Assessment Commission ('PAC'). The delegation came into effect on 1 October 2011.
In 2013, HVEC lodged an application to modify the terms of the Project Approval under s 75W of the EPA Act. On 29 May 2014, the application was referred to the PAC because Council objected to the proposal and more than 25 submissions in the nature of an objection to the proposal were submitted by members of the public.
On 26 September 2014, the PAC issued the Modified Project Approval pursuant to s 75J of the EPA Act. As noted above at [3], the Modified Project Approval included conditions 41A and 42, the alleged non-compliance with which is the subject of these proceedings.
On 26 May 2017, HVEC prepared the Rehabilitation Strategy purportedly to address Condition 42. The Rehabilitation Strategy was submitted to the Secretary. On 7 June 2017, the Secretary's nominee, Howard Reed, Director of Resources Assessment, approved the Rehabilitation Strategy subject to minor amendments ('Strategy Approval').
The Strategy Approval stated that the Department of Planning and Environment ('Department') was "satisfied that the Rehabilitation Strategy meets the requirements of the conditions of approval". It also noted HVEC's commitment "to undertake further technical studies to inform future improvements to landform and final void designs, as well as options for final land uses, and to submit this revised version of the Rehabilitation Strategy to the Department for review in 2018".
The Rehabilitation Strategy was made publicly available on HVEC's website on 9 June 2017. Relevantly to the present proceedings, the Rehabilitation Strategy does not intend to retrospectively apply micro-relief to emplacements which were rehabilitated prior to 26 September 2014.
The revised version of the strategy foreshadowed by the Strategy Approval was submitted to the Department on 29 June 2018. The Secretary has deferred making any assessment in relation to the revised strategy pending the outcome of these proceedings.
I note at the outset that two terms of a technical nature are of particular significance in the context of these proceedings: "overburden emplacements" and "final voids". Overburden refers to extractions from the mine which are emplaced onsite rather than on-sold or otherwise removed. The expression final void refers to a void left by mining operations at the time of mine closure.
As noted above, the proceedings brought by Council are both civil enforcement proceedings and judicial review proceedings. Council is concerned that the rehabilitation presently being carried out by HVEC purportedly in accordance with the conditions of the Modified Project Approval is not being conducted appropriately. The civil enforcement aspect is to restrain and remedy the alleged breaches of the EPA Act pursuant to s 9.46 of the Act, which provides: 9.46 Orders of the Court (cf previous s 124) (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. …
In essence, Council alleges that HVEC is not carrying out the rehabilitation works in accordance with the conditions of consent and that the works should therefore be restrained. Before examining the positions of the parties in detail, some close examination of the relevant documents is required.

The Modified Project Approval

The Modified Project Approval contains five schedules, a definitions section and ten appendices. The first schedule identifies the Project Approval as being the approval to which the Modified Project Approval applies. The second schedule sets out administrative conditions; the third schedule sets out environmental performance conditions (Condition 42 is part of this schedule); the fourth schedule provides additional procedures; and the fifth schedule sets out requirements for environmental management, reporting and auditing.
The definitions section relevantly defines "Mt Arthur mine complex" as "the combined operations of the project (including the former Mt Arthur North mine, Bayswater No. 2 mine, Bayswater No. 3 mine and the South Pit Extension Project), and the Mt Arthur Underground Project"; "Rehabilitation" as "the treatment or management of land disturbed by the project for the purpose of establishing a safe, stable and non-polluting environment"; "Secretary" as "Secretary of the Department, or nominee"; and "Site" as "the land referred to in schedule 1 and listed in Appendix 1".
Schedule 2 of the Modified Project Approval begins with the following relevant conditions: OBLIGATION TO MINIMISE HARM TO THE ENVIRONMENT 1. In addition to meeting the specified performance criteria established under this approval, the Proponent shall implement all reasonable and feasible measures to prevent and/or minimise any material harm to the environment that may result from the construction, operation, or rehabilitation of the project. TERMS OF APPROVAL 2. The Proponent shall carry out the project generally in accordance with the: (a) EA; and (b) conditions of this approval. Note: The general layout of the project is shown in Appendix 2. 3. If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency. 4. The Proponent shall comply with any reasonable requirement/s of the Secretary arising from: (a) any reports, strategies, plans, programs, reviews, audits or correspondence that are submitted in accordance with this approval; (b) any reports, reviews or audits commissioned by the Department regarding compliance with this approval; and (c) the implementation of any actions or measures contained in these documents. …
Condition 8 of schedule 2 provides: SURRENDER OF CONSENTS 8. By the end of September 2011, or as otherwise agreed by the Secretary, the Proponent shall surrender all existing development consents/approvals for the project in accordance with sections 75YA and 104A of the EP&A Act, and to the satisfaction of the Secretary. Notes: • This approval will apply to all components of the Mt Arthur mine complex's open cut operations from the date of approval. The existing management and monitoring plans/strategies/programs/protocols/committees of the project will continue to apply until the approval of the comparable plan/strategy/program/protocol/committee under this approval; • The existing approvals are identified in Appendix 3.
A number of the conditions in schedule 3 of the Modified Project Approval refer to a state of satisfaction being reached by the Secretary. For example, condition 23 provides: … 23. The Proponent shall: (a) implement best practice air quality management, including all reasonable and feasible measures to minimise offsite odour, fume and dust emissions of the Mt Arthur mine complex; (b) implement all reasonable and feasible measures to minimise the release of greenhouse gas emissions from the site; (c) minimise any visible air pollution generated by the Mt Arthur mine complex; (d) minimise the surface disturbance on the site; (e) operate a comprehensive air quality management system that uses a combination of predictive meteorological forecasting and real-time air quality monitoring data to guide the day to day planning of mining operations and the implementation of both proactive and reactive air quality mitigation measures to ensure compliance with the relevant conditions of this approval; (f) minimise the air quality impacts of the project during adverse meteorological conditions and extraordinary events (see Note d above under Table 8); and (g) co-ordinate air quality management at the Mt Arthur mine complex with air quality management at the Drayton, Mangoola and Bengalla mines to minimise cumulative air quality impacts, to the satisfaction of the Secretary. …
To similar effect, condition 29 provides: … 29. The Proponent shall prepare and implement a Water Management Plan for the Mt Arthur mine complex to the satisfaction of the Secretary. This plan must: (a) be prepared in consultation with NOW and the EPA; and (b) include a: • Site Water Balance; • Erosion and Sediment Control Plan; • Surface Water Monitoring Program; • Groundwater Monitoring Program; and • Surface and Ground Water Response Plan …
Conditions 30 to 34 provide requirements for each of the Site Water Balance; the Erosion and Sediment Control Plan; the Surface Water Monitoring Program; the Groundwater Monitoring Program; and the Surface and Ground Water Response Plan respectively. The conditions are formulated in terms of a list of requirements as to what the respective plan "must" achieve or include.
Similarly, condition 40 requires HVEC to prepare and implement a Biodiversity Management Plan to the satisfaction of the Secretary, and includes detailed stipulations as to how the plan "must" be prepared and the requirements as to what it "must" include.
Conditions 41A and 42 are extracted above at [3]. They are immediately followed by conditions 43 and 44, which provide: … Progressive Rehabilitation 43. The Proponent shall carry out rehabilitation progressively, that is, as soon as reasonably practicable following disturbance (particularly on the face of emplacements that are visible off-site). Interim stabilisation measures must be implemented where reasonable and feasible to control dust emissions in disturbed areas that are not active and which are not ready for final rehabilitation. Note: It is accepted that parts of the site that are progressively rehabilitated may be subject to further disturbance in the future. Rehabilitation Management Plan 44. The Proponent shall prepare and implement a Rehabilitation Management Plan for the Mt Arthur mine complex to the satisfaction of the DRE. This plan must: (a) [be] submitted to DRE for approval by 30 September 2015; (b) be prepared in consultation with the Department, NOW, OEH and Council; (c) be prepared in accordance with relevant DRE guidelines; (d) describe how the rehabilitation of the site would be integrated with the implementation of the biodiversity offset strategy; (e) include detailed performance and completion criteria for evaluating the performance of the rehabilitation of the site and triggering remedial action (if necessary); (f) describe the measures that would be implemented to ensure compliance with the relevant conditions of this approval, and address all aspects of rehabilitation including mine closure, final landform including final voids, and final land use; (g) include interim rehabilitation where necessary to minimise the area exposed for dust generation; (h) include a research program that seeks to improve the understanding and application of rehabilitation techniques and methods in the Hunter Valley; (i) include a program to monitor, independently audit and report on the effectiveness of the measures, and progress against the detailed performance and completion criteria; and (j) build to the maximum extent practicable on other management plans required under this approval. …
Condition 3 in schedule 5 of the Modified Project Approval requires HVEC to review the environmental performance of the project to the satisfaction of the Secretary. Condition 4 in schedule 5 provides as follows: … Revision of Strategies, Plans and Programs 4. Within 3 months of: (a) the submission of an annual review under condition 3 above; (b) the submission of an incident report under condition 7 below; (c) the submission of an audit under condition 9 below; (d) any modification to the conditions of this approval, the Proponent shall review, and if necessary, revise, the strategies, plans, and programs required under this approval to the satisfaction of the Secretary. Where this review leads to revisions in any such document, then within four weeks of the review the revised document must be submitted to the Secretary for approval. Note: This is to ensure the strategies, plans and programs are updated on a regular basis, and incorporate any recommended measures to improve the environmental performance of the project. …
Condition 9 of schedule 5 relevantly provides: … 9. By the end of June 2014, and every 3 years thereafter, unless the Secretary directs otherwise, the Proponent shall commission and pay the full cost of an Independent Environmental Audit of the project. This audit must: … (d) review the adequacy of strategies, plans or program required under the abovementioned approvals… …
After schedule 5, the ten appendices are attached, comprising: 1. A schedule of land to which the Modified Project Approval applies; 2. Project layout plans; 3. A list of previous environmental assessments; 4. Receiver location plans; 5. A map showing the blast control area; 6. A map showing Hunter River and Saddlers Creek "alluvials"; 7. A biodiversity offset strategy and rehabilitation plan; 8. A final landform plan; 9. The general terms of the planning agreement; and 10. A noise compliance assessment.

The Environmental Assessments

As noted above at [25], condition 2 in schedule 2 of the Modified Project Approval requires HVEC to carry out the project "generally in accordance" with "the EA" and the "conditions of this approval". The term "EA" is defined in the Modified Project Approval as follows: a) the Environmental Assessment titled Mt Arthur Coal Consolidation Project Environmental Assessment (6 volumes), prepared by Hansen Bailey and dated November 2009, including the Response to Submissions dated February 2010; and b) the Environmental Assessment titled Mt Arthur Coal Open Cut Modification - Environmental Assessment (2 volumes), prepared by Resource Strategies Pty Ltd and dated April 2013, including the Response to Submissions dated September 2013
As also noted at [25], condition 3 in schedule 2 of the Modified Project Approval provides: If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this approval shall prevail to the extent of any inconsistency.
The reference to "the EA" in condition 2 must be read as a reference to two discrete documents which, by virtue of condition 3, have a subordinate function to the conditions of the consent proper in that the conditions shall prevail to the extent of any inconsistency: the Environmental Assessment prepared in 2009 for the 2010 Project Approval ('2010 EA') and the Environmental Assessment prepared in in 2013 respect of the 2014 Modified Project Approval ('2014 EA'). Where appropriate, I will refer to these two documents together as 'the EAs'.
The 2010 EA is a 228 page document with a further 18 appendices. The Executive Summary provides the following under the heading "Rehabilitation and Final Landform" (at p xvii-xviii): Rehabilitation and Final Landform Mt Arthur Coal has extensive experience in achieving successful mine rehabilitation, with rehabilitation works being completed for various mining areas onsite over the last 45 years. Rehabilitated areas will continue to be managed in accordance with the methods currently in place at Mt Arthur Coal under the Environmental Management System which includes commitments to progressive rehabilitation and monitoring. Sufficient coal reserves exist within Mt Arthur Coal's mining and exploration leases to enable coal mining beyond 2022 pending the granting of future Planning Approvals. In the unlikely event that mining does cease at Mt Arthur Coal in 2022, a strategy has been developed to ensure the minimisation of mine void areas and the creation of an acceptable post mining landform. This includes a Conceptual Final Landform which has been developed for the Project consistent with the Department of Primary Industry's Synoptic Plan that aims to link existing vegetation communities within and surrounding the Environmental Assessment Boundary with rehabilitation areas to provide corridors for the movement of fauna. The translocation of topsoil and vegetative material containing an appropriate seed bank to rehabilitation areas will be undertaken to assist in the recreation of 500 hectares of Box Gum Woodland understorey.
At p 36 of the 2010 EA, the location of mining activities and consequential position of overburden is explained in the following terms: As indicated in the above figures, mining operations will predominantly continue in the north of the operation and the South Pit extension mining areas, as currently approved. The Project extends coal extraction to the north to Macleans Hill (leaving the eastern flank intact) and further west impacting upon Edderton Road. Coal extraction continues in the Saddler's Pit area (Bayswater No 3), in the southern half of the operation, whilst an out-of-pit overburden emplacement area is to be established in the south west of the operation, above the approved MAU development area. An additional overburden emplacement area may also become available in the already disturbed Macquarie Generation conveyor corridor. The Belmont Pit mining area to the west of Edderton Road (as approved in the Bayswater No 3 Development Consent) will be maintained to allow access to the Glen Munro Seam as described in the MAU Project Approval. The existing overburden emplacement area will be increased to an average upper height of approximately RL 360 m, whilst two additional crests up to height of approximately RL 375 m have been incorporated on the overburden emplacement area for visual amenity (see Figure 8, Figure 9 and Figure 10).
Figures 8, 9 and 10 of the 2010 EA, which are conceptual mine plans for 2011, 2016 and 2022 respectively and identify areas as "existing rehabilitation" and "proposed rehabilitation" as at each date. HVEC submits that it is clear from these figures that, apart from the existing emplacements which were to be subject to further overburden being added, areas of "existing rehabilitation" were not proposed to be re-disturbed.
The 2014 EA is a 164 page document with a further 12 appendices and 3 attachments. The Executive Summary provides the following explanation of the mine's rehabilitation (at p ES-6): ES7 REHABILITATION The Modification would result in a reduction in the number and overall catchment area of the final voids, through the backfilling of the Saddlers Pit Void. Existing rehabilitation strategies and plans would continue to apply for the Modification. HVEC's rehabilitation research, design, planning, approval and implementation will be informed by its proposed Future Landscapes Design Project (FLDP). The key objective of the FLDP is to create a final landform design that addresses stakeholder concerns, is safe and stable, reduces ongoing maintenance, and minimises impact on coal production or operational efficiencies during its development. It is anticipated that the design phase of the FLDP would be completed in approximately 18 months. The FLDP is a separate project to the Modification.
Section 4 of the 2014 EA deals with the assessment of the Modified Project Approval's visual impact. At p 4-58, mitigation measures to the visual effects created by the mine are described in the following terms: The Consolidation Project EA (HVEC, 2009) included a Visual Impact Assessment (Integral, 2009) (herein referred to as the 2009 VIA). The assessment concluded that the Consolidation Project would create visual impacts beyond those experienced by the previously approved mine plans, however, these impacts would be reduced over the life of the Consolidation Project and would occur within the same timeframe as the previous approvals. Notwithstanding, the 2009 VIA described that additional crests would be built into the final overburden emplacement area landform as a visual mitigation measure viz. The OEA [overburden emplacement area] at Mt Arthur North will be increased to an average height of RL 360 m. Additional crests on the OEAs have been incorporated to a maximum height of RL 375 m in two locations as a result of design workshops with mine planners and visual impact specialists in order to improve visual amenity and result in a less engineered appearance of the final landform (italics in original).
Section 5 of the 2014 EA deals with the approach to rehabilitation and mine closure. At p 5-3, reference is made to the Mt Arthur Coal Biodiversity and Rehabilitation Management Plan: 5.1.3 Biodiversity and Rehabilitation Management Plan The Mt Arthur Coal BRMP (BHP Billiton, 2012h) has been prepared in order to address Conditions 40 and 44, Schedule 3 of the Mt Arthur Coal Mine Consolidation Project Conditions of Project Approval. The Rehabilitation Strategy provides the overarching concepts for decision making in terms of landscape and land use for Mt Arthur Coal, whilst the BRMP and other relevant management plans provide specific details for management. The BRMP (BHP Billiton, 2012h) has been developed to ensure that the post-mining landscape of the site and associated offset areas provide for: • pastoral, recreation and wildlife habitat opportunities with due consideration to visual amenity aligned to the surrounding landscapes; • successful design and rehabilitation of landforms to ensure structural stability, revegetation success and containment of wastes; and • post-mining land use compatible with surrounding land uses to provide suitable environmental and community benefits.
On p 5-6, the overburden emplacement areas are described in the following terms: Overburden Emplacement Area The key components of the final landform over the areas of active mining and overburden emplacement include (BHP Billiton, 2012j): • Mt Arthur North overburden emplacement height to an average height of 360 m AHD (maximum height of 375 m AHD to create visual relief on the overburden emplacement area); • development of Bayswater No 3 (Saddlers Pit) overburden emplacement height up to 250 m AHD; • development of Drayton sub-lease emplacement area up to an elevation of 290 m AHD (part of South Pit extension); and • development of an out-of-pit overburden emplacement area up to an elevation of 360 m AHD. Coarse reject will continue to be co-disposed within overburden emplacement areas or utilised in the construction of the tailings dams, stockpiles, pads or other site based infrastructure. The conceptual final landform design for the Mt Arthur Coal Mine has been developed to maximise consistency with the surrounding landscapes and ensure long-term sustainability and stability, with a maximum design height of approximately 375 m AHD and slopes generally less than 10° (and up to a maximum slope of 18°). In accordance with HVEC's objectives for mine rehabilitation, the final landform will be designed to promote visual characteristics that are consistent with the surrounding environment and to result in a class of land capability that is comparable to that of the pre-mining landscape (HVEC, 2009).
At p 5-8, the 2014 EA describes the changes to the existing rehabilitation plans that would be brought about by the Modified Project Approval: 5.2 REHABILITATION CHANGES RELEVANT TO THE MODIFICATION Figure 5-2 shows the proposed Rehabilitation Plan and Offset Strategy for the Modification. The Modification would result in very few changes to the Rehabilitation and Offset Strategies and the changes that would occur are as follows: • Saddlers final void would be filled in as a result of continued investigation by Mt Arthur Coal. • Additional offset areas would be incorporated into the existing Saddlers Creek offset area. • Reclassification of some Post Mined Lands - Pasture to Post Mined Lands - Woodland. • Reclassification of some Post Mined Lands - Woodland to Post Mined Lands - Pasture. • Following completion of mining, Whites Creek would be re-established to drain off-site in accordance with existing conceptual rehabilitation principles. As the Modification involves only minor changes to the Rehabilitation and Offset Strategies, the existing rehabilitation techniques as outlined in the Rehabilitation Strategy, BRMP and this document would continue to be implemented for the modification. The Rehabilitation Strategy, BRMP and any other relevant plan or strategy would be revised, in consultation with the relevant authorities, upon approval of the Modification in order to accommodate the changes outlined above and shown on Figure 5-2. Consistent with the above, the overall number of final voids would be reduced by filling in the Saddlers final void. As described in Appendix C, the McDonalds and Belmont voids would be used as water storages throughout operations and post-mining.

The Rehabilitation Strategy

The Rehabilitation Strategy opens with what is described as "brief description" as follows: The Rehabilitation Strategy (the Strategy) is the standard for rehabilitation at Hunter Valley Energy Coal Pty Ltd (HVEC). The Strategy provides a framework for landform design and revegetation aligned with Regulator and community expectations. The goal of the Strategy is to provide a framework to "Create a safe, stable, non-polluting and sustainable landscape that achieves the intended final land uses and is consistent with key stakeholder agreed social and environmental values." The goal seeks to align with the Project Approval (PA) requirements, rather than disparaging their purpose.
On p 4 of the Rehabilitation Strategy, the "intent" of the document is described in the following terms: The Mt Arthur Coal Rehabilitation Strategy (the Strategy) has been developed to address Condition 42 of Schedule 3 of Project Approval 09_0062 MOD 1 Mt Arthur Coal Mine - Open Cut Modification Project dated 26 September 2014 (the Project Approval) which was issued to Hunter Valley Energy Coal Pty Ltd (HVEC) by the NSW Department of Planning and Environment (DPE). The Strategy was developed using guidance from state and federal government guidelines and stakeholder consultation. The goal of the Strategy is to provide a framework to "Create a safe, stable, non-polluting and sustainable landscape that achieves the intended final land uses and is consistent with key stakeholder agreed social and environmental values" in accordance with the requirements of the Project Approval. Furthermore [sic]
The word "furthermore" at the end of the second paragraph on p 4 is presumably included in error.
Part 1 of the Rehabilitation Strategy is styled the "introduction" and is contained on pp 6 to 8. Given the centrality of the Rehabilitation Strategy to the dispute between the parties, I extract the introduction at some length: The Strategy has been developed taking into account the Australian Government handbook for Leading Practice Sustainable Development Program for the Mining Industry, Mine Rehabilitation 2016. The Strategy provides the overarching standard for decision making in terms of rehabilitated landscape and complements the Mt Arthur Coal Conceptual Mine Closure Plan. The Rehabilitation Management Plan / Mining Operations Plan (MOP), Biodiversity Management Plan, and other relevant plans provide further specific details for management and monitoring of rehabilitation aspects at Mt Arthur Coal. Appendix 2 provides a guide to the relevant Project Approval conditions that pertain to the Strategy. The rehabilitation process at Mt Arthur Coal (Figure 1), is as follows: • the Strategy is a business level document that prescribes the overall rehabilitation approach at Mt Arthur Coal, including the goal, objectives, and criteria for rehabilitation, that the Closure Plan, Rehabilitation Management Plan, Biodiversity Management Plan and Rehabilitation and Ecological Monitoring Procedure are based upon; • The closure planning process develops life of asset design that incorporates emplacements, voids and rehabilitation. • the long-term mine planning process updates the mining plan, for the five year planning horizon; • the mid-term planning process adds the detail for the first two years of the 5 year plan, which is included in the MOP therefore integrating The Strategy with the five year mining plan; • the short term planning process involves the landform emplacement, shaping, top soiling, seeding and or planting generally on a one to two year timeframe. • monitoring and management of the rehabilitation is managed through the Rehabilitation and Ecological Monitoring Procedure process. These monitoring and management processes are the primary action to ensure rehabilitation is functioning as stated in the Strategy and the MOP. • the information from the monitoring and management is then presented in the Annual Environment Management Report (AEMR). Opportunities for improvement identified through the monitoring process are also presented in the AEMR and relevant plans updated as required. … In 2013, Mt Arthur Coal instigated a report into the Future landscapes design project (FLDP). The Landloch Pty Ltd (2014) FLDP report set out to research a rehabilitation landform design that would address stakeholder requirements for both functionality and aesthetics. To do this, the project used material characterisation and runoff/erosion modelling to develop landform "rules" that Mt Arthur Coal could use to develop acceptable designs. Landform evolution modelling was then used to assess and refine the designs. The outcomes of the Landloch Pty Ltd FLDP report were used for the development of a geomorphological design using the Applied Geofluv™ landform approach (Geofluv), as further described in this Strategy. This Strategy has been developed to ensure that the post mining landform supports the selected agricultural post-mining landuses and enhancing habitat value of the woodland areas integrated into the wider agricultural landscape. Due consideration to visual amenity has been integrated into the Strategy, together with minimisation of visual impact during mining operations, and blending the post-mining landform with surrounding un-mined topography. The post-mining landform will also allow for grazing in selected areas, with the re-establishment of land capability classes generally equivalent to pre-mining. The Strategy also aims to increase native woodland areas at the end of mine life, and enhance regional habitat linkages between remnant onsite native vegetation communities, offset areas, rehabilitated mined land and offsite vegetation areas. This is consistent with the general vegetation strategies found in the Synoptic Plan, which is currently under review. Following community and stakeholder consultation, the Strategy generally reflects community expectations for the final landform design and rehabilitation. Land use options are a dynamic aspect of mine rehabilitation due to changing expectations and technology. Landforms need to be designed with future land use in mind but are limited by the information and approvals available at any point in time. Mt Arthur Coal use strategic consultation and engagement to maintain up to date landform design and land use. The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach and the design has been included in the Strategy. The Geofluv approach shown in the Strategy will be applied to emplacements where the design meets requirements for stability, rehabilitation and approved land uses. Design and construction of emplacement areas following the Project Approval Mod1 will be continued using the same Geofluv approach where appropriate. Pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief. The design is expected to evolve with experience and monitoring of the emplacements and therefore the design shown in the Strategy is indicative only. Updated designs for remaining emplacements will be included in subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval. Mt Arthur Coal has a firm commitment to minimising the impact of its operations on the environment and community, and has a comprehensive Environmental Management System (EMS) in place to fulfil this commitment. This Strategy is a component of the Mt Arthur Coal EMS. Further detailed procedures relating to rehabilitation to support this Strategy are outlined in the MOP (which satisfies the requirement for a Rehabilitation Management Plan under Schedule 3 Condition 44 of PA09_0062 MOD1), the Conceptual Mine Closure Plan, the Biodiversity Management Plan and Mt Arthur Coal's Rehabilitation and Ecological Monitoring Procedure (MAC-ENC-PRO-080).
As will be explained later in the judgment, the penultimate paragraph of the introduction, and in particular the fact that "Pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief", is of significant concern to Council.
Part 2 of the Rehabilitation Strategy is entitled "Project Area" and contains a number of figures, including Figure 3 and Figure 4. Figure 3 is described as "a diagrammatic representation of the post mining landscape of the Project Approval area and surrounding lands which remains generally in accordance with the concept strategy depicted in Appendix 7 of the Project Approval".
Figure 4 is described as "a diagrammatic representation of the post mining land capabilities and land uses of the Project Approval area and surrounding lands which reflects Mt Arthur Coal's commitment to achieve post mining land capabilities that are comparable to pre-mining land capabilities and remains generally in accordance with the requirements of the Project Approval".
Part 3 of the Rehabilitation Strategy involves the identification of various "domains" within the site based on their current mining use and proposed final land use. The domains identified in the Rehabilitation Strategy are listed on p 13 as follows: Mining and Rehabilitation domains (Secondary) • Open Cut Void; • Overburden Emplacement; • Infrastructure Areas; • Tailings Storage Facility; • Water Management; • Rehabilitated areas; and • Non-operational lands. Post mining land use domains (Primary) • Final Void; • Rehabilitation Area - Pasture; • Rehabilitation Area - Native Woodland; • Rehabilitation Area - Box Gum Woodland; and • Offset Areas.
Part 3.4 of the Rehabilitation Strategy provides as follows with respect to the "Overburden Emplacement Areas": 3.4 Overburden Emplacement Areas As noted in Section 5.1.1 of the 2013 EA, the overall objective of the rehabilitation program is to achieve landuse capability following the cessation of mining that is comparable to pre-mining landuse and considers stakeholder's interests. Additionally, it is proposed to increase the percentage of native woodland to improve habitat value with minimum areas defined in the Biodiversity Management Plan, which also aligns with stakeholder interests. Ongoing investigation into final land use including the opportunity of further woodland planting will be updated to the strategy as investigations are completed. The key components of the final proposed landform as defined in the EA pertaining to the areas of active mining and overburden emplacement include: • Mt Arthur North overburden emplacement height to an average of RL 360m (maximum height of RL 375m AHD to create visual relief on the overburden emplacement area); • Bayswater No 3 (Saddlers Pit) overburden emplacement height up to RL 250 m AHD; • Drayton sub-lease emplacement area up to RL 290m AHD (part of South Pit extension); • Development of out-of-pit overburden emplacement areas up to RL 360m AHD. The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach. The Geofluv approach shown in the Strategy will be applied to emplacements where the design is shown to meet requirements for stability, rehabilitation, economic and approved land uses. Further detailed design of emplacement areas, to be established following the Project Approval Mod1, will be developed using the same Geofluv approach where appropriate. Updated designs for these remaining emplacements will be included in a subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval. Pre-Project Approval Mod1 emplacements will not be retrospectively modified to include Geofluv design or natural relief.
Part 3.7 of the Rehabilitation Strategy deals with the final voids as follows: 3.7 Final Void The final voids are currently proposed to be used for water storage post-mining. Void locations and respective catchment boundaries within the conceptual final landform are shown in Figure 3. Alternate uses for the voids will be considered as part of the Final Void Management Plan to be developed and submitted by 30 June 2018. Catchment areas of the final voids will be minimised post-mining to protect against flooding from the lease area, with surface flow runoff from most rehabilitated and revegetated areas being directed to the local drainage network. All areas, with the exception of the final void catchments, will be free draining. The aim of this drainage design is to maintain effective catchment contribution and yield to the Hunter River following the cessation of mining. A Final Void Management Plan will be prepared in accordance with regulatory requirements as part of the closure planning process to integrate the documentation of void management strategies. The final void plan will be developed by 30 June 2018 in consultation with regulators and stakeholders and may be updated as further research and stakeholder expectations change. The final void plan will be included as part of a subsequent revision to the Strategy, which will be submitted to DPE by 30 June 2018 for review and approval or in consultation with DPE a revised timeline may be made.
Part 4 of the Rehabilitation Strategy is entitled "rehabilitation goal, objectives, completion criteria and performance indicators". It contains the following introduction: The Project Approval Objectives are the overarching rehabilitation requirement that Mt Arthur Coal is required to meet in order to relinquish rehabilitated lands. The Project Approval Table 14 is shown in Appendix 3 and these objectives have been linked to the detailed objectives developed for Mt Arthur Coal as shown in Table 4. Mt Arthur Coal has developed the following goal, rehabilitation objectives, completion criteria and performance indicators to meet the overarching rehabilitation requirements of the existing Project Approval, the EA and Directors General's Report. These criteria and indicators are underpinned by a range of management documents, including industry standards, BHP Billiton "Our Requirements" and Mt Arthur Coal plans and procedures. These documents will complement the Strategy, and provide for a dynamic review point, with progress against the document requirements updated to the Annual Environmental Management Report (AEMR) and MOP. The rehabilitation management and performance indicators are aligned to the completion criteria and defined in more detail within the MOP rehabilitation tables. Together these criteria aim to demonstrate rehabilitation compliance and success.
Table 4 of the Rehabilitation Strategy is contained within Part 4 and lists approval objectives, closure domains (primary), detailed objectives, completion criteria and performance/leading indicators in respect of each identified "approval feature" (which adopts the "feature" descriptors in Table 14 referred to in Condition 42 and reproduced at [4] above), including "mine site (as a whole)", "final voids", "creek diversions and realignments", and "community".
Part 5 of the Rehabilitation Strategy is entitled "consultation with stakeholders". It states, inter alia, that: Mt Arthur Coal will continue consultation throughout the life of the mine with neighbouring operations, agency and community stakeholders, to optimise landscape and landuse outcomes through implementation of this Strategy. Mt Arthur Coal commits to engage with local stakeholders regarding proposed operations, potential impacts and management, and opportunities.
Part 6 of the Rehabilitation Strategy is entitled "rehabilitation strategy key components". Part 6.2 (which repeats, in part, the earlier passage from the Rehabilitation Strategy extracted above at [55]) relates to the final voids and provides as follows: 6.2 Final Voids A Final Void Management Plan will be prepared in accordance with regulatory requirements and refined as part of the closure planning process to integrate the documentation of void management strategies. The final void plan will be included as part of a subsequent revision to the Strategy, which will be submitted to DPE by 30 June 2018 for review and approval. The final voids are currently proposed to be used for water storage post-mining. Void locations and respective catchment boundaries within the conceptual final landform are shown in Figure 3 and 4. Alternate uses for the voids will be considered as part of the Final Void Plan. Catchment areas of the final voids will be minimised postmining to protect against external flooding, with surface flow runoff from most rehabilitated and revegetated areas being directed to the local natural drainage network. All areas, with the exception of the final void catchments, will be free draining. The aim of this drainage design is to maintain effective catchment contribution and yield to the Hunter River following the cessation of mining. Active open cut voids will preferentially be made available for further mining options, including overburden or tailings emplacement, short-term storage of clean or mine water, or access to potential underground operations. The Environment Assessment design was to include low wall slopes of the final void landform with an overall slope of around 18 degrees. The final void landform will be rehabilitated with vegetation species and diversity that are appropriate for the complex landform. The highwall will also be rehabilitated using the best reasonable and feasible rehabilitation technologies available and re-vegetated with species that are appropriate for its stability, aspect, and water retention capabilities. Design alternatives for the final void will continually be evaluated and will be prepared as part of the closure planning process at Mt Arthur Coal. Regardless of the final design alternative selected, the location and use of the final void will be outside the 100-year recurrence interval flood prone area of the Hunter River. Appropriate measures will be used to limit access to steep areas around the final void to restrict cattle, pedestrian and vehicle access. These measures may include large rock placement, landform shaping, or fencing as agreed with relevant government authorities, stakeholders and potential end users.
Part 6.3 relates to the overburden emplacement areas and provides: 6.3 Overburden Emplacement Areas As noted in Section 5.1.1 of the 2013 EA, the overall objective of the rehabilitation program is to achieve landuse capability following the cessation of mining that is comparable to pre-mining landuse capability and considers stakeholder's interests. Additionally, it is proposed to increase the percentage of native woodland to improve habitat value which also aligns with stakeholder interests. This is in the form of shade trees and shelter belts. The FLDP is an initiative to investigate, develop and deliver a more integrated landform that is compatible with the surrounding natural landscape. This project has defined criteria for the development of a stable emplacement design. The FLDP focus areas include: • micro topographic relief research and geomorphological consideration • landform height and stability • dump development viability • hydrology, soil stability • erosion control • vegetation and ecosystem function design • visual relief and simulated noise and air quality consideration during dump development The proposed design methodology chosen is an adaptation of the Geofluv™ approach. The Geofluv™ approach uses the characteristics of stable natural alluvial landforms in the local environment as an analogue on which to base the design of overburden landforms. Importantly, the approach does not replicate existing landforms, but rather uses the key characteristics that make these landforms stable in a new design. Natural landforms in alluvial materials are characterised by an integrated network of drainage channel, typically with slopes initially convex close to ridge lines, becoming concave and progressively flattening with increasing catchment area. The landform design has been developed based on the following criteria: • Use of a risk based approach to the hazards that exist - both in terms of environmental factors and safety matters; • Consideration of the construction and design of the holding structure for tailings and emplacement material; • Characterisation of emplacement and capping materials; and • Location of appropriate capping materials. Future use of areas disturbed by active mining is closely linked to landform design and general vegetation strategies found in the Synoptic Plan. The EA states 'The conceptual final landform provides an integrated landscape that is consistent with the Synoptic Plan and aims to link existing vegetation communities with mine rehabilitation areas to provide fauna movement corridors for the movement of fauna. These proposed corridors are consistent with, and will further complement both the Synoptic Plan and the final landforms of surrounding mining operations (Figure 5-1 in the EA). As a consequence, the following emerge as important closure objectives: • restoration of mined land to achieve visual amenity; • biodiversity conservation; and • ecologically sustainable land management practices. Figure 3 and 4 provide diagrammatic representations of the post mining land uses and vegetation linkages. An integral part of the rehabilitation program is the characterisation of the reject emplacement, overburden and soil materials. Initial pasture and cover crop sowings will temporarily stabilise steep slopes prior to tree plantings and sowings. Native grass species typical of the local area will be used in pastoral grassland establishment. Improved (exotic) pastures and occasional forage crops will also be considered on areas of class IV land (refer Section 5.1.8 of the 2013 EA). For woodland establishment, different species combinations will be used to establish communities in accordance with the dominant species characterising those stated in Project Approval Condition 38 (a) and (b) which focus on the establishment of significantly threatened plant communities and species. Other vegetation communities will include areas sown to exotic and native grasses, and native woodland and box gum communities which will achieve Synoptic Plan linkages as well as function as woodlot and windbreaks for stocked areas. As proposed in the 2013 EA (Section 5.1.3), the final land uses of the rehabilitated site will include pastoral and wildlife habitat opportunities with due consideration to visual amenity aligned to the surrounding landscapes. The construction of the final landform design includes the following: • on the steeper outer slopes such as MacLeans overburden emplacement area, material will be placed in benches and then dozed into place, while on the upper surface such as for Main overburden emplacement area, the material can be placed and shaped using GPS equipment; • rock will need to be placed into some of the steeper drainage lines, not as a highly engineered drop structure but rather as an integrated surface in the manner of a typical valley creek, with a GIS layer to be provided indicating the areas of erosion risk as part of the final design; and • the design approach moves away from specifying maximum slopes, since it is not the steepness of the slope alone that represents an erosion risk, but rather a combination of the catchment area and slope. The method used to quantify erosion risk incorporates both catchment and slope. The design seeks to minimise the extent of slopes steeper than 1:3 (v:h) to facilitate ease of construction. Importantly, there is a trade-off between steepness of slope, the extent to which water is shed to the drainage lines, and overall volumes. Balancing these requirements has resulted in some steep slopes remaining in the final landform with slopes between 1:3 and 1:2 (v:h), comprising around 6 percent of the total Applied Geofluv™ landform. These areas are mainly on the banks of drainage lines, or the upper slopes of some of the steeper areas. While the site has committed to building these new geomorphological based landform designs, it is important to emphasise that the design will require the refinement and optimisation of the landforms as construction experience is obtained at Mt Arthur Coal. This will include evaluating the performance of the rocky materials selected for erosion protection in the drainage lines, revegetation strategies in and around the drainage lines and on the general slopes, and evaluation of the performance of the different soil types at Mt Arthur Coal in varying slope and catchment area configurations. Management measures designed to reduce the visual impact created by the overburden emplacement have been incorporated into the mine plan. Such measures include: • The integration of tree corridors on overburden emplacements as part of progressive rehabilitation; • The retention of the eastern flank of MacLean's Hill to assist in creating landscape diversity at the foot of overburden emplacements; • Modifying final void high walls and low wall slopes to minimise final disturbance; • Incorporating micro relief features throughout overburden emplacements to provide an enhanced naturally appearing landform and fauna habitat; • The practical consideration of 'Geofluv type' designs on emplacements to sustainably manage water and create a natural looking and stable landform; • The strategic design and rehabilitation of overburden emplacements for increased visual shielding of operations; • Establishing visual and ecological planting patterns of native trees to achieve landscape patterns that complement the existing spatial distribution of tree and grass cover in a grazing landscape; and • Minimising exposure of work areas to sensitive receivers where possible, largely through the timely rehabilitation of visible overburden emplacements. Visual montages have been developed to show Geofluv aspects for several locations around the Mt Arthur Coal Mine to visualise predicted final landform appearance during and after completion. The visual montage is not an exact depiction as vegetation and landform will evolve during the planning and implementation process. The visual locations used (as indicated in red in Figure 5) are Muswellbrook Racecourse (north), Denman Rd (west), Golden Hwy - Saddlers Creek (south west), Muswellbrook Ironbark Ridge - Yammanie Way (north east) and Iron Bark Rd (north east). Figure 6 to 10 below give an indication of the predicted visual amenity of the proposed final landforms. These figures are not an exact rendition of the final landform. Labels have been included to provide further context to the location of the final landform.
Part 6 of the Rehabilitation Strategy contains a number of photographs and photomontages showing how the overburden emplacements currently appear from various vantage points and how it is proposed they will look once the remediation works have been completed.
Part 7 of the Rehabilitation Strategy is entitled "surface water management", Part 8 is entitled "characterisation of soils and overburden", Part 9 is entitled "clearing and reuse of vegetation" and Part 10 is entitled "revegetation".
Part 11 of the Rehabilitation Strategy refers to the Rehabilitation Management Plan (frequently referred to in the material as the Mining Operations Plan or 'MOP') which is prepared in accordance with condition 44 of the Modified Project Approval. Part 11 describes the role of the MOP in the following terms: The MOP (which satisfies the requirement for a Rehabilitation Management Plan under Schedule 3 Condition 44 of PA09_0062 MOD1) describes a range of factors or limitations likely to affect plant growth and how these will be addressed including: • Landform factors; • Soil/overburden conditions; • Surface water management; • Erosion and sediment control; • Weeds/biological issues; • Soil compaction; • Climate and weather; • Research program related to techniques used in the rehabilitation program; and • Grazing/feral animal threats. The primary revegetation considerations generally include: • Species selection; • Sowing rates and species proportions; • Tube stock densities; • Consideration of habitat augmentation; • Seed pre-treatment requirements; • Seed spreading and planting techniques; • Soil amelioration and fertilizer requirements; • Use of temporary cover crops to assist soil stabilisation; • Protection from vertebrate pest species, domesticated stock and unauthorised access; and • Maintenance requirements. The Strategy and associated MOP, together with the BMP focus on the re-establishment of: • significant and/or threatened plant communities, including: ৹ Upper Hunter White Box - Ironbark Grassy Woodland; ৹ Central Hunter Box - Ironbark Woodland; ৹ Central Hunter Ironbark - Spotted Grey-Gum Box Forest; ৹ Narrabeen Footslopes Slaty Box Woodland; ৹ Hunter Floodplain Red Gum Woodland Complex; ৹ White Box Yellow Box Blakely's Red Gum Woodland; ৹ Hunter Lowlands Red Gum Forest; and • significant and/or threatened plant species, including: ৹ River Red Gum (Eucalyptus camaldulensis); ৹ Pine Donkey Orchid (Diuris tricolor); ৹ Tiger Orchid (Cymbidium canaliculatum); and ৹ Weeping Myall (Acacia pendula); and • habitat for significant and/or threatened animal species.
Part 12 of the Rehabilitation Strategy is entitled "management and monitoring". It provides: It is essential to monitor rehabilitation development and address rehabilitated areas that are not meeting the criteria presented in Tables 5-1 and 5-2 of the 2013 EA or the requirements of the Project Approval. As such, identification of ongoing maintenance is an important objective of the monitoring programme and the continual improvement process. Good initial planning and practice will minimise the need for remedial maintenance. The Rehabilitation and Ecological Monitoring Procedure is the primary document for monitoring and management of the rehabilitation process. Until mining leases are relinquished, periodic field inspections will be undertaken of site-wide rehabilitated areas. These inspections will assess maintenance requirements, such as revegetation works, sedimentation and erosion control, and site safety. Monitoring program results, maintenance activities, and any refinement of rehabilitation or monitoring methodology will be reported in the site's AEMR. Further details on the monitoring, site security and maintenance programs are provided in the MOP.
Part 13 of the Rehabilitation Strategy contemplates review of the strategy. It provides as follows: Any required amendments identified during the review will be consulted with relevant stakeholders and updated in a revision of the strategy and resubmitted to the DPE for approval. Study on voids, including use opportunities will be completed by 30 June 2018. The study is aimed at understanding the completion options and management related to those options. Specifically stability, land use, cost and safety will be considered in the study which will result in a better understanding for both regulators and stakeholders. The study will then provide a framework for discussion with regulators and stakeholders to continually evaluate the best options for voids. Study on landform design, opportunity and location will be made in 2018 with the intent of updating detailed design of short to mid-term landforms. The design will complement the current geomorphological landform design. The design will be included into future Strategy updates and MOP versions. Longer term design will not be completed in detailed design due to the dynamic nature of expectations and technology. Any other major amendments to the Strategy that affect its application or that of the MOP, will be undertaken in consultation with the appropriate regulatory authorities and stakeholders.
Part 14 of the Rehabilitation Strategy is a bibliography. It then contains the following appendices: 1. Document Control Authorisation; 2. Regulatory conditions (including Condition 42 of the Modified Project Approval); 3. Mt Arthur Coal Rehabilitation Program completion criteria; 4. Topography erosion factors; and 5. Correspondence records.
As noted above at [19], a revised version of the Rehabilitation Strategy has been prepared by HVEC and sent to the Secretary. However, the Secretary has deferred consideration of the revised strategy pending the determination of these proceedings.

Evidence

A court book and an evidence book comprising two volumes of material were prepared by the parties. Various individual documents in the evidence book comprising planning assessment and determination documents, including the Rehabilitation Strategy itself, were separately tendered by Council and HVEC.
In addition to the documents contained in the evidence book, HVEC relied upon an affidavit of Nigel Smith, dated 30 July 2018, relating to the costs of rehabilitation and ceasing the rehabilitation works currently being undertaken; a USB drive containing a further bundle of tender documents; printed extracts from the EAs; trade and investment guidelines prepared by the NSW Government; a printout from the "Landform" webpage; and copies of two emails.
The Secretary also relied upon a USB drive containing a bundle of tender documents and read an affidavit of Timothy Walls dated 26 July 2018. The two respondents agreed a statement of facts.
Council additionally relied upon a copy of the respondents' agreed statement of facts which was marked-up to reflect those parts which Council did not agree (which became an exhibit in the proceedings) and an amended statement of the Secretary in answer to interrogatories.
In respect of expert evidence, Council called Dr Cherie McCullough who prepared a primary report dated 2 March 2018 and two further reports dated 4 April 2018 and 24 August 2018 respectively. HVEC called Mr Rod Masters who prepared a report which was undated, and Mr Michael McLeary, an expert in environmental management, who prepared a report dated 30 July 2018.
Each of Dr McCullough and Mr Masters has relevant expertise in relation to mine rehabilitation and gave concurrent evidence during the hearing. Mr McLeary also gave oral evidence.
There was an ongoing disagreement as to the admissibility and utility of much of the evidence which was sought to be relied upon in the proceedings. The principal position of HVEC remains that the expert evidence is irrelevant to the determination of the issues in the proceedings.
In Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184, Preston J gave Council leave to serve expert evidence, noting at [43] that expert evidence can be relevant to claims of legal unreasonableness and at [45] that the evidence could be useful in respect of the civil enforcement aspects of Council's case if Council is successful in respect of its arguments as to the construction of Condition 42. At [47], his Honour emphasised that questions as to the admissibility of the expert evidence should wait for the final hearing of the matter.
In the event, the parties agreed that an appropriate course was for the material to be received subject to objection. Questions of admissibility and the weight that should be given to the expert evidence in the circumstances are matters I address later in the judgment.
Before I address the admissibility of the evidence sought to be relied upon, some description of its nature and scope is helpful.

The expert evidence of Dr McCullough

Dr McCullough was asked to provide her opinion on a number of matters including what a number of technical terms mean, her understanding of the "Geofluv" landform design software package, whether the word "landforms" in condition 41A, Condition 42 and Table 14 was synonymous with or included "emplacements", her view of the proper construction of conditions of the Modified Project Approval, whether it was possible by reference to the Rehabilitation Strategy or her own observations to determine which overburden emplacements were "Pre-Project Approval emplacements" and "Pre-Project Approval Mod 1 emplacements", and to the extent to which she was able to identify these emplacements, whether they had already been rehabilitated in compliance with the objectives shown in Table 14.
Dr McCullough opines the following definitions of the technical terms which appear in or are referred to in Condition 42 and Table 14 and to which she was referred: [Final landforms:] This is a well-established term in mine rehabilitation practice meaning constructed landforms, especially those above grade (DMP & EPA, 2015) but also often including pit lakes (McCullough & Van Etten, 2011), that are in place at mine closure. Typically large waste landforms such as waste dumps/emplacements and tailings storage facilities (ICMM, 2008; Alkane Resources, 2014; DIIS, 2016c). [Natural micro-relief:] "Natural micro-relief" is not a term commonly used by mining rehabilitation practitioners. However, micro-relief has been described as small-scale variations in topography (Coles & McDonnell, 2018) and drainage directions (Jensen et al., 2003). Often appearing as small lines of ridges and furrows (Coles & McDonnell, 2018) on a contour map and often of no more than a metre or so in height and/or depth (Balázs et al., 2015). Micro-relief of soils, at the centimetre or decimetre scale, carries and temporarily stores water flow (McIlwee et al., 2017), controlling erosion processes (Bullard et al., 2018). Micro-relief is synonymous with the term "micro-topography" where small changes in topography e.g., mounds and depressions (Resource Strategies, 2015), exert a strong influence on revegetation community structure and species distribution (Komiyama et al., 1996; Ma et al., 2010). In this context of mining rehabilitation, "natural" micro-relief would reasonably be understood to be engineered micro-relief that emulates pre-mining small-scale topography variation encountered on surrounding pre-mining disturbance landforms; be they historical landforms before mining began, or analogue landforms that surround the mine site (Glencore, 2016; Salon et al., 2016). Fluvial geomorphological design methods such as GeoFluv™ often incorporate micro-relief in their design processes (Glencore, 2017). [Natural drainage lines:] Lotic (flowing) waterways that may be permanent, seasonal or even ephemeral (Chalmers & Wheeler, 1997) but that are similar in shape and function to those that existed prior to mining disturbance or are analogous with those of surrounding pre-mining disturbance landforms (Hunter Valley Energy Coal, 2015). Formed as a result of, and contributing toward, landform geomorphology, including micro-relief (Lund & McCullough, 2011; DIIS, 2016d). Mining activity may intersect pre-existing flow paths, disrupting regional fluvial geomorphological function. Rehabilitated drainage lines on constructed landforms is intended to address these small scale impacts in addition to broader catchment hydrological function (BHP Billiton Mitsubishi Alliance, 2009a, b). [Surrounding landforms:] Landforms outside of the mine project area (Jones & Salmon, 2012; DIIS, 2016b) typically of significance for overall visual aesthetics and compatibility (Environment Australia, 1998) of the waste landform into the broader landscape (MEND, 1995; Jones & Salmon, 2012). Although these landforms may have already been disturbed to some degree by anthropogenic activities, they are considered different to constructed or 'engineered' landforms such as are found on mine sites (Pearce & Barteaux, 2014). [Emplacements:] Mining landforms constructed from mine wastes (NSW Trade and Investment, 2013), especially overburden waste rock (Environment Australia, 2002; Li et al., 2015; Landers et al., 2017) and tailings (Summerhayes, 1998). [Natural relief:] The original ground level (Hazelwood Mine Fire Inquiry, 2016) often expressed as the pre-mining difference in height between the uppermost and lowermost elevations in a region (Hancock et al., 2003; Hollinsgworth, 2010). However, when used in the Rehabilitation Strategy, a different definition appears. The Rehabilitation Strategy states "…Geofluv™ design or other natural relief…" (per page 8, para 5, Rehabilitation Strategy) which implies that "natural relief" constitutes variation in small-scale topography synonymous with the micro-relief approach of GeoFluv™. Often undulating natural relief matches either pre-mining topographic variety or that of surrounding landforms (Ayres et al., 2006). Human activities often modify this topography, mining included (Krivtsov et al., 2005).
Dr McCullough explains that Geofluv is a trademark for a specific fluvial geomorphic landform design algorithm. Essentially, it is intended to design a landscape that will convey runoff water in the way a regionally representative "natural" landform would. Dr McCullough explains that Geofluv develops drainage patterns that are dendritic, following typical increasing order of stream as water flows along a landform.
Dr McCullough explains that the expression "Geofluv™ design" pertains to the application of Geofluv. It is a design that considers features very similar to the natural surrounding landscape such as alluvial flats, low hills, ridgelines and valleys. A Geofluv design is one in which the design intention was to produce not only a functional landform that is naturally stable against erosion, but one that is also economical to construct.
In Dr McCullough's opinion, the term "landforms" as used in conditions 41A and 42 in schedule 3 of the Modified Project Approval, includes emplacements. She states that when she inspected the site, BHP site-inspection staff confirmed that the term "emplacements" was synonymous with "landforms".
In answer to a question as to whether or not retrospectively modifying an emplacement to include Geofluv design or other natural relief amounts to not modifying a "final landform to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms" contrary to the objectives in Table 14, Dr McCullough states that it did. She assumes for the purposes of answering this question that the landforms referred to do not already reasonably demonstrate natural micro-relief.
Dr McCullough explains that, in her view, the Modified Project Approval conditions are designed to apply to the mine as a whole and that there is no basis for the Rehabilitation Strategy's exclusion of pre-modification emplacements. She could not determine any logical or factual basis upon which the date of 26 September 2014 (the date of the Modified Project Approval) was chosen as the date by reference to which pre-existing emplacements would not be further rehabilitated. She opines that for HVEC to choose that date is contrary to the terms of the Modified Project Approval and inimical to the conditions set out in Table 14 applying to the "mine site (as a whole)".
In particular, Dr McCullough opines that Table 14 states that the mine site as a whole should be stable but that the Rehabilitation Strategy does not contain any detail as to how stability will be achieved across the mine, particularly to the pre-modification emplacements; that Table 14 states that the mine site as a whole should be non-polluting but that emplacements not primarily designed with fluvial geomorphological processes are prone to erosion; that Table 14 requires the mine site as a whole to have final landforms designed to incorporate natural micro-relief and natural drainage lines but that the Rehabilitation Strategy limits micro-relief and natural drainage to new landforms only; and that the Rehabilitation Strategy contains scant detail with respect to final voids, creek diversions and realignments, and the socio-economic effects of mine closure.
Dr McCullough opines that the Rehabilitation Strategy does not provide any clear explanation of which emplacements are covered by the terms "Pre-Project Approval emplacements" and "Pre-Project Approval Mod 1 emplacements" but that the terms appear to be treated synonymously throughout the document.
Dr McCullough opines that the reader of the Rehabilitation Strategy will understand that "Pre-Project Approval emplacements" refers to emplacements other than those of the MacLeans emplacement in the north of the mine area and that those emplacements will not be subject to any further rehabilitation. She gives two reasons for this: 1. Remote imagery of the state of construction at 1 January 2014 and 18 October 2013 (Figure 5 in the Rehabilitation Strategy) indicates that a number of emplacements were already under construction or were constructed and revegetated prior to 26 September 2014; and 2. Figure 11 of the Rehabilitation Strategy shows four broad emplacement areas, three of which are additional to the MacLeans emplacement area: 1. MacLeans emplacement area; 2. An eastern emplacement area ('Drayton emplacement'); 3. A south-west emplacement area ('Edderton emplacement'); and 4. A south-east emplacement area ('Saddlers emplacement').
However, Dr McCullough emphasises that there is no clear definition of these landforms such that the Rehabilitation Strategy remains ambiguous in respect of the landforms to which it applies.
Dr McCullough opines that each of the Saddlers emplacement, Edderton emplacement and Drayton emplacement has been rehabilitated but not in accordance with Table 14 in that there has been no attempt to incorporate micro-relief and drainage lines so that the emplacements are representative of analogue landforms. In other words, she opines that these emplacements do not contain "natural" micro-relief or "natural" drainage lines in the sense those terms are employed in Table 14.

The expert evidence of Mr Masters

Mr Masters was retained by HVEC to comment upon the evidence of Dr McCullough.
Mr Masters provides the following comments on the definitions provided by Dr McCullough, extracted above at [79]: [Final landforms:] Pit lake is a term which is uncommon for Eastern Australian coal mines. Voids or final voids are terms commonly used. There is no mention of the words "shaped" or "regraded" emplacements. In my experience, all final landforms are mechanically shaped or regraded to achieve design heights and slope gradients in accordance with the approved Mining Operations Plan (MOP). In my opinion, emplacements are the foundations of final landforms. Emplacement modifications (eg. regrading and drainage controls) are typically undertaken to prepare final landforms that are safe, stable and non-polluting. I would replace "tailings storage facilities" with "coal reject storage facilities". Coal preparation produces two waste streams (often referred to as tailings) and coarse coal rejects (often referred as coarse rejects or chitter). Typically, final landforms contain both fine and coarse rejects storage facilities. [Natural micro-relief:] I would replace "be engineered" with "incorporate" and replace "emulates" with "approximates". Traditional rehabilitation also includes micro-relief. Further in my experience all regraded overburden emplacement areas are subject to a process known as "differential settlement" where small changes in topography occur over time due to different rates of overburden settlement upon completion of overburden emplacement. Deep ripping is an operation that is commonly undertaken to key in topsoil with subsoil or overburden. It is also conducted to create a roughened surface during seedbed preparation via the production of furrows and ridges thus creating micro-relief. Rocks, logs, stumps, root balls and stags are often placed on the surface of final landforms during rehabilitation. All these measures ensure that micro-relief is incorporated into the surface of the final landform. [Natural drainage lines:] I agree that natural drainage lines "…are similar in shape and function to those that existed prior to mining disturbance or are analogous with those of surrounding pre-mining disturbance landforms (Hunter Valley Energy Coal, 2015)…" However, reconstructed drainage lines on rehabilitated landforms are in no way natural. Reconstructed drainage lines, whether they are a traditional or Geofluv design, are not natural. [Surrounding landforms:] The majority of pre-mining landforms have been disturbed to some degree by anthropogenic activities. Where the Project Approval refers to "surrounding landforms", my understanding is that this is a reference to landforms which have already been disturbed in this way. Figure 4 contained in Dr. McCullough's report, titled "Nearby natural landform showing extensive natural micro-relief and drainage pathways", has been disturbed by clearing which has promoted gully erosion throughout the drainage lines (emphasis in original). [Emplacements:] I would replace "tailings" with "coal rejects". Refer [to "final landforms"] above. Emplacements are the foundations of final landforms. In my opinion, emplacement regrading and inclusion of surface water drainage controls are typically constructed to create final landforms. Refer [to "final landforms"] above. [Natural relief:] This term is not used in the Project Approval. Natural relief appears in the Rehabilitation Strategy (per page 8, para 5). I disagree that it is only synonymous with the micro-relief approach of Geofluv. The relevant sentence states "Pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief". I believe that the reference to natural relief implies that there will be no intention to alter dump heights which in turn will not change the relief.
Mr Masters generally agrees with Dr McCullough's explanation of the Geofluv approach, but does not agree that Geofluv produces a "landform that is naturally stable against erosion" because all landforms, whether natural or constructed, erode.
Further, Mr Masters opines that, in his experience, "traditional" rehabilitation of Hunter Valley coal mine emplacements involves the regrading of slopes with slope gradients not generally exceeding 10 degrees and with slope profiles in keeping with the surrounding environment. He cites Bengalla, Muswellbrook Coal, Mt Owen, Glendell, Ravensworth, Liddell, Hunter Valley Operations, Mt Thorley Warkworth, Bulga, United, Wambo, Bloomfield and Rix's Creek as other coal mines that have used a "traditional" rehabilitation approach.
Mr Masters explains that in the "traditional" approach, graded banks are constructed at intervals down the slope to control surface flow and reduce erosion on overburden emplacements. These are designed to divide long slopes into a series of short slopes with the catchment area commencing at each graded bank. The graded banks are placed closer together as the slope gradient increases. This prevents runoff from reaching excessive flow depths or velocities.
In relation to the definition and location of the "Pre-Project Approval Mod 1 emplacements", Mr Masters opines that they are emplacement areas that have been rehabilitated prior to 26 September 2014 when the Modified Project Approval was granted. Mr Masters locates the emplacements with the assistance of a map prepared by BHP which was Appendix E to his report.
Mr Masters opines that the Rehabilitation Strategy satisfies the criteria set out in Condition 42 of the Modified Project Approval. He explains that he considers the Rehabilitation Strategy a "high level" document which must be read in conjunction with the Mining Rehabilitation Plan (as noted at [63] above, the Mining Rehabilitation Plan is also referred to as the MOP). He opines that much of the detail Dr McCullough criticises the Rehabilitation Strategy for failing to include, can be found in the MOP.
In relation to the objectives contained in Table 14, Mr Masters opines that Dr McCullough has failed to acknowledge that there are eight detailed performance criteria associated with the objective that the mine site as a whole be "safe, stable and non-polluting" and contain "final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms".
Moreover, Mr Masters opines that the Rehabilitation Strategy must be read as a whole. He states that the existing and proposed rehabilitation areas will effectively join together to form an integrated site that achieves the objectives set out in Table 14.
In relation to the applicant's criticism that Geofluv will not be applied to pre-existing emplacements, Mr Masters opines that the retrospective disturbance of existing "traditional" rehabilitation areas has the potential to destabilise them given that existing revegetation and drainage controls will be removed in order to implement the Geofluv approach.

The expert evidence of Mr McLeary

Mr McLeary is an environmental manager retained by HVEC to provide advice as to the impact of ceasing rehabilitation work and the cost of retrospective rehabilitation. This evidence goes primarily to HVEC's position that even if the Court found that the Rehabilitation Strategy is defective or that the Secretary's purported decision miscarried, the Court should exercise its discretion not to grant relief because to grant the orders sought would be expensive and environmentally damaging.
In relation to the financial impacts of temporarily ceasing the current rehabilitation works, Mr McLeary opines that it would likely impact upon the management of topsoil, dust management, surface water, re-seeding and visual amenity. The significance of these impacts would depend upon the timing and length of any disruption to the works.
In relation to the costs of temporarily ceasing works, Mr McLeary opines that to cease rehabilitation works for 12 months would cost something in the order of $0.5 to 1 million in relation to topsoil management, $0.3 to 0.5 million in water management, up to $0.5 million in weed and pest management, and $0.5 million in contractual obligations.
In relation to the cost of retrospective rehabilitation, Mr McLeary estimates that the cost of providing Geofluv or similar natural relief to each of the pre-existing rehabilitation areas identified as "Earthworks VD2-4", "Earthworks VD1", "Earthworks Belmont Pit", "Earthworks MacDonald's Pit", "Earthworks Saddlers Pit" and "Earthworks Corridor North" would be $107,400,000.

Evidentiary arguments

Much of the evidence in the case was received subject to objection. Council and HVEC made detailed submissions at the end of the hearing as to which aspects of the evidence should be admitted and which aspects of the evidence should be rejected.
Much of the argument related to the admissibility or otherwise of the expert evidence. Whilst I have made discrete rulings in relation to the objections made by Council and HVEC, I note that the uses to which expert evidence can be put in relation to the construction of the Modified Project Approval and the grounds of judicial review are necessarily confined. However, it must be borne in mind that if, on its proper construction, the Modified Project Approval contains objective jurisdictional facts, the Court can receive evidence to determine whether those facts have been objectively met. Further, expert evidence may assist in respect of the legal unreasonableness ground of judicial review as well as in respect of the Court's discretion to grant relief.
The general position provided by s 76 of the Evidence Act 1995 (NSW) ('Evidence Act'), that evidence as to an opinion is not relevant as proof of the existence of the fact about which the opinion is expressed, is relaxed in the case of expert evidence by virtue of s 79 of the Evidence Act, which provides: 79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. (2) To avoid doubt, and without limiting subsection (1): (a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following: (i) the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
In support of its extensive objections, Council relied upon Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 ('Makita') for the proposition that a failure to properly provide proof of assumptions, the basis and the reasoning for an expert opinion means that the opinion is inadmissible. At [85], Heydon JA said: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).
In response, it is contended by HVEC that Makita no longer represents the legal position. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ('Dasreef'), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [37]-[41]: [37] It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered. … [41] Contrary to submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called "the basis rule": a rule by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission's interim report on evidence denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness's specialised knowledge based on training, study or experience (citations omitted).
In Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 ('Kyluk'), Schmidt J, with whom McCallum J agreed and with whom Price J agreed on the outcome, commented on Dasreef at [164]: It follows that the plurality did not consider that s 79 required that expert opinion evidence be excluded, unless the factual bases upon which the opinion proffered were all established. It considered it to be unnecessary to resolve the question of whether the "basis rule" formed a part of the common law, observing, however, that the Law Reform Commission did not consider that it did. That approach reflected, presumably, that the expert evidence there in contention did not satisfy the two criteria which the plurality found had to be satisfied under s 79. Heydon J came to a similar conclusion on the facts (see Dasreef at [137]).
In Taub v R (2017) 95 NSWLR 388; [2017] NSWCCA 198 ('Taub'), Simpson JA, with whom Walton and Button JJ agreed, said at [27]-[29]: [27] The plurality in Dasreef refined Heydon JA's seven admissibility criteria in Makita to two: • that the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; and • that the opinion expressed in the evidence by the witness "is wholly or substantially based on that knowledge" ([32]). What was in issue in Dasreef was whether the opinion expressed by the witness proffered as an expert was based on the witness' specialised knowledge based on his training, study or experience. [28] The plurality added (citing [85] of Makita) that: "… ordinarily … 'the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded'." ([37]) [29] This, it appears to me, states a third criterion of admissibility. Their Honours then emphasised (at [42]) that satisfaction of the criteria is a matter that goes to the admissibility of, not the weight to be attributed to, the opinion evidence.
Having regard to Dasreef and Taub, it appears to me that the criteria for the admissibility of expert evidence under s 79 of the Evidence Act are the three matters identified by Simpson JA: 1. That the witness who gives the evidence "has specialised knowledge based on the person's training, study or experience"; 2. That the opinion expressed in the evidence by the witness "is wholly or substantially based on that knowledge"; and 3. That the evidence explains how the field of specialised knowledge upon which the opinion is wholly or substantially based "applies to the facts assumed or observed so as to produce the opinion propounded".
To the extent that Makita was authority for the proposition that other matters were necessary preconditions to the admissibility of expert evidence, I consider that it has been superseded by these later authorities. However, the matters referred to in Makita may nevertheless provide guidance to the Court as to the weight which ought to be placed on various materials.
With respect to the relevance objections made by the parties, it is to be observed that there are several issues in the present proceedings and it is not necessary for material to be relevant for each issue in order to be admitted.
Having considered the detailed submissions, I conclude generally that none of the expert evidence, save for the definitions of technical terms provided by Dr McCullough and Mr Masters which were largely uncontroversial, is relevant to my consideration of the correct construction of Condition 42 or the Modified Project Approval more broadly.
However, the expert evidence may nevertheless be admissible in relation to whether the Rehabilitation Strategy objectively complies with Condition 42, in relation to Council's contention that the Secretary's decision was legally unreasonable or in relation to the Court's discretion to grant or withhold relief if one of the pleaded failures is made out.
Similarly, documents which post-date the Secretary's decision are not relevant to the construction of the Modified Project Approval or any of the judicial review grounds but may be relevant for the purpose of informing the Court of the present condition of the mine and therefore provide appropriate and necessary background to any exercise of discretion.
As I have noted, the submissions made by Council and HVEC regarding the evidence are extensive. Four tables outlining Council's objections to the evidence sought to be relied upon by HVEC were provided during Council's closing oral address. One table relates to Council's objections to HVEC's evidence bundle, one to its objections to Mr Masters' report, one to its objections to Mr McLeary's report and one to its objections to Mr Smith's affidavit.
For convenience, and adopting the principles and approach outlined above at [105] and [111]-[116], I attach those tables and my determinations in relation to the objections made by Council regarding the admissibility of each document as Annexure A to this judgment. The tables include objections to the evidence formulated in Council's written submissions, the Secretary's response in its written submissions in reply, and responses advanced during Council's oral address in reply.
As the tables are extensive and the last column, styled "Council's Reply", was not provided by Council until its oral address, I granted leave to the Secretary to provide short written submissions in reply which were filed on 13 November 2018.
My determinations in Annexure A should be read recognising that where material is adduced for the purposes of determining whether the Rehabilitation Strategy objectively complies with Condition 42, assessing the claim in relation to legal unreasonableness or for informing an exercise of the Court's discretion, I have not determined that it is relevant or admissible for any other purpose upon which it was sought to be admitted. Although it need not be said, for the avoidance of doubt, I have not had regard to any of the material I have determined is inadmissible.
HVEC maintains its objections to Parts G.V-G.XI(b) of Dr McCullough's report and her subsequent corrections to the report. It does not press its objection to par 12 of the report which was objected to in its earlier written submissions. HVEC also maintains its objection to the admission of Dr McCullough's document of 24 August 2018 which is a timetable or "timeline" for the development of a new rehabilitation strategy. It submits that the timetable is only relevant to the exercise of the Court's discretion and is not admissible because it is not based on Dr McCullough's experience, study or training.
Although HVEC's objection submissions have not been presented in tabular form, my determination in relation respect to HVEC's objections depends upon the same broad legal principles and approach articulated at [105], [111]-[116] and [120] I have therefore also included my rulings with respect to those matters in Annexure A for convenience.
Even if Dr McCullough's report is admitted, HVEC submits that it should be given very little weight for the reasons it identifies and also because at the hearing "it became clear that Dr McCullough was a mere mouthpiece for the Council".
Council refutes the proposition that Dr McCullough was a "mere mouthpiece", submitting rather that she was an impressive witness who carefully articulated her own point of view.
I do not accept HVEC's characterisation of Dr McCullough as a "mouthpiece" of Council. She undoubtedly takes a firm view that the rehabilitation being undertaken at the mine is inadequate but I consider that this is an independent opinion. That is not to say that I accept her conclusions, and as I stated above at [114], I have not had regard to her evidence in construing the terms of the Modified Project Approval except insofar as she provides definitions of technical terms.

The role of the parties

Council brings these judicial review and civil enforcement proceedings with HVEC as the principal contradictor. As it is the Secretary's decision which is impugned in the judicial review proceedings, she accepts that the principle expressed in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 ('Hardiman') applies.
The principle in Hardiman was explained by Gibbs, Stephen, Mason, Aickin and Wilson JJ at 35-36 in the following terms: Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers of the Tribunal.
The Secretary relies upon the affidavit of Mr Walls to show that there are exceptional circumstances in this case. Mr Walls attests that there are 13 other mines with conditions of consent in substantially similar terms to the Modified Project Approval. In those circumstances, the Secretary says that because these proceedings go to the core question of her powers and responsibilities pursuant to all of those conditions, exceptional circumstances exist.
I proceed to summarise the position of each of the parties in relation to the issues in the proceedings.

Council's position

Council submits that the word "must" in Condition 42 sets out circumstances all of which must exist as jurisdictional facts or conditions precedent before the Secretary's power to be satisfied is enlivened, and that it is for the Court to determine whether jurisdictional facts exist that would enliven the exercise of an administrative function.
Council submits that the Rehabilitation Strategy does not include detailed rehabilitation objectives for the site which comply with the following objectives in Table 14: 1. That the mine site (as a whole) be safe; 2. That the mine site (as a whole) be stable; 3. That the mine site (as a whole) be non-polluting; 4. That the mine site (as a whole) have final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with the surrounding landforms; 5. That the final voids minimise to the greatest extent practicable any high wall instability risk; 6. That the final voids minimise to the greatest extent practicable the risk of flood interaction; 7. That the creek diversions and realignments incorporate structures for aquatic habitat; 8. That the creek diversions and realignments be revegetated with suitable native species; 9. That public safety be ensured; and 10. That the adverse socio-economic effects associated with the mine closure be minimised.
One of Council's principal complaints is that Table 14 requires, inter alia, that the mine site (as a whole) have final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with the surrounding landforms and that the Rehabilitation Strategy provides that emplacements of overburden which pre-date 26 September 2014 will not be retrospectively modified to include natural micro-relief. Council submits that the effect of this is that the Rehabilitation Strategy only, and unlawfully, provides for the carrying out of natural micro-relief in relation to one of the four "massive emplacements of overburden".
In addition to the alleged non-compliance with the objectives in Table 14, Council submits that there are three other fundamental jurisdictional shortcomings in relation to the Rehabilitation Strategy.
First, Council says that no reasonable decision-maker could possibly reach an understanding of where the Geofluv approach will be applied to give the result mandated by the conditions, namely natural micro-relief. Council submits that any acceptance of the Rehabilitation Strategy on this point was in substance an impermissible delegation or deferral of the requirement to be satisfied.
Secondly, Council submits that the Rehabilitation Strategy failed to identify any lawful or rational basis why HVEC chose to apply the Geofluv approach to emplacements of overburden that only post-date 26 September 2014.
Thirdly, Council submits that the Rehabilitation Strategy fails to identify what pollution risks from the mine site as a whole might exist, and how the risks are or were to be ascertained and managed. Council submits that any purported state of satisfaction reached by the Secretary in respect of the Rehabilitation Strategy that omits such a central consideration of a massive former mine site is a state of satisfaction infected by either a failure to take into account mandatory considerations or Wednesbury unreasonableness.
Council submits that as a consequence of these matters, or any one of them, the Rehabilitation Strategy was not a rehabilitation strategy for the purposes of Condition 42, and compliance with the Rehabilitation Strategy threatens a breach of condition 41A and the EPA Act.
In those circumstances, Council submits that the rehabilitation works presently being undertaken in accordance with the current Rehabilitation Strategy are in breach of the Modified Project Approval and comprise a breach of the EPA Act liable to be restrained by an appropriate order under s 9.46(1) of the EPA Act.

HVEC's position

HVEC submits that Council's characterisation of Condition 42 as containing jurisdictional facts that impose objective requirements capable of determination by the Court is untenable and unsupported by the ordinary meaning of the words and their context within the Modified Project Approval.
In the first place, HVEC submits that the Secretary in approving the Rehabilitation Strategy under Condition 42 was not exercising a statutory power and that the stated grounds of challenge therefore do not apply to her decision.
However, if this primary position is incorrect, HVEC responds to the submissions of Council on the alternative basis that the judicial review grounds are available.
HVEC submits that, having regard to the principles relating to the construction of development consents, the EA Reports have been incorporated into the Modified Project Approval such that it is legitimate to have regard to the EA Reports when construing its conditions. In passing, I note that Council concedes that the EA Reports have been so incorporated but stresses their subordinate function and does not accept that they can be used in the way contended for by HVEC.
In relation to the proper construction of Condition 42, HVEC submits: 1. Condition 42 requires the satisfaction of the Secretary; the conditions cannot be complied with or breached without that state of satisfaction being reached. The matters in paragraph (d) are matters which the Secretary had to consider in reaching that state of satisfaction, not independent pre-conditions; 2. The objectives in Table 14 are aspirational and broad, involving policy decisions and subjective judgment. This is a further indication that compliance with the objectives was intended to be assessed by the Secretary; and 3. Having regard to the Modified Project Approval as a whole, many other conditions in schedule 3 are framed in the same format as Condition 42 whereby the first sentence requires the preparation and/or implementation of certain documents to the satisfaction of a relevant authority and the second sentence provides that the plan or strategy must meet a number of conditions.
HVEC submits that the question of whether or not the Rehabilitation Strategy addresses the matters set out in Condition 42 is not a question the Court can or would determine for itself, but rather a question which is reserved for the Secretary.
HVEC submits that the Secretary's state of satisfaction was "(to say the least) reasonably open" to her and was not unreasonable in a Wednesbury sense. HVEC says that the Rehabilitation Strategy is intended to be a "strategy" document and is not required to provide the level of detail on each point contended for by Council.
In relation to Council's complaint that the Rehabilitation Strategy only provides for the incorporation of natural micro-relief to emplacements of overburden which post-date 26 September 2014, HVEC submits that on a proper construction of Condition 42, the Rehabilitation Strategy is not required to provide for the retrospective modification of past mine rehabilitation. HVEC says that to interpret the expression "mine site (as a whole)" as including every single portion of the mine is contrary to the ordinary meaning of the phrase in its context.
HVEC submits that it was not unreasonable for the Secretary to approve of the Rehabilitation Strategy in circumstances where: 1. The Rehabilitation Strategy was intended to operate at a high level; 2. Condition 42 does not require the Rehabilitation Strategy to specify the details Council claims are missing; 3. The Modified Project Approval envisages that the Rehabilitation Strategy is part of an ongoing and dynamic process; 4. The Modified Project Approval and Strategy Approval both provide for the Secretary to consider and approve subsequent rehabilitation strategies; and 5. The Modified Project Approval establishes a scheme of checks and balances for the rehabilitation of the mine with the Secretary and the Division of Resources and Energy ('DRE', now part of the 'Department') both playing a role in this process.
HVEC submits that the first order sought by Council (a declaration that the Rehabilitation Strategy does not comply with Condition 42) should not be made and that the second order sought by Council (a declaration that the Secretary's state of satisfaction with respect to the Rehabilitation Strategy is void and of no effect) should not be made because there is no reason to conclude that the Secretary's decision to approve the Rehabilitation Strategy was affected by jurisdictional error. This would mean that the third order sought by Council (that HVEC prepare a further rehabilitation strategy) is of no utility. HVEC also submits that the fourth order sought by Council (an order restraining HVEC from carrying out further rehabilitation work until a lawful strategy is prepared) should not be made because there is no existing threat to rehabilitate the mine impermissibly.
Even if Council succeeded in showing some deficiency in the Rehabilitation Strategy, HVEC submits that the Court would not exercise its discretion to grant relief because an order that HVEC prepare another strategy and be restrained from carrying out further rehabilitation works would be costly and could have adverse environmental impacts.

The Secretary's position

As HVEC appears as an "active contradictor" in the proceedings, and consistently with the principle in Hardiman, the Secretary says that its submissions are limited to the construction of the conditions of the Modified Project Approval.
The Secretary submits that condition 41A in schedule 2 imposes a primary requirement to rehabilitate the mine to the satisfaction of the DRE and that the other obligations should be read subject to that primary obligation. Accordingly, the Secretary submits that the condition requiring that "the rehabilitation must comply with the objectives in Table 14" should be read as a requirement that the rehabilitation be capable of satisfying the Department that it complies with the objectives in Table 14.
Similarly, the Secretary submits that the primary obligation in Condition 42 is for the first respondent to prepare a revised Rehabilitation Strategy to the satisfaction of the Secretary and that the requirements contained in Condition 42(a)-(d) are subject to the primary obligation imposed by Condition 42. Accordingly, the Secretary submits that the requirements listed in Condition 42(a)-(d) are to be read as requiring that the Rehabilitation Strategy be capable of satisfying the Secretary that the listed requirements have been met.
In response to Council's characterisation of Condition 42 as containing jurisdictional facts that impose objective requirements, the Secretary submits that such an interpretation is not supported by the text of Condition 42 read in context. This is again because the requirements in Condition 42(a)-(d) are subject to the primary obligation imposed by Condition 42, that a rehabilitation strategy be prepared that is capable of satisfying the Secretary.
In relation to Council's complaint that the Rehabilitation Strategy only provides for the incorporation of natural micro-relief to emplacements of overburden which post-date 26 September 2014, the Secretary submits that, read in context, the ordinary meaning of the condition does not require landforms already existing at the time the Modified Project Approval was granted to be modified to comply with the objectives in Table 14.

Consideration

The following matters arise for the Court's consideration: 1. Whether the Secretary was exercising a statutory function such that the pleaded grounds of judicial review are available; 2. The purposes for which the EA Reports may be used to construe the Modified Project Approval; 3. Whether any other documents may be referred to in construing the Modified Project Approval; 4. Whether, on its proper construction, Condition 42 imposes objective conditions precedent to the Secretary's consideration of the Rehabilitation Strategy; 5. If (4) is answered in the affirmative, whether the Rehabilitation Strategy is deficient by not meeting the objective requirements imposed by Condition 42; 6. Whether the Secretary failed to take into account mandatory considerations; 7. Whether the Secretary's decision was legally unreasonable; and 8. If any of the foregoing questions (5)-(7) are answered in the affirmative, whether the Court should exercise its discretion to grant relief sought by Council.

Whether the pleaded grounds of judicial review are available

HVEC submits that Council has not passed the jurisdictional hurdle of establishing that the Secretary was exercising a statutory function and that the pleaded grounds of judicial review are therefore unavailable. HVEC submits that the Secretary was instead exercising an executive function.
In Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 ('Gedeon'), the Court (comprising Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ) said at [43]: The expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.
HVEC relies upon what it says is the "axiomatic" proposition that a jurisdictional fact enlivens "the exercise of [a] statutory power or discretion". It submits that if there is no exercise of a statutory power or discretion there cannot be an associated requirement that a jurisdictional fact must exist.
In GPT RE Limited v Belmorgan Property Development Pty Limited (2008) 72 NSWLR 647; [2008] NSWCA 256 ('GPT'), Basten JA, with whom Bell JA and Young CJ in Eq agreed, said at [64]: Furthermore, it is clearly a requirement of the conditions that the new design be acceptable to the Director-General. Because the Director-General was not a consent authority for the purposes of the development application, he was neither bound by the mandatory requirements in s 79C of the EP&A Act, nor otherwise the subject of statutory constraint. Indeed, as noted above, it is far from clear that it is a permissible condition to require the approval of a statutory officer, who has no specific statutory authority to undertake such a function.
This matter was not addressed by Council until its oral submissions in reply, when it was suggested by Mr Lovas, counsel for Council, that HVEC's argument could be answered by s 4.17(3) of the EPA Act, which provides: 4.17 Imposition of conditions (cf previous s 80A) … (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97 [sic], taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. …
Council submits that s 4.17 shows that the discretion purportedly exercised by the Secretary was statutory in nature.
At the time the Modified Project Approval received development consent from the PAC, the equivalent provision of s 4.17 of the EPA Act was s 80A, which relevantly provided: 80A Imposition of conditions … (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. …
HVEC submits that Council has simply assumed without analysis that the relevant condition in the Modified Project Approval was imposed pursuant to s 80A of the EPA Act. HVEC refers to ss 75R and 75W of the EPA Act (as it was at 30 September 2011). Section 75R provided: 75R Application of other provisions of Act (1) Part 4 and Part 5 do not, except as provided by this Part, apply to or in respect of an approved project (including the declaration of the project as a project to which this Part applies and any approval or other requirement under this Part for the project). (2) Part 3 and State environmental planning policies apply to: (a) the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and (b) the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project. (3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project. (3A) The Minister may, by order published on the NSW legislation website, amend an environmental planning instrument to authorise the carrying out of any of the following development (or to remove or modify any provisions of the instrument that purport to prohibit or restrict the carrying out of any of the following development): (a) development that is an approved project, (b) development that is a project for which a concept plan has been approved (whether or not approval for carrying out the project or any part of the project is subject to this Part). (4) Divisions 6 and 6A of Part 4 apply to projects (and the giving of approval for the carrying out of projects under this Part) in the same way as they apply to development and the granting of consent to the carrying out of development under Part 4, subject to any necessary modifications and any modifications prescribed by the regulations. However, a condition cannot be imposed under section 94, 94A, 94EF or 94F unless that section would have applied if this Part did not apply to the project and a development consent were granted. (5) Division 2A of Part 6 applies to a critical infrastructure project only to the extent that the regulations so provide.
Section 75W provided: 75W Modification of Minister's approval (1) In this section: Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan. modification of approval means changing the terms of a Minister's approval, including: (a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval. (2) The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part. (3) The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister. (4) The Minister may modify the approval (with or without conditions) or disapprove of the modification. (5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal. (6) Subsection (5) does not apply to a request to modify: (a) an approval granted by or as directed by the Court on appeal, or (b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan. (7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.
Although ss 75R and 75W were repealed before the PAC approved the Modified Project Approval, their operation was continued in respect of the Project Approval at that time by virtue of Sch 6A cll 2 and 3 of the EPA Act.
Section 80A appeared in Div 2 of Pt 4 of the EPA Act, so its operation was excluded from operation with respect to the Modified Project Approval (which was approved by the PAC pursuant to s 75W) by virtue of s 75R(1) of the EPA Act. In those circumstances, HVEC submits that Council's reliance on s 80A is misplaced.
In any event, HVEC says that s 80A does not meet its submission because the effect of s 80A would have been that the imposition of Condition 42 was a valid exercise of power by the consent authority, not that HVEC is wrong to suggest that the function of the Secretary under Condition 42 is an executive (rather than administrative) function.
I consider that this issue goes fundamentally to the Court's jurisdiction to grant relief, although it might be the case that even if HVEC's submission that the Secretary's decision is not amenable to judicial review is correct, Council would still be able to establish a failure to comply with what it says are the "objective" conditions of the Modified Project Approval and thereby make good its claim for relief. In other words, contrary to the manner in which I understand HVEC to have put its submission, the entire case may not turn on this point. Nevertheless, it is a significant hurdle for Council in this case.
It is clear in the first place that the Modified Project Approval is not a statute, although it is an instrument made under the EPA Act (Interpretation Act 1987 (NSW) s 3(1); MLC Properties v Camden Council [1997] NSWLEC 130; (1997) 96 LGERA 52 at 58-9).
In my view, it would be an unusual result if the PAC could, by formulating a condition of consent, effectively delegate an aspect of its approval under s 75W to the Secretary and thereby create an executive power where there was previously a statutory discretion. Such a conclusion would sit uneasily with the comment of French CJ, Gummow, Hayne, Crennan and Bell JJ in Wotton v State of Queensland (2012) 246 CLR 1; [2012] HCA 2 at [10] (quoting Brennan J in Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; [1986] HCA 60 at 613-614) that the "the notion of 'unbridled discretion' has no place in the Australian universe of discourse".
In Foley v Padley (1984) 154 CLR 349; [1984] HCA 50, in the context of examining the validity of a by-law made by a council, Brennan J said at 367-368: The plethora of administrative discretions nowadays created by subordinate legislation constitute a large well of power. But the well is not fed by unexaminable springs. The source of discretionary power can always be traced to the statute which authorizes the making of the by-law. An attempt to create by by-law a wider discretionary power than the legislature has authorized or to exercise a by-law discretion for a purpose which the legislature did not contemplate can be reviewed and set aside by the Court.
The comment is not precisely on point, but it appears contrary to the spirit of Brennan J's remarks to conclude that the PAC could be authorised to delegate a power to the Secretary which would be unrestrained by the confines imposed upon the exercise of statutory duties and discretions.
In my opinion, the better view is that the PAC, in formulating conditions of consent, delegated aspects of its statutory discretion under s 75W(4) of the EPA Act (which the PAC itself was exercising on delegation from the Minister) to the Secretary by way of statutory instrument. In those circumstances, I consider the pleaded grounds of judicial review are available.
An interesting question might arise, having regard to the comments of Basten JA in GPT at [64] and the fact that s 80A did not apply to a decision pursuant to s 75W, as to whether Condition 42 is, in fact, a valid condition of consent. However, the point was not raised in argument before me and, in the absence of submissions, I do not propose to deal with it here.

The purposes for which the EA Reports may be used in construing the Modified Project Approval

The next matter which arises for consideration is the purposes for which the EA Reports may be used in construing the Modified Project Approval. The principles relating to the construction of development consents are now relatively well-understood. In Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632, Hope JA, with whom Manning and Jacobs JJA agreed, said at 637: The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council.
In Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 ('Allandale'), Meagher JA summarised the principles at [42]-[44]: [42] The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: cf Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 at 352; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40], [41]. [43] The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: see generally, Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434; and the decisions of this Court in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407-408; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], Winn v Director-General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508 at [2], [4], [199]; and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 at [1], [3], [35]-[36]. See also Adelaide Corporation Pty Ltd v City of Charles Sturt [2008] SASC 260; 162 LGERA 106 at [33], [49], [50]. [44] Evidence may also be led to identify a thing or place referred to in the consent: Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958 at 962; Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 at 370-371; Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50-51; Sydney Serviced Apartments Pty Ltd at 407. That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose: Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 at 637.
In Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114, Biscoe J said at [40]-[41]: [40] A development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 19 LGRA 321 at 324 (Else-Mitchell J). The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it who and is likely to wish to sell the land sooner or later: House of Peace at [41]. [41] A development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96]-[99] and [105].
In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 ('Snowy Monaro'), Bathurst CJ, with whom Fullerton and Campbell JJA agreed, said at [35]: Although I accept, as Leeming JA pointed out in Bunderra Holdings at [56], quoting Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36], that "conditions of consent are to be construed not as documents drafted with legal expertise, but to achieve practical results", I am of the opinion that, nevertheless, principles of statutory construction can be of assistance in construing a development consent. In particular, the development consent should be construed to produce a "harmonious" result and to "give meaning to every word" of its provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]-[71].
It is agreed between the parties that each of the 2010 EA and the 2014 EA has been expressly incorporated into the Modified Project Approval. It is not therefore in dispute that it is permissible to have regard to them in construing the conditions. Rather, the dispute is confined as to the purpose to which they can properly be put.
Council submits that conditions 41A and 42 of schedule 3 of the Modified Project Approval are inconsistent with the scheme of rehabilitation set out in the 2014 EA and that, having regard to the subordinate role of the EAs provided for by condition 3 in schedule 2, it is not legitimate to consider them in construing conditions 41 and 42.
Council submits that the conditions of approval provide for a "more onerous" scheme of rehabilitation imposed by the PAC than the "business as usual" position provided for in the 2014 EA. In those circumstances, it says that conditions 41A and 42 must prevail to the extent of the inconsistency.
Council submits that the EAs could be referred to in order to explain ambiguity in the conditions of consent but where there is no ambiguity reference to the EAs is "impermissible for the purpose of qualifying the plain meaning of the consent". It says they cannot be used "to construe, qualify or contradict the planning permission let alone lead the Court to finding what may have been the PAC's intention when it granted the planning permission".
HVEC submits that in determining whether there is an inconsistency, the question is whether the approach to rehabilitation provided for in the 2014 EA can operate concurrently with conditions 41A and 42. It rejects Council's submission that the conditions of consent are "more onerous" than what was sought and submits that that there is no inconsistency between the 2014 EA and conditions 41A and 42.
HVEC rejects the proposition that the PAC "did not agree to HVEC's proposal" and submits that at the time the Modified Project Approval received consent, it was "exploring options to improve final landforms" and that conditions 41A and 42 were imposed on this understanding and to ensure that rehabilitation was addressed in accordance with those conditions in the meantime. It notes: 1. The 2014 EA envisaged continuing with existing rehabilitation strategies and plans but outlined some changes to landforms (such as the Saddlers void being filled in); 2. The Secretary noted HVEC's commitment to implement measures to improve final landforms by incorporating micro-relief. The Secretary, in her report, recommended that the approval incorporate "contemporary rehabilitation objectives" including an objective that the final landforms be "designed to incorporate micro-relief and integrate with surrounding natural landforms"; and 3. The "contemporary rehabilitation objectives" proposed by the Secretary were considered by the PAC. The PAC slightly modified the language in accordance with a proposal by Council so as to provide that the final landforms be designed to incorporate "natural micro-relief and natural drainage lines".
The Secretary submits that Council has not articulated what the inconsistencies between the 2014 EA and conditions 41A and 42 are, and further, and in any event, where a number of interpretations of the conditions are available, the conditions should be construed consistently with the 2014 EA to produce a "harmonious" result of the kind alluded to by Bathurst CJ in Snowy Monaro.
In response to the Secretary's submission that Council had failed to articulate the alleged inconsistencies between the 2014 EA and conditions 41A and 42, Council submits that the following inconsistencies arise: 1. The 2014 EA proposed an increase in the in-pit emplacements and an additional use of the existing conveyor corridor but otherwise HVEC did not envisage any changes to the out-of-pit emplacements arising from the Modified Project Approval. Council says that because these emplacements are "final landforms" in the sense the term is used in Table 14, HVEC's proposal not to change the emplacements was rejected by the PAC; 2. The EA proposed that "existing rehabilitation strategies and plans would continue to apply for the Modification." Council submits that this proposal was rejected by the PAC; 3. HVEC submits "the visual impact assessment distinguishes between existing landforms and those which have been approved but not yet built". Council submits that this distinction was rejected by the PAC because Table 14 makes no such distinction; and 4. The 2014 EA proposed only "very few" and "minor" changes to the scheme of rehabilitation. Council says if reference to those documents is permissible to construe the approval (which it says it is not), conditions 41A and 42 express "radical and substantive changes requiring, among other things, content to the rehabilitation strategy not previously required and not proposed by HVEC".
Noting that the EAs have been expressly incorporated into the Modified Project Approval, I consider that they are properly read as part of the context of the conditions of consent in the first instance. I do not accept that it is necessary to find ambiguity in the conditions of consent before recourse is had to the EAs. I note the comments of Ward JA in Allandale at [179] where her Honour accepted the proposition that "one can have regard to extrinsic evidence to identify a thing or place referred to in the planning approval whether or not there is ambiguity or the document has been incorporated by express reference or otherwise". Having regard to that comment, it is likely the case that the EAs could be referred to even if they had not been expressly incorporated into the consent, which I find that they have been.
It is uncontroversial that the Modified Project Approval must be read as a whole. Condition 2 of schedule 2, to the extent that it provides that the development is to be carried out generally in accordance with the EAs, is unintelligible without regard being had to their terms. It is therefore necessary to understand the content of the EAs in order to read and understand the conditions as a whole.
In addition, I consider that there is force to the Secretary's submission that where a reading of the conditions of consent which is consistent with the terms of the EAs is open, such a reading should be preferred. If it were otherwise, there would be a tension between the operation of condition 2 of schedule 2 and any condition said to be inconsistent with the EAs.
The position is somewhat different from the principles considered and articulated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky'), not just because what is being considered in the present case is a development consent rather than a statute, but also because condition 3 of schedule 2 explicitly provides a hierarchy between the EAs and the conditions of consent (cf Project Blue Sky at [70]).
However, the mere fact that the Modified Project Approval allows for the possibility of inconsistency between its terms and the terms of the EAs does not mean that the Court should not prefer a "harmonious" operation of the Modified Project Approval where such an operation is fairly open on the text. This is consistent with what Bathurst CJ said in Snowy Monaro about the applicability of Project Blue Sky to the task of construing development consents.
In other words, the Court should not look for an inconsistency between the EAs and the terms of the conditions of consent or assume that such an inconsistency exists simply by reason of the fact that condition 3 of schedule 2 provides a mechanism by which such inconsistencies may be resolved. If a fair reading of the terms of the conditions consistent with the scheme provided for by the EAs is available, such a reading should be preferred. It follows that the EAs can be productively used in interpreting the conditions of the Modified Project Approval.

Whether any other documents may be referred to in construing the Modified Project Approval

In addition to relying upon the EAs, the Secretary submits that the following documents may be used for the purpose of construing the Modified Project Approval: 1. The rehabilitation conditions in the 2010 Project Approval; 2. The plans titled "Project Interaction with Approved Operations" and "Consolidated Open Cut Disturbance Area" appended to the 2010 Project Approval; 3. The plan entitled "Conceptual Final Landform" appended to the 2010 Project Approval; 4. The report accompanying the PAC's approval of the Modified Project Approval; and 5. The document comprising the PAC's ultimate determination to approve the Modified Project Approval.
HVEC also seeks to rely upon the first and fifth documents above, being the terms of the 2010 Project Approval, and the document which contained the PAC's determination to approve the Modified Project Approval, for the purpose of construing the terms of the Modified Project Approval. Council submits that approach of the Secretary and HVEC is contrary to principle.
The Secretary relies upon Bathurst CJ's comment in Snowy Monaro at [35] that "principles of statutory construction can be of assistance in construing development consent". The Secretary submits that the principles of statutory construction extend to having regard to extrinsic materials in order to determine the legal and historical context in which the words are used and the mischief to which a statutory instrument is directed.
I do not understand Bathurst CJ to have been suggesting that the principles of statutory interpretation in such a broad sense are applicable to the process of construing a development consent. As extracted above at [178], his Honour went on at [35] of Snowy Monaro to say "in particular" that "the development consent should be construed to produce a 'harmonious' result and to 'give meaning to every word' of its provisions". This is a starkly different proposition to relying upon extrinsic materials in order to ascertain the meaning of the provisions in a development consent. Whilst the use referred to by Bathurst CJ may not mark the furthest extent of the applicability of statutory interpretative principles to the task of construing development consents, his Honour did not hold that such principles simply apply to the task.
There are good reasons to be cautious about the applicability of principles relating to statutory interpretation in this context insofar as they relate to the relevance of extrinsic materials. In Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 ('Royal Ryde Homes'), Else-Mitchell J said at 323-4: Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent. … I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.
In Auburn Municipal Council v Szabo (1971) 67 LGRA 427, Hope J explained the import of Royal Ryde Homes at 433-434: The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 and by the Court of Appeal in Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in a development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved.
To similar effect, in Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245, Hodgson JA, with whom Tobias and Basten JJA relevantly agreed, said at [41]: Another principle to be kept in mind in construing the condition is that a development consent is a document in rem, so that communications between the parties do not form part of the matrix relevant to construction: House of Peace Pty. Limited v. Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23] and [27]. However, the Court can have regard to objective circumstances, including the physical circumstances, the plans accompanying the development application, and matters relating to title…
The principle that one should only have regard to extrinsic materials only where they have been incorporated into the consent expressly or by necessary implication has been restated subsequently on numerous occasions: see, e.g. Allandale at [43]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (2017) 96 NSWLR 434; [2017] NSWCA 263 at [22], [65]-[66] and [194].
Therefore, I do not accept that it is permissible to have regard to any of the further documents sought to be relied upon by the Secretary and HVEC in construing the Modified Project Approval except for the EAs and the plans explicitly referred to and incorporated into the consent.
Whilst I note the submission of the Secretary that the "serious inconvenience" referred to in Royal Ryde Homes would not arise in the present case because the materials are available only for the limited purpose of understanding the context in which the words of the Modified Project Approval are used and because the documents are publicly available on the Department's website along with the Modified Project Approval itself, I do not find those matters persuasive. Insofar as the terms of the consent are capable of being understood without the necessity of reference to external documents, it should speak for itself and be construed according to its terms, consistently with its status as a unilateral act of the decision-maker which runs in rem.
I now proceed to consider Condition 42 and whether Council's contention that it contains objective jurisdictional facts is borne out on the proper construction of the Modified Project Approval. In undertaking that task, I apply the principles discussed and findings made above.

Whether Condition 42 imposes objective jurisdictional facts

Whether Condition 42 imposes objective jurisdictional facts is a question of construction and, consistently with the principles outlined above, must be considered by having regard to the Modified Project Approval read as a whole.
In Woolworths Ltd v Pallas Newco Pty Ltd & Anor (2004) 61 NSWLR 707; [2004] NSWCA 422 ('Pallas Newco'), Spigelman CJ said at [5]-[6]: [5] The case law and legal literature contains a great deal of terminological confusion about the concepts of "jurisdiction" and "jurisdictional facts". The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at [28]: "The term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome." [6] The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.
In Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors (1999) 46 NSWLR 55; [1999] NSWCA 8 ('Timbarra'), Spigelman CJ said at [42]: Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact. (See Craig Administrative Law 3rd ed, 1994, 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198C). Where such words do not appear, the construction is more difficult.
As Basten JA, with whom Macfarlan and Meagher JJA agreed, noted in Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 ('Trives') at [9]-[10]: [9] The language of "jurisdictional fact" is commonly used as a basis for review of administrative decisions. A "jurisdictional fact" describes a fact which is an essential precondition to the exercise of a power. For a person to seek to exercise the power absent such a fact is to act without legal authority. [10] Preconditions to the engagement of a power come in different forms. One common form is a requirement that the repository of the power be "satisfied" as to the existence of a particular matter. Perhaps unhelpfully, the existence or absence of such an opinion is itself referred to as a "jurisdictional fact".
In the present case, Council contends that the Secretary's state of satisfaction could have only been enlivened in respect of a rehabilitation strategy that objectively met the requirements set out in Condition 42. Thus, it contends that, because the Rehabilitation Strategy did not objectively meet the requirements of Condition 42, the Secretary could not have reached the requisite satisfaction.
Council submits that it is critical that Condition 42 uses the word "must". It says that when the Modified Project Approval is read as a whole, it is clear that the proponent has three distinct forms of obligation under the conditions: 1. A requirement that the proponent "shall" or "must" do something with no qualification; 2. A requirement that the proponent shall do something "to the satisfaction of" a decision-maker where the satisfaction is the only qualification to the requirement; and 3. A requirement that the proponent shall do something to both the satisfaction of a decision-maker and to an objective standard of conduct. This appears from the express use of the word "must" in a new sentence.
Council says that the fact that these three formulations are used with "remarkable consistency" throughout the Modified Project Approval means that they should be taken to have been chosen with care and with the intention that the different conditions must be construed as imposing different requirements. Council submits that Condition 42 is a requirement of the third type, which requires both the satisfaction of the Secretary and an objective standard of conduct.
Council, with reference to conditions 41A and 42, further submits that two different decision-makers are given the task of judging HVEC's conduct against the Table 14 objectives. The DRE has an obligation to do so arising from condition 41A and the Secretary has a discrete obligation arising under Condition 42. Council notes that the obligations of the DRE and the Secretary may be exercised at different times and by different staff members, as they change employment, retire or delegate functions. Council observes: 1. The Rehabilitation Strategy (as per Condition 42) and the Rehabilitation Management Plan (as per condition 44) were to be submitted to their respective regulators by 30 September 2015, but there was no requirement for them to be submitted simultaneously; 2. Whilst the time for submission in condition 44 is fixed, the time for the submission of the Rehabilitation Strategy in Condition 42 could be extended; and 3. The DRE is required to be satisfied with the rehabilitation objectives called up by Table 14 in future years and possibly decades as the condition applies throughout the progressive rehabilitation required by condition 43 and until the rehabilitation has been completed.
Council submits that these factors weigh in favour of a construction of the Modified Project Approval such that Table 14 contains objective facts the presence or absence of which is amenable to judicial review by the Court. It says that, if it were otherwise, a "tension" in the operation of the scheme of the consent would arise of the kind referred to by Spigelman CJ in Timbarra at [71]-[72]. Relevantly, his Honour said at [70]-[72]: [70] The factual references in s77(3)(d1) and s77A(2) are identical: "development is likely to significantly affect …". Both the consent authority and the Director-General have to 'decide' whether this is so, when they are asked to exercise their respective powers. [71] The construction propounded by the Respondent would give rise to a tension in the operation of the statutory scheme. A consent authority could decide that there was no "substantial effect" and deal with the development application as valid, even though it was not accompanied by an SIS. The Director-General, however, could take a different view on "substantial effect", but not have available to him an SIS for the purposes of deciding whether or not to concur. (Note s77C(a) refers only to an SIS, if any.) [72] The tension I have identified is relieved if the reference to "likely to significantly affect" is given the same meaning in both sections. That requires the words to be treated as an objective fact, not as references to the respective opinions of the consent authority in s77(3)(d1) and of the Director-General in s77A(2). The parallel trigger provisions based on "critical habitat" in s77(3)(d1) and s77A(1), obviously have the same meaning in each section.
Council says the tension it has identified in the operation of the scheme, which is that the Secretary and the DRE could impose different standards of compliance with the objectives contained in Table 14, would be relieved by a finding that the objectives in Table 14 should be given the same objective meaning rather than the subjective meaning placed upon them by an indeterminate number of staff.
HVEC submits that the question of whether a jurisdictional fact is contained in a provision always turns on the particular context. It calls in aid the comment of Spigelman CJ in Timbarra at [42] (extracted above at [206]) and his Honour's further comments at [44]: The authorities suggest that an important, and usually determinative, indication of Parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker or, in some other way, necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions (emphasis in original).
HVEC submits that these principles have application in the present case and weigh against a conclusion that Condition 42 contains jurisdictional facts (other than, presumably, the fact of the Secretary's satisfaction itself being a jurisdictional fact, although as I understand its submissions, HVEC would not concede this is a jurisdictional fact because, on its case, the Secretary is not exercising a statutory duty or discretion in any event).
HVEC submits that Council's approach in relying on the word "must" for the proposition that the matters in Condition 42 are objective conditions precedent is counter-textual and detaches the first sentence in Condition 42 from the second sentence. It says that the stipulation of what the strategy "must" address indicates the subject matter about which the Secretary is required to be satisfied and does not introduce free-standing objective criteria.
Further, HVEC submits that the criteria identified in Condition 42 are matters about which it is likely the Secretary's state of satisfaction, rather than an objective state of fact, is required. It says the criteria are "generally expressed and indistinct", and notes: 1. Condition 42(a) states that the Rehabilitation Strategy must be prepared in consultation with the DRE and Council by a particular date unless the Secretary otherwise agrees. HVEC submits that preparation of the Rehabilitation Strategy in consultation with those entities is an administrative process rather than an objective standard to be determined by the Court. It says whether there has been appropriate consultation is a matter properly left for the Secretary, who is familiar with the process, to decide; 2. Condition 42(b) states that the Rehabilitation Strategy must investigate options for three enumerated matters including the "beneficial future land use of the disturbed areas, including voids". HVEC submits that how far the matters need to be investigated and what the investigations are required to involve is a matter for the Secretary, not the Court; 3. Condition 42(c) states that the Rehabilitation Strategy must describe and justify the proposed rehabilitation plan. HVEC submits that the Court is ill-equipped to judge whether a document has met the threshold for describing and justifying a rehabilitation plan and that this is therefore a matter properly left for the Secretary to consider; and 4. Condition 42(d) states that the Rehabilitation Strategy must include "detailed rehabilitation objectives" which are based on the objectives in Table 14. HVEC submits that the objectives in Table 14 are "aspirational and broad" and involve policy decisions and subjective judgment. It says that whether the objectives in the Rehabilitation Strategy "comply with or build on the objectives in Table 14" is a matter for the Secretary's satisfaction. In those circumstances, HVEC submits that the PAC intended compliance with the conditions to be assessed by the Secretary, not the Court.
Further, HVEC submits that its construction is consistent with the other conditions in the Modified Project Approval. It says Council is not assisted by the three different formulations in the conditions which it has identified (noted at [209] above) because the other like conditions it has cited are operating conditions which use the formulation that the proponent must do a number of things to the satisfaction of the relevant decision-maker. HVEC submits that it runs counter to the scheme of the Modified Project Approval to contend that those matters are "objective conditions precedent".
In that regard, HVEC submits that it is an important consideration in the context of Condition 42 and other similarly formulated conditions that they are part of an "ongoing and dynamic" process. In construing the Modified Project Approval as a whole, HVEC submits that the Court would not interpret Condition 42 as allowing the Court to reach its own independent evaluation with respect to each management document and criterion thereof because such a construction would be tremendously difficult and impractical.
In response to Council's submission that its construction relieves a tension in the operation of the scheme of the consent, HVEC submits that this ignores the scheme of rehabilitation provided for in the Modified Project Approval and that there is an expectation that the DRE and the Secretary will not issue "innumerable different standards of compliance" because they are required to consult with each other in the preparation of the Rehabilitation Strategy and the Rehabilitation Management Plan.
The Secretary submits that Condition 42 creates a "primary obligation" for HVEC to prepare a rehabilitation strategy to the satisfaction of the Secretary. In the Secretary's submission, the other obligations imposed by Condition 42 should be read as requiring that the Rehabilitation Strategy be capable of satisfying the Secretary that those requirements have been satisfied.
The Secretary says that her construction is supported by the principle that use of language in a statutory instrument describing a state of mind is a strong indicator that the relevant precondition is the state of mind and not the existence of an objectively ascertainable fact.
If Council's construction were accepted, the Secretary submits that this would give rise to an unusual operation whereby the Secretary would be required to satisfy herself that the objective requirements referred to in Condition 42 had been met before considering whether she was satisfied with the contents of the Rehabilitation Strategy.
Moreover, the Secretary submits that the language in the table speaks to a high level of generality, describing "objectives" which she says are not the same as a requirement but rather connote something more aspirational. The Secretary similarly submits that the word "incorporate" (contained in Table 14) in the context of Condition 42 means "to include" rather than to consist of or comprise.
The Secretary submits that this construction is consistent with relevant principles, the natural meaning of the words used and practical considerations. For example, she emphasises that no assessment of pre-existing emplacements was undertaken as part of the Modified Project Approval and that the consequence of Council's construction would therefore be impractical and outside the scope of what was considered by the PAC.
The Secretary submits that Council's construction gives little work for the word "satisfaction" to do in the context of Condition 42 if the matters provided are to be objectively ascertained rather than serve as matters about which the Secretary must form a state of satisfaction. In response, Council submits that the Secretary retains a broad discretion to be satisfied about the Rehabilitation Strategy but only if it objectively complies with Condition 42.
I do not accept Council's position that the Secretary's state of satisfaction can only be enlivened in respect of a Rehabilitation Strategy that objectively meets the requirements of Condition 42. My reasons, which are broadly reflective of submissions made by HVEC and the Secretary, follow.
First, it is trite that whether there is a jurisdictional fact is a question of construction which depends on the context. I consider that there is no jurisdictional fact in Condition 42 (apart from the fact of the Secretary's state of satisfaction) considered in the context of both the Modified Project Approval and the other conditions (particularly conditions 41A and 44 of schedule 3).
Reading the Modified Project Approval as a whole, I consider that the requirements following the word "must" in Condition 42 are matters which inform the exercise of the primary obligation imposed by the condition, which is to prepare a Rehabilitation Strategy to the satisfaction of the Secretary. Whether the matters have been adequately addressed is a question properly left to the Secretary.
Second, the language used in the condition is not precise and speaks to a high level of generality. For example, the use of "objectives" connotes, in a practical sense, goals or matters to be aimed at. I accept that there is a lack of specific "requirements" and that an objective is not the same as a requirement. Further, any such requirements, if they can be so called, are, as submitted by Council and HVEC, more aspirational than directory.
To take one example, the text of Table 14 is effectively setting an objective or goal of the mine's rehabilitation that the final landforms are to be planned in a way that includes natural micro-relief and natural drainage lines. So understood, an objective that the final landform be designed to incorporate natural micro-relief and natural drainage lines would be met even if there were only one part of the final landform that was designed in that way and would be met once such design was complete.
It is instructive in this regard to observe how the relevant conditions of the Modified Project Approval operate together to create a scheme of rehabilitation for the mine. Condition 2 of schedule 2 provides that development must be carried out generally in accordance with the conditions and the terms of the EAs. As seen from the extracts, the EAs import a general and high-level scheme of progressive rehabilitation.
Of course, Council submits that the terms of the EAs have been supplanted by what it says are the more detailed and robust conditions imposed by the PAC including Condition 42 and Table 14. However, contrary to that submission, I do not consider that the other conditions of the Modified Project Approval are properly read as displacing the scheme of rehabilitation envisaged by the EAs and condition 2 of schedule 2.
Condition 41A in schedule 3 provides that HVEC is to rehabilitate the site to the satisfaction of the DRE. The requirement to prepare a rehabilitation strategy to the satisfaction of the Secretary is provided for by Condition 42. Each of condition 41A and Condition 42 refers to the objectives provided by Table 14.
The notion of progressive rehabilitation is picked up by condition 43 which provides that rehabilitation is to be carried out as soon as is reasonably practicable. Condition 44 then proposes that a Rehabilitation Management Plan must be prepared to the satisfaction of the DRE, which must, inter alia, "describe the measures that would be implemented to ensure compliance with the relevant conditions of approval, and address all aspects of the rehabilitation including mine closure, final landform including final voids, and final land use".
Condition 3 in schedule 5 of the Modified Project Approval provides a mechanism by which the various strategies, plans and programs may be revised to the satisfaction of the Secretary.
Looking at this scheme as a whole, I consider that it is clearly envisaged by the Modified Project Approval that rehabilitation of the mine will be a dynamic and ongoing process and that some flexibility must therefore be accommodated. Moreover, objectives are set by Table 14 which are required to be complied with and built on by the Rehabilitation Strategy, whilst the Rehabilitation Management Plan or MOP is required to "describe the measures" to be implemented to ensure compliance with the scheme and to "address all aspects of the rehabilitation".
The distinction between the Rehabilitation Strategy and the MOP is that the former is a high level document outlining objectives for the mine's rehabilitation whilst the latter is a document providing, inter alia, procedures by which those objectives may be achieved. All of this is consistent with my understanding of the Rehabilitation Strategy being required to be a high level document dealing with the aspirations and goals of rehabilitation rather than a prescriptive document that outlines the process of rehabilitation in granular detail.
Further, when the Modified Project Approval is read as a whole, I do not consider that Council is assisted by the distinction in wording between various conditions it has identified (at [209] above). Where the conditions draw a distinction between the proponent being required to do something to the satisfaction of a decision-maker and the proponent being required to do something to the satisfaction of a decision-maker in addition to an objective requirement, it is clear that the distinction arises from a difference in the nature of what is required to be done.
For example, where the proponent is required to prepare a document or procedure, the conditions indicate what it "must" contain (for example, conditions 9, 17, 24, 29-35, 40, 41A, 42, 44, and 45 in schedule 3). In contrast, where the proponent is required to perform an action, this is either expressed in a mandatory sense (for example, condition 21 in schedule 3 requires HVEC to acquire land at the request of a landowner whose land is affected by dust emissions to a requisite extent) or in a mandatory sense to the satisfaction of a decision-maker (for example, condition 8 in schedule 3 requires, inter alia, HVEC to implement best noise management practice to the satisfaction of the Director-General).
When regard is had to the differences in the nature of the obligations created, I consider that the inclusion of directions as to what the various documents and procedures "must" contain does not create objective facts as contended by Council. Rather, I consider that the relevant conditions provide guidance as to what is expected from the various documents and a framework against which the relevant decision-maker is to reach the required state of satisfaction.
Third, I accept the submission of the Secretary that, on Council's construction, the Secretary would be required to satisfy herself that the objective requirements of Condition 42 had been met before considering whether she was satisfied with the contents of the Rehabilitation Strategy. This bipartite operation would give rise to confusion especially because it would leave the Secretary's overall satisfaction entirely unfettered without any guiding indicia from the terms of the conditions. The consequence that she would be required to check whether the matters in the second sentence of Condition 42 had been complied with in an objective sense before then turning to consider whether she was satisfied about the Strategy appears to me unlikely to be the intended operation of Condition 42.
It also creates an unusual operation in that, if the Secretary considered that a particular matter provided in Condition 42 was not present in an objective sense, she would be required to inform HVEC of this so that another strategy could be prepared but she would not be entitled to have formed any view as to the merits of the strategy. On that reading of Condition 42, it is possible to conceive of significant correspondence between the Secretary and HVEC before the Secretary's power to consider the merits of the strategy was enlivened. I do not consider that is a sensible operation of the condition or the operation demanded by a fair reading of its text.
Fourth, contrary to Council's submission, I do not consider that there is "tension" in the sense discussed by Spigelman CJ in Timbarra at [71] in the operation of the statutory scheme. Indeed, the fact that Condition 42 speaks of "objectives" which may give rise to differing expectations implies that there is flexibility to Table 14. I accept as a matter of fact that the DRE and the Secretary did confer as to what the objectives require, and in any case, given the operation of the Modified Project Approval as a whole, they might reasonably be expected to confer.
Rather than relieving a tension in the scheme, I consider that attempting to give the "objectives" in Table 14 objective operation would create a difficulty, and potentially delays, in the operation of the Modified Project Approval. That is because it would give rise to an uncertainty on the part of the relevant stakeholders as to whether the objectives had been sufficiently complied with in an objective sense and allow for the possibility of Court review on that point instead of allowing the DRE and the Secretary to form a subjective state of satisfaction which would then be communicated to the proponent.
Fifth, and consistently with my finding above at [241], I consider that the inclusion of the word "must" qualifies the subject matter about which the Secretary is required to be satisfied. The word "must" in Condition 42 (referred to in the second sentence) relates necessarily to the "revised Rehabilitation Strategy" and the only pre-condition in Condition 42 is the Secretary's state of satisfaction. I consider that pars (a) to (d) identify the matters that are to be addressed in the strategy which is to be prepared to the satisfaction of the Secretary. They are not pre-conditions to prevent the Secretary embarking upon the exercise but arise for consideration in the course of decision-making.
I accept the submission of HVEC that the stipulation in Condition 42 of what the strategy "must" address indicates the subject matter of that which the Secretary must be satisfied about. It is not a "free-standing objective criteria". Put another way, the criteria in Condition 42 are the matters about which the Secretary must be satisfied. The following is clear: 1. Condition 42(a) provides that the strategy must be prepared in consultation with the DRE and Council. I accept that this is an administrative process, as submitted by HVEC. It does not involve an objective standard to be determined by the Court; 2. Condition 42(b) provides that the strategy must "investigate options" for three discrete matters. Properly understood, I find that this leaves matters such as the level of investigation and which investigations are required, for the Secretary's consideration; 3. Condition 42(c), provides that the strategy must "describe and justify the proposed rehabilitation plan…" I accept that a court is ill-equipped to judge whether a strategy has met the threshold for describing and justifying a rehabilitation plan and it is a matter properly for the Secretary's satisfaction; and 4. Condition 42(d) which specifically refers to "detailed rehabilitation objectives" for the site that "comply with and building upon the objectives in Table 14", and Table 14 itself, are each broadly worded and involve policy decisions and subjective judgment. They are "objectives" and tend towards the aspirational. I consider that the absence of precision is further indication that the PAC intended that compliance with the conditions is a matter to be assessed by the Secretary and that it did not intend that it be the subject of conclusive determination only by a court (Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 at [53]).
Thus, the fact that the matters in Condition 42(a) to (d) are generally expressed, somewhat indistinct, and in the nature of merits considerations which one would expect to be undertaken by a consent authority, weighs in favour of the conclusion that they are not intended to be objective facts but rather matters about which the Secretary was to be satisfied.
Sixth, the clear words of the condition ("the satisfaction of the Secretary") militate against a conclusion of jurisdictional fact. As stated in Timbarra at [42], and often repeated, "there is usually no jurisdictional fact where the relevant fact "appears in a statutory formulation containing words involving the mental state of the primary decision-maker - 'opinion', 'belief', 'satisfaction'". Nor is there usually a jurisdictional fact where (as Spigelman CJ said in Timbarra at [44]): the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power.
Whilst it is true that the second sentence in Condition 42 speaks in terms of what the Rehabilitation Strategy "must" contain, I accept the submission of HVEC that the two sentences ought not be considered separately but must be read together. Read that way, I am satisfied that the primary requirement imposed by Condition 42 is the production of a Rehabilitation Strategy to the satisfaction of the Secretary and that the other matters are criteria which guides the Secretary's discretion.
Seventh, I note that these conclusions are consistent with the description of the Rehabilitation Strategy at p 5-3 of the 2014 EA as providing "the overarching concepts for decision making in terms of landscape and land use for Mt Arthur Coal, whilst the BRMP and other relevant management plans provide specific details for management". This comforts me in the view that the conclusion I have reached, being fairly open on the text of Condition 42, gives effect to the "harmonious" operation of the Modified Project Approval as a whole, in the sense considered in Snowy Monaro, remembering that condition 2 in schedule 2 requires development to be carried out generally in accordance with the terms of the EAs.
For those reasons, I have determined that the requirements imposed by Condition 42 are not objective requirements such that the Court is able to determine whether they have been met and the Secretary's discretion thereby enlivened. Rather, they are matters about which the Secretary is to reach a state of satisfaction or otherwise. Of course, as Basten JA said in the context of a similar conclusion his Honour reached in Trives at [30], the Secretary's decision still needs to be "validly formed in accordance with relevant legal requirements". For example, the Secretary must take into account mandatory considerations and form a state of satisfaction which is legally reasonable, but assuming that such relevant legal requirements are met, her decision is not otherwise amenable to review by a court.

Whether the Rehabilitation Strategy objectively complies with Condition 42

Although my finding in respect of the correct construction of Condition 42 makes it strictly unnecessary to decide, I proceed to consider whether the Rehabilitation Strategy objectively complies with the terms of Condition 42. In determining this question, and consistently with my findings as to the admissibility of evidence, I have considered the expert evidence relied upon by the parties. However, in the first place, whether the Rehabilitation Strategy objectively complies with the Modified Project Approval depends upon the proper construction of Condition 42 and Table 14. On the construction I have ultimately reached, the expert evidence is not of significant assistance. Much of Dr McCullough's expert evidence, for example, depends upon her own construction of Condition 42 and the objectives in Table 14. As my conclusion as to their effect differs from hers, her evidence in that regard does not assist.
Council submits that the Rehabilitation Strategy reveals that its authors and the Secretary have misconstrued the obligations in Condition 42. It says that the Rehabilitation Strategy was required to "include detailed rehabilitation objectives which comply with and build on the objectives in Table 14". It submits the Rehabilitation Strategy does not do this but rather: 1. The "goal" of the Rehabilitation Strategy is incorrectly described; 2. The Rehabilitation Strategy describes itself as an "overarching standard for decision making" but it should not be; 3. The Rehabilitation Strategy describes itself as "prescribing the overall rehabilitation approach" which reveals error as Condition 42(d) expressly requires it to provide detailed objectives; 4. The final sentence in heading 3.6 of the Rehabilitation Strategy can only be read as containing an admission by HVEC that the Rehabilitation Strategy does not contain objectives (detailed or otherwise) complying with and building upon the Table 14 objectives; and 5. The description of rehabilitation objectives as "high level requirements" and the deferral of details to a MOP in the Rehabilitation Strategy reveal error in that they fail to comply with Condition 42(d).
HVEC submits that Council's submissions are based on three inaccurate interpretations of the Rehabilitation Strategy: 1. That Council expects the Rehabilitation Strategy to be a "how to" manual on rehabilitation. HVEC submits that the Rehabilitation Strategy should rather be seen as a "general road map" which provides what should be achieved rather than how it should be achieved. HVEC submits that this is evident from the use of the word "strategy" and the fact that the Modified Project Approval provides a scheme whereby the arrangements for the rehabilitation of the mine are to be set out in a package of documents: the Rehabilitation Strategy, the Rehabilitation Management Plan, and the Biodiversity Management Plan. Moreover, HVEC submits that the Modified Project Approval recognises and envisages that rehabilitation is an ongoing and dynamic process; 2. That the Rehabilitation Strategy should be construed without reference to the MOP/Rehabilitation Management Plan because it had not yet been settled, submitted or approved by the DRE. HVEC submits that this assertion is incorrect both in fact and because it ignores the rehabilitation scheme envisaged in the Rehabilitation Management Plan (which has been included in the MOP). HVEC submits that these documents were not prepared in isolation but simultaneously with extensive consultation taking place. Further, HVEC says the deferral of matters for inclusion in the MOP was entirely permissible and expected in the context of the Modified Project Approval; and 3. That the Rehabilitation Strategy is required to expand upon each of the objectives in Table 14 and to individually address each objective. HVEC submits that Condition 42 does not require the Rehabilitation Strategy to include "all" of the objectives in Table 14 or to "artificially split objectives". HVEC submits that "objectives" are aspirational or the purpose or goal underlying a particular endeavour. In this case, HVEC submits that the requirement to "comply with" the objectives means that the objectives in the Rehabilitation Strategy need to be consistent with the objectives in Table 14 and that the requirement to "build on" should not be read as requiring the Rehabilitation Strategy to set out additional objectives. HVEC says to "build on" does not mean "rebuild" or "recreate".
Before turning to the discrete complaints of Council in respect of what it says are the Rehabilitation Strategy's objective failings, as a preliminary matter, contrary to the position of Council, I do not consider that the authors of the Rehabilitation Strategy have misunderstood the obligations arising from Condition 42.
I consider that the Rehabilitation Strategy was always meant to be a strategy document. This is made clear by the use of the word "strategy" as well as the role of Condition 42 in the overall scheme of rehabilitation envisaged by the Modified Project Approval. I consider strategy to mean (in accordance with the Macquarie Dictionary, (6th ed, 2013)) "…a method of conducting operations…" As such, I also find that the Modified Project Approval, and in particular the primary conditions presently under consideration, provide for the preparation of a group of documents each of which deals with rehabilitation of the mine. Contrary to Council's submissions, I do not consider that leaving issues of detail to be articulated in the MOP is an impermissible derogation from the requirement to prepare a Rehabilitation Strategy but rather consistent with the scheme envisaged by the Modified Project Approval.
This conclusion accords with my findings above at [227]-[252], my construction of Condition 42 and specifically my consideration of the matters in Table 14. When the Rehabilitation Strategy is considered (and construed) within the scheme of the Modified Project Approval, I find that it is envisaged to be a "road-map" which provides high-level goals which the rehabilitation of the mine is to achieve. Again, so much is evident from the choice of the word "strategy" and the focus in Condition 42 on the development of "objectives".
Moreover, I consider there is force to HVEC's submission that the requirement in Condition 42 to "comply" with the objectives in Table 14 means that the Rehabilitation Strategy is required to develop objectives which are "not inconsistent with" the Table 14 objectives. I also accept that the requirement to "build upon" the objectives does not mean that each objective in Table 14 needs to be expanded upon in granular detail but rather that the Rehabilitation Strategy as a whole is to contain an expansion upon the objectives in Table 14 in the context of the mining operations currently taking place. I do not consider that a failure to articulate an expanded version of one of the Table 14 objectives in the Rehabilitation Strategy means that the Rehabilitation Strategy has failed to build upon the Table 14 objectives.
Having made those findings, I proceed to consider the particular respects in which Council says the Rehabilitation Strategy does not comply with Condition 42. Council submits that there are ten such respects, which are noted above at [131]. I consider that the better approach is to consider the matters holistically, but in deference to Council's detailed submissions, I shall deal with each alleged non-compliance discretely.

A safe mine site (as a whole)

Council submits that, contrary to Condition 42(d), the Rehabilitation Strategy does not include detailed rehabilitation objectives for the site which comply with and build upon the objective of having a "safe mine site (as a whole)".
The Rehabilitation Strategy provides the following objective (in Table 4 on p 21): Safe, stable and non-polluting final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding natural landforms
Council submits that this objective "merely parrots" the relevant terms of Table 14 of the Modified Project Approval and therefore fails to build upon that objective.
Table 4 also includes "completion criteria" in respect of this objective as follows: Closure criteria and proposed final land use developed through stakeholder consultation Landforms are independently assessed as safe and stable compatible with surrounding natural landscape Restoration of mined land achieves visual amenity Ecologically sustainable land management practices aligned with approved domain TSF capped to ensure long-term containment of emplaced material and sustains proposed land use Removal, treatment and/or containment of hazardous or contaminated material The rehabilitated post-mining landscape will not cause environmental impacts greater than surrounding non-mined land
Council submits that completion criteria are not "strategies" and do not conform to what is required by Condition 42. It submits that such criteria belong in the Rehabilitation Management Plan as per condition 44(e) in schedule 3 of the Modified Project Approval.
Moreover, Council submits that the completion criteria limit the proposed safety assessment to "landforms". Therefore, Council says that the Rehabilitation Strategy excludes from the completion criteria any attention to the safety of fencing, remaining infrastructure, plants, animals and water bodies. Council further submits that the completion criteria fail to build on the Table 14 objectives because they do not contain any content, being rather a method of assessing whether particular criteria have been met.
Consistently with my findings above, I consider that Council's complaint in respect of the alleged failure to provide detailed objectives for the site which comply with and build upon the objective of having a "safe mine site (as a whole)" are predicated upon an assumption that the Rehabilitation Strategy is required to articulate the manner in which the Table 14 objectives are to be met in a level of detail which is inappropriate for what is intended to be a high-level document. I do not consider that Council's complaint in this respect constitutes an objective non-compliance with Condition 42.

Stable mine site (as a whole)

Council submits that the Rehabilitation Strategy does not include detailed rehabilitation objectives for the site which comply with and build on the objective of having a stable mine site (as a whole). Council submits that the Rehabilitation Strategy proposes the Geofluv approach as the "design methodology" to achieve stability in the overburden emplacement areas but that it is only likely to be used in the MacLeans Hill area and not on any of the pre-existing landforms.
Similarly, I consider that Council's complaint takes too granular an approach to the objectives in Table 14. It is clear that the objectives formulated in the Rehabilitation Strategy are consistent with the overall goal of ensuring the mine site's stability. Moreover, it does not follow from the fact that the Geofluv approach is only initially intended to be applied to the MacLeans Hill area as a "showcase" that the rest of the site can be described as "unstable" and there is no evidence in the proceedings which would lead me to take that view.

A non-polluting mine site (as a whole)

The Rehabilitation Strategy provides the following completion criterion in Table 4 on p 21: The rehabilitated post-mining landscape will not cause environmental impacts greater than surrounding non-mined land
Council submits that this is not a strategy and that there is no strategy by which the completion criterion is to be achieved. In particular, Council submits that there is no detail in the Rehabilitation Strategy as to how the risk of potentially acid-forming materials and acid and metalliferous drainage will be ascertained and managed.
I consider that the objective provided by the Rehabilitation Strategy is consistent with the Table 14 objectives. Having regard to my reasoning above, I consider that the deferral of specific measures to achieve that objective to other documentation HVEC is required to prepare is consistent with the role of the Rehabilitation Strategy in the context of the Modified Project Approval.

Final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms in respect of the mine site (as a whole)

Council submits that one of its "principal complaints" is that Table 14 requires the mine site (as a whole) to have "final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms". With reference to the definitions provided by Dr McCullough, Council submits that the concept described in Table 14 requires the provision of small scale variations in the final topography of the rehabilitated mine that will function and appear as if they were natural. Council submits that this involves the emplacements pre-dating as well as succeeding the Modified Project Approval.
As has been noted, the Rehabilitation Strategy does not propose the retrospective modification of pre-existing emplacements and is only initially proposing that the Geofluv approach be used on MacLeans Hill as a "showcase". Council submits that this approach is not open on the terms of the Modified Project Approval.
The relevant passage of the Rehabilitation Strategy provides, at p 14: The MacLeans emplacement area has been used explicitly through this document to showcase the Geofluv approach. The Geofluv approach shown in the Strategy will be applied to emplacements where the design is shown to meet requirements for stability, rehabilitation, economic and approved land uses. Further detailed design of emplacement areas, to be established following the Project Approval Mod1, will be developed using the same Geofluv approach where appropriate. Updated designs for these remaining emplacements will be included in a subsequent revision of the Strategy, which will be submitted to DPE in 2018 for review and approval. Pre-Project Approval Mod1 emplacements will not be retrospectively modified to include Geofluv design or natural relief.
Council submits that as the emplacements are part of the "final landforms" of the site, to exclude emplacements from a condition of consent which applies to final landforms is a failure to comply with that condition of consent.
Council submits that the above passage from the Rehabilitation Strategy: 1. Refers to a "design" but does not identify any design, either existing or proposed; 2. Limits the application of the Geofluv approach to those emplacements which are shown "by an unnamed person to an unnamed person" to meet four discrete undefined and unquantified requirements of which only one ("stability") is mentioned in Table 14; 3. Limits the Geofluv approach to emplacements established following "Pre-Project Approval Mod 1", or those established after 26 September 2014 and only where considered "appropriate" by an unidentified person. Council submits, by reference to the evidence of Dr McCullough and cross-examination of Mr Masters, that it is impossible to identify which emplacements pre-date 26 September 2014; 4. Leaves matters of strategy to be decided at a later date. Council submits that a Rehabilitation Strategy which does not comply with Condition 42 cannot be cured by proposing a subsequent revision for review or later approval; 5. In providing that "Pre-Project Approval Mod1 emplacements will not be retrospectively modified to include Geofluv design or natural relief", the Rehabilitation Strategy unequivocally repudiates Condition 42(d) which requires it to include detailed objectives which comply with and build upon the objective of having final landforms over the mine site as a whole designed to incorporate natural micro-relief; 6. Fails to give any logical or factual basis for choosing the date of the Modified Project Approval as the criterion for including or excluding certain emplacements from the Geofluv approach; and 7. Fails to provide any detailed objectives for the integration of drainage lines with the surrounding landforms, with the exception of the MacLeans Hill area.
HVEC submits that, properly understood, the Modified Project Approval does not require the rehabilitation of pre-existing emplacements. It submits: 1. Table 14 requires "final landforms", not each and every landform or centimetre of the mine, be designed "to incorporate natural micro-relief and natural drainage lines". HVEC says "incorporate" means to include or contain to some extent and the question of the appropriate extent is a matter for the Secretary to decide; 2. Council has misinterpreted the expression "mine site (as a whole)" as meaning "the whole of the site". HVEC submits that this is contrary to the ordinary meaning of the phrase in context and it should instead be construed as conveying that the objectives are not confined to one specific area but generally apply across the parts of the site upon which mining is being undertaken; 3. Council's construction would give rise to an absurd result in that parts of the mine that do not contain emplacements or that do not have approved surface development would need to be retrospectively rehabilitated as final landforms incorporating natural micro-relief and natural drainage lines. HVEC submits that a more practical and sensible construction of Condition 42 and Table 14 is that the final landforms objective applies to areas of the mine that have been approved for further disturbance and areas not previously rehabilitated; and 4. Condition 43 in schedule 3 of the Modified Project Approval includes a note that "parts of the site that are progressively rehabilitated may be subject to further disturbance in the future", indicating that it was understood that there would not be disturbance to areas that had already been rehabilitated at the start of the Modified Project Approval.
I accept the submission of HVEC that the expression "mine site (as a whole)" means the mine site generally rather than each square inch of the site. This has the consequence that the Table 14 objectives which apply to the "mine site (as a whole)" have application to those parts of the mine to which they can be sensibly and usefully applied. It would be unusual to conclude that Table 14 requires the disturbance of land to meet the objectives set out if the land would not otherwise have been disturbed by the mining activities being undertaken and I do not consider that the words of Condition 42 and Table 14 mandate that conclusion.
Seen in that light, I do not consider that the limitation of the Geofluv approach to those areas of the site deemed "appropriate" is an unreasonable limitation or an impermissible derogation from the language of Table 14.
Further, I accept that the word "incorporate" in this context means that the final landforms should "include" natural micro-relief and natural drainage lines, not that the entirety of the mine site is required to be altered. In this regard, I note that the 2014 EA envisaged only minor changes to the scheme of rehabilitation being occasioned by the modification of the Project Approval. As earlier noted, the 2014 EA is given effect by condition 2 in schedule 2 of the Modified Project Approval and I find that this interpretation of "incorporate" means that this condition operates harmoniously with Condition 42 and Table 14.
Whilst I consider there is some force to Council's argument that the rehabilitation of existing emplacements should not be called "retrospective" but would constitute prospective requirements applying to the whole of the site over which the consent will operate, I do not find that this provides a proper basis for concluding that existing emplacements are required to be disturbed by the Modified Project Approval. There is no explicit requirement that such work should be undertaken and for the reasons I have articulated, I find that the reliance on Condition 42 and Table 14 for this purpose is misplaced.
Moreover, I note that there is no evidence before me that the existing emplacements have not been rehabilitated or that any such rehabilitation is inappropriate. Such evidence would not alter my construction of the conditions but in the circumstances there is no reason to suppose that the PAC would have required any such work to be undertaken.
Accordingly, I consider that there is no requirement imposed by Condition 42 or Table 14 for HVEC to rehabilitate the existing emplacements. Therefore, the Rehabilitation Strategy is not defective on the grounds that it fails to provide that this be done.

Minimising to the greatest extent practicable any high wall instability risk in respect of the final voids

Council submits that the Rehabilitation Strategy does not include detailed rehabilitation objectives for the site which comply with and build on the objective of minimising to the greatest extent practicable any high wall instability risk in respect of the final voids. It submits that the "detailed objective" column on p 21 of the Rehabilitation Strategy is "conspicuously silent in this respect".
The Rehabilitation Strategy provides at p 24 (part of a larger extract reproduced above at [55]): A Final Void Management Plan will be prepared in accordance with regulatory requirements and refined as part of the closure planning process to integrate the documentation of void management strategies. The final void plan will be included as part of a subsequent revision to the Strategy, which will be submitted to DPE by 30 June 2018 for review and approval.
Council submits that in this respect the Rehabilitation Strategy is "not a rehabilitation strategy at all but a strategy to strategize". It submits that this is impermissible having regard to the terms of the Modified Project Approval.
Given my findings that the Rehabilitation Strategy is properly conceived of as a high level document, I am not persuaded that the deferral of these matters to a "Final Void Management Plan" is inappropriate, particularly given that it is not yet clear in what time frame mining operations at the site will finally cease.

Minimising to the greatest extent practicable the risk of flood interaction in respect of the final voids

Similarly, Council submits that the Rehabilitation Strategy does not include detailed rehabilitation objectives for the site which comply with and build on the objective of minimising to the greatest extent practicable the risk of flood interaction in respect of the final voids. Again, Council submits that the "detailed objectives" column is silent.
At p 25, the Rehabilitation Strategy provides: Catchment areas of the final voids will be minimised postmining to protect against external flooding, with surface flow runoff from most rehabilitated and revegetated areas being directed to the local natural drainage network. All areas, with the exception of the final void catchments, will be free draining. The aim of this drainage design is to maintain effective catchment contribution and yield to the Hunter River following the cessation of mining.
Council submits that this is merely a restatement of the relevant objective in Table 14 and does not build upon it. Council submits that the obligation of HVEC was to use the Table 14 objectives as a basis to construct detailed objectives which cannot be done by restating the terms of Table 14.
I do not accept the submissions of Council in this regard given that I have found that the requirement imposed by Condition 42 and Table 14 is to be consistent with the objectives in Table 14 and to generate objectives generally in accordance with them.

Incorporating structures for aquatic habitat in creek diversions and realignments

Council submits that the Rehabilitation Strategy does not provide detailed objectives that build upon the objective of incorporating structures for aquatic habitat in creek diversions and realignments. It notes that Mr Masters agreed that the Rehabilitation Strategy does "nothing at all" on this subject.
I do not consider that the "silence" of the Rehabilitation Strategy in this regard is a relevant non-compliance with Condition 42 and Table 14 on the basis that it is not inconsistent with the Table 14 objective and that it is not inconsistent with the scheme of rehabilitation established by the Modified Project Approval.

Revegetating creek diversion and realignments with suitable native species

In respect of the revegetation of creek diversion and realignments with suitable native species, Council submits that the Rehabilitation Strategy merely restates the Table 14 objective using different words and that Mr Masters agreed that the Rehabilitation Strategy "says nothing" on this subject. Council says sentences such as "Stock dams and water features providing habitat for aquatic flora and fauna will be established at strategic locations across the landscape" are "bromides" (which I understand to mean, in addition to referring to a certain salt, "tiresome platitudes", according to the Macquarie Dictionary, (6th ed, 2013)).
Moreover, Council submits that the Rehabilitation Strategy contemplates that the objective will only be complied with where revegetating with suitable native species does not "impact upon the stability of the reconstructed creek" (Rehabilitation Strategy, p 39). It submits that this is not open to HVEC because the requirements that creek diversion and realignments be revegetated and that the mine site as a whole be stable are coextensive obligations.
Similarly, I find that in this regard the Rehabilitation Strategy is not inconsistent with the relevant Table 14 objective and, further, that it is not inconsistent with the scheme of rehabilitation established by the Modified Project Approval. I do not accept the characterisation of the objectives identified in the Rehabilitation Strategy as "bromides" having regard to the role of the Rehabilitation Strategy in the overall scheme. Details as to the strategic locations for stock dams and water features need not be provided by the Rehabilitation Strategy but the objective envisages that such detail will be forthcoming.
Nor I do not accept Council's criticism of the Rehabilitation Strategy's stipulation that native species revegetation will only take place where it does not "impact upon the stability of the reconstructed creek". This is not a refusal to incorporate native revegetation, indeed the objective specifically states that this will take place, but rather a balancing of what Council correctly observes are coextensive obligations.

Ensuring public safety

In Table 4 on p 21, the Rehabilitation Strategy provides in the "detailed objective" column, "ensure public safety".
Council submits that this merely parrots the requirement from Table 14 and therefore fails to build upon it. It further notes that there is no completion criteria relating to public safety.
Given the Rehabilitation Strategy's status as an overarching strategic document, I do not consider that this is a proper criticism. The objectives in Table 4 on p 21 of the Rehabilitation Strategy are consistent with ensuring public safety and I do not consider that Condition 42 requires each individual objective in Table 14 in the Modified Project Approval to be "built on" in the sense of discretely expanded.
Moreover, I consider there is some inconsistency in Council's criticism that there are no completion criteria in relation to public safety, given that it elsewhere complains that completion criteria do not belong in the Rehabilitation Strategy (see above at [265]). The absence of completion criteria is not something which I consider would make the Rehabilitation Strategy inconsistent with the requirements of Condition 42 or Table 14.

Minimising the adverse socio-economic effects associated with the mine closure

In respect of the adverse socio-economic effects of mine closure, in Table 4 on p 21, the Rehabilitation Strategy provides in the "detailed objective" column: Land use provides social and economic value to the local and wider community
Council submits that this is a "broad, meaningless platitude" and that the Rehabilitation Strategy fails to provide a strategy to identify or define the community likely to be affected by the mine closure or a strategy to identify or define the adverse socio-economic impacts associated with land closure let alone provides a strategy for the minimisation of such effects.
I do not consider that the Rehabilitation Strategy is inconsistent with the Table 14 objective of minimising the adverse socio-economic effects associated with the mine closure. Having regard to the Rehabilitation Strategy's role in the overall scheme created by the Modified Project Approval as well as the fact that the date of the mine's final closure is as yet unknown, I do not consider that any failure to conform with Condition 42 or Table 14 is established in this regard.
Accordingly, contrary to the submissions of Council, even if I were of the view that Condition 42 created objective jurisdictional facts, I am not of the view that the Rehabilitation Strategy is defective in any relevant sense.

Whether the Secretary failed to take mandatory considerations into account

As noted above at [16], the Strategy Approval was issued by Howard Reed, who acted as delegate for the Secretary. Council contends that Mr Reed failed to take mandatory considerations into account and that the state of satisfaction purportedly reached by the Secretary is therefore infected by error.
The relevant legal test was explained by Gibbs CJ in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 ('Peko-Wallsend') at 30-31: Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
Also in Peko-Wallsend, Mason J said, at 39: The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action…
Council submits that the relevant mandatory matters which the Secretary failed to take into account are the same ten matters which it submits are the "objective flaws" in the Rehabilitation Strategy (recorded above at [131]). It says that it is open to the Court to find that the failure to consider those matters is evident from the terms of the Rehabilitation Strategy itself. Council repeats its submissions in respect of the objective failures of the Rehabilitation Strategy.
HVEC submits that Council has not developed its argument in respect of the alleged failure to take mandatory matters into account and that its approach is not addressing the question by the conventional framework of judicial review but is in fact impermissibly asking the Court to assess the correctness of the Secretary's decision to approve the Rehabilitation Strategy.
In Parramatta City Council v Hale (1982) 47 LGRA 319 ('Hale'), Street CJ said at 335: A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration.
In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 ('Kindimindi'), Basten JA, with whom Handley JA and Hunt AJA agreed, explained Hale in the following terms at [63]: In the circumstances of that case, both the Land and Environment Court and the majority in this Court were satisfied, on an objective appraisal of the materials before the Council, that the complexity of the issues, changes made from the recommendations presented by expert officers of the Council, followed by a decision which, in the material respects left important aspects virtually at large, demonstrated that there had been a failure to take mandatory considerations into account.
Council relies on Hale and Kindimindi to make good its argument that the matters enumerated in Condition 42 were mandatory considerations for the Secretary in forming a state of satisfaction or otherwise in respect of the Rehabilitation Strategy.
Although it was not explicitly advanced on this basis, it appears that this submission is a fall-back which depends on a different interpretation of Condition 42 than that primarily advanced by Council. That is, it seems to presume that the matters enumerated in Condition 42 are mandatory considerations for the Secretary in forming a state of satisfaction or otherwise. This reading sits uncomfortably alongside Council's primary position that the Secretary cannot form a state of satisfaction unless the matters enumerated in the second sentence have been objectively met.
Although the interrogatories were presumably sought to assist Council's argument in respect of the alleged failure to take mandatory considerations into account, the fact that Council ultimately advanced the argument on the basis of a "constructive" failure in the sense considered in Kindimindi means that the interrogatories are not of assistance. In any event, I consider that establishing a constructive failure to take mandatory considerations into account is a high bar. In light of my findings above that the Rehabilitation Strategy objectively complies with the requirements imposed by Condition 42 and Table 14, I would not uphold this ground of challenge.

Whether the Secretary's state of satisfaction was legally unreasonable

The legal unreasonableness ground of judicial review is frequently called Wednesbury unreasonableness in reference to the decision of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680. At 682-683, his Honour said: In the present case we have heard a great deal about the meaning of the word "unreasonable." It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ, I think it was, gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all those things largely fall under one head.
At 683, his Honour continued: Once, however, it is conceded, as it must be conceded, that the subject-matter of this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case, because, once that is granted, counsel must go so far as to say that the decision of the authority is wrong because it is unreasonable, and then he is really saying that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the whole argument entirely breaks down. It is perfectly clear that the local authority are entrusted by Parliament with the decision on a matter in which the knowledge and experience of the authority can best be trusted to be of value. The subject-matter with which the condition deals is one relevant for its consideration. It has considered it and come to a decision on it. Theoretically it is true to say - and in practice it may operate in some cases - that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is right, but that would require overwhelming proof, and in this case the facts do not come anywhere near such a thing.
It is clear that the bar is set high, a proposition confirmed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ('Li'). At [30], French CJ said: The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." As Professor Galligan wrote: "The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed." (Citations omitted). …
At [68], the plurality, comprising Hayne, Kiefel and Bell JJ, said: Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.
At [76], the plurality continued: As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
Legal unreasonableness was more recently considered by the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 ('SZVFW'). At [10]-[11], Kiefel CJ said: [10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. None of these descriptions could be applied to the Tribunal's decision in the present case. [11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies (citations omitted).
At [52], Gageler J said: Expression of the standard of legal reasonableness in terms of the minimum to be expected of any "reasonable repository of the power" in the circumstances of the impugned decision or action has the benefit of emphasising both the "extremely confined" scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words (citation omitted).
At [78]-[80], Nettle and Gordon JJ said: [78] The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable. [79] That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power. [80] Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review (citations omitted).
At [82]-[84], Nettle and Gordon JJ continued: [82] Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'". [83] Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. In that situation, the court is not undertaking merits review of an exercise of a discretionary power by a decision-maker. Rather, the court is asking whether the decision-maker's purported exercise of power was beyond power because it was legally unreasonable. [84] Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power (citations omitted).
It is clear, and not disputed by any of the parties, that for a decision to exceed the power conferred upon the decision-maker by reason of its legal unreasonableness is a very high bar.
Council submits that no reasonable decision-maker could ever be satisfied with the Rehabilitation Strategy for any of the following reasons: 1. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having a safe mine site (as a whole); 2. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having a stable mine site (as a whole); 3. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having a non-polluting mine site (as a whole); 4. Moreover, it fails to identify what pollution risks from the mine site as a whole might exist, how the risk are or were to be ascertained and then managed; 5. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms; 6. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the final voids minimise to the greatest extent practicable any high wall instability risk; 7. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the final voids minimise to the greatest extent practicable the risk of flood interaction; 8. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the creek diversions and realignments incorporate structures for aquatic habitat; 9. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the creek diversions and realignments revegetated with suitable native species; 10. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having public safety ensured; 11. It does not include detailed rehabilitation objectives for the site that comply with and build on the objective of having the adverse socio-economic side effects associated with mine closure minimised; 12. It defers to an unidentified decision-maker to decide what rehabilitation approach is considered "appropriate". Council submits that this is an unlawful deferral of the Secretary's function; 13. It introduces four "requirements" of stability, rehabilitation, economic and approved land use which are not rationally justified within the Rehabilitation Strategy; 14. It fails to identify which emplacements will actually be subject to the four requirements mentioned in (13); 15. It defers some of its essential elements to a subsequent version of the Rehabilitation Strategy to be submitted in 2018 for review and approval and presumes that it will be approved; 16. It provides that the Goefluv approach will only be applied to MacLeans Hill and even then only if a "non-existent 'design' allows for it". Council submits that this is objectively irrational; 17. It fails to identify any lawful (or rational) basis why HVEC chose to apply the Geofluv approach only to emplacements that post-date 26 September 2014; and 18. It expressly prefers one equally co-extensive requirement of Table 14 over another.
I note at the outset that matters (1) to (3), (5) to (11) and (17) to (18) are among the matters in respect of which I concluded the Rehabilitation Strategy objectively complies with the requirements of Condition 42 and Table 14 in the course of my consideration above at [253]-[306]. Given those findings, I would not (and could not) find that the Secretary's decision to be satisfied in respect of those matters is legally unreasonable.
HVEC submits that, given the high bar set for a finding of legal unreasonableness, Council has not discharged its onus by merely alleging a lack of detail in the Rehabilitation Strategy.
Further, HVEC submits: 1. Insofar as Council complains about the Secretary's state of satisfaction being unreasonable because the Rehabilitation Strategy did not provide detail about pollution risks, the Rehabilitation Strategy addresses the objective that the mine site as a whole be safe, stable and non-polluting. The Rehabilitation Strategy was not required to provide specific measures for ascertaining and managing pollution risks; such requirements are left for the Rehabilitation Management Plan by virtue of condition 44 of schedule 3; 2. Insofar as Council complains about the Secretary's state of satisfaction being unreasonable because the Rehabilitation Strategy did not contain sufficient information about Geofluv and the factors to be considered in determining whether it is to be applied, the Rehabilitation Strategy does not need to specify details and the Secretary was entitled to be satisfied that it set out an appropriate guideline for the use of Geofluv having regard to the fact that rehabilitation is an iterative and ongoing process; 3. Insofar as Council complains about the Secretary's state of satisfaction being unreasonable because the Rehabilitation Strategy did not identify which emplacements will be designed with Geofluv, because only the MacLeans Hill emplacement will be designed with Geofluv or because there is no basis for not rehabilitating the pre-existing emplacements, HVEC submits that there is no basis for any of these allegations. HVEC submits the Rehabilitation Strategy identifies the areas already rehabilitated, that MacLeans Hill is being used as a "showcase", not as the only emplacement to which the Geofluv approach will be applied, and the Modified Project Approval does not require the pre-existing emplacements to be rehabilitated; 4. Deferral of the design of remaining emplacements was not unreasonable in the circumstances that rehabilitation is ongoing; HVEC was using Geofluv for the first time at the mine and the Rehabilitation Strategy is a "strategy"; and 5. In respect of the allegation that the Rehabilitation Strategy prefers one co-extensive requirement of Table 14, there was nothing unreasonable about the Secretary approving a Rehabilitation Strategy which provided that vegetation in creek lines should not undermine stability.
I accept the submissions of HVEC. I do not consider that there are grounds for impugning the decision of the Secretary on grounds of legal unreasonableness. In reaching that conclusion, I have considered the parties' submissions and the relevant expert evidence.
I consider that the objectives contained in the Rehabilitation Strategy are properly directed towards the identification and reduction of pollution risks. As Mr Masters observed, the Rehabilitation Strategy contains eight detailed performance criteria associated with the objective that the mine site as a whole be safe, stable, and non-polluting and that it contain final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms.
I accept the submission of HVEC that it is open on the terms of the Modified Project Approval to defer consideration of the discrete pollution risks to the MOP. That is not to say that the Rehabilitation Strategy could not have contained more detail. The Court is not asked to make a finding on the merits of the Rehabilitation Strategy but merely to determine whether the Secretary's state of satisfaction was legally unreasonable.
In relation to Council's complaint that the Rehabilitation Strategy defers consideration as to what rehabilitation approach is considered "appropriate", I consider that this must be examined in the context of the fact that the Geofluv approach has not been previously employed at the mine by HVEC. In those circumstances, it is not irrational to await the results of its use before committing to using it more broadly on the site and certainly not irrational in the sense considered by the High Court in Li.
Similarly, whilst it might be desirable that the introduction of the criteria of "stability, rehabilitation, economic and approved land use" was explained or justified more expansively within the Rehabilitation Strategy, it can hardly be thought that they are irrational considerations in the requisite sense. They are objectives in respect of which the Secretary was entitled to form a state of satisfaction.
Moreover, I do not accept that the Rehabilitation Strategy fails to identify the parts of the mine which are to be subject to further rehabilitation although more clarity in relation to this would have been preferable. Figure 4 in the Rehabilitation Strategy depicts post-mining land use capabilities and showed areas of "existing rehabilitation" as at April 2017 (the date of the figure). The type of the rehabilitation is also shown as are areas of "active mining" and "overburden emplacement" which was not yet rehabilitated.
I accept, as was submitted by HVEC, that given the Rehabilitation Strategy makes it clear that pre-existing emplacements (which are depicted as "existing rehabilitation") are not intended to be further disturbed, it is possible to conclude on the basis of Figure 4 that it is the areas of "overburden emplacement" which the Rehabilitation Strategy envisages will be rehabilitated with the Geofluv approach where the "design meets requirements for stability, rehabilitation, economic and approved land uses".
This reading of the Rehabilitation Strategy does require the reader to interpret the areas of "existing rehabilitation" as being coterminous with the emplacements which were pre-existing at 24 September 2014. The Rehabilitation Strategy does not make this link explicit and greater clarity would have been desirable. However, reading the document carefully and having regard to the evidence of Dr McCullough who stated that she was able to identify the existing areas of rehabilitation from the aerial photographs in the Rehabilitation Strategy (at Tcpt, 20 September 2018, p 252 (3-12)), I would not conclude that the Rehabilitation Strategy was objectively deficient or non-compliant with Condition 42 on this basis or that the Secretary's state of satisfaction was legally unreasonable.
I also do not consider that the fact that the Rehabilitation Strategy defers some matters for later consideration makes the Secretary's decision irrational in either an ordinary or legal sense. In this regard, it is important to remember that mining is ongoing and that the Modified Project Approval envisages that Rehabilitation will be an ongoing and dynamic process to which adjustments will be required to be made over time.
In relation to all of the grounds upon which Council contends the Secretary's state of satisfaction is legally unreasonable, it is important to bear in mind the proper construction of the conditions of the Modified Project Approval considered as a whole. When regard is had to the fact that the Rehabilitation Strategy is intended to be a high level document and that rehabilitation is an ongoing process, I do not consider that any of the claimed grounds approach the level of irrationality articulated by the High Court in Li and SDZVFW which are required for a claim of legal unreasonableness to succeed.

The Court's discretion

In the circumstances of my findings, it is not necessary to consider whether I would have exercised my discretion to provide the relief sought by Council.

Conclusion

For the above reasons, I have determined that Council has failed to make out any of its pleaded grounds of challenge with the consequence that its summons must be dismissed. The ordinary order is for costs to follow the event, but as I have not heard the parties on the question of costs, I shall defer making that order for 28 days should the parties wish to make any alternative order.
Finally, I note that the Court has not been asked to make an adjudication of the merits of the scheme of rehabilitation being undertaken at the mine or on the appropriate standard of mining rehabilitation more generally. I accept that the proper rehabilitation of the mine is a significant matter for future generations and that Council harbours a genuine concern that such rehabilitation is not being conducted appropriately. To a very great extent, those are matters of policy which are not the proper domain of the Court in judicial review proceedings (as opposed to the jurisdiction of this Court in merit appeals).
It is always open to Parliament and the relevant consent authorities to impose more stringent conditions and rigorous processes in respect of rehabilitation. Suffice it to say, I have not found any indication from the terms of the Modified Project Approval that the more exacting conditions contended for by Council have been embraced by the consent authority. In particular, I have not found that previously disturbed and rehabilitated embankments are required to be re-disturbed by the Modified Project Approval, irrespective of whether better environmental outcomes might be achieved by doing so.

Orders

The Court orders that: 1. The applicant's summons is dismissed. 2. The applicant is to pay the first and second respondents' costs unless an alternative order is sought within 28 days.

Annexure A (232 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2018

(Interpretation Act 1987(NSW)s 3(1)

Environmental Planning and Assessment Act 1979(NSW)ss 4.17, 9.46, 75R, 75W, 80A

Evidence Act 1995(NSW)ss 76, 79

(2013) 195 LGERA 182

(2006) 143 LGERA 277

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