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23 November 2010
Freedom of "Information" from Department of Planning
Because the Centennial Coal Company withdrew its application for the proposed Olstan Auger Mine, the Department of Planning has never publicly disclosed whether it considered the development lawful.
This has left the community concerned about whether the state's planning laws effectively prevent open cut mining in Lake Macquarie.
In late 2009 I lodged an FOI application for all documents providing advice on Olstan's permissibility and in March this year I received the information. I was provided with 8 documents and 13 were withheld as exempt under "legal professional privilege".
What I received is inconclusive and in no way resolves the question of whether the mining policy actually prevents surface mining. The document trail presents an unconvincing story about Planning's handling of the project.
After a string of internal emails, the matter was referred to an outside Senior Counsel who specialises in planning law. His opinion was withheld from the FOI response and the only opinion provided was that of a Counsel on Planning's staff. His view was that the excavation of trenches would not be subordinate to the augering process because a "not insignificant amount" of coal would be won from the trenches. This statement was made without reference to any threshold at which the surface excavation would actually become significant. One of the most noteworthy aspects of this advice is that it is undated and may well have been written in response to my FOI request.
The Department of Planning has withheld the "trump card" that it paid for and instead offers an in-house document that clarifies nothing. Further, I have been advised by Centennial that at no time was it told that the project had been or would be rejected.
When challenged, the Department of Planning has absolutely failed to produce convincing evidence that the Olstan project was unlawful. I am led to the conclusion that the SEPP (Mining, Petroleum Production and Extractive Industries) 2007 does not prevent surface mining in Lake Macquarie and consequently I will push ahead with my Surface Coal Mining Prohibition Bill.
So that you form your own opinion, the FOI information is available here.
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