KOREAN Government-backed mining company KEPCO has strongly criticised the NSW Independent Planning Commission over a lapsed consent the company fears may force its controversial Bylong coal project "back to square one".
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KEPCO chief operating officer Bill Vatovec lodged a strongly-worded response after the commission's 11th hour advice that it could not make a final decision about the mine proposal because a necessary "gateway" consent from 2014 lapsed in April.
The Gateway Certificate is a preliminary assessment by a scientific panel of development proposals in agricultural areas. The commission posted a notice on its website on May 1 advising it would take no more public submissions because a final decision was pending, but has since had to re-open public submissions twice because of late issues.
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"At the outset KEPCO wishes to raise its extreme disappointment that this issue is being raised now and at this very late and critical stage of the assessment process, particularly in circumstances where the commission is of the view that the Gateway Certificate purportedly 'expired' on 15 April, 2019," Mr Vatovec wrote.
"This issue certainly should have been raised with KEPCO sooner and not three months after the date on which the commission asserts the Gateway Certificate 'expired'.
"As the consent authority... the commission has a statutory duty to determine the application as expeditiously as possible and if the preliminary view is correct (which KEPCO does not concede) then the commission has breached its statutory duty in circumstances where the currency of the Gateway Certificate imposed a deadline by which the commission had to determine the application."
KEPCO asked for urgent advice about when the issue first came to the commission's attention and said it had had "more than ample time to consider, assess and determine the application" since it was referred in October, 2018.
The company said it "completely disagrees" with the commission's view it cannot make a final determination without a current Gateway Certificate.
KEPCO forwarded legal advice that the commission could make a final decision despite the five-year Gateway consent lapsing in April, arguing the document informed the contents of subsequent environmental assessment requirements, but the consent authority was not required to consider the Gateway Certificate itself.
While it was clear legislation required a state significant development application to be accompanied by a "current Gateway Certificate", it was "silent as to the time at which the application must be so accompanied", the legal advice said.
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KEPCO argued against interpreting legislation "that might cause the assessment process to go back to square one".
"In our opinion, if, as in the present circumstances, a development application has been lodged with a current Gateway Certificate, it is not a precondition to a valid approval that the Gateway Certificate must also be current on the date of determination of the development application."
In June the commission re-opened public submissions after a heritage report on an amended and reduced Bylong mine said its impacts would be permanent and significant.
In response KEPCO said it had committed $750 million to the proposal since acquiring the exploration licence in 2010, in part because it was "encouraged" to do so by the NSW Government and Department of Planning.
The Independent Planning Commission has sought public submissions on the expired Gateway Certificate issue until August 2.