Yancoal Coal lodged an appeal last week against Justice Nicola Pain’s decision, which allowed the mine to proceed provided the company purchased the neighbouring property at Camberwell.

Her ruling handed down in April was a first for an open cut mine development in NSW and it meant Yancoal had to purchase the 182-hectare property Rosedale, owned by Wendy Bowman before any work can start on the project.

And given the fact Mrs Bowman is determined to protect her property that fronts Glennies Creek, from mining, the future of the open cut remains clouded.

In documents lodged for the appeal, which will be held in the Supreme Court, the company argues Justice Pain did not have the power under the EPA Act to make the condition to purchase Mrs Bowman’s farm.

A spokesman for Yancoal described the ruling as unprecedented for mining in NSW, adding that due to the court ruling the company could do absolutely nothing on land they already owned or leased for the proposed mine.

Ashton South East has been mired in controversy having been rejected by the NSW Planning and Assessment Commission (PAC) in 2011 before a subsequent PAC approved the project the following year.

In 2013, the Hunter Environment Lobby (HEL) made a third party merits appeal against the PAC in the Land and Environment Court. 

The appeal was heard by Justice Nicola Pain who, in August 2014, rejected the application and approved the mine provided certain conditions were met.

The mine was expected to extract 16 million tonnes of coal over seven years.

During last month’s torrential rain event, Mrs Bowman said the speed that Glennies Creek rose meant the mine’s proposed bund to protect the creek from mining activities may well have been wiped out.

“If that had happened, all the water users below the junction of Glennies Creek and the Hunter River would have been in trouble – is that worth the risk for such an insignificant project?” she said.