The total value of security deposits held has increased from $500 million in 2005 to around $2.2 billion in 2016, covering around 450 mine sites in New South Wales.

While there have been substantial increases in total deposits held, mine rehabilitation security deposits are still not likely to be sufficient to cover the full costs of each mine's rehabilitation in the event of a default.

This audit was undertaken when the Department of Industry, Skills and Regional Development was responsible for ensuring land disturbed by mining activities is rehabilitated in accordance with the relevant development approval, including the administration of mining rehabilitation security deposits. On 1 April 2017, this responsibility was transferred to the Department of Planning and Environment (the Department).  

This audit assessed whether the Department maintains adequate security deposits to cover the liabilities associated with mine closures, including rehabilitation. Companies authorised by the Department to undertake mining activities must provide a security deposit to cover the full costs of rehabilitation in the event of default by the company. Rehabilitation is the treatment of disturbed land or water to establish a safe, stable, non-polluting and sustainable environment.

Mining companies must provide an estimate of rehabilitation costs for each site. The Department provides a Rehabilitation Cost Calculation tool to assist companies calculate the deposit amount. Companies are also required to ensure that the cost estimate is in accordance with the approved Mining Operations Plan (MOP). The MOP is intended to be a mine rehabilitation and closure plan, and forms the basis for the estimation of the security deposit. The Department reviews the estimates and determines the deposit for each site.  

Security deposits are an option of last resort. The Department has other legislative and regulatory tools which it normally uses to promote compliance with rehabilitation requirements before accessing a security deposit. It can direct action by the mining company, issue fines and even have the Minister revoke a mining lease. To date, the Department has never had to access a security deposit for a state significant development mine site.

Security deposits are close to calculated value and should be accessible if needed

The value of securities held by the Department aligns with the latest approved rehabilitation cost estimates. This contrasts with the situation found by investigations in Victoria and Queensland, where deposit amounts held fell below the calculated costs.

The security deposits are usually in the form of a bank guarantee or cash. The Department has obtained legal advice indicating that it should be able to claim on these bank guarantees if the need arises. As the guarantee is between the financial institution and the Department, if a mining company goes into liquidation the Department should still be able to access the funds.  

When the latest estimate of rehabilitation costs is higher than the existing deposit, the Department will request additional security. It has experienced extensive delays in obtaining additional security for some sites, increasing the risk that available funds will be insufficient if needed.

Rehabilitation cost estimates are not yet adequate, but improvements are planned

The Department’s policy is for security deposits to cover the full cost of rehabilitation. No discounts are provided to mining companies for past good behaviour or low likelihood of default, unlike in some other states. Discounting could undermine the policy position.  

Current security deposits are unlikely to cover the full cost of rehabilitation on each mine site. The Department provides a rehabilitation cost calculation tool to help mining companies calculate the cost of rehabilitation and the required deposit amount, but:

• several activities required to effect closure are not included and others underestimated
• it does not make provision for industry cost changes over time
• the rates used in the tool have not been updated since 2013
• it was not able to provide the basis for the rates and allowances in the tool.

The Department reviews cost estimates provided by mining companies, but its verification of the extent of rehabilitation work on which these estimates are based is limited. It relies instead on section 387C of the Mining Act 1992 which makes it an offence for mining companies to provide false or misleading information. It is not evident how the Department would establish that information provided was false or misleading without more verification work, and six of the 14 cost estimates we reviewed were not signed by the mine manager, making enforcement more difficult.  

The Department has developed a new calculation tool, and recently released it for industry consultation. The new tool should improve rehabilitation estimates. It updates rates and allowances, and includes additional items to better cover required rehabilitation tasks. While a substantial improvement, the new tool could be further improved by providing additional coverage for stakeholder engagement, additional planning approvals, insurance costs, and any additional design, research and verification work required for successful closure.

There is no financial assurance over long-term environmental risks

The Department does not hold any financial assurance to cover the costs associated with mitigating any future environmental degradation once a mine closes and the security deposit is relinquished to the mining company. Security deposits are probably not the appropriate mechanism to cover these long-term risks but the risk of potential post-closure environmental degradation still needs to be costed and covered. A fund to cover the state-wide risk, to which all mines would contribute, is a possible mechanism.

Rehabilitation and closure outcomes are vague, particularly for unplanned closure

Rehabilitation outcomes in the MOPs we reviewed were generally not specific. Any lack of specificity in MOPs translates into uncertainty about rehabilitation work required if a mining company defaults. Part of the problem is that rehabilitation outcomes established in planning approvals are usually not specific and may not address all closure requirements. The Department has recognised there is scope to improve the clarity and specificity of rehabilitation requirements in planning approvals, and has started a review focusing on open-cut mines.

Rehabilitation outcomes are even less specific in the event of an unexpected early closure because they will probably be different from that achievable from a planned closure.  

MOP guidelines do not cover management of some key closure matters, such as the requirements of environment protection licences issued by the Environment Protection Authority and the management of heritage sites during closure.

There were significant variations in quality of MOPs we reviewed and the way closure risks and uncertainties were identified and addressed. The Department plans to improve the quality of rehabilitation programs through enhanced guidance and oversight.

Monitoring is not adequate to effectively gauge rehabilitation progress

The Department was not able to show it has been monitoring operational mine sites effectively to gauge the progress of ongoing site rehabilitation and the management of closure risks. There was no protocol for site inspections and limited evidence of inspections for the sites we reviewed.

The Department receives annual environmental management reports from mining companies, with most describing the areas of disturbance and rehabilitation occurring at each mine site. The Department recently established procedures for reviewing these annual reports, and has developed a risk-based process for prioritising reviews.

Most annual reports we reviewed did not explain environmental changes over time, nor the risks to mine closure and the measures required to mitigate them. For example, analysis of changes to surface water and groundwater quality was limited despite its relevance for assessing future contamination risks.

The Department does not currently have adequate processes in place to effectively verify the reported areas of disturbance and rehabilitation. It is developing geographic information system-based tools to better measure areas of disturbance and rehabilitation, new rehabilitation guidelines, and a procedure for determining whether rehabilitation has been successful. These initiatives should improve the monitoring and reporting of rehabilitation progress at mine sites.

There is no mechanism to prevent a mine being in ‘care and maintenance’ indefinitely

The Department does not have a clear policy on the length of time and circumstances under which a mine can remain in ‘care and maintenance’. Indefinite postponement of rehabilitation and closure is therefore possible. 'Care and maintenance' is the period following temporary cessation of operations when infrastructure remains largely intact and the site continues to be managed. There are a range of valid reasons for a mining company to put a mine in ‘care and maintenance’, but it is also reasonable for the community to expect a limit to how long it has to wait for proper rehabilitation.

Mining operations make a significant contribution to the NSW economy, including over $1.3 billion in royalties each year. Around 400 mine sites throughout NSW provide over 40,000 jobs and are a major source of economic activity for many communities. Despite these benefits, it is important to ensure that mining companies fulfil their obligations to rehabilitate land disturbed as a result of mining activity.

We recommend that the Department should, by January 2018:

1. Improve the quality of rehabilitation and closure plans by:

• ensuring plans submitted by mining companies include robust mine rehabilitation and closure risk assessments
• clarifying the level of detail required in plans at each stage of a mine’s operation
• specifying how requirements set under other legislative instruments (e.g. environment protection licences, heritage assets) should be addressed.

2. Improve assurance that security deposits are sufficient by:

• ensuring its new cost calculation tool adequately covers all works needed for rehabilitation and closure
• increasing the contingency for uncertainties associated with mine rehabilitation and closure, at least until the mining company provides a detailed closure plan
• verifying the cost estimates for a sample of high risk sites annually
• ensuring that when mining companies are required to provide increased security deposits, they do so with minimal delay.

3. Enhance oversight of mine rehabilitation by:

• developing a protocol to ensure sufficient and adequate site inspections
• ensuring mining companies report performance against rehabilitation targets and environmental changes clearly, including an analysis of long-term surface water and groundwater trends in terms of levels, flow and quality
• improving how it determines the progress and success of mine rehabilitation
• developing clear policy and procedures for ensuring a mine cannot be put into ‘care and maintenance’ indefinitely.

4. Collaborate with relevant agencies to establish a financial assurance mechanism, such as a sinking fund, to cover the risk of long-term environmental degradation after mines are closed and security deposits returned.

Appendix One - Response from the Department

Appendix Two - About the audit

The Department of Education (Department) must provide students with a place in a government school if parents desire it. Over the next 15 years, the student population in NSW Government and non-government schools is projected to grow by 21 per cent to nearly 1.5 million students. Over 80 per cent of this is expected to be in the Sydney metropolitan area.

Improving education outcomes of students is a NSW State Priority. Research shows that well designed and maintained facilities improve student learning outcomes. A strategic objective of the 2014 State Infrastructure Strategy Update is to ‘equip growing urban and regional populations with the modern schools and training infrastructure required to deliver educational service for a competitive, innovative economy’. 

This audit assessed whether the Department has a strategy and implementation model to ensure it has sufficient fit-for-purpose student learning spaces when and where needed.

Asset planning and investment for much of the last decade has been deficient

Over the last decade, there has been chronic under-investment in NSW Government school infrastructure. This has affected both new works and maintenance of existing assets. Until recently, the Department did not have a high-level, long-term school asset strategic plan. The Department had limited understanding of the funds needed over the long term to provide the necessary school infrastructure to meet educational needs of students economically. It had no robust method to determine whether priorities were correct and assess whether the funding split between building, upgrading and maintaining was appropriate.  

Permanent classrooms in 37 per cent of government schools are fully utilised, and 180 schools are operating beyond their permanent classroom capacity. The utilisation rates vary between regions and districts. Demountables are being used for extended periods to cater for permanent student population growth. A significant increase in the number of demountables at some schools decreased student access to amenities and open play spaces. 

The Department now has a Plan to meet future needs

The Department recently developed a Strategic Plan designed to ensure that there are sufficient fit-for-purpose places for students where and when required up to 2031. The Strategic Plan outlines the:

• predicted demand for future learning spaces
• condition of existing infrastructure and additional infrastructure and maintenance required
• proposed new initiatives to deliver the required infrastructure economically
• proposed new cluster planning model to determine priorities and initiatives to be implemented at the school level
• funding needed to provide appropriate learning spaces where and when needed.

The Strategic Plan has been developed with the benefit of expert advice and has been reviewed extensively within the Department, by other key government agencies and experts. The review process examined the Strategic Plan’s assumptions, data quality, proposals and cost estimation approach. This process has increased assurance and improved the Strategic Plan, but has delayed implementation by approximately a year so far.

Many more learning spaces will be needed

The Strategic Plan identifies that over the next 15 years the student population in government schools will increase by 21 per cent and that the Department will need:

• 7,200 additional classrooms and to upgrade many existing classrooms to meet future teaching and learning needs
• to undertake much more planned maintenance, otherwise 40 per cent of existing government school buildings will be in such poor condition that learning outcomes could be compromised.

The Department proposes a new approach designed to minimise costs

Given the need for substantial additional infrastructure and maintenance, and underfunding over the last decade, the Department has sought to minimise costs while maintaining quality.

Initiatives proposed include an increase in the maximum number of students in new and redeveloped schools; a stronger emphasis on redeveloping existing schools; smaller, more intensely developed school sites; strengthening partnerships with the private sector to improve school assets; and school consolidation and sale of surplus land to reinvest in better facilities. We did not identify any additional options that could be proposed to make further cost saving under current operational policy settings.

The proposed new cluster planning model will assess schools in a region or district to identify the best way to deliver school assets to a cluster as a whole rather than individual schools. It will identify the most effective and efficient asset solution within a cluster of five to 15 schools.

It represents an improvement over the previous model which addressed infrastructure needs on a school-by-school basis. The initial focus of school cluster planning will be on areas of highest student growth.

The proposed new cluster planning model has potential to create efficiencies and economies of scale if implemented well. Cluster planning will determine which of the various initiatives should be implemented in the schools in the cluster. It recognises that solving enrolment trends in one school requires consideration of surrounding schools and seeks the optimum asset solution for identified schools.

Implementation will be a major challenge

Effective implementation will require good collaboration with other government agencies, non-government schools, the private sector and the community. The Department has been improving its consultation with other government agencies and the non-government school sector, and has developed models for collaborating with the community and private sector. The Strategic Plan proposes open access to information, which will be important for effective collaboration and partnerships.  

There are many risks to effective implementation, which could drive up costs. These include opposition from school communities, a reduction in the proportion of students educated in non-government schools, unexpected increases in land and construction costs, failure to sufficiently streamline the planning approval system or a blow-out in renovation costs in older schools.  

To provide and maintain the infrastructure needed up until 2031, the Department estimates it will need significantly more money than it receives now even if it implements its initiatives and cluster planning effectively. It would require much more again if it was to retain its current approach to planning and delivering school infrastructure.  

The current school infrastructure funding arrangement does not support effective long-term planning. A four-year commitment to education infrastructure funding does not provide the flexibility needed for the Department to manage its allocations and respond to changes in priorities or emerging challenges. The Health and Transport clusters receive a ten-year funding commitment, known as a capital planning limit.

Changing operational policies could increase school utilisation

Further significant cost savings are only likely if the Department changes some operational policies. Class size is a key determinant of the number of classrooms needed. Choice in school enrolment and the existence of single-sex, selective, sports or creative and performing arts schools all can lead to underutilisation of schools and classrooms because they are not accessible to all students.  

The Department of Education should:

1. regularly revisit and evaluate the Strategic Plan to keep it contemporary, refine it based on learnings, update cost estimates to reflect actual results, and respond to available funding

2. work with NSW Treasury to develop a framework for partnering with the private sector

3. align Total Asset Management plans with cluster plans as they are developed

4. closely consult and collaborate with communities on implementation of the Strategic Plan

5. continue to collaborate with key government agencies, local government, the non-government school sector and the private sector on implementation of the Strategic Plan

6. publish detailed information on the status of assets, current and projected enrolments, and planned school projects to support effective consultation and collaboration

7. seek a ten-year capital planning limit from NSW Treasury

8. advise the government on options to change operational policies and practices to reduce infrastructure requirements.

Appendix One - Response from the agency

Appendix Two - About the audit

Appendix Three - NSW school regions and districts

Appendix Four - School utilisation rate by district/region

Appendix Five - Single-sex, selective and specialist high schools in Sydney Region

The Planning Assessment Commission should:

By July 2017:

1. improve transparency by publishing on its website a summary of the Commissioners’ conflict of interest declarations for each development application referred to the Commission for determination, and how any conflicts were handled
    
2. keep better records of how it considers each matter under section 79C of the EP&A Act for all decisions it makes on major development applications
    
3. improve the public’s involvement in public meetings by:
   1. identifying and implementing additional mechanisms to notify the community of public meetings to ensure as many interested parties are advised as possible
   2. allowing the chair of decision-making panels discretion to extend the time allowed for individual speakers beyond five minutes

4. continue to improve how it communicates the reasons for its decisions to the public by:
   1. including a summary in its reports of the issues raised during the consultation process and how they were considered by the Commission
   2. clearly outlining in its reports how any conditions placed on a development will address the issues raised
   3. detailing in its reports how section 79C of the EP&A Act has been addressed
   4. issuing fact sheets to accompany its reports for all decisions where public meetings were held

5. work with the Department of Planning and Environment to:
   1. develop an agreed approach to presenting the Department’s views in its assessment reports on whether the project meets relevant legislative and policy requirements, reflecting the Commission’s status as an independent decision-maker
   2. refer applications to the Commission earlier in the process to ensure the Department’s assessment report covers matters that Commissioners consider important when assessing projects under section 79C of the EP&A Act.

Appendix one -  Response from the Planning Assessment Commission

Appendix two - Other jurisdictions’ approaches to assessing major development applications

Appendix three -  About the audit