SOUTH Korea's KEPCO has initiated a judicial review in the NSW Land and Environment Court to determine whether the Independent Planning Commission "erred in law" in making its decision to reject the company's proposed coal mine last year.
Hearing dates of August 24-27 have been set for the case.
The IPC determined to refuse the state significant development application for the Bylong Coal Project on September 18 last year.
On Friday after the hearing, lobby group Lock the Gate criticised the IPC for making clear to the court it would not participate in proceedings.
But because the matter is a judicial review the IPC cannot defend its decision.
"Due to the Hardiman principle of administrative law, the Commission is restricted from taking an active role in proceedings brought by KEPCO in the NSW Land and Environment Court," the IPC said on its website.
"The Hardiman principle is intended to preserve the impartiality of a decision-maker - in this case the IPC - in the event a decision made by it is sent back to it by the court for re-determination," it said.
The matter before the court is not a merit-based challenge to the ruling, but rather a technical one.
If the court rules the IPC made an error in making its decision and the court orders the matter be reheard, it would be 2021 before a new ruling could be made, given public hearings would have to be repeated.
An IPC spokesman said: "It's important to remember that the commission is now a consent authority in its own right - no longer only acting under ministerial delegation, as the former Planning Assessment Commission did.
"The commission is, therefore, seeking to protect its impartiality and integrity by not taking an active role in responding to the judicial review challenge by KEPCO because the Land and Environment Court could ultimately send the Bylong Coal Project back to the Commission for re-determination," he said.
"The only other judicial review that the IPC has been named in is Yass Landscape Guardians Inc v Independent Planning Commission and Coppabella Wind Farm. That matter was settled before the commission was required to put on a response."
"f KEPCO's argument changes and does raise matters that would make it appropriate for the commission to put on a response, the Hardiman principle does not prevent the commission seeking to withdraw its submitting appearance and take an active role in proceedings," the spokesman said.
