He wasn’t alone. His wife Janet was there, along with several Wambo Coal employees and contractors.

It is the latest incident in a very long, expensive and frustrating process for the Fenwicks that started when the first Wambo Coal longwall operation went under the 240 hectare Fenwick property from May 27, 1991. As a later report noted, the mine had the potential to affect more than 90 per cent of the property.

Mr Fenwick opposes four current outstanding proposals for the Wambo mine – the 16^th and 17th modification to the original mine approval in February, 1992, a rail modification and a plan for an open cut mine – because “from our experience you can’t rely on anything they say”.

“We keep saying there shouldn’t be any more approvals until they clean up the mess they’ve already made but our submissions are virtually ignored,” Mr Fenwick said.  

The battle between the Fenwicks and Wambo Coal has included Land and Environment Court action to force Wambo to comply with consent conditions after subsidence beneath South Wambo Creek within the property, and successful Supreme Court action by Mr Fenwick after Wambo blocked his right of way for three years, and then misled him about what it was doing.

In September Wambo Coal owner Peabody Energy finally completed a bridge across South Wambo Creek five years after Supreme Court Justice Richard White ordered it to be built in 2011. The order came with the threat of contempt proceedings that the judge decided was “necessary to ensure that Wambo… respects Mr Fenwick’s rights”.

In early 2011 Justice White ordered Wambo to pay Mr Fenwick's legal costs after the company took more than a year to respond to his claim to have the right of way respected. Wambo also repeatedly failed to comply with court orders.

As Justice White summed up: “The defendant (Wambo) has treated the plaintiff (Mr Fenwick) and the orders of the court with disdain. The defendant’s defaults are inexcusable.”

Wambo argued in 2011 that Mr Fenwick's right of way, based on a 1915 agreement, was not recorded on certificates of title in 1971. It lost that argument because it was a Wambo subdivision, lodged soon after it bought the property, that failed to record the right of way.

After eventually conceding in court that Mr Fenwick did have a legal right of way, Wambo argued the right only extended to Mr Fenwick. His wife and family were excluded, Wambo said. Justice White rejected the argument as “absurd”.

By the time the Newcastle Herald called Peabody in January, 2015 to ask what had happened to the bridge, the company was still finalising plans and had yet to lodge an application with the NSW Office of Water to build it.

Last week Mr Fenwick was considering his options after reaching a stalemate with the NSW Department of Planning and Wambo Coal about work needed to rehabilitate South Wambo Creek, after more than a decade of negotiations, and a new memorandum of understanding between the department, the coal company and the Fenwicks in 2016.

Reports over the years commissioned by Wambo Creek and the department have ranged from describing South Wambo Creek as a “perennial stream” to the most recent report commissioned by the department, at a cost of nearly $60,000, which argued the creek was subject to more dry periods than the Fenwicks believed.

The findings are a particularly sore point for Mr and Mrs Fenwick because they highlight another Wambo Coal/Peabody failure – to monitor subsidence effects during the mining phase as required under the original 1992 consent.

The $60,000 report, completed in December, confirmed there was “no detailed monitoring of subsidence effects during the mining phase”. It came 12 years after the Department of Planning became the third leg in a 2004 agreement that followed Land and Environment Court action by the Fenwicks.

Under the agreement Wambo agreed to remediate the creek after subsidence and cracking in the late 1990s caused the loss of more than 13 megalitres of creek water a day, and reduced the creek to a “highly fragile” state which denied the Fenwicks their former water access. Under the 1992 consent Wambo was required to take reasonable steps to ensure the continual flow of water in the creek, after warnings that underground mining would affect it.

Wambo’s attempts in 2002 to rehabilitate the creek by placing rock structures at nine points were described as “ad hoc”, and needed to be removed to “improve creek functionality”, the Department of Planning has conceded.  

Under the 2004 agreement the department was required to oversee a study to complete remediation work, to determine disputes, and ensure any modifications to the agreement were signed by all three parties.

Mr Fenwick is highly critical of a system that required him to spend a six figure sum in court to force the company to comply with conditions, and then forced him into court again to reclaim his right of way.

‘‘This is what we live with, having to fight these companies on our own,’’ Mr Fenwick said.

The department’s involvement in a formal agreement and memorandum of understanding was the result of his court action, he said.

“These mining companies are just a law unto themselves and the department goes along with it. When we went to court in 2011 the company knew we had a right of way but they threatened us with costs if we went ahead. That’s how they get what they want because you’re on your own. It was intimidating being in the witness box for two days. You can laugh about it later but at the time it certainly wasn’t funny.”

In a letter to Mr and Mrs Fenwick in October Department of Planning secretary Carolyn McNally said negotiations were focused on Wambo Coal “committing to rehabilitate” the creek and providing a financial package to the Fenwicks to “compensate for the lack of certainty around historical creek flows”.

“The department is committed to resolving this issue and will continue to facilitate discussions between yourselves and Wambo Coal,” Ms McNally said.

In a letter on April 19 Ms McNally wrote that the department “agrees that historical non-compliance with (the 1992 development approval) by Wambo Coal has resulted in a lack of baseline data for South Wambo Creek, creating uncertainty for completion criteria” relating to its rehabilitation.

But the 2004 agreement between the department, Mr and Mrs Fenwick and Wambo Coal was to allow the parties to “move past this non-compliance and negotiate a reasonable and feasible solution”, Ms McNally wrote.

Mr Fenwick objected to conclusions reached about the creek in the December report. Wambo recently repeated an offer to buy the Fenwick property, at a price the Fenwicks have dismissed as offensive.

They will continue to make submissions against Wambo Coal proposals, but have little doubt the four current proposals before the Department of Planning will go ahead.

“If anyone wants to know why people oppose mines you only have to look at what we’ve had to go through,” Mr Fenwick said.

“These companies put out reports and there’s tens of thousands of words, and the department talks about applying stringent conditions, but it’s just words. The reality is you’re on your own with them and they do what they want,” he said.

Peabody Energy did not respond to Herald questions about issues raised by Mr and Mrs Fenwick.