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- Unreported Judgment
New Acland Coal Pty Ltd v Ashman (No 4) QLC 24
LAND COURT OF QUEENSLAND
New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4)  QLC 24
New Acland Coal Pty Ltd (applicant)
Frank Ashman, Lynn Ashman, John Cook, Patricia Cook, Hazel Green, Paul Mason, Janet Schick, John Schick, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck
(MRA level 1 objectors)
Glenn Norman Beutel, Darling Downs Environmental Council Inc., Angela Mason, Geralyn Patricia McCarron, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, Steven Ward, Noel Wieck
(MRA level 2 objectors)
Frank Ashman, Lynn Ashman, Russell Byron, Clean Air Queensland, Christopher Cleary, Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Carolyn Lunt, John Millane, Frances Scarano, Jane Scholefield, Max Scholefield, Loretta Smith, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck
(EPA level 1 objectors)
Glenn Norman Beutel, Pamela Aileen Harrison, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, John Standley, Steven Ward, Noel Wieck
(EPA level 2 objectors)
(EPA s 186(d) party)
Chief Executive, Department of Environment and Heritage Protection
(EPA statutory party)
Applications for mining leases and objections thereto, objections to environmental authority
31 May 2017
7, 8, 9, 16, 17, 18, 21, 22, 23, 24, 29, 30, 31 March 2016 1 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 April 2016; 9, 10, 11, 12, 13, 16, 17, 18, 19, 23, 24, 25, 26, 27 30, 31 May 2016; 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29, 30 June 2016 and 1, 5, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 27, 28, 29 July 2016; 1, 2, 4, 5, 8, 9, 11, 12 August 2016; 1 September 2016; 5, 6, 7 October 2016; 1 December 2016; 12 January 2017; 2 February 2017; 3, 4, 5, 10, 11, 20 April 2017
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – where there are objections to the grant of the mining leases being applied for – where there are objections to the draft environmental authority – where the Court hears the objections together – where the Court makes recommendations to the Minister for the MRA and administering authority for the EPA concerning the mining leases and the draft environmental authority
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – Mineral Resources Act 1989 and Environmental Protection Act 1994 – where there are different and competing objects – where Land Court must endeavour to construe provisions of both Acts to come to a decision
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – where determination of significant project by Coordinator- General – whether conditions recommended by the Court are inconsistent with the conditions imposed or stated by the Coordinator-General
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – whether intergenerational equity principles apply
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – where multiple objections considered including groundwater, surface water, noise, air quality, physical health, mental health, climate change, economics, community engagement, biodiversity and many others
EVIDENCE – GENERAL PRINCIPLES – expert evidence – where conflict in expert evidence evaluated
ENVIRONMENT – where complex and extensive ground water evidence with respect to a mining project considered and evaluated
MONEY – where the economic viability, financial capacity, and economic impact of a mining project considered and evaluated – where agricultural economics considered and evaluated
Mineral Resources Act 1989, s 245, s 252, s 260, s 265, s 268, s 269, s 307, s 334ZP, s 839
Environmental Protection Act 1994, s 47, s 126, s 160, s 161, s 176, s 18, s 182, s 185, s 186, s 188, s 189, s 190, s 191, s 200, s 203, s 205, s 215, s 227, s 228, s 748
State Development and Public Works Organisation Act 1971, s 34D, s 44, s 45, s 46, s 47B, s 47C, s 54A, s 54B, s 54E
Land Court Act 2000, s 34
Water Act 2000, s 1250A, 1250U, 1250D, 877, 878
Water Reform and Other Legislation Amendment Act 2014
Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016
Water Legislation Amendment Act 2016
National Environment Protection Council (Queensland) Act 1994
Vegetation Management Act 1999
Environment Protection and Biodiversity Conservation Act 1999(Cwlth)
Regional Planning Interests Act 2012 (Qld)
Transport Infrastructure Act 1994 (Qld)
Sustainable Planning Regulation 2009
Adani Mining Pty Ltd v LSCC & Ors  QLC 48
Armstrong v Brown  2 Qd R 345
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors  QSC 107
Coast and Country Association of Queensland Inc v Smith & Ors  QCA 242
Coast and Country Association of Queensland Inc v Smith & Anor; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection & Ors  QSC 260
Coast and Country Association of Queensland Inc v Smith & Ors  HCATrans 074
Donovan v Struber & Ors (2011) 32 QLCR 226
Gray v The Minister for Planning & Ors  NSWLEC 720
Hancock Coal Pty Ltd v Kelley & Ors and Department of Environment and Heritage Protection (No. 4)  QLC 12
Holland v Jones (1917) 23 CLR 149
Minister for Immigration and Multicultural Affairs v QAAH of 2004  HCA 53
New Acland Coal Pty Ltd v Ashman & Ors (No.3)  QLC 1
New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 2)  QLC 30
Taralga Landscape Guardians Inc v Minister for Planning RES Southern Cross Pty Ltd (2007) 161 LGERA
Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-Op Ltd & Ors (2012) 33 QLCR 79
Mr P Ambrose QC and Mr B Job of Counsel instructed by
Clayton Utz for the applicant
Mr SC Holt QC and Mr Quirk of Counsel instructed by the
Environmental Defenders Office for the Oakey Coal Action
Ms O'Connor of Counsel for the statutory party
Mr P King, agent for the Darling Downs Environmental
Dr T Plant self-representing
Dr S Ward self-representing Mr S Plant self-representing
Mrs M Plant self-representing
Dr J Standley self-representing
Mr N Wieck self-representing
Mrs A Mason self-representing
Ms A Harrison self-representing
Mr G Beutel self-representing
Dr G McCarron self-representing
The Objections 
Level 1 and Level 2 Objectors 
The Hearing 
The Relevant Legislation 
Inconsistency with CG Conditions 
Onus of Proof 
Analysis of Witnesses 
Bruce Denney 
Denis Janetzki 
Leone Janetzki 
Tracy Tully 
Nigel de Veth 
David Cooper 
Graham Cooke 
Tracey Tierney 
Shane Charles 
Donald Ballon 
Michael Hartin 
David Vonhoff 
Simon Wieck 
Andrew Boyd 
John Cook 
Frank Ashman 
Desley Spies 
Edward McKeiver 
Max Scholefield 
Steven Ward 
Geralyn McCarron 
Noel Wieck 
Grant Wieck 
Glenn Beutel 
Ian Whan 
Angela Mason 
Sharyn Munro 
Dr John Standley 
Dr Tanya Plant 
Aileen Harrison 
Merilyn Plant 
Sid Plant 
Brett Hassall 
Mark Copland 
Peter Faulkner 
Christopher Loveday 
Thomas Sheppard 
Key Issue – Air Quality and Dust 
Key Issue – Noise 
Key Issue – Lighting 
Key Issue – Visual Amenity 
Key Issue – Traffic, Transport and Roads 
Key Issue – Economics 
Key Issue – Agricultural Economics 
Key Issue – Climate Change 
Key Issue – Biodiversity / Flora and Fauna 
Key Issue – Health 
Physical Health 
Mental Health 
Key Issue – Land Values 
Key Issue – Livestock and Rehabilitation 
Key Issue – Land Use and Soils 
Key Issue – Intergenerational Equity 
Key Issue – Community and Social Environment 
Key Issue – Heritage Values/Cultural Heritage 
Key Issue – Groundwater 
Key Issue – Surface Water 
Key Issue – Other Objections 
Section 269(4) MRA Criteria 
MRA s 269(4) Considerations for MLA 50232 
MRA s 269(4) Considerations for MLA 700002 
EPA Section 191 Considerations for the draft EA number EPML 00335713 
Outstanding Rulings 
Appendix A – Glossary
Appendix B – Summaries of the Submissions
Appendix C – Chronology
- Given the length of this decision I have decided to provide a short summary of what I have to say. This summary of course is only incidental to and should not be used if inconsistent with my reasoning set out in the body of my decision. I will give a short analysis of my core findings with respect to the key issues.
- For air quality and dust I am satisfied that, provided amendments are made to the draft EA (particularly for online real time monitoring), air quality and dust issues can be appropriately managed.
- As regards noise, I have found noise levels should be set at 35 dB for evening and night time, consistent with then President MacDonald’s finding in Xstrata. My findings are inconsistent with CG stated conditions so the only option for me is to recommend refusal of the draft EA.
- Regarding lighting, the issues that come from light spill are adequately dealt with.
- For visual amenity, all proposals put in place to lessen the visual impact of the mining operations are appropriate.
- As regards traffic, transport and roads the disruption to traffic caused by revised Stage 3 would be minor and are considered acceptable.
- Economics is a complex subject which takes up many pages of this decision. The final analysis however is that the mine is likely to provide a significant economic benefit to the locale region, the state and the nation.
- The issue of agricultural economics is likewise complex. The underlying feature though of course, is that a land holder is entitled, within the confines of the law, to do what he/she likes on their land. I am concerned as to the impact on groundwater of neighbouring properties but, on an economic level alone, the revised Stage 3 project is of greater value than agricultural pursuits, even over the long term.
- The climate change evidence in this matter is identical to that in the Hancock case. Accordingly, there are no concerns regarding climate change caused by revised Stage 3. The evidence shows that if revised Stage 3 does not proceed the coal will be obtained from elsewhere and that such coal will most likely be of a lower quality thereby increasing global emissions.
- Regarding biodiversity/flora and fauna, the draft EA is appropriately conditioned to meet all aspects of concern.
- All aspects of concerns regarding mental and physical health are able to be satisfied provided that additional conditions as recommended by this Court are made.
- The expert evidence reveals no evidence of a fall in land values attributable to NAC’s operations.
- The livestock and rehabilitation issues, together with land use and soils, are appropriately managed under NAC’s proposals.
- The principles of intergenerational equity are breached in at least one regard by the proposed revised Stage 3, with the potential for groundwater impacts to adversely affect landholders in the vicinity of the mine for hundreds of years to come. This breach is sufficient to warrant rejection of the MLAs and draft EA applications.
- The community and social environment of Acland has been fractured by those for and against revised Stage 3 and that fracturing will continue in the short term irrespective of whether revised Stage 3 is approved or not.
- As regarding groundwater, a huge amount of evidence was before the Court. In key areas NAC’s own experts agreed with major shortcomings of the current model. I was also highly concerned regarding the modelling of faulting and other aspects of the groundwater studies undertaken to date. These issues have not been answered by the 2016 IESC Advice for reasons including the unfortunate fact that the IESC did not have the advantage of the material before the Court on groundwater. Groundwater considerations are such that the revised Stage 3 project should not proceed given the risks to the surrounding landholders and the poor state of the current model.
- All surface water concerns have been addressed by further conditions proposed by NAC.
- Other objections have been dealt with in the body of my decision. None of those objections have been made out by the objectors.
- If I were to reduce this matter to its simplest terms, one may wonder how it can be that the NAC revised Stage 3 project has been subject to so much controversy, let alone almost 100 hearing days before this Court, almost 2,000 exhibits containing many tens of thousands of pages of material, and well in excess of 2,000 pages of submissions.
- Stage 1 of the NAC mine began with the grant of ML 50170 in September 2001, and NAC has been mining at the mine continuously since. The first expansion of the project occurred with the grant of ML 50216 in December 2006. This expansion was known as Stage 2. Seeking to expand its mining operations into Stage 3, NAC lodged MLA 50232 in May 2007. That same year, the CG declared Stage 3 a significant project pursuant to s 26 of the SDPWOA.
- Following public consultation, the Queensland Government announced in March 2012 that it would not support the Stage 3 expansion project. In November 2012, NAC lodged a revised, smaller, Stage 3 expansion project
- NAC has the infrastructure to conduct the Stage 3 mining operations, which are to be supplemented by a rail spur to the mine site from Jondaryan to remove the impacts of transporting coal to Jondaryan via large haul trucks. The great majority of the coal mined by NAC at New Acland is moved by rail to the Port of Brisbane from where it is exported overseas.
- A subsidiary of the New Hope Group which owns NAC also owns the coal handling facility at the Port of Brisbane, thus enhancing the viability of the project from the New Hope Group’s perspective. Further, New Hope subsidiary, APC, own the bulk of the land situated within the borders of Stages 1, 2 and 3 of the New Acland mine. The bulk of these tenures are historic in nature, dating from the 19th century, and contain provisions which, unlike the vast majority of tenures in Queensland, provide that royalties for minerals mined on the tenures are payable to the landholder and not to the State of Queensland. That, accordingly, is another significant factor as to why NAC is obviously keen to continue its coal mining operations at New Acland.
- In short, there is a significant mining operation, by a large publicly listed Australian owned mining company, which has been operating for over 15 years and proposes to continue operations for more than a decade into the future by way of a further expansion.
- To use a card playing analogy, it would seem to be a ‘lay down misere’ that the Stage 3 expansion should proceed. This position is only strengthened when one takes into account that the Stage 3 project has both the approval of the State Coordinator-General, as well as that of the Commonwealth Minister for the Environment.
- What, you may ask, could possibly justify almost 100 days of hearings before the Land Court relating to Stage 3?
- The above synopsis is in many ways a paraphrase of the position put by NAC. However, there is another side to the coin.
- To read the submissions of the objectors in this case, one could be forgiven for thinking that I was dealing with an entirely different case to the circumstances set out above.
- The objectors’ submissions paint a picture of a mine out of place in the Acland rural agricultural setting. They speak of generation after generation of farmers undertaking agricultural, dairying and grazing activities on lush land with plentiful supplies of rain and groundwater. They talk of the town of Acland with pride, revelling in its winning of Tidy Town’s awards, including being the first state-wide winner of the award in 1989, and reflect on the area’s strong ties with war veterans, recognised through the war memorial located in Acland.
- They speak with sad voices at the loss of the vast majority of the town of Acland through the actions of NAC by purchasing, then removing almost all of Acland’s homes and buildings, and complain that the Stage 1 and Stage 2 operations of New Acland have made life a misery for those who live in close proximity to the mine because of what they say to be excesses in dust, noise, vibrations, lighting spill etcetera emanating from the mine. They fear for the future of their groundwater bore supplies.
- The objectors complain that their complaints about the mine have been virtually ignored by the mine and government regulators. They say, collectively, that enough is enough, and that Stage 3 should not proceed.
- I then look at the position of one objector, Mr Beutel, who is one of the last remaining residents of Acland. He has refused to sell his properties in Acland to NAC, which include his generational family home as well as a rental home. During the course of the lengthy hearing, a number of references were made to the Australian classic comedy film “The Castle”, likening the position portrayed in that film to that of Mr Beutel. A little person trying to protect his property from a corporate giant. In many ways the truth of Mr Beutel’s positon is far in excess of the fiction of “The Castle”.
- Nearly every aspect of the Stage 3 expansion is contested. NAC leads evidence to show that it is a good corporate citizen playing an important role in the local community. The objectors lead evidence alleging that NAC is the opposite of that.
- NAC says that the Stage 3 operation will be of lasting benefit to the community by way of continuation and expansion of employment and regional economic benefit. The objectors say that principles of intergenerational equity should apply, and that the short term benefits brought by Stage 3 are far outweighed by the damage not only to the land impacted by the mine but those lands surrounding the mine for hundreds and even thousands of years to come.
- The above is, in very simple terms, a brief overview of this matter.
- A number of other observations should be made. This hearing has been the longest in the over 120 year history of the Land Court. The amount of material before the Court can only be described as immense. To consider every element of every aspect of this matter in detail would result in a decision running into many thousands of pages. That is clearly an impractical and intolerable proposition. Although this decision will of necessity be very lengthy, it will not run into many thousands of pages, for to do so would be of little utility to those tasked with the job of reading this decision and making their own decisions in light of my recommendations.
- I can only say this: I am the only person who has physically been present for every moment of every piece of evidence throughout this entire hearing. I have taken into account all of the evidence that has been placed before me. I have considered all of the submissions. I have done my best to assess all of the evidence provided to the Court by the myriad of witnesses, both lay and expert.
- What is to be found in the many pages that follow are my conclusions on key aspects of the evidence in this case. No doubt, many will be able to say that there are huge parts of evidence that I have not specifically referred to. That must necessarily be the case, but that should not be taken as meaning that I have not fully taken into account all such evidence. I have done my best to extract the core elements that I consider are necessary to consider in order to understand the nature of the recommendations that I make under the MRA and the EPA, and to assist, I hope, the ultimate decisions of the decision makers under the MRA and EPA in determining the future of Stage 3 of New Acland.
- Appended to the end of this decision is a glossary setting out various terms/acronym’s and providing definitions thereof. These terms/acronym’s are used throughout this decision and were consistently used by virtually all parties throughout the hearing. They appear extensively throughout the exhibits; the transcript; and the submissions. The glossary is Appendix A and is to be read as part of this decision.
- These matters first came within the jurisdiction of the Land Court on 14 October 2015 with the referral to the Land Court of MRA objections to the grant of MLA 50232 and MLA 700002. Together with, an EPA referral of objections to the Land Court. Relating to an application by NAC to amend its EA number EPML 00335713. This referral became Land Court file number EPA 495-15.
- All referrals related to NAC’s New Acland Mine Stage 3.
- As is apparent from my opening comments, the history of the New Acland Mine well precedes October 2015. To properly understand the referrals, it is necessary to set out in this overview some of the history of Acland in general and the NAC New Acland Mine in particular.
- In preparing this overview, I have primarily relied upon the documents contained within the referrals made to the Land Court, which comprise of Exhibits 1 to 355, together with the submissions made by NAC and OCAA.
- The New Acland Mine is located very near what remains of the town of Acland, which itself is situated close to the town of Oakey, approximately midway between Toowoomba and Dalby on the Darling Downs.
- The area of and around the mine has been home to Indigenous Australians since time immemorial. In about the 1840’s, the first European settlement occurred with the opening up of what became known as Rosalie Plains Station. Agricultural activities including cropping, dairying and beef cattle grazing have been undertaken in the area since that time.
- A number of objectors can trace their family roots back to 1848, whilst others, although unable to trace their ancestry back to this land for almost 170 years like some, nevertheless can easily establish third, fourth and fifth generation connection to the land in this vicinity.
- The town of Acland came into existence in 1913 following the construction of the branch railway from Oakey to Cooyar. Also in 1913 coal mining commenced in Acland. The coal was primarily used as a source of fuel for the railway locomotives.
- The Acland No. 2 Colliery began producing coal in 1929 and closed in 1984. The Acland No. 2 Colliery was primarily involved in underground mining, and the Acland No. 2 Colliery is now included on the Queensland Heritage Register.
- There is dispute between the parties as to whether Acland was a dying town at the beginning of the twenty-first century (the view put by NAC), or whether it was in fact increasing at this time period (the view expressed by the objectors in general and the objector Mr Beutel in particular).
- There is certainly evidence which shows that in 1978 there were 44 residences in Acland, and that this figure had risen to 57 residences by the year 2000.
- NAC’s involvement in the Acland area commenced on 23 December 1999 when it purchased MDL 244 from Shell Coal (Acland) Pty Ltd.
- Subsequently, NAC made application for MLA 50170 on 2 November 2000. This application was subject to 15 objections. Notably some of the objectors from 2000 are also objectors to the current matters before this Court.
- On 28 March 2001 the objectors applied in the Land and Resources Tribunal for disclosure of documents by NAC. The application was dismissed with costs by Koppenol P. A settlement agreement was subsequently entered into between some, if not all of the objectors, and NAC. The settlement agreements included clauses by which NAC waved its rights to costs arising pursuant to the orders of Koppenol P of 28 March 2001 and those objectors withdrawing their objection to the grant of MLA 50170. Subsequently, all 15 objections were withdrawn and on 24 May 2001 the Land and Resources Tribunal recommended that MLA 50170 be granted. ML 50170 was subsequently granted on 6 September 2001 for a term of 21 years commencing 1 October 2001. Mining subsequently commenced in 2002 at the rate of 2.5 million tonnes per annum. This operation became known as Stage 1.
- NAC subsequently sought to expand its New Acland mining operations, and applied for MLA 50216, which proceeded through the approval process without objection. ML 50216 was subsequently granted for a term of 20 years on 7 December 2006 and commenced on 1 January 2007. This became known as Stage 2. Production at the New Acland Mine increased from 2.5 million tonnes per annum to 4 million tonnes per annum.
- Notably for the purposes of urgency which will be examined later in these reasons, the Stage 2 EIS described the Stage 2 expansion project as giving a mine life of coal production until approximately 2021.
- Some months after the commencement of ML 50216 (Stage 2), NAC began the approvals process for the initial Stage 3 expansion. The initial Stage 3 was declared a significant project pursuant to the SDPWOA. MLA 50232, seeking a mining lease for a term of 40 years over 5,069ha, was applied for by NAC on 27 May 2007.
- An EIS for the initial Stage 3 expansion was released for public consultation between 14 November 2009 and 3 February 2010.
- In March 2012, the then Premier rejected the initial Stage 3 expansion. The then Premier was stated as saying that it “was ‘inappropriate’ to expand the mine in the State’s southern food bowl”.
- In the second half of 2012, NAC took its first official steps for the revised Stage 3 expansion. Key aspects of the revised Stage 3 application included a reduction of the area of MLA 50232 to 3,668ha and a reduction in mine capacity from 10 million tonnes per annum to 7.5 million tonnes per annum. Other significant changes included the exclusion of the Acland town area from MLA 50232, which included the removal of Tom Doherty Park, the Acland War Memorial and the Acland No. 2 Colliery from the revised Stage 3 expansion area. It was also proposed that the TLF be relocated from Jondaryan to within MLA 50232 and that the hauling of coal be replaced by a rail spur. Additionally, there was to be no diversion of Lagoon Creek; no mining in the Sabine area; a reduction in the number of the out-of-pit dumps from 4 to 2; the re-profiling of final voids into depressed land forms; and ensuring mining operations remained at least 10km from Oakey instead of the 7km proposed in the initial Stage 3 expansion.
- In January 2014 NAC submitted a new EIS for the revised Stage 3 expansion to the Coordinator-General. The new EIS was released for public consultation between 18 January 2014 and 3 March 2014.
- Between June and September 2014, in light of the public consultation, NAC submitted an AEIS to the Coordinator-General.
- Formal amendment to MLA 50232 occurred on 25 June 2014 when NAC officially abandoned part of the area covered by MLA 50232 pursuant to s 307 of the MRA. This action reduced the area applied for under MLA 50232 to 3,668ha.
- The abandonment took effect on 30 June 2014.
- The EIS and the AEIS were put out for further public comment between 1 September 2014 and 29 September 2014.
- On 19 December 2014 the Coordinator-General issued a report relating to the EIS and the AEIS. The Coordinator-General approved the revised Stage 3 expansion, with conditions imposed on the project pursuant to s 54B of the SDPWOA together with stated conditions to the draft EA pursuant 47C of the SDPWOA, and also recommended conditions pursuant to s 52 of the SDPWOA in relation to approvals under the EPBCA, the TIA and the Water Act.
- MLA 700002 was formally applied for by NAC on 16 January 2015. MLA 700002 is to facilitate the construction of the rail spur referred to earlier.
- Subsequently, on 13 April 2015, NAC lodged, pursuant to the EPA, the EA amendment application. The purpose of the EA amendment application was to amend NAC’s existing EA for the New Acland Mine to include the revised Stage 3 area as contained within MLA 50232 and MLA 700002.
- The public notification of the EA amendment application ended on 2 July 2015. There were 1,421 submissions received by EHP, of which it considered 965 to be ‘properly made’.
- At the same time as public notification of the EA amendment application, NAC was required to publicly notify the right of objection to MLA 50232 and MLA 700002 pursuant to the MRA 27 objections were subsequently lodged under the MRA.
- EHP assessed the revised Stage 3 expansion as a major amendment to an EA pursuant to Ch 5 of the EPA and issued a draft EA on 28 August 2015. Submitters under the EPA were then given an opportunity to make objections under the EPA to the draft EA. There were 35 objections lodged to the draft EA. One person who intended lodging an objection was unable to do so, for reasons explained to the Court. This person, Angela Mason, who did lodge MRA objections, was subsequently added as a party to the draft EA objections hearing pursuant to s 186(d) of the EPA.
- The next relevant steps were the referrals of the objections under the MRA and the EPA to the Land Court as set out at the commencement of this overview.
- There remains just one further aspect to deal with in this overview, and that is the issue referred to by OCAA at part 1.3.2 of their submissions as “Removal of Acland”.
- As can be seen by the history set out above, the initial Stage 3 expansion proposed in 2007 mining of all of the land in which the town of Acland is located. However, under the revised Stage 3 expansion, Acland is excluded from the MLA area, and public road access to Acland is retained. Looked at in that simple detail, one could be forgiven for thinking that Acland will remain should revised Stage 3 proceed. In real terms, however, that is not the case.
Acland as a town has, effectively, ceased to exist.
- No doubt acting on the assumption that its initial Stage 3 expansion would be approved, and, of course, to simplify land tenure ownership over the land initially applied for under MLA 50232, NAC commenced in 2007 an active policy to not only purchase as much of the property comprised in Acland as possible, but, after purchase, to remove the great bulk of buildings situated on the land purchased in Acland. So successful was NAC in its purchasing of properties that today only a few buildings remain at Acland, such as two homes owned by Mr Beutel; a hall owned by NAC; the Acland No.2 Colliery, the War Memorial and Park, and school buildings. Evidence was provided at the hearing that, after initial opposition to NAC’s attempts to purchase properties, after a few were purchased the great majority then ‘fell like a house of cards’.
- The fact that Acland as a town in effect no longer exists cannot be dismissed, in my view, as a simple sideline to the matters in dispute. There is no doubt that there is quite a level of angst between NAC and the objectors, and in my view that angst on the part of the objectors has been significantly contributed to by the actions of NAC in causing Acland to functionally no longer exist.
- I must also stress one important fact at this point. None of the actions of NAC in purchasing property at Acland, and in removing the buildings, have been shown in evidence before me to be in any way illegal. Indeed, on a different scale, local communities within cities are regularly purchased by developers for large scale redevelopment, with homes and, therewith, the character of a local community removed, to be replaced by large shopping centres or the like.
- The legality of the operations of NAC as regards the removal of Acland are not the reason why I refer to Acland in this overview. It is more the timing of NAC’s actions, and the way in which such actions are viewed by at least some members of the Acland rural community, including objectors before this Court, and how those objectors have then proceeded in their interactions between themselves and NAC, that are relevant to consideration.
- Throughout this decision I make numerous reference to, and quote, evidence provided to the court. Where those quoted passages include footnotes, the footnotes have been omitted.
- I now turn to consider in more detail the objections before this Court pursuant to the MRA and the EPA.
- As at the dates of the referrals of the MRA and the EPA objections to the Court, there were 27 MRA objections and 35 EPA objections. It should be noted that 20 of these objections were by parties who made both MRA and EPA objections. There were three withdrawals of objections prior to the hearing, resulting in the final number of objectors being 27 MRA Objectors and 32 EPA objectors, with 20 objectors having both MRA and EPA objections.
Level 1 and Level 2 Objectors
- Prior to the commencement of the hearing all objectors had confirmed their level of participation in the matter in accordance with Land Court Practice Direction 3 of 2015. Level 1 represents a lower level of involvement and level 2 a higher level of involvement. The levels of participation as nominated by objectors is tabulated below:
Frank Ashman (MRA/EPA)
Glenn Beutel (MRA/EPA)
Lynn Ashman (MRA/EPA)
Darling Downs Environment Council Inc (MRA only)
Christopher Cleary (EPA only)
Pamela Aileen Harrison (EPA only)
Naomi Cleary (EPA only)
Angela Mason (MRA only/ EPA Party to Proceedings)
John Cook (MRA/EPA)
Dr Geralyn McCarron (MRA only)
Patricia Cook (MRA/EPA)
Oakey Coal Action Alliance Inc (MRA/EPA)
Hazel Green (MRA only)
Merilyn Plant (MRA/EPA)
Paul Mason (MRA only)
Sid Plant (MRA/EPA)
Janet Schick (MRA only)
Dr Tanya Plant (MRA/EPA)
John Schick (MRA only)
Dr Steven Ward (MRA/EPA)
Jane Scholefield (MRA/EPA)
Noel Wieck (MRA/EPA)
Max Scholefield (MRA/EPA)
Dr John Standley (EPA only)
Desley Spies (MRA/EPA)
Kevin Spies (MRA/EPA)
Cheryl Vonhoff (MRA/EPA)
David Vonhoff (MRA/EPA)
Fay Wieck (MRA/EPA)
Grant Wieck (MRA/EPA)
Simon Wieck (MRA/EPA)
Russel Byron (EPA only)
Clean Air Queensland (EPA only)
Paul Evans (EPA only)
Karen Lavin (EPA only)
John Millane (EPA only)
Frances Scarano (EPA only)
Loretta Smith (EPA only)
Carolyn Lunt (EPA only)
- It should be noted that there were deficiencies with the referral relating to Dr Geralyn McCarron’s objections which were discovered upon hearing of objections by NAC to certain parts of cross examination by Dr McCarron. Not all of Dr McCarron’s objections were received in full at the time of referral but this situation was rectified during the hearing.
- There are 12 level 2 objectors and 27 level 1 objectors. Level 2 objectors fully participated in the court process. Level 1 objectors limited their involvement to relying upon their objections which have been considered by me as part of this decision.
Grounds of Objection
- It is a difficult task to even set out the objections under both the MRA and EPA in this matter. In order to consider all of the grounds of objection, it is necessary to comprehensively refer to Exhibits 135 to 355. Obviously, were all of those Exhibits to be reproduced in this decision, the length of the decision would become absurd. In light of the myriad of objections, many of which overlapped, the court prepared two documents summarising the objections down to various issues. One document related to the MRA objections to MLA 50232 and MLA 700002, and the other related to objections to EA number EPML00335713. Both documents were ultimately agreed to by parties at the hearing.
- The document relating to the MRA objections to MLA 50232 and MLA 700002is as follows:
“MRA OBJECTIONS – MLA 50232 and MLA 700002 LEVEL 1 OBJECTORS and LEVEL 2 OBJECTORS*
1. Ground water depletion – Underground water via bores for nearby farmers will be depleted or disappear – make good agreements of no value as at the miners discretion or if they cease mining operations – land without water is useless – ground water assessments already conducted are inadequate
Frank and Lynn Ashman, John and Patricia Cook, Hazel Green, John and Janet Schick, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, Simon Wieck, Noel Wieck* and Fay Wieck, Paul Mason and Angela Mason*, Oakey Coal Action Alliance Inc.* (OCAA), Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Darling
Downs Environment Council Inc* (DDEC)
- Noise – Undue and unmonitored machine and equipment noise
Frank and Lynn Ashman, John and Patricia Cook, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Noel Wieck* and Fay Wieck, Paul Mason and Angela Mason*, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC*, Glenn Norman Beutel*
- Air quality – The nature and operation of the open cut mine creates dust which is transient causing respiratory issues – diesel fumes – toxic fumes from blasting – air quality modelling has been inadequate
Frank and Lynn Ashman, John and Patricia Cook, Hazel Green, John and Janet Schick, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Noel Wieck* and Fay Wieck, Paul Mason and Angela Mason*, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Geralyn McCarron*, DDEC*, Glenn Norman Beutel*
4. Visual amenity – Night operations will emit undue irritating light Frank and Lynn Ashman, Max and Jane Scholefield, DDEC*
5. Soil destruction – Open cut mining destroys the profile and biochemistry of soils forever
Frank and Lynn Ashman, Steven Ward*
6. Social disruption – This mine has already caused dissention and unrest in the community with little economic return. Further destruction and isolation of Acland –purchase of park in Acland not for public benefit
Frank and Lynn Ashman, John and Janet Schick, Kevin and Desley Spies, Steve Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Glenn Norman Beutel*, OCAA*
7. Undesired, non-viable product – The demand for steaming (thermal) and coking (metallurgical) coal is diminishing and falling out of favour – concern about lack of royalties
Frank and Lynn Ashman, Tanya Plant*, Sid Plant*, OCAA*
8. Reduction in land values – Many local residents involved in agriculture rely on the value of their land to ensure long term sustainability.
Frank and Lynn Ashman, Tanya Plant*, Sid Plant*
9. Further mining intent – New Hope has expressed an intent to proceed with further mining projects in this area – this approval if granted will be a precedent for further mining approvals in this area
Frank and Lynn Ashman, Tanya Plant*, Sid Plant*
10. Surface area - The land and surface area of the land are not an appropriate size and shape for the mining activities proposed – no need to come so close to Acland John and Patricia Cook, OCAA*, Tanya Plant*, Sid Plant*, DDEC*, Glenn
- Not an appropriate use of the land - Destruction of prime agricultural land/strategic cropping land. Rehabilitation will only result in second grade grazing land – not sound land use management – 1,466 ha of ML 50232 will be disturbed by coal mining, 1,361 ha of this is strategic cropping land
John and Patricia Cook, Hazel Green, John and Janet Schick, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, Simon Wieck, Noel Wieck* and Fay Wieck, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC*, Glenn Norman Beutel*
- Soil erosion
John and Patricia Cook, Fay Wieck
13. Terms of the leases sought are not appropriate – 40 years is unacceptable in a highly settled area
Frank and Lynn Ashman,John and Patricia Cook,John and Janet Schick, Kevin and Desley Spies, Kevin and Desley Spies, David and Cheryl Vonhoff, Simon Wieck, OCAA*, Tanya Plant*, Sid Plant*, Merilyn Plant*,DDEC*
14. Past performance of the applicant has been unsatisfactory – Long history of dust and noise exceedances in their operations do not engender confidence they will operate to a higher standard of excellence in future mining operations
John and Patricia Cook, Hazel Green, Kevin and Desley Spies, David and Cheryl Vonhoff, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC* Glenn Norman Beutel*
15. Significant environmental impacts – Vulnerable fauna such as the koala and flora such as grass species will be obliterated. Contaminated run off from the mine feeds Lagoon Creek. Weeds in the area are flourishing without control
John and Patricia Cook, Hazel Green, Kevin and Desley Spies, David and Cheryl Vonhoff, Simon Wieck, Noel Wieck* and Fay Wieck, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC*, Glen Norman Beutel*
16. Health – The health of those residing and working in the area with be adversely affected by the dust, noise and toxic fumes from blasting. Breeding livestock will also be adversely affected
John and Patricia Cook, Hazel Green, John and Janet Schick, Merilyn Plant*, Geralyn McCarron*, OCAA*
17. Does not have the necessary financial and technical capabilities to run the mine – price of coal is falling means less profits and the company won’t be able to meet its obligations to its employees, community and rehabilitation into the future. Expertise to restore open cut mining land to agricultural land does not exist.
Hazel Green, OCAA*, Tanya Plant*, Sid Plant*, DDEC*, OCAA*
- Economic benefits of the mine have been overstated – Other companies within short distance of the mine employ more people. Why risk an activity that may destroy agricultural land when other industries don’t have this risk? Agricultural industry provides jobs long term – mining only short term in boom times. John and Janet Schick, Kevin and Desley Spies, David and Cheryl Vonhoff, Tanya Plant*, Sid Plant*, Glenn Norman Beutel*
- Climate change
David and Cheryl Vonhoff, Steven Ward*, Tanya Plant* Sid Plant* Merliyn Plant*
20. Surface water – Notification of flood water by miner two days after the event is unacceptable. Flooding and pollution concerns with surface water run off
Noel Wieck* and Fay Wieck, Tanya Plant*, Sid Plant*, DDEC*
21. Environmental monitoring – Monitoring of outcomes for dust, noise and flood water discharge by miner is unacceptable – this should be done by DEHP.
Noel Wieck* and Fay Wieck, Merilyn Plant*, OCAA*
- Road closures – permanent closure of the sealed road running north, east-west through Acland is unacceptable – adverse effect on school bus run
Noel Wieck* and Fay Wieck, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Glenn Norman Beutel*
- Traffic – Road safety concerns and damage to local roads
Paul Mason and Angela Mason*, Tanya Plant*, Sid Plant*
24. Proximity – All properties within the boundary of MDL244 will be affected. 93% of properties in this area have already been purchased by New Acland Pastoral – request a condition that all properties in this area be purchased if the mine is approved
Paul Mason and Angela Mason*
25. Unacceptable risk there will not be an acceptable level of development and utilisation of the mineral resources within the area applied for
26. Economic and social matters – adverse effect on a. agricultural enterprises, b. loss of jobs servicing agricultural enterprises, c. inconsistency with expansion of rural tourism, d. decrease in local property values, e. expense to authorities of upgrades and maintenance to public infrastructure. Economic return to Queensland significantly limited by royalty regime within the proposed lease areas. Project high risk of not being economically viable due to high cost of production, low coal prices and uncertainty over domestic and international energy policies.
Adverse environmental and social impacts with little benefit for the State
Oakey Coal Action Alliance Inc.*, DDEC*
27. Disadvantage may result to the rights of applicants or holders of other exploration permits or mineral development licenses
Tanya Plant*, Sid Plant*
28. Procedural matters not addressed by miner – No approval been obtained from Commonwealth Government (EPBC Act) or pursuant to the Regional Planning Act re strategic cropping land
Tanya Plant*, Sid Plant*
- Relocation of telephone and electricity networks is detrimental to the community Tanya Plant*, Sid Plant*
- The proposed mine and its related activities will cause significant stress to landowners re negotiating “make good agreements” and liaising with the company regarding noise and dust emissions etc
Tanya Plant*, Sid Plant*
31. The proposed project may adversely impact on other people’s rights including their rights to build houses or other developments on their landholdings
Tanya Plant*, Sid Plant*
32. The proposed project is in conflict with local government policies and planning laws such as the Toowoomba Regional Council’s policies, Planning Scheme eg. it does not provide sufficient separation for other users as required by the planning scheme eg Extractive Industry Code
Tanya Plant*, Sid Plant*
- The proposed project will place additional capacity on a rail network that is already constrained Tanya Plant*, Sid Plant*
- Concerns raised in my EIS submissions are part of my objections Tanya Plant*, Sid Plant*, Merilyn Plant*, Glen Norman Beutel*
- Adverse effect on Mr Beutell’s tenants and difficulty of attracting new tenants should existing tenants leave because of the new project
Glenn Norman Beutel*
- Vibrations from blasting
Glenn Norman Beutel*
- The document relating to the EPA objections to EA number EPML00335713 is as follows:
“EPA OBJECTIONS – EA number EPML00335713 LEVEL 1 OBJECTORS and LEVEL 2 OBJECTORS*
1. Not an ecologically sustainable development that will protect Queensland’s environment in -breach of ss 3 and 5 EP Act objects of the Act
Christopher and Naomi Cleary, Oakey Coal Action Alliance Inc (OCAA)*, Aileen Harrison*, Sid Plant*, Steven Ward*, Tanya Plant*
2. Breach of the precautionary principle - part of the standard criteria for this decision
Christopher and Naomi Cleary, OCAA*, Aileen Harrison*, Glenn Norman Beutel*, Sid Plant*, Steven Ward*, Tanya Plant*
3. Contrary to the intergenerational equity principle - part of the standard criteria for this decision
Christopher and Naomi Cleary, OCAA*, Noel Wieck* and Fay Wieck, Sid Plant*, Steven Ward*, Tanya Plant*
- Contrary to the conservation of biological diversity and ecological integrity - part of the standard criteria for this decision
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
- Will cause serious environmental harm and adversely affect the environment
Christopher and Naomi Cleary, John Millane, Frances Scarano, OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
- Contrary to the public interest
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
- Contrary to environmental protection policies on noise, air and water
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
8. Contrary to relevant Commonwealth and State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development, including but not limited to the Darling Downs Regional Plan
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
9. Contrary to appropriate consideration and application of an environmental objective assessment, which is a regulatory requirement – a standard criterion for this decision
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
10. Approval of the application would inappropriately rely on a proposed integrated environmental management system for the mine expansion that is insufficient
Christopher and Naomi Cleary, Sid Plant*, Steven Ward*, Tanya Plant*
11. The draft EA conditions in relation to rehabilitation of the land (H conditions) are inadequate – this good strategic cropping land that can never be restored once destroyed by mining – land should remain forever as prime agricultural land
Christopher and Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, Noel Wieck* and Fay Wieck, John Standley*, Glenn Beutel*, Merilyn Plant*, Sid Plant*,Steven Ward*, Tanya Plant*
- Insufficient response given for an information request OCAA*, Sid Plant*, Steven Ward*, Tanya Plant*
- Ground water depletion – Underground water via bores for nearby farmers will be depleted or disappear – make good agreements of no value as at the miners discretion or if they cease mining operations – land without water is useless – ground water assessments already conducted are inadequate/floored – 698 surrounding bores potentially impacted
Frank and Lynn Ashman, Russell Byron, Christopher and Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Carolyn Lunt and Loretta Smith, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, Simon Wieck, Noel Wieck* and Fay Wieck, John Standley*, Aileen Harrison*, Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
- Surface water – surface water projections are inadequate – miner under certain conditions can release water into Lagoon Creek/Murray Darling Basin – object to self-monitoring of flood water run off – pollutants could be released from mine site
Christopher and Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Kevin and Desley Spies, Aileen Harrison*, Merilyn Plant*, Sid Plant*, Tanya Plant*
15. Noise – Undue and unmonitored machine and equipment noise day and night Frank and Lynn Ashman, Max and Jane Scholefield, David and Cheryl Vonhoff, John Standley*, Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
- Air quality – The nature and operation of the open cut mine creates dust (also from coal handling facility and rail line transportation) which is transient causing respiratory issues – diesel fumes – toxic fumes from blasting – air quality modelling has been inadequate
Frank and Lynn Ashman, Clean Air Queensland, Paul Evans, Karen Lavi Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, John Standley*, Aileen Harrison*, Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
- Visual amenity – Night operations will emit undue irritating light
Frank and Lynn Ashman, Max and Jane Scholefield, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
18. Soil Erosion – Open cut mining destroys the profile and biochemistry of soils forever
Frank and Lynn Ashman
19. Economic imbalance – The demand for coal is diminishing and falling out of favour. Other large agriculture employers in the area such as Oakey Abattoir and Beef City
Frank and Lynn Ashman, Christopher and Naomi Cleary, Kevin and Desley Spies, David and Cheryl Vonhoff, Noel Wieck* and Fay Wieck, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
20. Community concerns – Social unrest has become typical and business houses are suffering – loss of amenities – division of the community
Frank and Lynn Ashman, Christopher and Naomi Cleary, Max and Jane Scholefield, Kevin and Desley Spies, Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
21. New Hope is not a good corporate citizen and cannot be trusted to protect the environment
Christopher and Naomi Cleary, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
- Significant environmental impacts – Biodiversity impacted - vulnerable fauna such as the koala and flora such as grass species will be obliterated – weeds will flourish – proposed offsets are inadequate
John Cook, Patricia Cook, Paul Evans, Carolyn Lunt and Loretta Smith, John Standley*, Aileen Harrison*, Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
- Climate change
Carolyn Lunt and Loretta Smith, John Millane, Frances Scarano, David and Cheryl Vonhoff, Noel Wieck* and Fay Wieck, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
- Terms of the leases sought are not appropriate – 40 years is unacceptable in a highly settled area - indicative of miner’s intention for further mining in the area Kevin and Desley Spies, David and Cheryl Vonhoff, Merilyn Plant*
- Concerns with specific provisions of the Draft EA – air quality, final voids, ground water monitoring, minimum contamination levels, no final land use rehabilitation plan submitted, inaccuracy of prime agricultural land impacted by mining
Grant Wieck, Noel Wieck* and Fay Wieck, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
- Left over voids may contain contaminants which may seep into acquirers Paul Evans, John Standley*, OCAA*
- Past performance of the applicant has been unsatisfactory – Long history of dust and noise exceedances in their operations do not engender confidence they will operate to a higher standard of excellence in future mining operations
Aileen Harrison*, Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
28. Health – The health of those residing and working in the area with be adversely affected by the dust, noise and toxic fumes from blasting. Breeding livestock will also be adversely affected
Aileen Harrison*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
29. Heritage – Loss of Acland heritage - Heritage reports in EIS not carried out adequately
Glenn Beutel*, Paul Evans, Sid Plant*, Steven Ward*, Tanya Plant*
- Surface area – The land and surface area of the land are not an appropriate size and shape for the mining activities proposed – Acland will be effectively cut off Glenn Beutel*
- Road closures around Acland – adversely affect many residents travelling to or through Acland – school bus route also affected
Glenn Beutel*, Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
- Vibrations from blasting
Glenn Beutel*, Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
- Loss of amenities in Acland – buildings and bottle trees removed – park may go also
Merilyn Plant*, Sid Plant*, Steven Ward*, Tanya Plant*
- Land values deteriorate
Frank and Lynn Ashman, John Standley*, Glenn Beutel*, Tanya Plant*, Sid Plant*, OCAA*
- Draft EA conditions are inadequate to ensure the project actually performs to the standard required – conditions not assertive enough, contain inadequate monitoring, do not provide for sensitive receptor access to data, rely upon complaints being made, and reference non-genuine baselines (should be reference to conditions existing prior to the mine starting, not baselines measured for what it is now – thereby allowing incremental worsening of impacts). Reactive to existing faults rather than proactive towards best practice Sid Plant*, Steven Ward*, Tanya Plant*, OCAA*
- Limited royalties payable to the people of Queensland Paul Evans, Sid Plant*, Tanya Plant*, OCAA*” Summaries of the Submissions
- In order to assist the reader of this decision as much as possible, the parties, on my request, provided summaries of their respective positions. These summaries should be read in the context of the total number of pages of submissions by the parties well exceeding 2000 typed pages of normal font size. It should also be noted that these summaries were provided prior to the reopening of the hearing with respect to groundwater and surface water issues.
- Attached as Appendix B are the summary positions of each party to the hearing, commencing with NAC. Parties were asked to limit their short summaries to only 2 or 3 pages. Most were able to achieve this. In circumstances where a parties total submissions are short, they have been included in full. Footnotes in summaries have been omitted.
- NAC helpfully provided the Court and the other parties with a chronology of events relating to its mining operations at Acland, starting with the transfer of MDL 244 from Shell Coal (Acland) Pty Ltd to NAC, and concluding with a final entry of 5-7 October 2016 – closing submissions. Of course, at the time of preparation of the chronology, the significant further step by NAC of reopening the hearing was not known.
- Appendix C to this decision is the chronology as prepared by NAC with additions that I have added to bring the chronology up to date.
- The chronology in Appendix C is to be used as a guide only. In circumstances where facts and details as recorded in the body of this decision are at variance with those as set out in Appendix C, the facts and details as set out in the body of this decision prevail.
- Both MRA matters and the EPA matter were heard together. Generally, evidence in one matter was taken to be evidence in each of the other matters. However, it is important to realise that where there is a statutory requirement that evidence from an objector is only relevant to their objection, such evidence is prima-facie only relevant to the matter in which the objector has made an objection. A further exception is of course environmental evidence from Mrs Mason who is a party to the EPA matter pursuant to s 186(d) of the EPA and as such does not have an EPA objection but nevertheless was able to give environmental evidence and make submissions on the EPA matter due to her status as a party.
- It should also be noted that the statutory party was only a party to the EPA matter.
- The hearing commenced on 7 March 2016. A site inspection was undertaken on 8 and 9 March 2016. The first witness gave evidence on 16 March 2016. What was at the time thought to be the final oral evidence in the matters was heard on 12 August 2016 with closing submissions heard on 5-7 October 2016. Subsequently, however, on 19 December 2016 NAC brought an application to reopen the hearing with respect to the 2016 IESC Advice. By decision dated 2 February 2017, I allowed the reopening but on terms broader than that sought by NAC. Oral evidence resumed on 3 April 2017 and concluded on 20 April 2017. Written submissions then closed on 19 May 2017.
- A few points should be made about the hearing of evidence in this matter. It is noteworthy that on 1 September 2016 evidence was taken whilst on site in the vicinity of the New Acland Mine. Not only is it of interest that such evidence was taken from late afternoon into the middle of the night; it is of further note that the evidence was taken concurrently, involving acoustic engineers Mr Elkin and Mr Savery, together with Mr Sheppard, NAC’s senior environmental officer.
- It is of further note that at the resumed hearing, concurrent evidence was heard from Mr Roads and Dr Standley as regards surface water, and from Professor Werner, Dr Currell and Mr Barnett who are each groundwater experts.
- Another important feature of the hearing is that it was conducted entirely as an e-trial. Although this did not come without some dramas, the huge amount of material was overall well-handled electronically. The simple fact that there are 1,951 exhibits does not of itself properly identify the immense volume of material placed before the Court. While of course some exhibits are only one or two pages in length, others are many hundreds of pages long. I am in little doubt that the total number of pages made up by the exhibits would be many tens of thousands.
- The day of delivery of this decision will be the 99th day of the hearing. A keen observer will note that the transcript for the last day of evidence on 20 April 2017 is marked as day 96 and referred to as T 96. This is because the continuous numbering of hearing days only commenced on 16 March 2016, which is marked as day 1, T 1. The extra days are comprised of 7 March 2016, which is also marked as day 1, T 1; 8 March 2016 which does not have a transcript but the Court and the parties were fully engaged for the day and well into the night and early next morning on a site inspection; and 9 March 2016 which was a continuation of the site inspection and also had a transcript taken at Acland, with such transcript again being noted as day 1, T 1.
- To remove any confusion as to the numbering of transcript, the transcript for 7 March 2016 is referred to for the purposes of this decision as transcript 7 March 2016 instead of T 1. Likewise, the transcript of 9 March 2016 is referred to by its date rather than again using the reference day 1 T 1. Accordingly, what was actually the fourth day of the hearing on 16 March 2016 is known as day 1, referenced T 1 as appears on its face, and all subsequent days thereafter continued that sequence of numbering from T 2 to T 96.
- NAC was represented throughout the hearing by Mr P Ambrose QC and Mr B Job of Counsel, instructed by Clayton Utz. OCAA was represented throughout the hearing by Mr S Holt QC and occasionally by Mr Quirk of Counsel, instructed by the Environmental Defenders Office. It should be noted that when both Mr Holt and Mr Quirk were absent, appearances were given by various solicitors of the Environmental Defenders Office, namely Mr Berkman, Mr Ryan, Mr Kwan, and Ms Williams.
- The statutory party was represented throughout the bulk of the hearing in this matter by solicitors from its litigation unit, and in particular Mr Brown, Ms Carroll, Mr Rush and Mr Sneddon. Relatively late in the hearing, the statutory party was represented by Ms J O'Connor of Counsel. Ms O'Connor was also engaged by the statutory party throughout the entirety of the reopening. The DDEC was represented by an agent throughout the hearing, Mr P King.
- The other parties all self-represented throughout the hearing, except for those occasions when they were unable to personally appear. In those circumstances, they invariably made arrangements for one of the other objectors to appear on their behalf. An exception to this is Dr Plant who self-represented for the bulk of the hearing but was also represented for part of the hearing by Mr Holt QC on direct brief. The parties who self-represented are: Dr T Plant, Dr S Ward, Mr S Plant, Mrs M Plant, Dr J Standley, Mr N Wieck, Mrs A Mason, Mrs A Harrison, Mr G Beutel and Dr G McCarron.
- There were a large number of witnesses called during the hearing and the reopening. Overall, there were 38 lay witnesses called to give evidence, and 28 expert witnesses assisted the Court with their evidence, making a total of 65 overall. It will be noted that the total figure is not quite an amalgam of the total number of lay witnesses and expert witnesses. The overall number is reduced by one as Dr Standley was both a lay witness and also an expert witness in the hearing.
- NAC called the following persons as lay witnesses:
- (a)Bruce Denney
- (b)Andrew Boyd
- (c)Dennis Janetzki
- (d)Leone Janetzki
- (e)Tracy Tully
- (f)Nigel de Veth
- (g)David Cooper
- (h)Graham Cooke
- (i)Tracey Tierney
- (j)Shane Charles
- (k)Patrick Wells
- (l)Donald Ballon
- (m)Michael Hartin
- (n)Edward McKeivier, and
- (o)Thomas Sheppard.
- The following lay witnesses were called by OCAA:
- (a)David Vonhoff
- (b)John Cook
- (c)Frank Ashman
- (d)Desley Spies
- (e)Max Scholefield, and
- (f)Simon Wieck.
- Dr Plant gave evidence on her own behalf and also called the following lay witnesses:
- (a)Sharyn Munro
- (b)Mark Copeland, and
- (c)Peter Faulkner.
- Like Dr Plant, Mr Wieck gave evidence on his own behalf and also called other lay evidence at the hearing i.e. Mr Grant Wieck.
- Mrs Harrison also gave evidence on her own behalf and called lay evidence from one other person Mr Brett Hassall.
- DDEC called evidence from one person as follows:
- (a)Ian Whan
- The remaining objectors did not call any other persons to support their evidence but all gave evidence on their own behalf:
- (a)Dr Steven Ward
- (b)Sidney Plant
- (c)Merilyn Plant
- (d)Dr John Standley
- (e)Angela Mason
- (f)Glenn Beutel, and
- (g)Dr Geralyn McCarron.
- The statutory party called evidence from one lay witness:
- (a)Christopher Loveday
- The following experts assisted the Court with their expert opinion evidence:
Area of Expertise
Party called by
Groundwater conceptualisation, water quality
Dr Matthew Currell
Groundwater conceptualisation, water quality, ground water faulting
Professor Adrian Werner
Dr Jerone Fahrer
Professor John Quiggin
Economics (CGE,I/0), agricultural economics
Economics (CBA, coal markets)
Flooding and surfacewater quality
Dr John Standley
Flooding and surfacewater quality
Noise and vibration
Noise and vibration
Air quality, dust and GHG
Air quality, dust and GHG
Dr David McKenzie
Dr John Chalk
Community and social environment, SIA/mental health
Dr Andrew Jeremijenko
SIA/mental health and physical health
Dr Neihad Al- Khalidy
Livestock and rehabilitation
Traffic, transport and roads
Land use and soils
Dr Andrew Daniel
- In making these recommendations, I have taken into account all of the evidence presented in this case including all evidence from expert witnesses and lay witnesses and all exhibits tendered. I have also considered and taken into account all of the objections and submissions of each party. These recommendations refer to the salient points, but not all of the material, which I have considered. As previously indicated, the sheer size of the evidence in these matters prevent a more fulsome analysis of all of the evidence in these written recommendations.
- Since the very first directions hearing in this matter, NAC has sought to have these matters progress through the Court as a matter of urgency.
- Accepting on face value (and without any contra evidence at that stage) the material put forward by NAC in support of its claim for urgency, this Court expedited the pre-hearing processes so as to enable the hearing to commence in early March 2016. It is noteworthy that, generally speaking, despite the time constraints placed on them by the Court, the objectors have met the expedited time frame sought by NAC both before and throughout the hearing.
- At no time has NAC moved from its position that this matter is urgent. During the hearing, NAC relied upon evidence by Mr Denney and Mr Boyd to establish the grounds for urgency.
- As NAC put it in its submissions, if the MLAs and the EA amendment application were not granted by October 2016, any further changes to the mine plan, such as to reduce production, would involve redundancies or at best significantly reduced hours for existing workers. Issues relating to a failure to meet coal supply contracts with customers and a negative impact on New Hope’s financial performance were also raised. In short, Mr Boyd confirmed that October 2016 was the ‘drop dead’ date for NAC to receive the grant of the MLAs and the EA amendment application.
- Of course, after that evidence was given and those submissions written by NAC, NAC brought a formal application for the reopening of the matter with respect to the IESC 2016 Advice.
- I made comment on the issue of urgency in my decision of 2 February 2017 regarding NAC’s application for reopening. In particular, at paragraph 97 of that decision I had this to say:
“It is inevitable that the reopening of these hearings will cause delay to this Court in providing its recommendations. That, however, is something which falls squarely at the feet of NAC. Indeed, given my comments that, taken on its face value, the IESC 2016 Advice has the potential to alter some of the recommendations that the Court may have made on the basis of the evidence provided at the hearing of this matter, it is completely clear and understandable why NAC brought the application that it did. What is not understandable is why NAC delayed, unreasonably in my view, to provide the objectors at the earliest possible opportunity with the reports referred to in the IESC 2016 Advice reports which it had provided to the IESC. If NAC is truly concerned about matters of urgency, as it has stated to this Court on numerous occasions, then it was incumbent upon it to put the objectors in the best position that it could to allow them to respond as quickly and as fully as they could at the earliest possible opportunity.”
- A cursory look at the material in this case gives the impression that the approval process with respect to these MLAs and the EA amendment application have been ongoing since 2007: that is, more than ten years. However, a closer scrutiny of the evidence paints a somewhat different picture.
- Firstly, although it is true that NAC did commence its initial Stage 3 expansion process in 2007, it effectively abandoned that process in the second half of 2012. Clearly, such abandonment followed the then Premier’s public announcement in March 2012 that the initial Stage 3 expansion would not be approved. It was only then in the latter part of 2012 that NAC began taking formal steps with respect to its revised Stage 3 expansion, and indeed it was not until June 2014 that MLA 50232 was amended by the abandonment of a significant amount of area applied for. Further, it was not until January 2015 that MLA 700002 was lodged, and it was even later still, on 13 April 2015, that NAC lodged the current EA amendment application.
- On any level, when viewed objectively, to have a matter of this volume and complexity determined by this court by the date of delivery of this decision in May 2017 is rather extraordinary.
- There is another fact which I find telling against NAC in its claims for urgency. The application for MLA 50216, being Stage 2, was lodged by NAC in February 2005. Accordingly, the Stage 2 EIS, although undated in the material before me, must be of a similar vintage. The Stage 2 EIS is exhibit 871. Exhibit 871 was tendered by Dr Plant, not NAC. Interestingly, NAC did not include the Stage 2 EIS in its chronology that accompanied its submissions.
- Part 2 of exhibit 871 is tilted “Description of the Project”. The second paragraph of 2.1 has this to say:
The New Acland Coal Mine Stage 2 Expansion Project (‘Project’) involves the expansion of the mine producing thermal coal for the export and domestic markets. An increase in production from 2.5 Mtpa (from approximately 4 Mtpa ROM Coal) up to 4 Mtpa (from approximetly 7.4 Mtpa ROM Coal) product coal is planned. A production rate of 4 Mtpa would give a mine life of coal production until approximately 2021.
- I would expect a company with the expertise of NAC to have been quite precise in the production of its Stage 2 EIS. It is unexplained by NAC how it is that Stage 2 coal reserves will be exhausted by either 2017 or 2018, rather than the anticipated 2021. Of course, the current coal production, or at least an important part of it is, it would appear, only able to proceed until later in 2017 or 2018 because of the opening of West Pit, something unforeseen in the Stage 2 EIS.
- It is my clear view that any urgency in these matters has risen as a direct consequence of the actions by NAC. These actions include the failed initial Stage 3 expansion after 5 years; a quicker depletion than earlier anticipated of the coal reserves in Stage 2; and the reopening of this hearing.
- Unfortunately, I feel compelled to place my views in this regard, based on the evidence before me, clearly on the public record so that there can be no further confusion as to the cause or causes of delay resulting in urgency.
- Despite all of my preceding comments under this heading, and despite my views as set out above, as indicated, all of the parties seek a decision in this matter as soon as possible. I agree that, after such a lengthy hearing, it is beneficial for all parties to know where they stand as regards the Land Court’s recommendations. Many objectors simply want to get on with their lives: other objectors want certainty so that they can plan their future. Whatever the reason, it is because of the wishes of all parties to have a decision delivered quickly, and not just the claims for urgency by NAC, that these recommendations have been delivered in the speed in which they have.
- Of course, the Court has had the opportunity to work on the draft decision in these matters since the original close of submissions. That has allowed much work to be undertaken prior to the reopening of the hearing.
- In case my comments above can be taken as being either uncaring or dismissive (or both) of the plight of workers who may lose their jobs because of the depletion of coal in Stage 2, that is far from the case. The simple point that I am trying to make is that, in my view, and supported by the evidence before me, the underlying cause for any such job loses falls squarely at the feet of NAC.
The Relevant Legislation
- As previously mentioned, these matters involve the hearing of objections under the MRA and the EPA. Pursuant to the MRA, because there are MRA objections, it is also necessary for the Court to make recommendations to the relevant Minister regarding the entirety of NAC’s MLA 50232 and MLA 700002, taking into account the criteria contained in s 269 of the MRA.
- There is a rather complex statutory framework underpinning these matters, which involves the MRA, the EPA, the SDPWOA and the Water Act 2000 (Water Act).
- As NAC’s MLA’s are made pursuant to the MRA, it is appropriate to consider that legislation first.
- NAC’s MLA’s were applied for pursuant to s 245 of the MRA. As the MLA’s were considered compliant with the MRA (and following amendment of the area of MLA50232), the MLA’s were publically advertised. In accordance with s 260 of the MRA, objections to the grant of each MLA were made by a number of objectors. As a consequence, the chief executive under s 265 was required to refer both the applications for each MLA and all properly made MRA objections to the Land Court.
- Pursuant to s 268 of the MRA, the Court is required to conduct a hearing into the application for the grant of the MLA’s and the MRA objections. Section 268 relevantly provides as follows:
“268 Hearing of application for grant of mining lease
- (1)On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
- (2)At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
- (3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application. …”
- Section 269 of the MRA then goes on to relevantly provide:
“269 Land Court’s recommendation on hearing
- (1)Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining lease, the Land Court shall forward to the Minister —
- (a)any objections lodged in relation thereto; and
- (b)the Land Court’s recommendation. Note—
For other relevant provisions about forwarding documents, see section 386O.
- (2)For subsection (1)(b), the Land Court’s recommendation must consist of—
- (a)a recommendation to the Minister that the application be granted or rejected in whole or in part; and
- (b)if the application relates to land that is the surface of a reserve and the owner of the reserve has not consented to the grant of a mining lease over the surface area, the following—
- (i)a recommendation to the Minister as to whether the Governor in Council should consent to the grant over the surface area;
- (ii)any conditions to which the mining lease should be subject.
- (3)A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land.
- (4)The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
- (a)the provisions of this Act have been complied with; and
- (b)the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
- (c)if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
- (d)the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—
- (i)the matters mentioned in paragraphs (b) and (c); and
- (ii)the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
- (e)the term sought is appropriate; and
- (f)the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
- (g)the past performance of the applicant has been satisfactory; and
- (h)any disadvantage may result to the rights of—
- (i)holders of existing exploration permits or mineral development licences; or
- (ii)existing applicants for exploration permits or mineral development licences; and
- (i)the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
- (j)there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
- (k)the public right and interest will be prejudiced; and
- (l)any good reason has been shown for a refusal to grant the mining lease; and
- (m)taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
- (5)Where the Land Court recommends to the Minister that an application for the grant of a mining lease be rejected in whole or in part the Land Court shall furnish the Minister with the Land Court’s reasons for that recommendation.”
- The objects of the MRA are also relevant. They are set out in s 2 as follows:
“2 Objectives of Act
The principal objectives of this Act are to—
- (a)encourage and facilitate prospecting and exploring for and mining of minerals;
- (b)enhance knowledge of the mineral resources of the State;
- (c)minimise land use conflict with respect to prospecting, exploring and mining;
- (d)encourage environmental responsibility in prospecting, exploring and mining;
- (e)ensure an appropriate financial return to the State from mining;
- (f)provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;
- (g)encourage responsible land care management in prospecting, exploring and mining.”
- The objection process is somewhat different under the EPA to the MRA. Also importantly, the process in the current case is different to the usual EPA objection matter. This is because the starting point in this case was an application by NAC to amend its current EA, rather than an application for a new EA.
- Once an application by an EA holder is made to amend a current EA, the administering authority under the EPA must make a decision pursuant to s 228 of the EPA as to whether the amendment is a major or minor amendment.
- In this matter, the administering authority assessed the application to amend the EA as a major amendment. As a result, Parts 3 to 5 of Chapter 5 apply to the amendment application as if it were a site-specific application (per s 232). Part 3 commences at s 7 of the EPA, and Part 5 concludes at s 210.
- Under s 160 of the EPA, a person may make a submission about an application for an EA (or of course in this matter an application for an amendment to an EA) . Under s 161 of the EPA the submission may be in writing or electronic and, amongst other things, must state the grounds of the submission and the facts and circumstances relied on in support of the grounds.
- After the statutory party makes a decision on the application for the draft EA in accordance with Part 5, Division 2, Subdivision 2 of the EPA, the applicant and any submitters are notified of the decision (s 181). A submitter may then, pursuant to s 182 of the EPA, give a written notice to the statutory party requesting their submission to be taken to be an objection to the application. The statutory party then refers the application to the Land Court for the making of an objections decision (s 185).
- The EPA parties to the Land Court matter (the term used in ss 186 and 189 of the EPA but note the Supreme Court decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors) are the statutory party, the applicant, the objectors, and Mrs Mason as a s 186(d) party.
- Section 188 of the EPA allows the Land Court to order that the objections decision hearing under the EPA happen at the same time as any hearing for the relevant mining tenure and objections under the MRA. Accordingly, as the hearings before me concern objections under both the EPA and the MRA, I have ordered that the hearings be heard together.
- The nature of the EPA objections decision to be made by the Land Court is set out in s 190 of the EPA as follows:
190 Nature of objections decision
- (1)The objections decision for the application must be a recommendation to the administering authority that—
- (a)if a draft environmental authority was given for the application—
- (i)the application be approved on the basis of the draft environmental authority for the application; or
- (ii)the application be approved, but on stated conditions that are different to the conditions in the draft environmental authority; or
- (iii)the application be refused; or
- (b)if a draft environmental authority was not given for the application—
- (i)the application be approved subject to conditions; or
- (ii)the application be refused.
- (2)However, if a relevant mining lease is, or is included in, a coordinated project, any stated conditions under subsection (1)(a)(ii) or (b)(i)—
- (a)must include the Coordinator-General’s conditions; and
- (b)can not be inconsistent with a Coordinator-General’s condition.
- The next important section to be considered is s 191 of the EPA. This section provides:
191 Matters to be considered for objections decision
In making the objections decision for the application, the Land Court must consider the following—
- (a)the application;
- (b)any response given for an information request;
- (c)any standard conditions for the relevant activity or authority;
- (d)any draft environmental authority for the application;
- (e)any objection notice for the application;
- (f)any relevant regulatory requirement;
- (g)the standard criteria;
- (h)the status of any application under the Mineral Resources Act for each relevant mining tenure.
- It is through the requirement to consider “the standard criteria” in s 191(g) of the EPA that the “precautionary principle” and “intergenerational equity” need to be considered.
- “Standard criteria” is defined in Schedule 4 of the EPA, in part, as follows:
“Standard criteria means –
- (a)the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment –
- (i)the precautionary principle;
- (ii)intergenerational equity;
- (iii)conservation of biological diversity and ecological integrity;
- Further in Schedule 4 of the EPA the “Intergovernmental Agreement on the Environment” is described as:
“Intergovernmental Agreement on the Environment means the agreement made on 1 May 1992 between the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the Australian Local Government Association.
A copy of the Intergovernmental Agreement on the Environment is in the National Environment Protection Council (Queensland) Act 1994, schedule.”
- In the Schedule to the National Environment Protection Council (Queensland) Act 1994 which contains the Intergovernmental Agreement on the Environment made on 1 May 1992 the “precautionary principle” is defined at 3.5.1 as follows:
“3.5.1 Precautionary principle
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
- (i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
- (ii)an assessment of the risk-weighted consequences of various options.”
- Likewise, “intergenerational equity” is defined at 3.5.2 as follows:
“3.5.2 Intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.”
- It is appropriate at this point to provide an overview of some other relevant provisions of the EPA. Section 3 states that the object of the Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).
- Section 4 provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. Accountability is an important element.
- Section 8 defines “environment”. Section 9 defines “environmental value”. Section 14 defines “environmental harm” and how it may be caused by an activity. Section 15 defines “environmental nuisance” as unreasonable interference or likely interference with an environmental value caused by:
- (a)aerosols, fumes, light, noise, odour, particles or smoke; or
- (b)an unhealthy, offensive or unsightly condition because of contamination; or
- (c)another way proscribed by regulation.
- As I said in the Land Court decision of Donovan v Struber & Ors:
- “The objects of the EP Act are vastly different from the objects of the MRA. While the key object of the MRA is to facilitate the mining of the State’s resources, s.3 of the EP Act states that the object of that Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).”
- NAC provided to the Coordinator-General an EIS and, sometime later, an AEIS. Section 34D of the SDPWOA:
“34D Report evaluating EIS
- (1)This section applies if the Coordinator-General decides under section 34A(1)(b) to accept the draft EIS as the final EIS.
- (2)The Coordinator-General must prepare a report evaluating the EIS.
- (3)In evaluating the EIS, the Coordinator-General may—
- evaluate the environmental effects of the project and any other related matters; and
- state conditions under section 39, 45, 47C, 49B, 49E or 49G; and
- make recommendations under section 43 or 52; and
- if division 8 applies to the project—impose, under that division, conditions for the undertaking of the project.
- (4)After completing the report, the Coordinator-General must—
- give a copy of the report to the proponent; and publicly notify the report.”
- Part 4, Division 5 of the SDPWOA sets out the inter-relationship with the MRA, and provides relevantly as follows:
Relationship with Mineral Resources Act
Application of div 5
This division applies if the project involves a proposed mining lease under the Mineral Resources Act.
Application of Coordinator-General’s report to proposed mining lease
Coordinator-General’s conditions override other conditions
General’s condition and another condition of the mining lease.
Coordinator-General’s condition means —
- Importantly, s 54E then goes on to provide as follows:
Imposed conditions override conditions of other approvals
If an imposed condition for the undertaking of the project is inconsistent with a condition of an approval that applies to the undertaking of the project, the imposed condition prevails to the extent of the inconsistency.”
- The relationship between the SDPWOA and the EPA is set out in Division 6 of Part 4 and is as follows:
Relationship with Environmental Protection Act
Application of div 6
This division applies if the project involves a proposed environmental authority under the Environmental Protection Act.
Application of Coordinator-General’s report to environmental authority
- Division 8 of Part 4 of the SDPWOA relevantly provides:
Application of Coordinator-General’s report if no relevant approval
Application of div 8
This division applies to the extent that—
Report may impose conditions
- As regards MLA 50232 and MLA 700002 and EA number EPML00335713, the Coordinator-General made recommendations for the mine under s 34D of the SDPWOA; imposed conditions for the mine under s 54B of the SDPWOA; and stated conditions for the EA under s 47C(1) of the SDPWOA.
- I deal with issues relating to potential inconsistency of EA conditions with the CoordinatorGeneral’s conditions as proposed by this decision under a separate heading.
The Water Act
- There has long been differences of opinion between applicants and objectors as to the extent to which issues in relation to groundwater in particular should be considered as part of the MRA and EPA objection process. For instance in Hancock it was submitted that the relevant place to consider water impacts was under the Water Act and not the MRA and EPA. The court however found that it was relevant for water issues to be considered under the MRA and EPA objection process.
- Prior to recent legislative amendments, a mining lease holder was required to obtain a water license to divert or appropriate water (including groundwater) pursuant to the provisions of the MRA and the Water Act. The position was less certain as to a right to interfere with water.
- Late last year the following Acts were introduced by the State Government to alter a mining tenure holder’s underground water rights:
Water Reform and Other Legislation Amendment Act 2014
Environmental Protection (Underground Water Management) and Other
Legislation Amendment Act 2016
Water Legislation Amendment Act 2016.
- As a result of these reforms a new Chapter 12A has been inserted into the MRA, the main provision of which is s 334ZP. This section enables a mining lease holder to take or interfere with underground water in the area of the lease, if the taking or interference happens during the course of, or results from, the carrying out of an authorised activity for the lease.
- The effect of this provision is that mining lease holders can take or interfere with certain underground water (associated water) without having to obtain a water license.
- The mining lease holder is the holder of underground water rights for the lease and is subject to complying with their underground water obligations. Underground water obligations are contained in Chapter 3 Water Act.
- NAC will have to provide public notification of its application and submitters ultimately have a right of appeal to the Land Court if dissatisfied with the Chief Executive’s decision with respect to the associated water license.
- In terms of the recent legislative reforms to the EPA, they in part provide for certain additional environmental impact material relative to underground water to be included in site-specific EA applications by new mining tenure applicants. New applicants will not need to apply for an associated water license as underground water issues will be determined as part of the MRA and EPA process. Transitional provisions provide that where an applicant like NAC has already made its EA application before the amendments came into force (6 December 2016), these new EPA provisions do not apply.
- It remains my view that, despite the new processes under the Water Act and in particular the transitional provisions, it is necessary, for a proper consideration of MRA objections and EPA objections when water issues are raised as grounds of objection, for this court to fully consider those issues under the MRA and EPA objection process.
Inconsistency with CG Conditions
- As already indicated, NAC’s Stage 3 Revised Expansion Project is a coordinated project under the SDPWOA. The CG has stated conditions for the EA for this project pursuant to s 47C EPA.
- Mr Loveday when issuing the draft EA was required to impose the stated CG conditions in the draft EA and could not add any condition that would be inconsistent with the CG’s conditions.
- In terms of this court section 190 EPA provides:
190. Nature of objections decision
- (1)The objections decision for the application must be a recommendation to the administering authority that —
- (a)if a draft environmental authority was given for the application—
- the application be approved on the basis of the draft environmental authority for the application;or
- the application be refused; or
- (b)if a draft environmental authority was not given for the application—
- the application be approved subject to conditions; or
- the application be refused.
- (2)However, if a relevant mining lease is, or is included in, a coordinated project, any stated conditions under subsection (1)(a)(ii) or (b)(i)—
- (a)must include the Coordinator-General’s conditions; and
- (b)can not be inconsistent with a Coordinator-General’s condition.
- Section 190 EPA means that if the Court recommends that the draft EA be approved with different conditions, then the conditions recommended by the Court must include the CG stated conditions and must not be inconsistent with a CG condition.
- As to what constitutes inconsistency, I note the analysis of this point by President MacDonald in Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane CoOp Ltd & Ors. (Frequently referred to by the parties in this matter as the Wandoan case). I agree with President MacDonald when she said:
- I consider therefore that the Court has power under the EPA to recommend conditions for the draft EA dealing with the same subject matter as conditions imposed by the Coordinator-General, provided that the Court’s recommended conditions do not contradict or lack harmony with the Coordinator-General’s conditions.
- In Xstrata, the President recommended a monitoring regime relating to deep aquifers in order to detect any emerging adverse impacts and to require corrective action if necessary. The President then indicated she was not precluded from recommending these conditions since neither the CG, nor the draft EA, imposed any conditions relating to deep aquifers.
- Further in the decision the President indicated that a condition imposed by the CG to monitor shallow aquifers and alluvium aquifers was not sufficient to establish a comprehensive monitoring program. The President indicated that she would have recommended further monitoring take place but she was unable to make this recommendation as it would be inconsistent with the CG’s condition (monitoring program).
- In Hancock Coal Pty Ltd v Kelley & Ors and Department of Environment and Heritage Protection (No. 4), I determined that the addition of three extra monitoring locations into an existing monitoring program conditioned by the CG in a draft EA, was not inconsistent with the CG conditions but complimentary to them.
- In Adani Mining Pty Ltd v LSCC & Ors, the President recommended that additional conditions be inserted in the draft EA to meet concerns she had with respect to the survival of the Black Throated Finch. The President said:
- I am not satisfied therefore that the conditions in the draft EA and the offset areas required under the EPBCA approval are sufficient to deal with the adverse impact of the proposed mining operations on the BTF. While the implementation of I6 and I7 of the draft EA, which require a management plan to be prepared, will provide further information about the habitat of the BTF, it is not clear to me how any mitigation measures can be seen to be effective, given the lack of fundamental knowledge outlined above.
- The President concluded that the additional investigative conditions she proposed were not inconsistent with the CG conditions as they did not contradict or lack harmony with the CG conditions.
- NAC accepts the test for inconsistency outlined by the President in Xstrata but suggest that the President was in error in determining that a more comprehensive monitoring program could not be recommended just because there was an existing monitoring program provided by the CG. NAC supports the Court’s position adopted in Hancock, that additional monitoring can be complimentary to an existing CG monitoring regime not inconsistent with it. NAC submits that a condition that compliments or adds to a CG condition is not inconsistent with that condition.
- OCAA supports the test for inconsistency as outlined and applied in Xstrata and it notes that the test does not allow for significant departure from CG conditions. OCAA submits that a more comprehensive monitoring regime than provided for by the CG would be impermissible, as being inconsistent with a CG condition. OCAA submits that if the Court accepts that a more comprehensive regime monitoring is needed in these circumstances, then the Court would have no option but to recommend rejection of the draft EA on the grounds of inconsistency as prescribed by s 190(2)(b) EPA.
- Should the Court take a different view than as applied in Xstrata, then OCAA submits the Court should recommend the additional conditions that it proposes.
Conclusion re inconsistency test
- I agree with and adopt President MacDonald’s analysis and conclusion with respect to the test for inconsistency (as outlined in the Xstrata decision). The Court must not recommend conditions that lack harmony with, or are incompatible with, contradict, or are directly inconsistent with CG stated conditions.
- I disagree with the President’s application of that test in the Xstrata case to the extent she believed that to recommend a more comprehensive monitoring regime is inconsistent with an existing monitoring regime conditioned by the CG. As I stated in Hancock, a more comprehensive monitoring regime is complementary with, rather than inconsistent with, an existing monitoring regime conditioned by the CG. Every case however will need to be determined on its own facts and merits.
- I am minded to accept a very narrow definition of what is inconsistent because this will allow for a proper conditioning of projects after hearing all the relevant evidence, rather than not recommending conditions the Court believes are relevant or refusing the EA altogether because a relevant condition cannot be recommended due to inconsistency with a CG condition.
- However, that does not mean that there will never be inconsistency with a CG condition: that is far from the case. Take for instance a recommendation which included a recommendation for additional monitoring and the establishment of more stringent compliance levels. The additional monitoring would be complimentary to existing CG requirements, and permissible, while the imposition of more stringent compliance levels (such as reduced allowable maximum noise limits) would be inconsistent and not allowable.
- I have concerns with the legislative prohibition on the court recommending conditions inconsistent with CG conditions. My concerns are based on the following two points:
- (a)In this matter the CG issued his evaluation report on 19 December 2014 endorsing the project and stating conditions to be included in a draft EA. On 28 August 2015, Mr Loveday on behalf of EHP issued the draft EA and retained all the CG stated conditions.
Since the CG evaluation report and subsequently the draft EA was issued, relevant legislation and policies have changed. The Water Act legislation has changed and also the 2016 NEPM has issued with changed air quality standards. Given the time between when the CG may condition a project and when the Land Court may hear and determine any objections relevant to that project; relevant laws, policies and guidelines may change. This then creates a difficult situation where the new law/policy etc. may require a change to the outdated CG conditions but the Court can not recommend a change if it is inconsistent.
- (b)CG evaluation of the EIS an AEIS was no doubt thorough but it was not as thorough as the evaluation of those documents in the court proceedings before me. Nor did the CG have the assistance of expert opinion tested by crossexamination. Consequently what I find to be errors in expert reports and modelling in many vital areas such as water, noise and dust were only ascertained as part of the Land Court proceedings and not discovered by the CG in his evaluation process.
The inconsistency requirement has an unwelcome hindering effect on the court in circumstances where the CG has relied upon incorrect modelling and the court is unable to correct conditions made by the CG in reliance on that incorrect modelling.
- I will leave the question of solutions to what I consider this most unsatisfactory position to Parliament.
Onus of Proof
- There is dispute between the parties as to who, if anyone, bears the onus of proof in these matters.
- In short, NAC says that it bears the onus of proof with respect to both MLA’s in so far as the Court has to be satisfied of the MRA criteria in s 269(4). However, NAC goes on to submit that it is the objectors who bear the onus of establishing their objections. OCAA, however, contends that no party bears a legal or evidential onus of proof in relation to any issue.
- The starting point to determining this dispute begins with the understanding that, in making recommendations under the MRA and the EPA, the Court is undertaking an administrative and not judicial function. Indeed, all aspects of this hearing are administrative in nature. As Philip McMurdo J said in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors:
- “The respondents submitted that the Land Court’s decision was not one of an administrative character. Their argument appeared to accept, as it had to, that the Land Court here is performing an administrative rather than a judicial function. But they did not accept that every decision made in the course of the performance of the administrative function must itself be also administrative in character. They submitted that this particular decision was the exercise of judicial power under the Land Court’s power to make declarations conferred by s 33 of the LCA…
- … it is difficult to consider that in the performance of an administrative function, the Land Court can be required to occasionally exercise judicial power. I adopt the reasoning of Miles CJ in Eastman v Somes (No 1), who said of a decision of a magistrate made in the course of a committal hearing:
“[T]he hearing was of an administrative nature and not part of the judicial process. Accordingly, any decision made during the course of the committal hearing was administrative and the decision to commit for trial was a decision reviewable under the [ADJR] Act …” ”
- The reasoning of Philip McMurdo J in BHP Billiton is also particularly relevant on the issue of whether or not there is an onus in MRA and EPA referral matters. As his Honour put it:
- “…In adversarial civil litigation, it is for the parties to determine what should constitute the matters in issue. In turn, that leaves it to the parties to effectively define the scope of the duty of disclosure because if an allegation by one party is admitted by the other, it is not a matter in issue.
- But in referrals to the Land Court of the present kind, the scope of the court’s factual inquiry is not defined by the parties. Their respective arguments and the evidence which they present are to be considered. But the Land Court must have regard to considerations which extend beyond the respective interests of the applicant and the objectors. In particular, it must consider the public interest.
- In Sinclair v Mining Warden at Maryborough, the High Court held that a writ of mandamus should be granted and directed to a mining warden who had erred in a case of the present kind. That was an application for a mining lease for which the appellant was an objector. One error of the warden was found to be in his failure to consider whether the granting of the application would prejudicially affect the public interest. Barwick CJ said that the warden was bound to consider that matter “irrespective of the interests of the objectors or their number and, indeed, irrespective of the existence of an objection on [the public interest] ground”.”
- The then Land Court President MacDonald also considered Sinclair’s case in the context of onus of proof in Xstrata. President MacDonald has this to say:
- “The issue of climate change is clearly a matter of general public interest and a matter which may militate against the grant of the proposed leases. However, it is only one of a number of matters that the Court must weigh up in considering whether the public right and interest will be prejudiced by the project. The Court must balance all of the relevant considerations, including the economic and associated benefits of the project proceeding.”
- “…but to put the question in the way in which the majority of the Full Court did, and to hold that there was, in effect, an onus upon the appellant to establish the occurrence of substantial, effective and durable change, was to fail to give effect to the rule of Australian law that the Act, and the holdings of this Court that the proceedings under it in the Tribunal, are not adversarial.
- This Court has repeatedly said that the proceedings of the Tribunal are administrative in nature, or inquisitorial, and that there is an onus upon neither an applicant nor the Minister. It may be that the Minister will sometimes, perhaps often, have a greater capacity to ascertain and speak to conditions existing in another country, but that does not mean that the Minister is to bear a legal onus, just as, in those cases in which an applicant is the better informed, that applicant is not to be so burdened. This is so, even though, pursuant to s 91V of the Act, the Minister may require an applicant to make or verify a statement on oath or affirmation, and may draw an adverse inference against an applicant if the Minister has reason to believe that "the applicant was not sincere" in complying with the request.”
- I can only repeat the words of President MacDonald from Xstrata. The Court must balance all of the relevant considerations and make recommendations as provided by the MRA and the EPA, and, in so doing, the Court is to take into account and consider the applicants; the objectors; the relevant legislation; and, of course, the evidence in the hearing.
- There is one final point that I should make. At paragraph 2.47 of its reply submissions dated 30 September 2016, NAC stated that:
“Here, section 268(2) of the MRA relevantly requires the Court to consider “the relative merits of the application, objections and other matters and shall not be bound by any rule of practice as to evidence”.”
- I cannot agree. Section 268(2) actually provides as follows:
- “(2)At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.”
- It is the function of the Court to “determine the relevant merits of the application… (etc)” not to “consider the relevant merits of the application… (etc)”. Analysis of Witnesses
- My attempt to analyse the evidence of the various witnesses, both expert and non-expert, highlights the difficulty of producing the decision in this matter in anywhere near the timeframes sought by the applicant. I will not repeat what I have already said under the heading of “urgency”, but it is important to note the continuing dilemma that a matter of this size and complexity brings to the writing of a decision. Also, as already indicated, not only has this been the longest case heard in the 120 plus year history of the Land Court of Queensland, but it has also involved the largest number of witnesses in any matter ever heard by this Court. The evidence, in both written statement form, report form or oral form, of some witnesses was extremely extensive, while other witnesses were much shorter in either statement or report.
- There were a total of 37 lay witnesses called by either NAC or one of the level 2 objectors. There was also lay evidence called on behalf of the statutory party, bringing the total number of lay witnesses to 38. In addition, there were 28 expert witnesses, but this figure itself requires closer scrutiny, as a number of experts doubled up in areas of expertise, making the total areas of expert expertise covered by expert evidence 38. This figure includes Dr Standley OAM as an expert for the purposes of his field of expertise (surface water), although he is also included as a lay witness as he gave quite separate and distinct lay evidence at a completely different stage of the hearing. If all of the lay witnesses are considered separately, and each area of expertise by the experts is considered separately, that means there are 38 lay witnesses and 38 areas of expert evidence that require analysis, resulting in a total of 76.
- When reference is made to the well over 2,000 pages of written submissions received from the parties in this matter, there are literally hundreds and hundreds of pages of material dealing with aspects of the credit of both lay and expert witnesses on a myriad of topics. For example, the lay witness, Mr Denney, provided, very large affidavits, including the annexures to those affidavits, and was subject to very extensive cross-examination over many days. Exactly the same comment applies to many of the expert witnesses, particularly those relating to groundwater, noise, air quality etc.
- If I were to do a comprehensive analysis of the credit of each witness based on their written and oral evidence, this decision would be unbearably long for those tasked with the job of reading and comprehending the recommendations arising out of this decision to consider. I could easily spend 20 or 40 pages referring to issues of credit relating to Mr Denney alone. Even witnesses who gave only very short statements and oral evidence would warrant a page or two pages of consideration of the findings relating to their credit. To put all that into perspective, if I was to do a relatively comprehensive analysis of each witness and that analysis averaged out at about five pages per witness or area of expert expertise, then this part of the decision would amount to over 350 pages by itself. That level of detail is simply impossible in the time I have available. However, the clear risk arises that in providing a much shorter form analysis of the credit of each witness, I run the grave risk of appearing to not properly consider, in sufficient detail, my views as to the credit of each witness and, in particular, not drawing on the specific examples that I have to support my views as to the credit of each witness.
- To explain further, I have in my judicial notebook approximately 800 pages of handwritten notes relevant to the hearing of this matter. For each and every witness, be they a lay or expert witness, I make running notes to myself with respect to my immediate impressions of the witnesses as they give their evidence in the witness box. I then review those comments when each witness concludes their oral evidence so that the total impression of their written material and oral evidence can be recorded on paper whilst it is freshest in my mind.
- Of course, following the receipt of written and oral submissions from all of the parties, I review my initial impressions of each witness against the submissions made by each party and then come to a concluded decision as to my view of the creditworthiness of the evidence of each expert and lay witness.
- I have given this explanation to explain the judicial thinking process that I put in place with respect to each witness in this matter. It is, to say the least, extensive. However, in the assessments that follow for each witness, in order to keep this part of the decision as brief as possible, I will give but a snapshot of the reasons why I have come to the conclusions I have come to with respect to the creditworthiness of each witness. I must stress though that this reasoning is backed by a very detailed analysis undertaken both when the evidence was fresh before me, and reviewed after submissions were made.
- As can be seen from the structure of this decision, as well as my examination of the credit of each witness, I am also setting aside specific parts of this decision to the key issues which require resolution, such as noise, air quality, dust, light pollution and so on for a total of 20 key issues, not including the general key issue of other objections made. I will of course refer as necessary to the myriad of evidence with respect to each of those key issues, with such evidence of course being viewed through the glasses of my findings as to the credit of the respective witnesses.
- In short, what follows with respect to the analysis of each lay witness is an important snapshot to help in the understanding of why evidence on a issue given by person A is preferred over different evidence given on that same topic by person B. Specifically, the detail of the analysis of that evidence will be found by reference, insofar as it is necessary, and again, in the interests of making this unwieldly decision as comprehensible and manageable as possible, without analysing in depth all of the evidence for each key issue. To do otherwise would be to consign the reader to reading many thousands of pages of this decision; something which I have tried my best to avoid.
- Set out below, is my analysis of the lay witnesses. I identify, with respect to each witness, who that witness was called by. My analysis of the expert evidence is not found in this part but is located for each relevant expert witness in each key issue considered.
- Bruce Douglas Denney was called by NAC. At the time of swearing his various affidavits he was the Chief Operating Officer of New Hope. However, on 18 December 2015 he retired from that position and continued in the role of Strategic Advisor to New Hope, a position which he held when he gave his evidence early in the original hearing.
- Mr Denney holds a Bachelor of Engineering (Honours) Chemical Engineering from the University of New South Wales and an MBA from the University of Newcastle. He is a fellow of the Australian Institute of Mining Metallurgy, a member of the Society for Mining, Metallurgy and Exploration, and a member of the Australian Institute of Company Directors.
- Mr Denney has 40 years’ experience in mining in Australia and the United States of America. He held the role of Chief Operating Officer of New Hope for a period of 5 years. Observations that I made on numerous occasions led me to believe that Mr Denney may have been receiving coaching from the gallery of the Court. I raised my concern in a private session of lawyers representing parties. I informed them of my observations that prior to answering questions, Mr Denney was looking to a person or persons in the gallery, seemingly for direction. I further advised that I had seen two people nodding or shaking their heads when Mr Denney looked in their direction. His answers were either a yes whenever he saw a nod or a no whenever he saw a head shake.
- NAC’s legal representatives assured me that they would take the matter up immediately with those employees of NAC who were seated in the public gallery in the area to which Mr Denney was looking. The nodding and shaking of heads did not occur again during Mr Denney’s evidence.
- The question may be asked as to why I did not take immediate action against the members of the public sitting in the court room who I was concerned may have been coaching the witness. Firstly, none of the legal representatives suggested that it was necessary for such a course of action to be taken. Also, I could not be certain what I observed was not more in the nature of the person showing their own over-excited responses to questions themselves rather than deliberate coaching. Viewed with the benefit of hindsight, and having observed one of those persons in particular throughout a significant part of the hearing, my view is that that person at least was in all likelihood merely being over exuberant in their own reaction to questions, as I did observe the same reaction, not so much when witnesses were giving evidence in the future, but when counsel or one of the objectors were making submissions or statements to the court.
- At any rate, even though I consider on the balance of probabilities that what I observed as coaching may have only been exuberance, that still does not excuse Mr Denney. Even if he was not looking to the gallery for assistance as part of a prearranged coaching exercise, at the very least Mr Denney looked to the gallery to employees of NAC and observed their responses to questions before giving his own response, which invariably followed precisely the indication that he had seen. It was entirely inappropriate of Mr Denney to do this, and this factor must be taken into account in my assessment of Mr Denney as a witness.
- In this regard, I am surprised that NAC in its submissions did not touch upon the issue of coaching or any impact that viewing answers from the gallery may have had on Mr Denney’s credit, despite being aware of my concerns in this regard raised at the private session.
- There is another significant factor which is linked to the above. I have provided my observations as to Mr Denney’s evidence up to the time that I became concerned about issues of coaching. After that time, the nature of Mr Denney’s evidence changed. He was much more uncomfortable in answering questions. He hesitated and corrected himself, particularly when shown documentary evidence to show that answers he had given were not factually correct. In short, Mr Denney presented quite differently as a witness after he was unable to take any assistance from the gallery.
- Another source of concern regarding Mr Denney’s credit related to the bulk of his affidavit being written in the first person and, of course, that affidavit concluding with the words:
“All the facts and circumstances above deposed to are within my own knowledge, save such as are deposed to from information only, and my means of knowledge and sources of information, appear on the face of this my affidavit.”
- In this respect, NAC submits as follows:
- “54.3During cross examination of Mr Denney some of the objectors pursued a line of questioning that sought to discredit some of Mr Denney's affidavit evidence, on the basis that not all statements were about matters within Mr Denney's own knowledge, and that some of the information in his affidavit was based on discussions with various members of the Applicant's project and other teams. The Court also made certain observations in this regard.
- 54.4One cannot fail to acknowledge that these matters referred to in Mr Denney's affidavit evidence were matters that either:
- (a)occurred prior to Mr Denney's commencement of employment with the Applicant in 2010;
- (b)while being within Mr Denney's ultimate responsibility as chief operating officer of the Applicant, were the day to day responsibility of various employees of the Applicant; and/or
- (c)were addressed in the New EIS and AEIS.
- 54.5It is submitted that Mr Denney's approach in his affidavit was entirely proper, and consistent with usual practice in these types of proceedings, where many people are involved in the evidence that ultimately makes up the Applicant's positive case affidavit for grant of the relevant mining leases and EA. Receipt of evidence of this nature is a reasonable and proper example of the operation of Section 7 of the LCA.
- 54.6In relation to Mr Denney's reliance on the New EIS and AEIS, Mr Denney appropriately relied on the work carried out by the various consultants and experts.
- 54.7In the absence of calling every relevant:
- (a)employee and ex-employee and consultant and exconsultant of the Applicant with any involvement in Stages 1, 2 or the Revised Expansion Project since 2001; and
- (b)consultant and ex-consultant of the Applicant and all their relevant employees involved in the preparation of every section of the New EIS, AEIS and various reports that form part of those documents, which is obviously unreasonable and unrealistic to expect, in preparing his affidavits Mr Denney properly made the necessary enquiries. After those enquiries, and upon verifying the accuracy of those matters, Mr Denney swore to his belief of the accuracy of that information.”
- An example of a statement from Mr Denney’s second affidavit which caused objectors concerns is as follows:
“Further, given that Dr Tanya Plant was regularly circulating information that the Applicant considered was misleading, including to the media (exhibited to this affidavit and marked "BD16" is an article that was published in "The Australian" on 28 January 2012 as an example of this), the Applicant had a heightened concern that provision of the data and technical information without proper expert analysis would be inappropriately circulated.”
- As noted, Mr Denney relied for support on his statement regarding Dr Plant on “BD16” to his affidavit, which is an article from The Australian newspaper of 28 January 2012 which says in part as follows:
“Tanya Plant, a Queensland farmer and mother of two, worries about the effect the emissions from New Hope Corporation's coal mine, located about 2km from her home, may be having on her family. Her two-year-old daughter has been having coughing fits and after successive trips to the doctor she has been told the causes may be "environmental".
"It has been worrying to have one of our children coughing a lot for months. We are concerned about those really small particles, as well as things like heavy metals," says Plant, who grew up on her Acland farm, west of Toowoomba, and obtained a PhD from Oxford University as a Rhodes scholar.
In fact, Plant, her husband, children and parents seem adversely affected by constant exposure to dust, noise and plumes of gases released by regular blasting.
"I'm uncomfortable telling too many people the details of all our health issues, but there are some worrying symptoms which seem to have been going on for quite a while and none of us seem as healthy as we should.”
- Another relevant statement by Mr Denney is to be found in “BD27” to Mr Denney’s second affidavit, exhibit 393. In referring to “BD27” at paragraph 268 of his second affidavit Mr Denney said that “BD27 is copy of a document where I respond to the matters that are within my knowledge or are otherwise addressed in the new EIS or AEIS and that do not require technical expertise. Other issues raised in objections will be dealt with by relevant technical experts”. At page 21 of “BD27”, Mr Denney has this to say:
“…….Dr Plant consistently states publicly that the only way that she has ever been able to get information from the Applicant was going to Court. I strongly disagree with this assertion and the only time that the Plants went to "Court" to seek documents from the Applicant was in relation to the matter referred to above and the Land and Resources Tribunal found that this application was inappropriate and awarded costs against the Plants and other objectors.”
- As regards these statements, Dr Plant says that she has never stated publically that the only way that she has ever been able to get information from the Applicant was going to court. The best that the submissions for NAC can do is to point out that Dr Plant failed to acknowledge that her submissions in respect to the New EIS and AEIS are public documents. NAC did not supply any quote or any footnote reference from the New EIS or the AEIS submissions showing where Dr Plant publically used the words ascribed to her by Mr Denney.
- The same can be said of Dr Plant’s comments to The Australian newspaper. The furthest that the newspaper article can be taken is to show a concern by Dr Plant as to what impact emissions from NAC’s mine may be having on her family. That is a statement of concern, not an allegation of fact against NAC as Mr Denney would have had the court believe. Also, Dr Plant merely referred to successive trips to the doctor where she was told the cause may be “environmental”. Again, that is not a statement directly attributing causal blame to NAC. It is simply an expression of concern.
- Following is an extract from the transcript when Dr Plant was cross examining Mr Denney regarding these issues:
“Mr Denney, I put it to you that a number of the statements in your affidavit are outside your direct knowledge or experience, and I think, to some extent, you’ve already agreed with that. Is that correct? You’ve had to check with people and rely on the - - -?---I’ve made inquiries. Yeah.
Made inquiries?---Where – where I haven’t known things myself, I’ve made inquiries.
Okay. You make quite a number of claims in relation to me in your affidavits. For example, you say that I have – quote:
…consistently stated publicly – quote – or – quote:
…stated publicly on many occasion – unquote. When have you personally heard me make such statements?---Could I have a reference to that, please.
Dr Plant consistently states publicly that the only way she’s ever been able to get information from the applicant was going to court –
is what you state?---Yes. I see that.
Why do you say that?---Because I – I sought information on this particular issue, and that was the information that I received.
Where did you get that information?---It would’ve come from the project group.
Right. Whose – whose opinion is that, then?---And there’s also, I think, been some information put together which supported that – that view that I have also seen.
Would you care to share that with the court, because I don’t believe I’ve ever said that, let alone consistently stated publicly that the only way I was ever to get – able to get information from the applicant was going to court. It’s a matter of public record we didn’t actually get any information from going to court?---Sorry. I’m at a bit of a disadvantage here, because I – I just – this is stage 1. It’s a large number of years ago.
But you’ve sworn that:
Dr Plant consistently states publicly - - -
- - - that the only way she was ever able to get information from the applicant was going to court.
?---That was the information I was given.
By whom?---By the project team.
Who’s the project team?---Well, there’s a – a group of people within the project team.
And you’re prepared to swear that without them being here and swearing it on oath themselves or - - -?---Well, unfortunately, there’s a large amount of information in here that I’ve had to ask people about, and I take them on their word.
Okay. You take them on their word but perhaps not objectors on their word?---Well, I guess there’s always two opinions. Well, sorry. There are sometimes two opinions.
Well, I put it to you that I have not stated that and certainly not consistently stated publicly that:
The only way that she has ever been able to get information from the applicant was going to court
?---Okay. Well, I received different information on that issue.
Okay. All right. There’s a number of cases in your affidavit where you make similar statements about me. Shall we go, perhaps, to paragraph 124. You there now, Mr Denney?---Yes. I am. Yep.
Okay. Can you see, down the bottom of that paragraph, you say:
Dr Plant was regularly circulating information that the applicant considered was misleading, including to the media.
What is the basis of that statement?---Again, I questioned that statement to make sure that it was correct and there has been some information put together that did indicate that, as a list of statements you made that we considered were misleading.
Would you care to show me what you consider as misleading? This is the first I’ve heard of it, Mr Denny. Nobody from your whole company has ever said to me that they considered I was saying to be misleading, so you can imagine that I’m a little annoyed when the first I hear of these sorts of accusations is before the court in your affidavit?---There is a listing of documents which I think can be provided, I think.
The only evidence you provide there is referring to an article that was published in The Australian on the 28th of January. Can you turn to that, please, and tell me specifically what in that you consider to be misleading?---Yes. The issue here that we considered to be misleading – sorry, that I considered to be misleading was the linkage between your daughter’s coughing fits and a comment that the causes may be environmental.
Sorry. Let me just see where you’re talking about?---Sorry. That’s in the one, two, three, fourth paragraph.
One, two, three, four. Right. And why do you think that would be misleading?---I don’t think it was a – been a proven situation.
What’s not proven? What in that statement is not proven?---That there’s a linkage between your daughter’s health and the fact that it’s environmental, implying that it is due to the mine. At least, that was my reading of the implication.
………..Page 10, paragraph 34. Okay. So you state there in that – in the middle of that paragraph, one of the objectives Dr Tanya Plant has stated publicly on many occasions that – this is in relation to community – the community investment fund, I might explain. One of the objectives Dr Tanya Plant has stated publicly on many occasions that these contributions are not sincerely made and are provided to buy the support of the community. Again, Mr Denny, I’ve put it to you: when have I supposedly publicly stated this?---Again, we’ve had a look at some media commentary and that was evident from some of that media commentary.
That would surprise me, but – so do I take it that you’ve got a – when you say we, who’s we?---The company.
Right. So the company’s trying to develop a Tanya Plant dirt file or something or?--No. No. Not at all.
Really?---No. We would love to have a good relationship with you.
- When I consider Mr Denney’s evidence as a whole, it becomes abundantly clear that much of what is contained within his affidavit material and quoted in the first person is in fact the opinions of others which have been passed on to him. In my view, on too many occasions it is not Mr Denney’s own, independent knowledge.
- I do not accept the submissions of NAC in this regard. It is an extremely simple matter for an affidavit to be written in such a way as to make it abundantly clear when someone such as Mr Denney is relying upon the views of subordinates when expressing an opinion. Given that the rules of evidence do not apply in the Land Court, there was no danger of Mr Denney having his affidavit excluded on the basis of hearsay had it honestly and truthfully stated the position as it really was, instead of being drafted in a way to deceive the reader into thinking that all of the statements expressed were Mr Denney’s own opinion, at least in all those circumstances where he used the word “I” or the like.
- It is also noteworthy that my attention has not been brought to documentation or evidence that establishes the allegations made against Dr Plant and others.
- When I put all the factors outlined above together, I am extremely troubled by Mr Denney’s evidence, to such an extent that I afford it little or no weight. Of course, documents annexed to Mr Denney’s affidavits speak for themselves, and in the majority of circumstances the truth or otherwise of those documents has not been challenged, so I am able to rely upon those documents. That, however, does not include documents such as “BD27”
- Denis Lyal Janetzki was called by NAC to give evidence. He provided a statement which is Exhibit 387.
- Mr Janetzki’s affidavit is only short. The main purpose of his affidavit is to exhibit a copy of a letter that he wrote on 19 June 2015 in support of the mine. His affidavit indicates that the letter was copied to the Honourable the Minister for Environment and Heritage Protection and the Senior Mining Registrar, Department of Natural Resources and Mines, who forwarded the letter of support to the department’s Coal Assessment Hub.
- There is no doubt from his written and oral evidence that Mr Janetzki is a strong supporter for Stage 3 proceeding. He has lived in Jondaryan for the past 41 years and has been President of the Oakey Show Society for about 10 years. In short, Mr Janetzki believes that NAC has professionally conducted the EIS and AEIS process and has willingly worked alongside local landholders to address all areas of concern.
- In his letter of support, he states that he wholeheartedly supports further mining expansion and the approval of Stage 3 “As independent reports show New Hope has proved itself over many years to be an enterprise that addresses Government requirements and actively works side-by-side with all stakeholders”.
- In its submissions, NAC paints a very rosy picture of Mr Janetzki being a person who is respectful of the good relationships that he has had with the mine and supportive of the mine proceeding. That rosy picture however, in my view, underscores one key fact, and that is that Mr Janetzki has a clear interest in Stage 3 being approved as shown during his crossexamination by Dr Plant where he indicated that he had an agreement with NAC to purchase his property if Stage 3 proceeds and that the value of the sale is confidential. It also emerged during cross-examination that Mr Janetzki had a property in the existing ML areas which was sold to NAC many years ago. In short, Mr Janetzski has a clear financial interest in the mine proceeding and in my view this colours his evidence.
- Interestingly, Mr Janetzki gave evidence when cross-examined by Mrs Plant that his local community was not divided, but when cross-examined by Mr Wieck, he confirmed that they had known each other for 50 years. The totality of Mr Wieck’s evidence and submissions in this case could not make it clearer that he is opposed to Stage 3 and I do not understand how Mr Janetzki could hold the opinion that the community was not divided when at least one person who he acknowledged to know well for such a lengthy period of time was so deeply opposed to the mine. Mr Janetzki, from my impressions, knew well many of the other local landholders who are either level 1 or level 2 objectors to Stage 3.
- When pushed in cross-examination by Mr Wieck to express his opinion on the professionalism of NAC, he was reluctant to do so despite what he had said in his letter of support. He attempted to limit his comments to only Stage 3, although I do not believe that his letter of support can be read in that way.
- Notably, Mr Janetzki gave evidence that he made no apology for looking out for the best interests of his family.
- Despite the strong submissions of NAC to the contrary, I was not overly impressed by Mr Janetzki as a witness. I have no doubt that he is a proud member of his local community and has served his community well as a volunteer at the Show Society over a lengthy period of time. However, his evidence is tainted by his financial interest in Stage 3 proceeding. At best, in my view, Mr Janetzki’s evidence can be taken as showing one local landholder who has had fruitful and successful negotiations with NAC over a lengthy period of time.
- My closing comment is that Mr Janetzki’s evidence of NAC being such a good corporate citizen since the 1990s up to and including the present is at odds with the evidence of Mr Denney that, when he commenced work with NAC in 2010, it was clear to him that NAC had much work to do to improve its dealings and relationship with the local community and that he had made a concerted effort to change the mentality of NAC during his time at NAC. Specifically on this point, I prefer Mr Denney’s evidence to that of Mr Janetzki, which further weakens Mr Janetzki’s credibility.
- Mrs Leone Ann Janetzki was called to give evidence by NAC. Her affidavit is Exhibit 390. Her affidavit evidence is, in effect, identical to that of her husband, Mr Denis Janetzki, including the annexure of the same letter of support of 19 June 2015.
- Mrs Janetzki has lived at Jondaryan with her husband for over 41 years. Like her husband, she was born in Oakey and has lived in the community all her life. Mrs Janetzki has been a school teacher for a lengthy period of time at the Oakey State Primary School.
- The great bulk of the comments that I have made above regarding her husband can also be made with respect to Mrs Janetzki.
- One surprising aspect of Mrs Janetzki’s evidence was that she stated she could not recall how it was that she came to make her affidavit in support of the mine. She was not the only person to have a failed memory in this aspect. She was clearly nervous and hesitant when answering the question. In my view, Mrs Janetzki has a very good memory of how she came to prepare her affidavit but was unwilling, for reasons known only to her, to share that information with the Court.
- I found her evidence when cross-examined by Mrs Plant in giving the answer that she did not feel that the community was divided to be quite unreliable, again due to her lifelong association with the community and her knowledge of and familiarity with those who have objected to the mine proceeding. Quite simply, her statement that the community is not divided is simply not supported by the evidence.
- Like her husband, she stands to gain financially should Stage 3 proceed by the sale of her property to NAC in circumstances where she has indicated that her children are not interested in continuing with the farming business and where she and her husband are looking forward to the next stage of their life, being retirement.
- Unfortunately, during her cross-examination, there were clear and distinct instances when Mrs Janetzki was looking at her husband before answering questions put to her in crossexamination and Mr Janetzki from the gallery of the courtroom was shaking or nodding his head indicating if she should give a negative or affirmative answer. I had to give a formal warning to Mr Janetzki to desist or I would have no choice but to have him removed from the courtroom.
- Again, despite the best endeavours of NAC in its submissions to paint Mrs Janetzki as a highly reliable witness, I am only prepared to accept that she personally had good relationships with the company, at least with respect to negations post-2013, but that her evidence loses credibility due to her clear financial interest in Stage 3 proceeding, as well as the other areas of inconsistency in her evidence which I have referred to.
- Tracy Amanda Tully was called by NAC to give evidence, her statement is exhibit 392.
- At the time of making her affidavit on 10 December 2015 Mrs Tully was employed as the A/Principal of the Oakey State High School, a position she had held since 2014. Mrs Tully’s evidence shows that she had been a principal at various schools for over 24 years and commenced her teaching career in 1981.
- Mrs Tully holds a Diploma in Teaching and a Bachelor of Education. She has a wealth of experience as an educator at schools across a wide range of communities, including rural, remote, and mining communities. The knowledge and experience as set out by her in her affidavit and its annexures is impressive.
- In her oral evidence, Mrs Tully stated that she is currently under suspension. Despite the wealth of experience evident in her affidavit, my initial impression of her in the witness box was not high. At that part of her evidence, she sounded short, abrupt and even dismissive of many elements of cross examination, even though she did so in a polite manner. The politeness also came across as forced.
- My confidence regarding Mrs Tully’s evidence was further shaken by her answer to a question by Dr McCarron indicating that she could not remember how she came to do her affidavit. I was also very surprised by Mrs Tully’s evidence that she was not aware that the burning of fossil fuel is highly contributable to climate change and in particular coal is a main factor in causing climate change. Another aspect of her evidence which was of concern to me related to her knowledge of the almost total removal of the town of Acland including historical buildings from that town. Her evidence was that she had been to Acland but “I can’t say what I haven’t seen.” Photographic and oral evidence given, in this matter make it abundantly clear that anyone who just paid a cursory glance to the current Acland when driving through would clearly see that the township had been all but entirely removed. Further, due to her lengthy teaching time and lengthy time living in this region of the Darling Downs and the clear way she informs herself of the community in the areas in which she works, I would be surprised if she didn’t know that Acland has a history dating back to the 19th century when the area was first settled, and the town proper itself has a history of about 100 years. I consider her evidence as regards Acland to again fall into the category of short, sharp and, particularly in this instance, evasive.
- Late in her evidence when questioned, including by myself, about her current and former suspensions Mrs Tully became very emotional and visibly upset. During her evidence at this time, a number of issues crystallised for me, causing me to view most of her evidence in quite a different light.
- Cross examination of Mrs Tully had included questions relating to a walk that occurred in Oakey in support of NAC. A point of particular contention was the fact that the walk concluded at the Oakey State High School where a fundraising event occurred. The statements and oral evidence of a number of objectors also referred to this event. The position put to Mrs Tully, and strenuously denied by her, was that the walk and fundraiser was something organised by NAC with the school as a show of support by Mrs Tully to NAC.
- Having carefully read and listened to all of the evidence relating to the walk and fundraiser, I am satisfied that the involvement of the school was primarily limited, at least at an official level, to an agreement by Mrs Tully on behalf of the school for the school grounds to be used by TOMNET, which is an organisation of men aged over 50 who undertake charitable community work, to use the school facilities for a fundraising event at the conclusion of the walk. I am also in no doubt that many people from the school, including employees and students, participated in both the walk and the fundraising event run by TOMNET. I also have no doubt that many of the objectors gained the opinion that what had actually occurred was the Oakey State High School essentially organising an event to show support for NAC. I accept that those views have been honestly held but do not accord with the evidence presented in this case.
- The issue though goes one layer deeper. When I was asking Mrs Tully some questions, the level of distress, that in my opinion, was an underlying factor in all of her oral evidence before the court became clear her evidence. My questions and her answers are as follows
“…I really would like to know the answer to the question if your relationship with New Hope had anything at all to do with your stand down?–––I haven’t received any — anything, but my personal belief perhaps is that I have been lynched, yes. Publicly lynched.
Publicly lynched?---Yes. I – I believe that there have been conversations about me to — to ruin my career in terms of some decisions I’ve made.
And what’s the nature of those decisions?–––False allegations about me that have come to me from people prior to my stand down.
Please take your — take a moment to compose yourself?–––Yeah.
Is — do you have water?–––Yeah.
And just to explain – – –?–––Yeah.
– – a failure to answer a question can cause presumptions to [indistinct] as to why that question wasn’t answered – – –?–––I see, yeah.
– – and I’m wanting to make sure that you’re given the complete opportunity – – –?––Yeah.
– – to answer questions without any of those presumptions being made. So I apologise that you’re upset and take as long as you need to – – –?–––No, I’m fine.
– – compose yourself. So – – –?–––I haven’t got any evidence, sir, but I strongly suspect after being here and reading the affidavits that I have been – I have been targeted.
Because of your support for the New Hope project?–––I believe so, yeah.
And — but you have no direct personal relationship?–––I have no evidence.
No, do you have any direct personal relationship with New Hope?–––No, absolutely not. Only professional.
That’s enough. I don’t need to take it any further?–––Thank you.”
- On this same topic, Mrs Tully gave the following evidence when she was re-examined by Mr Ambrose QC for NAC:
“MR AMBROSE: Let’s see if I can explore that further. What’s your belief as to why you were suspended? For – what is it do you think you have done, in a general sense, if not – – –?–––My – my belief was prior to – to just recently that it was about suspensions and exclusions of students with sexual offences and drugs.
So you suspended students – – –?–––Yeah.
– – – for sexual offences and drugs?–––Yeah.
And, as a consequence of that managerial decision – – –?–––Yeah.
– – – I understand a complaint was made and you were suspended?–––Parents have made complaints, because they didn’t want their children suspended.
And is that still your belief or do you think there might be some other – – –?–––No. I know what I haven’t done and I know what I have done. I’m aware that that’s it and
— and I — I got that before I stood down. I’m also aware that – that there are people, obviously, in this room that have been personally attacking me.
But in terms of your suspension – – –?–––Yes, sir.”
- NAC in its submissions has painted Mrs Tully in glowing terms. Whilst I maintain my reservations regarding Mrs Tully’s evidence regarding her knowledge of how she came to make her affidavit, her lack of knowledge about the burning of coal leading to climate change, and her comments regarding the current state of what is left of Acland, I overall agree with the submissions made by NAC regarding Mrs Tully’s evidence.
- Clearly, in my view, Mrs Tully had built up a strong and close, but professional, working relationship with senior personnel of NAC. That professional relationship had resulted in clear benefits flowing to the school from NAC, including cash of $45,000 and $20,000 benefit in kind. Mrs Tully was also well advanced with a program involving students undertaking work on areas of rehabilitated NAC land as part of their educational experience.
- I note that OCAA in its submissions contends that Mrs Tully’s evidence should carry little weight due to the indirect financial benefits because of the financial arrangements that she had organised between NAC and her school. I do not believe this to be a fair criticism of Mrs Tully. That said, however, her evidence left me in no doubt that she is a strong supporter of Stage 3 continuing. Her evidence also clearly indicated the split that has occurred in the community as a result of NAC’s application for Stage 3.
- I also do not accept the criticism by Mrs Plant made in her submissions. Where she commented as to “why would anyone put up a witness who has been not once but twice suspended from their employment?” On the evidence provided to the court, Mrs Tully was predominately cleared of wrongdoing arising from her first suspension and subsequent to that suspension being lifted took up the position of A/Principal at Oakey State High School. As for the second suspension, on the evidence before me, she is simply stood down while an investigation is undertaken into complaints, the details of which are not in evidence before me. Of course this court has no way of knowing at this time whether those complaints will be established or not and what action if any will flow as a result of those complaints. Mrs Tully may have her suspension turned into a termination of services; on the other hand, she may be totally exonerated. It would be quite improper to speculate given the evidence before me. Mrs Tully must be presumed to be innocent until any complaints against her are established.
Nigel de Veth
- Nigel Francis de Veth was also called by NAC. His affidavit is exhibit 381.
- Mr de Veth is the managing director of Deveth Drilling Qld Pty Ltd, Roc-Drill Pty Ltd and Geothermal Industries Australia Pty Ltd. He also owns an investment company De Veth Investments Pty Ltd.
- It is clear from the evidence that Mr de Veth runs successful businesses in Toowoomba and that, in particular, Deveth Drilling would not be in Toowoomba but for the New Acland mine. His current contract with NAC runs until June 2018.
- It is clear from his evidence that Mr de Veth is a strong supporter of the local businesses in the Toowoomba district as he said in paragraph 12 of his affidavit, his companies “buy locally and my family buy locally, we support local businesses and are involved in many other local events.”
- In his closing paragraph, Mr de Veth had this to say:
Overall, I believe the Applicant’s expansion of the New Acland Mine should be approved as it will provide the local community with much needed economic support, both directly and indrectly, It will mean that local businesses will continue to receive employment opportunities through contract work, and other businesses and residents will be able to stay in the region, including my family and my business, Deveth Drilling”
- Mr de Veth in my view can be characterised as an open, fair and honest witness. His answers were clear and he presented his evidence in a friendly, cooperative style. I accept his evidence in its entirety.
- David Lyle Cooper gave evidence on behalf of NAC. His affidavit is Exhibit 386.
- Mr Cooper is the owner and sole Director and Secretary of Coops (QLD) Pty Ltd, positions which he has held since Coops started in 2005. The business Coops is primarily involved in civil operating, civil earthmoving, environmental work (including planting of trees and mowing grass) and construction work. Coops is a small business based in the Darling Downs region, having its registered office in Toowoomba and principle place of business in Greenwood.
- Mr Cooper and his family reside at a property in Greenwood which comprises a house, office and work yard, which they rent from New Hope.
- Mr Cooper has lived in the region his entire life. When he began Coops, he was a sole employee with just a ute and a tool trailer. In August 2005, Coops was engaged by NAC and within two years had grown to several staff. At the time of making his affidavit, Coops had 19 full time staff, two casual employees, one part-time apprentice and engaged three local contractors. Mr Cooper also stated in his affidavit that earlier in 2015 he had to implement five full time employee redundancies, and terminate two contractors and one apprentice. He confirmed during cross-examination that he had to make those people redundant due to a decline in work from NAC.
- One part of Mr Cooper’s evidence that raised some contention related to paragraph 4 of his affidavit in which he said the following:
“I have lived in the region my entire life and currently live at 804 Oakey Cooyar Road with my fiancé and two children. I am also a member of the Oakey Chamber of Commerce, a member of a local committee group called ‘Forging our Community Ahead’, have been involved in coaching my children and other children in soccer at local clubs and I have donated my time and support to local emergency relief, such as flood relief, within the community. The local committee group mentioned above aims to bring community groups, businesses and individuals together to network and discuss the local opportunities and issues, both socially and economically. Exhibited to this affidavit and marked ‘DLC1’ is a list of people that I am informed by lawyers for the Applicant, Clayton Utz, are local people that have objected to the proposed expansion of the New Acland Mine and are Respondents in these proceedings. I have seen Frank and Lynn Ashman at a few Forging our Community Ahead meetings until they sent a letter saying they would not attend further meetings as they believed the group did not follow their beliefs for the community (which I understand to mean that the group supported the New Acland Mine). Also, Aileen Harrison came to one of the same meetings but has not been seen since. I have not seen any of the people on the list at an Oakey Chamber of Commerce meeting in the last two years. I am aware that Steven Ward plays Soccer at local Oakey Club, but to the best of my knowledge none of the other names seem associated with the sporting clubs in which I am involved.”
- Mr Cooper’s evidence was clarified in this regard during cross-examination by Mr Wieck:
“MR WIECK: I have not seen any of the people on the list that the Oakey Chamber of Commerce – it refers to Mr Ashman and refers to Mr Harrison and it comes up with most of the people who support the mine that, if you object to the mine, you are seen to be someone who doesn’t fit in with the local community. Any comment?--- What’s your question, sorry?
Well, as objectors, we seem to be singled out, now, as a separate part of the community, where we’re regarded as being different from what’s – the mainstream because you – most of you people who are supporting the mine seem to say that there is overwhelming community support, and I just wonder why we have to be isolated from the mainstream and seen as – just to – seen to be different just because we have a different perspective of what should happen in the district?--- Yeah, I’m not saying you’re, yeah, singled out. I’m just saying I didn’t see – I don’t see too many people on that list at the same places that I go to. Sorry.”
- The only additional observation that I would make as regards the list of persons annexed to Mr Cooper’s affidavit was that it only showed individual level 1 objectors and level 2 objectors. Of course, there are also group objectors and in particular OCAA and DDEC. Those organisations are made up of a relatively large number of people and of course Mr Cooper’s evidence cannot be taken as saying that members of OCAA or DDEC are not involved in those areas of the community in which he is involved.
- Mr Cooper gave clear evidence that he is heavily reliant on NAC for the great bulk of Coops’ current work, indicating that about 80% of his current work is from NAC. I have no doubt that, should revised Stage 3 fail to proceed, Coops would suffer, as a business, from a severe decline in its current work and would need to diversify into other areas.
- Mr Cooper is a clear supporter of revised Stage 3 proceeding. He gave what was in my opinion honest and direct, but careful answers to all questions put to him during his oral testimony.
- The only point that can be made against Mr Cooper is that of his own financial interest in revised Stage 3 proceeding, a point made in OCAA’s submissions as regards witnesses already discussed and witnesses yet to be considered. Certainly, Mr Cooper has a significant financial interest in revised Stage 3 proceeding.
- Graham Cecil Cooke gave evidence on behalf of NAC. His affidavit is Exhibit 389.
- Mr Cooke currently lives on the property “Homeward Vale.” He purchased Homeward Vale in 1996. Homeward Vale is located at 417 Jondaryan Muldu Road, Jondaryan and it adjoins land owned by APC. His property boundary is approximately 5 to 6 km from the current NAC mining operations. NAC’s Stage 3 will be located approximately 2km from his property boundary and about 4km from his house. NAC’s proposed railway line will run through Homeward Vale together with other properties that Mr Cooke or other members of his family own.
- Mr Cooke was raised on the property “Mt Pleasant,” a neighbouring property to “Homeward Vale”, and lived there for 26 years before moving to Toowoomba where he lived for 21 years prior to returning to “Homeward Vale” in 1996.
- ‘Mt Pleasant’ is operated by Mr Cooke’s brother Colin Cooke and focuses on pig production, cattle breeding and fattening in addition to grain growing.
- Mr Cooke says in his affidavit that he has been directly involved with farming throughout his life. I accept this evidence, due to his family involvement in farming in the district, although Mr Cooke lived for 21 years in Toowoomba.
- When looked at as a whole, Mr Cooke’s family farming operations are evenly split between grain growing and beef production. They grow wheat, barley, chickpeas and oats during the winter, and sorghum, millet and mung beans during the summer and have approximately 150 head of cattle.
- Importantly, Mr Cooke is of the opinion that Stages 1 and 2 of NAC’s operations have not impacted negatively on the level of profitability or production of his families properties.
- The same point made by OCAA regarding witnesses in support of NAC who have a financial interest in the mine proceeding is raised with respect to Mr Cooke. He has a compensation agreement with NAC for the rail line and road and for which the NAC will provide compensation should Stage 3 proceed. He also has a make good agreement with NAC with respect to ground water, but stated that the contents of that make good agreement are confidential.
- At paragraph 17 of his affidavit, Mr Cooke lists a number of local community organisations and groups that he is involved with, which include:
- (a)Chair-Jondaryan Public Hall Committee;
- (b)Chair-Local Emergency Co-ordination Sub Group;
- (c)Parish Warden & Parish Council Chair – Oakey Anglican Parish;
- (d)Chair – Lagoon Creek Catchment Landcare Group;
- (e)Chair- North East Downs Landcare Group;
- (f)Member – Darling Downs Regional Landcare;
- (g)Landcare Natural Member – Condamine Alliance (Natural Resource Management (NRM) regional body);
- (h)Committee Member – Queensland Murray Darling Committee (NRM regional body);
- (i)Co-ordinator - Oakey Show Society Winter Crop Competition;
- (j)Chair – New Acland Coal Community Reference Group; and
- (k)Volunteer – Rural Firefighter Jondaryan Rural Brigade.
- Just like Mr Cooper, Mr Cooke annexed an additional copy of a list of objectors to his affidavit. He went on to say that the only people who may have been members of the groups with which he was involved were Paul Mason, Desley Spies and David and Cheryl Vonhoff. He also conceded that he had seen Tanya and Sid Plant attending field days at other functions organised by North East Downs Landcare group. There was a significant amount of cross examination of Mr Cooke with respect to his knowledge of the involvement of all objectors, including members of community group objectors such as OCAA and DDEC. Clearly, his evidence is deficient when it comes to his knowledge of the broader group of people who are clearly objectors or directly linked to an objector in this matter. Under cross examination, he effectively agreed with this deficiency.
- I find it most noteworthy that Mr Cooke is chair of the CRG. As he put it in his paragraph 18 “The primary focus of the CRG is to provide a forum whereby concerned individuals or community groups can come and discuss their interactions with the Applicant’s activities, whether positive or negative”.
- Given Mr Cooke’s important role on the CRG, and his knowledge of at least some of the evidence relating to groundwater in this case, his following answer to cross examination by Mr Ryan was a surprise to me:
“…Would you be aware – and tell me if you’re not – that the mining for stage 3 will go much deeper into the water table than stages 1 and 2? --- I’m not aware of that.”
- An indication of how contentious matters can become when it appears that a person is speaking on behalf of a community can be shown by the references to Mr Cooke. In the affidavit of Dr Plant of 29 January 2016. I will not go to all of Dr Plant’s affidavit as her comments are lengthy. I particularly note her comments in paragraphs 78 to 91 where she details the community involvement of herself and her parents noting in particular the strong association for a very lengthy period of time with Landcare and many other groups and organisations including as a member of the State Council of Cattlemen’s Union of Australia and a founding member of AgForce (regarding her father’s roles) and Dr Plant’s own position as an elected board member of AgForce Queensland as well as President as of the Kulpi State School P & C which in particular oversaw the Kulpi State School centenary in 2015. There are many other groups and organisation that the Plant family is or has been involved with that are simply too great to mention. Further, the evidence of Dr Plant obviously only goes to, in the main, her family involvement in groups and organisations. I could also go to many references by other objectors to community groups and organisations that they have been involved in.
- In short, Mr Cooke was right to concede that his evidence was really only with respect to a cross section of the community that he was involved with.
- Given the proximity of his farming operations to Stage 3 and his important involvement with the CRG and other community groups, I was surprised at the lack of detailed knowledge exhibited by Mr Cooke during cross examination by numerous objectors.
- I have no doubt that Mr Cooke is an important member of the local community. I also have no doubt that he sees the many benefits that Stage 3 may bring to the community, but is also aware of environmental concerns.
- In many ways his evidence, and this case, can be summed up by paragraph 21 of his affidavit where he said as follows:
“Further, throughout my involvement in the local community as both a leader and member of the various community groups listed in paragraph 17, as well as a resident, I understand that there are some people who object to the New Acland Mine. However, as the New Acland Mine does provide many employment opportunities directly and indirectly throughout the district, there is also concern with many people that if the expansion of the New Acland Mine is not approved, the employment opportunities within the district will be greatly reduced. There are limited employment opportunities in the district. I feel that the employment opportunities and economic benefits offered by the Stage 3 Expansion will outweigh the environmental concerns, provided that the Applicant can continue to manage these concerns in an appropriate manner.”
- The crux of this case is encapsulated in his last sentence. Can NAC manage environmental concerns in an appropriate manner? I found his evidence useful in crystalizing the question but of no great assistance in providing an answer to that crucial question nor, indeed, as to whether NAC has in the past appropriately managed environmental concerns. At best, his evidence shows that he is satisfied with the management of his environmental concerns to date, and he puts great faith in any groundwater concerns in the future being met by reference to his confidential make good agreement.
- Tracey Lynelle Tierney was also called by NAC to give evidence. Her affidavit is Exhibit 384.
- Ms Tierney is 53 years old and has lived in Oakey her entire life. Since 1 January 1999 she has been the owner and principal of Oakey Real Estate. Prior to purchasing Oakey Real Estate, Ms Tierney worked at various jobs throughout the Oakey and Toowoomba regions.
- Ms Tierney noted in paragraph 6 of her affidavit that she has noticed property activity in Oakey grow since she purchased Oakey Real Estate. She puts a significant amount of that growth to NAC but also conceded that the entire country experienced a property boom during the mid 2000’s.
- In her experience, property values have not declined since the commencement of Stages 1 and 2.
- Just like previous witnesses, Ms Tierney annexed a copy of the same list of level 1 and level 2 objectors to her statement. She stated that she has been an active member of the Oakey Chamber of Commerce since 1999 including three, one year terms as President and two, one year terms as Secretary and the remainder of her time on the executive committee, and throughout that time Frank and Lynn Ashman are the only objectors on the attached list who have had any involvement with the Oakey Chamber of Commerce. Again, her list is incomplete as it does not include those persons who are members of OCAA or DDEC. The same comments in this regard that I have previously made apply.
- In paragraph 15 of her affidavit Ms Tierney listed 13 community groups that she was aware of New Hope having supported or sponsored. In Ms Tierney’s view, should Stage 3 not proceed, she considers that her business will be able to continue but that “the town of Oakey will suffer dramatically.”
- NAC in its submissions says that Ms Tierney’s evidence was not influenced by any personal financial gain as, should Stage 3 proceed, properties in her portfolio will be negatively impacted as they are situated in the Stage 3 buffer zone.
- I do not believe that the applicant’s submission paint the entire story. As Ms Tierney pointed out in paragraph 5 of her affidavit, two years ago, Oakey Real Estate successfully tendered for the property management contract for NAC and now manages approximately 30 properties within the New Hope group. Certainly, the number of properties managed by Ms Tierney’s business may ebb and flow as Stage 3 progresses, should it be approved. However, that does not negate the fact that Ms Tierney does have a current contract for financial gain with NAC. I find, however, that this only has a marginal impact on her evidence as I found her to be quite frank and forthright in the answers that she gave. Perhaps the best example is given by her answer to the one and only questions asked by Mrs Plant during cross examination.
“MS PLANT: Yes. Mrs Tierney, you’d be aware that there is some bad feeling in the town [indistinct] pro-mine and the anti-mine people? --- Yes.”
- Given the evidence of denial of conflict within the community given by some witnesses, I found Ms Tierney’s short, frank answer to Mrs Plant’s question refreshing.
- Shane Paul Charles was called by NAC to give evidence. His affidavit is Exhibit 383.
- Mr Charles is the current chairmen of TSBE and has held that position since October 2015. Between 2012 and 2015 Mr Charles held the position Chief Executive Officer of TSBE.
- In addition to his role with TSBE, Mr Charles is also a Commissioner of the Gas Fields Commission of Queensland.
- Mr Charles is an experienced lawyer having practiced in the Toowoomba region for in excess of 10 years prior to commencing his role with TSBE.
- Mr Charles has lived the majority of his life in the Toowoomba region.
- Mr Charles went to some length in his affidavit and in his oral evidence to explain the function and role of TSBE. Mr Charles explains that TSBE is a regional economic development organisation focused on the “agriculture (export and innovation) and resources sectors”. He went on to say that TSBE has a broad range of members including those involved in health, agriculture, infrastructure, financial and professional services, education, coal, coal seam gas, mining and energy.
- TSBE’s budget is in excess of $2 million per year. Although TSBE receives $450,000 per annum from the TRC, the majority of TSBE’s money is funded from private and business memberships. The New Hope group is a platinum member of TSBE, providing an annual membership of $15,000.
- In his affidavit, Mr Charles speaks highly of the benefits which flow from the NAC mining project and in particular notes what he refers to as the high standard of rehabilitation of land that has been mined. He draws support for his conclusions regarding rehabilitation from two university studies.
- In his view, there would be detrimental effect on the community of Oakey and surrounding areas if Stage 3 were not to preced. He believes that the majority of residents directly affected in the wider Surat Basin region are supportive of Stage 3 proceeding.
- As Mr Charles put it:
“TSBE strongly supports the New Acland Mine and believes that if the New Acland Mine were to close there would be adverse flow-on effects that would be felt throughout the region.”
- The majority of Mr Charles’s oral evidence effectively confirmed the statements that he had made in his affidavit. There were, however, some notable pieces of evidence which went further than his affidavit and are of particular importance.
- The first was the response by Mr Charles to a question raised by OCAA relating to evidence given by Dr Fahrer, an economic expert called by NAC. Mr Berkman for OCAA asked some general and specific questions about Mr Charles’ view of Dr Fahrer’s economic evidence. He was also referred specifically to some transcript. To put the questions raised by Mr Berkman into context, quoted below is some of Dr Fahrer’s evidence, including that to which Mr Berkman specifically referred. I have only included additional evidence by Dr Fahrer as such evidence puts Dr Fahrer’s evidence into context and is consistent with the general questions in this regard asked by Mr Berkman.
- During his evidence, Dr Fahrer had this to say:
“But you also understand, don’t you, that in relation to these projects – this project in particular – much is made both by regulators and by proponents of the jobs that mines produce? --- I do and, as I said in my report, I think that’s regrettable. I don’t think these – these projects are really about jobs at all.
…As you very properly described in your report, the reality of the – the reality is that jobs and jobless numbers are primarily affected by demographic factors? --- At the national level, yes
… But in ordinary economic circumstances that don’t meet those descriptions, demographic features will mean that any claimed job impacts from projects up or down will be evened out over a period, I think you say, of about three years? --- Two to three years. I mean, it’s not a fixed number. Depend - - -
These projects, in your view, Dr Fahrer, are not about jobs? --- No. No, I don’t think so. Not – I think that they are about income, in particular, and – and production.”
- The evidence of Mr Charles in this regard was as follows:
“So now you’ve heard Dr Fahrer’s evidence. Do you accept his view that these projects aren’t about jobs or do you disagree with that? --- I disagree. As a regional economic development – we want jobs for our people, you know.
Sure. And you don’t accept the evidence from Dr Fahrer that this project is likely to cause a decrease in employment in other sectors? --- Yeah. I definitely don’t accept.
Definitely don’t accept the evidence of the economic expert? --- That’s correct”
- The next area of evidence that was of particular interest during cross-examination relates to make good agreements. Mr Charles’ position with respect to make good agreements is of interest due to the important role that he plays on the Gas Fields Commission. He clearly has a great deal of experience relating to make good agreements in the gas industry.
- During cross-examination by Dr Standley, the following evidence was given by Mr Charles:
“The implication is the maximum depths of the lakes – so we’re going to have permanent lakes from the three pits – Manning Vale West, Manning Vale East and Willeroo – at the end of the project. The maximum depths of the lakes are predicted to form at 33 metres in the Manning Vale West, 18 metres in the Manning Vale East and 22 metres in the Willeroo depressed landforms, and, look, basically, you’re going to have water seeping into those pits probably almost indefinitely beyond the life of the mine. So would you agree that is also a concern?---No, I wouldn’t accept – accept that. I accept what the report says, but I’m not sure that it’s a concern.
So assuming that that happens – we’ve heard about make good agreements. If you consider that where you saw those pink dots they’re farmers who might lose some of their water supplies, how do you think make good agreements can provide enough water for all those farmers in the area? They say [indistinct] make good agreements, provide the water if the bores run dry, but do you think that’s feasible?---I’m not a hydrologist. What I can tell you is that we’ve been through a similar experience in the gas industry. We’ve got nearly 5000 agreements already signed with, you know, a couple of thousand landholders. A large number do have make good agreements in place. There’s been more angst around make good agreements rather than land access agreements, and rightly so because water is – water is particularly important, but it’s manageable. I’d defer to the – to the experts. If – if the farmers of the region were going to be out of water – and it concerns me that there’s not a – a legislative protection, but I – I know in talking to New Hope that – well, part of the questioning for us has been that, you know, we would require make good agreements for – for producers. It’s not of great concern to me because I – I’m comfortable that, you know, legislative or otherwise, that water will be protected.”
- Mr Charles would appear to gain some of his comfort in his belief that, one way or another, water for farmers in the region around Stage 3 will be protected by his experience with make good agreements relating to the gas fields. The key point though in this aspect of his evidence which was not dealt with was the obvious distinction between make good agreements for gas field operations and those involving deep open cut mining through significant aquifers leaving large depressed landforms with water seeping into, and evaporating from, those water filled pits indefinitely.
- The evidence in this case clearly shows that agricultural activities have been undertaken successfully on the land for many generations, with the real likelihood that, all things being equal, such agricultural activities will continue for many more generations. NAC’s mining operations, if Stage 3 is approved, will only last for some 12 years. Mr Charles’ evidence does show his confidence that NAC will make good any loss of agricultural groundwater. He did not, however, address the issue of long term groundwater security until I put the following questions to him:
“HIS HONOUR: Yes Mr Charles, I’ve just got a couple of questions - - -?---Yeah. Sure.
– – – about make good agreements?---Yes.
Now, based on a couple of assumptions, I suppose, assuming that a landowner is able to establish that it’s the mine that has caused a drop in the water - - -?---Yes.
– – – and so therefore triggered a make good arrangement to come into play - - -?--Yes.
– – – and assuming, based on the figures you were shown earlier, that the impact of the mine will go on outwards from 100 years - - -?---Yes.
– – – from now, there’s certainly a possibility that NAC, New Acland Coal, won’t exist in 100 years after the mine has closed down?---Yes.
Whether New Hope itself does, the parent company, or not, of course, is a “who knows”-type - - -?---That’s right.
– – – question. Which leads me to question the – in the best possible scenarios, when you have a make good arrangement - - -?--- Yes.
– – – that has got all the triggers for it to operate - - -?---Yes.
– – – say you were a property that was within the area where you were impacted - - ?---Yes.
- - - and that impact was going to go on for a century or more from the time of impact - - -?---Yes.
- - - do you believe that there should be a form of underwriting by the State Government on make good agreements so there can be certainty for landholders?--You might get me in strife from the State Government.
Oh, I’m - - -?---There certainly needs - - -
I’m likely to get the same?---There certainly should be some protection for landholders. I certainly – if I reflect on the coal seam gas sector – I know this has really got nothing to do with it, but in that sector, if you drill a bore into the Hutton Sandstones, you’re able to provide a long-term sustainable water supply, which is not in that – that normal alluvium that most of the landholders here and throughout the Surat Basin would be pumping, and they cost nearly a million bucks a – a well to drill. They’re extremely expensive. So there are ways of trying to make sure that that ability of water is still there at this time. But absolutely, you know, agriculture is – as I said before, is the DNA of this region. We need to protect our landholders and protect that water supply, so if – if there will be a long-term damage to water supply, something needs to be done from a State Government perspective. They need to support this industry to make sure that that water’s there long-term.”
- The final issue that I turn to with respect to the evidence of Mr Charles relates to his comment that NAC is a good corporate citizen. When questioned in this regard by Mr Wieck, Mr Charles gave evidence that certainly was consistent with the evidence of Mr Denney to the extent that NAC had poor community relations during the mining of Stage 1 and Stage 2 and that they had to significantly improve their game if they were to be successful in their application for Stage 3. Such evidence, of course, is inconsistent with the evidence of other lay witnesses called by NAC who claim that their relationship with NAC has always been, in effect, excellent.
- Mr Charles gave the following evidence in this regard:
“So I mean, the credibility of the company is starting to come into question when you see these things in the print and you know it’s not happening. Number 22 of your report you say responsible company [indistinct] I noticed there. So I’m trying to build up a picture now of how reliable this company is. So - - -?---And look., no, I haven’t said anything about cropping land in paragraph 22. I said they’re good corporate citizens.
Yes. That’s – again, I’m providing you evidence now that- you know, that makes me question that. So I’m just trying to - - -?---Sure. Look, I think New Hope were largely non-existent to me prior to 2012. I knew they had a coal mine out there. They really, to my mind, didn’t participate in the community. I know they were told when they tried to get these things up that you’ve got to go and engage the community more. Coal miners are far – if you can put it into perspective, they’re sort of in the Dark Ages. They’ve been around forever and have done their thing a certain way. With the advent of gas and the huge impact it’s had, the level – the bar has been raised substantially. I had many a conversation with Jim Randall and Bruce Denny that New Hope really needed to lift their game on a whole range of fronts. I don’t think they were good community players. Subsequent to that time, whenever I’ve asked for information, they’re forthcoming and give it to me. Whenever I have a query, they raise it with me. Sorry, whenever they have a query or a concern and I want to get feedback from the business community. You know, now in the business community we’re actively helping them find capable suppliers for their supply chain. So they’re actively trying to increase that local percentage. So they’re the types of things I talk about. But when I’m talking about good corporate citizens, it’s probably from – when you sit in my shoes from a business perspective viewpoint rather than a directly affected landholder point of view – but from my point of view, I can’t fault them really on their engagement with [indistinct]”
- Further, under re-examination by Mr Ambrose QC, Mr Charles gave further evidence as to his view of the earlier social license to operate which he said that NAC did not have and their improvements in this regard:
“All right. Well, you spoke about that, and what’s your experience about how New Hope has improved its positon in terms of community engagement?---I think they’ve gone a long way. As I just said, I didn’t think they were much of a community player, and I was quite critical of them very early in the piece. And we’ve had a number of debates over time. I get sick of resources companies, in particular, looking at putting a bit of shade cloth over a sandpit of a school and giving – sponsoring the local football team. It drives me nuts. I like to see a long-term legacy in the project so that we can diversify these economies of – of the regions for the future. So we had long chats about – about that type of thing. We spoke about some of their programs that they might wish to develop over time. It’s – to the extent we see them regularly at events. They – they regularly participate in business and community events, so I feel comfortable now that I have the relationship with them that I can ring at any stage, and I feel they will give me an honest answer. And it’s from senior people within the company which is not often the case in other sectors. So I actually think they’ve done a phenomenal turnaround from where they were – and look, they had to. They weren’t going to get stage 3 up if they didn’t improve. You know, it’s a – they’d often the term social licence to operate. They really didn’t have a social licence to operate at all because they weren’t part of the community whereas I think now they’re a good part of the community.”
- Overall, I was impressed with Mr Charles as a witness. He was clearly passionate about his region and for jobs and growth in that region, covering both mining and agriculture and all businesses. Although at times during his cross-examination by OCAA Mr Charles showed some hesitancy in his answer to questions, overall he was very comfortable in giving evidence to this Court.
- Patrick Joseph Wells gave evidence on behalf of NAC. His affidavit is Exhibit 382.
- Mr Wells holds the position of Account Lead (Surface Coal) at Orica. He has held this position since February 2015 and has been employed by Orica since November 2003. Mr Wells’ role at Orica includes managing the NAC Account to ensure Orica delivers against its contractual obligations.
- Mr Wells explained that Orica is globally the largest supplier of commercial explosives and blasting systems to the mining and infrastructure markets.
- Specifically with respect to NAC, Orica has a site team of four fulltime employees. In addition, Orica engages over 100 vendors to supports its operation at NAC.
- Orica has been associated with NAC since it began mining operations in Stage 1 in 2002, except for a period of about three years when NAC contracted the work to a competitor of Orica. Importantly, it was during that three year period when the fume event of 5 September 2011 occurred. That fume event resulted in a fume plume travelling outside the blast exclusion zone. Orica was reengaged by NAC in January 2012 and its current contract runs until 2018.
- Mr Wells is only aware of one environmental incident which occurred on 23 September 2014 when SHOT 2408B was undertaken. SHOT 2408B produced higher than expected vibrations at Acland. Orica analysed the blast and came to conclusions as to the cause of the higher than expected vibrations and has put in place measures to reduce the likelihood of that happening in the future.
- Mr Wells gave impressive evidence regarding Orica’s use of a product known as FlexigelTM Clear. He explained FlexigelTM Clear this way:
- “14.For fume mitigation Orica is also now using FlexigelTM Clear product, proper drill hole and tie-in design (through blast modelling software provided to the Applicant), and high quality on bench loading standards which all form an important part of the overall performance of a blast. FlexigelTM is a low density water resistant product, specifically formulated to reduce fume, vibration and airblast. Compared to conventional explosives, FlexigelTM reduces the powder factor and increases water resistance. FlexigelTM is an Orica trademark, and is not used by any other blasting contractors. In addition, Orica has developed a Fume Risk Reduction process, which includes a best practice audit for drill and blast procedures, a comprehensive site audit for fume causes, and engages technical experts in fume reduction in blasting practices. As an example, exhibited to this affidavit and marked “PJW5” is a case study that Orica prepared approximately two years ago, after 70 shots has taken place at the New Acland Mine site, specifically in relation to reducing fume.
- 15.As a result there have been zero reportable fume incidents in the two years since Orica regained the Applicant’s business. A reportable fume event is when a fume cloud leaves the blast exclusion zone or is classified as a category 4 or above as per Orica’s blast fume scale...”
- During cross-examination by Dr Plant, Mr Wells indicated that FlexigelTM Clear is a premium product that comes at a higher cost. He explained that FlexigelTM Clear is not used throughout the mining industry, even at sites that do experience fume. He considers that NAC has chosen Orica to use FlexigelTM Clear as a premium product. I took Mr Wells’ evidence to mean that he considers that NAC uses Orica because of its superior product, even at a higher cost, so as to not repeat a fume event such as that which occurred in 2011.
- The highest praise for Mr Wells and Orica perhaps came from Dr Standley during his crossexamination when he stated that “I’m impressed by the technology you uses here, actually”. Like Dr Standley, I was also impressed by the evidence given by Mr Wells as to the technology that it has put into practice as a result of Orica’s extensive research and development to reduce fume, over-pressure and blast vibration events.
- Mr Wells was a very impressive witness. His answers were clear and to the point. Importantly, he was careful to always stay within his area of knowledge and would clearly indicate if a question or topic was outside of his knowledge.
- OCAA has again made the point that Mr Wells has a financial interest in the outcome of this case. Clearly, Orica has a financial interest in the outcome of this matter, as 26% of Orica’s Surat Basin revenue is generated by the NAC mine contract. Unlike others of whom OCAA says that they have a direct or indirect interest in revised Stage 3 proceeding, there is nothing in the evidence to suggest that Mr Wells’ employment is in any jeopardy whatsoever should Stage 3 not proceed. The jobs that are in jeopardy are the four site positions, as well as that of a relief worker.
- I was impressed by Mr Wells as a witness and accept his evidence in its entirety.
- Donald Kenneth Ballon gave evidence on behalf of NAC. His affidavit is Exhibit 385.
- Mr Ballon is currently employed as an Assistant Shot Firer by NAC and has had this position for five years. Overall, Mr Ballon has been employed by NAC in various roles for approximately 13 years. Mr Ballon works a five days on/five days off rotation. During his five days off work, Mr Ballon undertakes farming operations at his property, “my way”, which is located approximately 2.5km away from the closest point of the NAC mine. He has lived at “my way” his entire life.
- During his five days off work at NAC when he is not undertaking his own work on “my way”, Mr Ballon does contracting work for APC. The contracting work for APC has allowed Mr Ballon to purchase larger farming machinery than he would otherwise have which makes his farming operations on “my way” more profitable.
- Mr Ballon goes on in his statement to explain that, in his view, NAC is a very good neighbour, even though when Stage 1 was first proposed he was an objector to that MLA. As part of a settlement of his objection with NAC in 2001, Mr Ballon entered into an agreement with NAC to supplement groundwater if there was a negative impact from the mine. At paragraph 14 of his affidavit, Mr Ballon said that “There has been no negative impact on us in relation to our water supplies”.
- Mr Ballon speaks in glowing terms of his relationship with NAC and believes that Stage 3 will be good for the local community. He also indicated that during Stages 1 and 2 he did hear “a little bit of noise and have had minor light issues at our property from the New Acland Mine” but that in his opinion the impacts were no greater than if he was living closer to a town or near a railway line.
- Mr Ballon comes under the same criticism from OCAA as other witnesses called by NAC who have a direct or indirect financial interest in Stage 3 proceeding. Of course, in Mr Ballon’s case, his financial interest is twofold; both as a long term employee of NAC who would have every expectation that his employment would continue if Stage 3 proceeds, and as a contractor to APC, which is of course a related company to NAC.
- In my opinion, the direct financial benefit that Mr Ballon obtains from both NAC and APC colours his evidence. This was shown, in particular, during cross-examination by Mr Berkman with respect to a house that arrived on his property in the weeks preceding his giving evidence. After going around a little in circles, the position regarding the house has become relatively clear to me. It would appear that Mr Ballon entered into a personal contract with APC by which he acquired the house which was previously located on an APC owned property. I gather from the evidence that Mr Ballon paid no actual amount of money to APC for the house but that he was required as a part of his deal with APC to receive the house to rehabilitate the area on which the house had previously stood. As that work had not been undertaken at the time Mr Ballon gave his evidence, he was unable to say what the cost to him would be to rehabilitate that land.
- During the course of his cross-examination by Mr Berkman, Mr Ballon was also taken to Exhibit 111, at soft page 192. The evidence that followed was, in my opinion, of great importance in understanding the inherent difficulties that landholders may face in attempting to prove that a drop in, or loss of, groundwater in a bore has been caused by NAC. Given the importance of the groundwater issue in this case, I consider it appropriate to quote the evidence in this regard in full:
“…If we look up at the top right hydrograph there. Do you know what you’re looking at in these, Mr Ballon? That’s not a criticism if you don’t at all?---Not really. I haven’t studied it too much, but - - -
No. Well, I will – I can tell you that these are, in effect – so, if we look at that top one there, it’s 21PHS. That’s the monitoring bore on your property that we looked at?---Right.
And what this is is a calibration hydrograph. So, what it’s showing down the bottom, those purple belts, is the measured water levels in that bore, 21PHS, and those three lines up the top are what the groundwater model predicts the water level is at your property. So, the red line in the middle is the mean, the green above is – they’re basically statistical measures on either side of that mean?---Yeah.
So, there are just a couple of things I want you to note about this. Can we see there that the purple dots there, you said that there was no – stage 1 and 2 were predicted to have no impact on your water levels, is that right?---That’s what they said. Yes.
Do you know whether any impact’s predicted in the Marburg?---Look, I can’t remember, to be honest.
You don’t know?---I don’t know.
Okay. Okay. But if we just look really closely at the levels on those purple dots, now this – this scale on the side here makes it actually pretty difficult to see because we’re looking at a – you know, a 100 metre water level differential on the side there but you can see at the start it’s pretty much dead on 415. You know, a little bit of a wiggle but it’s right between the 410 and the 420 metre mark, isn’t it?---Yeah.
And down towards the very right hand side you can that it’s dropped by a couple of metres. So, it looks like roughly 413, if that’s a fair observation?---Yeah.
Okay. So, what we can see is that they might not have predicted any impact on your bore but there has, it seems, on these measurements, been a drop in the water level?--Yes.
Yes. And that’s not a drop that’s affected your ability to access water?---That’s right.
But we’ve seen a difference here between what was predicted, or what you were told was predicted, at least, and what’s actually played out?
MR AMBROSE: Well, I object. There’s no suggestion that that drop was caused by the operation of the mine in stages 1 and 2, rather than drought, etcetera, or any other causes for a difference.
HIS HONOUR: That hasn’t been established.
MR BERKMAN: Indeed. And I think my friend’s perhaps made the point for me.
We can see a discernible drop in the water level here, can’t we, Mr Ballon?---I wouldn’t say discernible but there’s a drop.
Well, we just discerned a drop before?---We did.
A small drop but discernible?---Yeah.
The point my friend’s just made is that we don’t really know whether the mine caused that drop or not, do we?---That’s right.
Okay. And so, even if all the rest of these landholders were to have a bore on their property – in fact, maybe just for – just for the sake of demonstrating the point, can we zoom out for a second, Mr Deputy Registrar. If we look at the one below 41PHS, now that’s all over the place, isn’t it?---Yes.
Major changes in the water level in that bore. I can show you where that one is, if you would like to know but it’s probably not terribly relevant for present purposes. But, as my friend said, if we look at this, we can see the water’s moving all over the place, how is someone expected, someone in your position or someone in Dr Plant’s position or someone in Mr Wieck’s position supposed to demonstrate to the applicant that they have caused that drop in the water level?---Look, I don’t know. That’s not – that’s not my expertise. I’m sorry, I can’t answer that.
No?---But if you were to state a case in that, you would get expert advice to help you prove that.
Absolutely. Okay. And so, that’s what you imagine would happen as a consequence of make good agreements?---That’s right.
Okay. So, the water in your bore, say, we’re around – we’ll stay at 41PHS – sorry, the water in – let’s pretend that 41PHS is measuring the water level spitting distance from your bore. Say we get to about 2007 and the water’s been up and down a bit, and then it starts dropping and then, at one point, your bore doesn’t have water you can access?---Right.
And you go to NAC and you say, “There’s no water in my bore.” Is that the point at which you expect you are going to have to go and get expert advice to show NAC that they are the cause of the impaired capacity of your bore?---Look, you’d have to discuss it and see how it went at the time.
Sure?---I can’t answer that. I don’t know. But what you would do is see what they done first. If they supply you with water and then you look into it and investigate it, then that’s fine and that’s the way I believe it should happen.
Okay. And, of course, given your relationship with the applicant, you assume that there will be no trouble with that?---My – my relationship with the applicant is irrelevant in this case because you had – you should have an agreement in there that that should be what happens.
Well, indeed, and that’s – I’m sorry. That’s why I was referring to the make good agreement before?---Yes.
If you’re looking to enforce your make good agreement - - -?---Yes.
- - - against the applicant, is it the case that you will need to get some expert advice, as you described before, to demonstrate that they’ve actually caused that drop?--Yes. You would have to. Yes.
Yes. Do you have any idea how much money that might cost?---No. Not really. No.
No?---A fair bit, I imagine.
Yeah. I’d imagine so?---Who’s to say it’s on my head to do that?
On your head to get someone to demonstrate?---Yeah. Let’s – let’s see what they offer first and then worry about jumping down that bridge, you know.”
- Turning to another topic with respect to Mr Ballon’s evidence, some angst was caused by paragraph 17 of Exhibit 385. It states as follows:
“Through my involvement in the community, and having lived in the region my entire life, I consider that the majority of people are in favour of the New Acland Mine. I do understand there are people that are not in favour of it, however in my opinion I believe this is because they are either misinformed or do not fully understand the benefits that the New Acland Mine delivers to the community as a whole. I have also experienced people who were not in favour of the New Acland Mine, but once they considered all relevant information and witnessed the benefits, including the flow on benefits of the New Acland Mine, they quickly changed their perspective of the mine.” (bold emphasis added)
- It is the words from the quote above that I have highlighted in bold that caused angst amongst the objectors. This was shown, for instance, during Mr Ballon’s cross-examination by Mr Wieck:
“Okay. Paragraph 17, I know has been touched on, but I do take it personally. I believe you have singled us out individually, and even though you made mention before you didn’t, but the way that’s written there you are insulting the objectors, there’s just no two ways about that, you’d have to accept that, wouldn’t you?---No, I don’t believe so, no.
The word ‘they’ to me is totally inclusive, it’s not some, it’s they, which means everybody, doesn’t it?---Well, there’s more they than just you, you know.
Yeah, I’m me and I’m insulted by it, that’s the question I’m putting to you. Should I be?---No, you shouldn’t be, because it’s not directed at you. It’s directed at other people that are the unknown off the street that come in, who don’t know and haven’t looked into it like you have.”
- Despite Mr Ballon’s best attempts to make paragraph 17 of Exhibit 385 say something different to what it actually said, there is a clear inconsistency in the evidence that he gave in his affidavit and that which he gave in cross-examination on this point. It would seem to me that Mr Ballon’s opinion is more correctly stated in paragraph 17 of Exhibit 385, and he simply tried to retreat from those clear words when confronted by the very people to whom he was referring to in paragraph 17. If that is not the case, the other alternative is that Mr Ballon did not pay much care or attention to the drafting of paragraph 17, which would lead to concern that he also did not pay care and attention to other aspects of his affidavit.
- I do not consider that Mr Ballon set out to deliberately deceive the Court or withhold evidence, despite some of the answers that he gave regarding his acquisition of the house. He is a clear supporter of Stage 3 proceeding, and, given his direct financial incentive for Stage 3 proceeding, his views in this regard are entirely understandable.
- Michael Fredrick Hartin was called by NAC to give evidence. His affidavit is Exhibit 391.
- Mr Hartin is employed by NAC fulltime as a production mine worker. He has worked for NAC for over 11 years. He is also a nominated employee representative from the CFMEU, within the Mining and Energy Division, and acts as the Lodge Secretary for the New Acland CFMEU Lodge.
- Throughout Mr Hartin’s cross-examination, he impressed me as being a very fair witness who was careful to stay within his own knowledge and experience. This view remains true even though Mr Hartin was subject to some challenging cross-examination, which highlighted again some of the difficulties in this matter.
- For instance, Mr Hartin was taken by Dr Plant during cross-examination to Exhibits 1038 and 1039. Those Exhibits could fairly be described as statements made on behalf of the CFMEU against NAC and New Hope as part of wage negotiations. Mr Hartin explained the apparent inconsistency between the comments made by the CFMEU in Exhibits 1038 and 1039 and his evidence in clear support of the mine, a good example of which is found in the follow extract from the transcript:
“And this quotes that Shane Brunker, Vice President of the Mining and Energy Union, and that’s the gentleman in Dalby, correct?---Yeah.
Okay. And if we go down further, please, Deputy Registrar, the paragraph starting:
After 10 months of negotiations for a collective agreement, New Hope Coal, owner of the New Acland Mine west of Ipswich in Queensland, has offered employees a real wage cut at time of unprecedented expansion and investment in the coal industry.
And we go down a couple more paragraphs, if we may, please. It says:
These results reveal just how disgraceful the company’s approach has been to their workforce. It’s an appalling way to do business and an appalling way to treat workers and their families.
Again quoting Mr Brunker.
The profit results come after 93 per cent of employees who were entitled to vote on the company’s proposed agreement sent a resounding rejection to the employer on their tactics and real wage cutting agenda.
Does any of that surprise you, Mr Hartin, like - - -?---In what way?
The statements that Mr Brunker’s made in relation to the – what seems to be the attitude of the employees being concerned about the attitude of the company – for example, it says:
These results reveal just how disgraceful the company’s approach has been to their workforce.
?---I think you’ve got to think that during enterprise agreement negotiations, many releases and things like that – it’s a protected action. They are all negotiating tools to advance the conditions and wages of our members. So.
So do you think the statements, then, from Mr Brunker would have accurately represented the sentiment of the workers at the time?---No, I don’t believe so. No.
Right?---Again, many releases like this are to – I guess they are a tool. They help persuade public opinion. Things like that. It’s just a tool. It’s a normal tool that many unions and organisations use through enterprise agreement negotiations.”
- From Mr Hartin’s evidence, it appears the CFMEU will say what they need to say to protect its members and not necessarily be bound by the truth.
- Mr Hartin did not do as good a job of explaining the position of the CFMEU in voting to cease sandmining on North Stradbroke Island whilst at the same time supporting the expansion by NAC of Stage 3 at New Acland. Of course, each matter much turn on its own facts, but the questioning by Mr King, and the answers by Mr Hartin, did show an inconsistency in the approach taken by the CFMEU. The relevant cross-examination was as follows:
“…then I want to ask you why you voted to close down the sand mine on North Stradbroke Island?---That was a decision made certainly that I certainly didn’t have any input in. As you’d be well aware, there was no way that that came from a decision from – from my level. You’d have to, yeah, get in contact with one of district executives to talk about that, mate.
But it was the position of the CFMEU, was it not, and we don’t have to go to the document if it – was it not, that they voted to ensure that the sand mine on North Stradbroke Island was closed?---Well, you’ve got to remember there’s four divisions of the CFMEU. You have your construction, you have your forestry and you have your mining and energy and now it is a maritime union. So there’s a lot of different divisions within the CFMEU. I certainly can’t be all over all divisions. As I say, it’s not my job and I certainly don’t want to know what all the other divisions are up to and, yes, we certainly don’t have the time or the want.
But regardless of the division and divisions, the entire CFMEU delegation voted to close down North Stradbroke mine, didn’t they?---Apparently, they did, yes.
At the loss of how many full-time jobs?---I can’t tell you. I don’t know anything about - - -
It doesn’t concern you, does it?---Well, mate, it’s just a topic that I don’t know anything about.
Okay?---I don’t know Stradbroke Island. I’ve never been to Stradbroke Island. I don’t know anything about the sand mining over there. I don’t know anything about it so - - -
Can you see how some people might consider that it’s an inconsistent view for you to fight so hard for the mining jobs in Acland – that evidence has been – some evidence has been presented will be at the cost of other jobs in the district. At the same time as you are prepared to say “Save my dad’s job,” as these posters show, to those miners on North Stradbroke Island, well, that’s immaterial to me. I know nothing about it. I don’t care. I’m going to vote against it?---I don’t like seeing any job losses anywhere, mate. But it’s a topic that I – I simply can’t comment. If you’d – if you’d like me to go and read something – I – I – I can’t comment on it because I don’t know anything about it.
But you were there?---Yeah, yeah, certainly. Were you there for the whole lot? I can’t comment on it. I don’t know anything about it, Paul. I mean, it’s a topic that I know nothing about. In relation to fighting for Acland, mate, I’m – I’m proud to be a coal miner and proud to work at New Acland Coal. That’s - - -
But - - -?---That’s why I’m fighting, you know, for – for myself, my wife, my children, my fellow members and my fellow workmates.
And whilst that’s an admirable concern and one we should all hold, it would seem that, from your evidence, that other mining jobs not within the CFMEU mining district lodge that you belong to can be disposed of by a vote quite easily?---Well, mate, it’s certainly well – I can say it’s certainly far from in my evidence because I know nothing about it.
Except you were there?---I don’t know it. I might have been there, mate, but I don’t know it.
But you do acknowledge that your union voted to have the North Stradbroke mine centre closed?---There are four divisions within our union. I don’t know what each union division gets up to.
But they all - - -?---You’re asking me - - -
- - - voted on bloc?---They could have. They – yeah, could have. I don’t know, mate.
I’m sorry I couldn’t trigger your memory a little bit more…”
- Mr Hartin’s evidence as regards the inconsistent position taken by the CFMEU simply shows the difficulties that any decision maker has in dealing with mining operations, either existing or proposed, as regards environmental damage caused or proposed. It again highlights the difficulty, which I have spoken of earlier in these reasons, of reconciling the objects of the MRA and those of the EPA when it comes to large scale mining projects and the concept of ecologically sustainable development.
- David Allan Vonhoff was called by OCAA. His affidavit is Exhibit 442. Before turning in detail to Mr Vonhoff’s affidavit, it is appropriate to refer to submissions made by both NAC and OCAA regarding OCAA’s witnesses. These submissions will put into clearer focus the comments that I make with respect to not only the witnesses called by OCAA but also the other objectors.
- NAC’s submissions with respect to OCAA’s witnesses state as follows:
- “67.2The evidence of all of the OCAA witnesses was demonstrated, by cross examination, to have contained unsubstantiated claims about the Applicant and the New Acland Mine. The evidence of OCAA’s former President, Mr Faulkner (who was called by Dr Plant and not OCAA), was telling. He indicated that OCAA was only interested in stopping the Revised Expansion Project and was not interested in engagement with the Applicant for any other purpose. In fact, it was clear from Mr Faulkner’s evidence that OCAA was established only for the purposes of stopping the mine.
- 67.3The witnesses also demonstrated that it has been the ‘anti-mine’ community members who have been creating any perceived division within the community through their boycotting of local businesses. The division that Mr Faulkner observed was in respect of community members who remained anti-mine as against those that were anti-mine initially until they went on a mine tour and/or received facts which caused them to change their opinion.
- 67.4The witnesses conceded that it is the prerogative of a landowner to use the land for the purpose that the landowner sees fit, and no landowner can be forced to use their land for cropping. In fact, the only cropping the objectors generally undertake is for cattle (dairy and beef) feeding purposes i.e. not cropping for human food consumption. This confirmed Mr Thompson’s view that this area was not the ‘food bowl’ of the region, Queensland and Australia with such term generally being reserved for areas that produce crops on a large scale for human consumption. This was further evidenced by the consistent statements that the Oakey cattle yards closed not having the volume of sales following the sales of farms to APC. This suggests that those farms were not cropping undertakings but beef cattle breeding and fattening undertakings.”
- In contrast, OCAA’s submissions, in part, had this to say:
- “132.Objectors also describe the loss of farms in Acland having knock on impacts on the neighbouring town of Oakey. While Oakey used to be the centre of the rural community, now with so many of the farms in the district gone, it has become more of a service town for the army base and local residents. Depletion of the population since the mine commenced has caused many businesses in Oakey to close down. Many objectors and lay witnesses believe that population decline, together with the fact that mine workers live and spend money in larger towns such as Toowoomba rather than in Oakey, have caused Oakey to become economically stagnant.
- 133.Many of the objectors point to the broad divisions that have emerged in the community between those who support the mine and those who do not.
- 134.The Applicant called lay witnesses who supported the mine, however almost all of the lay witnesses called by the Applicant had financial arrangements with the mine either directly through contracts or by indirectly through their employers, so had a clear interest in supporting it. This is not to suggest that any particular witness was biased.
- 135.The lay witnesses called by objectors were largely independent of the Applicant and contributed their experiences of the impacts of the mine.
- 136.The Applicant seeks to characterise the objectors and the lay witnesses who oppose the mine as ‘anti-coal’ and ‘anti-development’. As will be discussed in more depth later in these submissions, this characterisation is unfair and offensive. The people who oppose this mine do so for a range of reasons, not the least of which is that they have experienced what the Applicant has done over the past 15 years and, in particular, they have seen an ASX listed company make the deliberate to decision to destroy a town without any apparent oversight or approval.”
- Returning to the evidence of Mr Vonhoff, he is a level 1 objector in these matters and is also a member of OCAA.
- Mr Vonhoff is a farmer who comes from a family of four generations of farmers. He has lived his entire life in the Toowoomba and Oakey regions. He currently lives at a property called Brymaroo, located at 1556 Jondaryan-Nungil Road, Brymaroo. He has owned and operated farming properties he collectively calls Bryanda for 32 years. The southern boundary of Mr Vonhoff’s property is located between 7km and 8km northwest of the current Stage 2. If Stage 3 is approved, it will be approximately 4km from the mine, the southern boundary of his property will be approximately 4km from the mine.
- Mr Vonhoff describes the current noise levels that he experiences from NAC as being “a constant hum, which can grow louder depending on wind movement and atmospheric temperature. Generally, when the wind is blowing, the hum is less obvious”.
- Mr Vonhoff is a passionate member of Landcare. He is currently on the management committee of South Myall Landcare Group, and previously held the position of President of Rosalie Land Care. He was also President of North East Downs Land Care, which is a grouping of all the land care groups in the region, from 1996 to 1998.
- His evidence is that the town of Acland prior to Stage 1 was a small and active town with a number of businesses including an engineering business, fuel depot, public hall, school and a number of churches, all of which are now gone. He also made reference to pig and calf sales which used to occur in Oakey every Tuesday and cattle sales which occurred weekly in Oakey every Thursday. His evidence is that those sales are no longer occurring, which he puts down to the number of farms in Oakey that supplied pigs and cows being reduced by NAC’s takeover of properties. In his affidavit, Mr Vonhoff goes on to make specific comments under headings relating to groundwater impacts, economics, health impacts, intergenerational equity, rehabilitation and community. Most of those issues are the subject of specific expert evidence and, in the interests of brevity, I will touch upon what Mr Vonhoff had to say with respect to each of those areas covered by expert evidence only if and as necessary when examining those particular topics.
- On the topic of intergenerational equity, Mr Vonhoff has stated his concern that the mining of coal is a short term gain with negative long term consequences. He is concerned that he may not be able to hand down a functioning farming operation to his son as he had planned to do.
- As regards to the topic of community, Mr Vonhoff is of the opinion that the mine has divided the community. He notes that some sectors have been brought closer together, but it is certainly evident that there has been a definite divide in the community. He goes on to express his concern that the mine could have very serious repercussions for the community, particularly if the water impacts are worse than the modelling indicates. There have been a lot investments made in the area and the mine has the potential to halve or quarter those investments which would be very detrimental to the community.
- A number of points of interest came out during cross-examination of Mr Vonhoff by Mr Ambrose QC. He conceded that his concerns about smog related to Stage 1 operations and that there had not been much smog with Stage 2.
- Mr Vonhoff conceded that he had refused NAC’s request for drilling logs when NAC was doing its studies, on the basis that he believed that DNRM should have had that data. Likewise, Mr Vonhoff has refused to provide drilling log information requested by NAC, again because such information should be available from DNRM, although he did note that only limited information was available from DNRM because of what he referred to as their inefficiencies.
- Mr Vonhoff did not waiver during cross-examination in his scepticism about make good agreements.
- Mr Vonhoff agreed that boxthorn is a common problem in the area, including his property, and not just on APC’s land.
- Mr Vonhoff gave interesting evidence during cross-examination regarding the current and previous use of his property. He agreed that the property was previously used for grain growing and beef cattle, but he uses it for dairy production as he believes that is the most profitable way to earn an income off the land. He agreed that the general area is mostly used for livestock production, be that beef or dairy, although some properties grow crops for grain to be mostly used to feed the livestock.
- Although, at times, I felt that Mr Vonhoff was a little smug in his answering of questions, overall I found him to be an open and honest witness who was very careful in the way he answered questions.
- Mr Simon Wieck was also called by OCAA to give evidence on its behalf. Simon Wieck is a level 1MRA and EPA objector. His statement is exhibit 443.
- Together with his parents Bruce and Janelle Wieck he part owns and operates the farming properties “Oasis”, “Freemount” and “Plainview”. All three properties are within 10 minutes’ drive of each other. Oasis is located approximately 7 km north west of Stage 2 and will be approximately 7 km north of Manning Vale West pit should revised Stage 3 be approved.
- Together with his wife and three children, he resides on Oasis. He and his family has a long association with the district.
- Mr Simon Wieck undertakes a mixture of rural activities on his properties, including cultivation, dairy cattle, replacement heifers and younger stock, and a piggery (for approximately 40% of a year).
- Mr Simon Wieck goes on in his affidavit to raise his concerns regarding groundwater impacts, economics, health impacts, intergenerational equity, and community.
- NAC provided a fair account of Mr Simon Wieck’s evidence at paragraphs 67.54 to 67.64 of its submissions.
- I found Mr Simon Wieck to be an honest, reliable witness.
- It must of course be remembered that although he gave evidence on behalf of OCAA, he is a level 1 objector and so his overriding view is that revised Stage 3 should not proceed. His evidence must be viewed in this light.
- Andrew Lachlan Boyd was called by NAC to give evidence. His affidavit is exhibit 877.
- Mr Boyd is the current Chief Operating Officer of New Hope, having held this position since December 2015 after the retirement of that role of Mr Denney.
- Mr Boyd is a mining engineer with over 20 years’ experience in the Australian mining and services sector.
- Exhibit 877 goes to the issue of urgency of NAC’s applications for the MLAs and the draft EA. However, during the course of cross examination, I ruled that it was appropriate that he could be cross examined at large.
- Mr Boyd gave evidence as regards his belief that NAC has successfully achieved its goal of openness and transparency in its process. He explained that the decision to open west pit was made after Mr Denney’s affidavit material. He explained that the decision to open west pit was so that NAC could have more time to mine while the decision making processes for the MLAs and the draft EA proceeded. I have already quoted Mr Boyd’s evidence regarding west pit. Despite his statement regarding openness, he clearly stated that NAC had not advised its neighbours of its opening of west pit as it was not legally required to do so.
- Mr Boyd presented as someone with a good detailed knowledge of what was going on at NAC, which he was able to express clearly. In my opinion, he was not deceptive or misleading to the Court.
- I was particularly impressed by Mr Boyd’s evidence about NAC opening west pit and not telling its neighbours because it was acting within its legal requirements. In many ways, I believe that that exchange of evidence sums NAC up. At least since Mr Denney’s involvement in NAC at a management level, and continued by Mr Boyd, NAC has attempted to improve its community engagement. It is however, locked in costly and complex legal proceedings with objectors and, at the end of the day, a corporation will fall back on its legal entitlements rather than community engagement and good will. West pit is a classic example of this.
- I thank Mr Boyd for the clarity of his evidence and the honest way in which it was delivered. John Cook
- John Dixon Bede Cook runs a number of properties with his sister. Those properties are “Holibook” and “Yakka Munga”, which he jointly owns with his sister, Patricia Cook and “Erin Grove” which is owned by his sister. The properties are all located within 8 km of each other, and are collectively about 30 km from Stage 2.
- Mr Cook also owns and resides in a residential property in Oakey which is approximately 8 km from revised Stage 3.
- Mr Cook is a single man with no children. He is a level 1 MRA and EPA objector.
- Mr Cook was the previous President of OCAA prior to Mr Ashman. His sister Patricia is a financial member of OCAA and has been a member of the OCAA executive committee.
- My comments about the way in which the evidence of lay witnesses who are also objectors before this court are to be assessed remains consistent. In Mr Cook’s case, because of his prior presidency of OCAA, those concerns are heightened. I will not continue to repeat those concerns for every lay witness who is also an objector, but I will simply note that when lay witnesses are objectors that factor needs to be taken into account in assessing the weight to be given to their evidence.
- It was clear from Mr Cook’s evidence that he had a bad experience (together with his sister) at Wandoan where his property was taken by QGC, as he puts it, for the purposes of coal seam gas development. Mr Cook claims that his Wandoan farm was under threat of the use of s 125 of the SDPWOA.
- Mr Cook indicated in his affidavit that all of their properties are used for cattle grazing and that 50% of each property could be cropped. They do undertake some growing of crops on their properties.
- My general view of Mr Cook was that he was a frank and honest witness who directly says what he thinks. Although he did not actively set out to deceive the court with his evidence, it was however very evident that much of what he had to say, both in his affidavit and in oral evidence, was based on hearsay comments from others which he could not reliably remember and he also could not substantiate when asked to do so.
- Issues where his evidence was seriously put into question because of his reliance upon others related to his belief that bores have gone dry; the closure of Acland school being caused by NAC; the mine causing a closure of 50-60 businesses; impact on meat quality because of the mine; animals being impacted by respiratory and neurological problems; mine emissions damaging his car; his view that revised Stage 3 is a source of consistent stress and worry for him, yet he purchased two properties with the knowledge of revised Stage 3; and his actions as an “anti-mine” customer boycotting “pro-mine” businesses in Oakey.
- Mr Cook conceded that he lacks confidence in all groundwater modelling not just the modelling done by NAC.
- In my view, Mr Cook’s evidence is tainted by the negative experience he had at Wandoan. He is prepared to repeat what others have told him without checking the truth or otherwise of those comments. His evidence is of little if any assistance to the court.
- Frank Ashman is a level 1 MRA and EPA objector. His affidavit is exhibit 439.
- Together with his wife Lynn Ashman he owns and operates the properties “Shannonbrook” and “Landmore”. Shannonbrook is located approximately 8 km west of Stage 2, and their property will be approximately 5 km from revised Stage 3 if it is approved. At the time of making his affidavit, Mr and Mrs Ashman has lived at Shannonbrook for four and a half years, having purchased the property in September 2011. They operate a beef cattle stud business.
- Mr Ashman is the current president of OCAA. His evidence is that OCAA currently has 68 members. He confirmed that Dee Elliott did not contact OCAA regarding the SIA.
- Mr Ashman agreed that it is a landholder’s choice as to how they use their land, whether for cropping or grazing. He conceded that, due to his business of breeding cattle, he may be able to do some business with APC.
- Mr Ashman presented as a witness who honestly believes what he says but, like Mr Cook, he does not always have the evidence to back up his suspicion or beliefs. This however does not stop him from clearly expressing those assertions as truth.
- Because of Mr Ashman’s strong anti-mine stance, and his reliance on hearsay without fully knowing the facts, I find his evidence to be of little or no weight.
- Desley Margaret Spies was also called by OCAA and provided affidavit and oral evidence at the hearing. Her affidavit is exhibit 441.
- Mrs Spies is also an MRA and EPA level 1 objector. Her husband Kevin Spies is also a level 1 MRA and EPA objector.
- Mr and Mrs Spies have lived in the district their whole lives and have lived on their farm, Luton, for 38 years.
- Although Mrs Spies is a level 1 objector, her evidence does not, in general, suffer from the same flaws as witnesses such as Mr Cook or Mr Ashman. She readily conceded points made by Mr Ambrose QC during cross examination.
- Whilst she clearly has concerns regarding revised Stage 3, and she does not hide her opposition to NAC, her evidence overall was balanced and reasonable.
- I note that NAC is not particularly critical of Mrs Spies in its submissions. I am generally in agreement with what NAC has to say in those submissions.
- Edward Graham McKeiver was called by NAC to give evidence. His statement is exhibit 388.
- Mr McKeiver holds the position of Vice President, Coal Commercial and Marketing, at Aurizon Operations Limited.
- The key focus of Mr McKeiver’s evidence, both in his written statement and in his oral evidence, related to the rail operations that Aurizon operates to haul coal from NAC’s coal loading facility at Jondaryan to the port of Brisbane.
- NAC is Aurizon’s largest customer in the south-west rail corridor. If NAC were to cease operations and therefore cease the transport of coal, Aurizon would drop 60 train services per week from the system, which would essentially amount to a reduction of 50% of the West Moreton system.
- Whilst Mr McKeiver’s was not able to be definitive about potential job losses if NAC ceased operations, he was concerned jobs would be lost. He indicated that Aurizon as part of its normal operations would first try to redeploy employees, but that that was proving difficult because of a general downturn in the coal industry. He anticipated that 75 drivers would likely lose their jobs, and that 60 maintenance jobs in Toowoomba would also be lost, although there was a possibility of redeployment of maintenance jobs elsewhere.
- Both Mr McKeiver statement and his oral evidence clearly set out that there is currently reserved capacity for agricultural trains in the south west rail corridor that is not being met. Accordingly, there does not appear to be any prospect of lost capacity if NAC ceases operations being replaced by trains from the agricultural industry, even with increased operations at the Oakey abattoir, and even allowing for additional cattle trains to service the abattoir.
- Mr McKeiver gave his evidence in a highly professional, courteous manner. He was clear and concise with his answers, and I have every reason to accept all of his evidence.
- Max Scholefield was called to give evidence by OCAA. His affidavit is exhibit 444. Both he and his wife Jane Scholefied are MRA and EPA level 1 obejctors.
- The Scholefield’s own and operate the farming property “Coolabah South” which is located approximately 10 km north west of Stage 2, and will be about 6 km from the revised Stage 3 if it proceeds.
- Mr and Mrs Scholefield purchased Coolabah South in 1999, and have lived on the property since 2002.
- Mr Scholefield is the current chairman of the Acland Anzac Day Service. He has been involved with the Acland Anzac Day Service for 10 years. His evidence is that approximately 300 people attend the service each year. Mr Scholefield is a past member of the rotary club of Oakey (now defunct) and is a committee member of the Jondaryn Hall Committee.
- Mr Scholefield presented as what I would call an honest farming man. He generally gave clear, confident answers to questions. However, as pointed out by NAC in its submissions, just like other objector witnesses he relied on hearsay and comments he read in the newspaper which he put forward in his evidence as matter of fact. Of course, he was unable to substantiate such matters.
- Mr Scholefield’s credit came undone when he was asked questions by Mr Ambrose QC about his view that NAC caused his bank to close. The following transcript is revealing:
“Are you saying that New Acland Coal is responsible for the loss of the bank in Oakey?---The loss of my bank. Yes.
There was no other reason than the arrival of New Acland Coal and some graziers – farmers leaving the – their farms, whether they left the district or not?---I don’t say there was no other reason, but I’m saying that was a major reason.
How do you know that? What’s your basis for saying that?---Discussions that I’ve had with people I bank with and people I deal with.
Have you asked the bank?---Yes.
I see. Who at the bank has told you this?---I’m not going to go into that matter.
No. But I want you to, please. Who has told – who at Elders has told you that NAC is the major cause of them leaving Oakey and setting up somewhere else?---I can’t
– I can’t say that.
That’s because no one from the bank has told you that?---I disagree.
Well, who was it?---I’m not going there.
HIS HONOUR: You’re under cross-examination at large. You should answer the question?---Well, I honestly can’t remember the name of the person anyway.
MR AMBROSE: Why didn’t you say that straight up?---I didn’t think it was necessary.”
- Mr Scholefield appeared surprised when I directed him answer the question. I was left with the clear impression that Mr Scholefield knew the name of the person but he was unwilling to share that with the court despite his oath.
- If Mr Scholefield actually did not remember the name of the person, then his answers under oath in the lead up to my direction were too cute by far. On balance, it is my view that he did know the name of the witness but was simply not prepared to say who it was, even if that meant breaking his oath. It is highly disappointing that he would give untruthful evidence to the court in this regard. Accordingly, I do not rely upon his evidence.
- Dr Steven Ward resides on the property “Samarai” with his wife Dr Tanya Plant. They have two children. Dr Ward and Dr Plant are both level 2 objectors. Dr Ward spent a limited amount of time in court during the hearing. His wife, Dr Plant, participated very significantly in all aspects of the hearing.
- Dr Ward has two affidavits in evidence which are exhibit 510 and 511. At paragraph 10 of exhibit 510, Dr Ward explains that he is an academically trained geologist/geographer with First Class (Joint) Honours Degree from the University of Birmingham, UK. He also has a Master’s degree with distinction in Environmental Geomorphology from the University of Oxford, UK as well as a Ph.D. from the University of Oxford.
- Dr Ward currently works as a Principal Project Officer in DNRM in the Coal Seam Gas Compliance Unit.
- Dr Ward certainly presented as a highly qualified witness. His evidence though is to be accepted as that of a lay witness. During his evidence, he stressed that views expressed by him were his personal views and not business views as an officer of DNRM. His evidence was clearly and very professionally put.
- It is clear from both his statement evidence and his oral evidence that Dr Ward’s primary concern is the support of his wife and his children.
- The overriding factor I gathered from Dr Ward’s evidence was his concerns about health issues resulting from mining as well as climate change worries.
- His main concerns appeared to be not so much necessarily with the science behind the reports of various experts in various key issues, but whether or not limits and conditions that they referred to were actually implementable in practice.
- I have little doubt that Dr Ward relies upon two sources for his information regarding NAC, particularly as part of his role in the current case. That is, he relies upon his own reading of material, and information provided to him by his wife, Dr Plant.
- His evidence is primarily that of concerns. It does not, in fact, take things much further than that.
- Dr Geralyn Patricia McCarron is a level 2 objector in these matters. She conducts a medical practice in north Brisbane.
- Dr McCarron has been living and working in Brisbane as a general practitioner since 1988. She has been a medical practitioner since 1980 having worked in Northern Ireland, England, South Africa and Australia.
- By her own admission in paragraph 3 of her statement of evidence which is exhibit 455, Dr McCarron knew nothing about Acland until 2012. That changed when, due to her emerging concern about coal seam gas, she went on a Bridging the Divide trip of the Darling Downs which encompassed not only Tara/Chinchilla gas fields but also the regions with a dual impact from coal and coal seam gas such as Wandoan, Miles and Acland.
- Since that first trip to Acland, she has developed a great affinity with those who claim adverse impacts from NAC’s operations, including people such as Mr Beutel, Mr and Mrs Plant and Dr Plant, Mr and Mrs Harrison and others. She clearly relies on them for evidence as to how the mine has impacted them.
- Much of Dr McCarron’s evidence focussed on issues relating to health concerns and climate change. Her commitment to these causes is demonstrated by her presence in court for such a lengthy period which she indicated had meant she had spent a great deal of time away from her own practice.
- I have dealt with much of Dr McCarron’s evidence and her submissions which are consistent with her evidence in my analysis of key issues relating to health and air quality. I will not repeat them here.
- Perhaps the best indication of Dr McCarron expressing her honest opinions was when she received a question from Mrs Harrison referring to dust from around her home not appearing to affect the Harrison family.
- Mrs Harrison seemed surprised by Dr McCarron’s answer, which was that dust on roads can be a major problem to health as well. Her answer clearly supports my view of her evidence that she remained faithful to her oath, not only to this Court but as a medical practitioner, and gave honest answers in her evidence to the Court.
- Despite my favourable views as to the manner in which Dr McCarron gave her evidence, I also have little doubt that Dr McCarron is committed to a cause which is particularly concerned about the health impacts to communities located in the vicinity of coal mines, as well as her concerns about climate change.
- Noel Wieck gave evidence on his own behalf at the hearing. He is a level 2 MRA and EPA objector. He provided a total of 6 affidavits to the court which are exhibits 512, 514, 516, 517, 518 and 521.
- Together with his wife Fay Wieck (who is a level 1 MRA and EPA objector) he owns and operates a property known as “The Park”. Their home on The Park is located approximately 4-5 km west of the current Stage 2. Their property will be approximately 1.6 km from Manning Vale West Pit should revised Stage 3 be approved.
- Their son Grant Wieck, who is a level 1 MRA and EPA objector, lives on the neighbouring property of “Chelmonte”. Grant Wieck owns 280 ha of that property and Mr and Mrs Wieck 198 ha of it.
- The property has been in Mr Wieck’s family since 1921. Mr Wieck has been working the property since he left school in 1959. The Wieck family has been conducting a dairy farming enterprise on Chelmonte continuously for 94 years. Their dairy business has been awarded the Countdown Downnder Milk Quality Award 13 times in a 13 year period. They have been listed as being one of the Top 100 farms for milk quality in Australia, resulting in their farm being in the top 1% of the industry in Australia.
- Mr Wieck is a difficult witness to categorise. As I mention elsewhere in these reasons, he is something of a conspiracy theorist.
- I agree with much of the criticisms of Mr Wieck contained in NAC’s submissions. For instance, they have this to say:
- “72.9In terms of groundwater impacts to his dairy farm, Mr Wieck conceded that, if access to water was not disrupted, there is no reason why his dairy farm would not continue to be what he considered to be one of the best in the country.
- 72.10Mr Wieck gave a general impression that he knows best, despite the opinions of the expert witnesses in this case. For example, he suggested that, despite the evidence of the "so-called experts we have from universities", he could "catch them out", because he knows "a little bit about the country". As another example, in relation to groundwater impacts on his property, he said that he does not trust the New EIS, and "[he knows] better". He also implied that Mr Thompson perjured himself and that he "didn’t have much faith in the man's report to begin with". This attitude was a general theme that was consistent throughout his evidence.
- 72.11Mr Wieck ultimately conceded that, if an expert has expressed an opinion that he disagrees with, he questions that expert's qualifications. He also conceded that he disagrees with anything that any expert has said about the Revised Expansion Project "with good reason".
- 72.12As a further example of Mr Wieck making claims, in respect of Mr Thompson's analysis of the soil quality of the land in and surrounding the Revised Expansion Project, he suggested that he had trouble reconciling Mr Thompson's "scientific analysis" with his 50 years of observations of the area. However, he conceded that the relevant land is not owned by him, nor had he been associated with any soil surveying of the land or any mapping of the slopes of the land. Ultimately, Mr Wieck really had no reliable basis to dispute Mr Thompson's analysis.
- 72.13Mr Wieck suggest that there is a "moral responsibility" on people who acquire land of cropping suitability, to not use it for "lesser purposes". He suggested that APC had "pinched people's property and therefore had a responsibility to make "proper use of it". APC did not "pinch" its land but purchased it from landowners who were willing to sell (and many of whom approached APC). Further, in terms of cropping, as was established from the evidence of both the Applicant's and the objectors' lay witnesses (including the objector's themselves), much of the land of cropping suitability that is owned by those witnesses is being used for grazing purposes (despite, in Mr Wieck's words, their "moral responsibility" not to do so). Later in his evidence, Mr Wieck contradicted himself by going on to suggest that climate change was a cause of a decline in cropping, and saying that "even in the best land we only get opportunity cropping because it's not very safe anymore". This supports the evidence of Mr Thompson and the various lay witnesses who acknowledged that there has been a continual decline in cropping in the area in favour of grazing.”
- Another insight into Mr Wieck’s character is gained through reading his submission to the court. I agree with the statutory party’s submissions at paragraph 164 which sets out details from Mr Wieck’s submissions indicating his belief that revised Stage 3 was approved because of corruption, bribery or money paid. I agree with the statutory party that such submissions are scandalous and unsupported by any evidence or foundation. The allegations made in those submissions are serious and categorically denied by the statutory party and Mr Loveday. I agree with the statutory party that there is no basis whatsoever for this court to make any such findings. It is appropriate that I quote from part of Mr Wieck’s submissions which, in my view well, sum up what the statutory party is talking about:
- “21My greatest disappointment with the Land Court hearing was to hear His Honour run three scenarios past Mr Boyd. For a person of His Honour's intellect and experience to suggest that the applicant should receive taxpayer support to facilitate a project which will provide a windfall gain in retained royalties for mining land of PALU status which the applicant cannot lawfully mine, is incomprehensible.
- 22Furthermore, His Honour's suggestion that he might recommend that the coal loading facility remain at Jondaryan, displays insensitivity to the long suffering residents of that town.
- 23The above comments indicate that a modified project that was revived because of corruption and bribery between New Hope and the Liberal and National political party is being supported all the way along the approval process.
- 24When are persons in decision making roles going to wake up to the fact that the triple bottom line must receive consideration for a sustainable planet? Economic, social and environmental considerations bust be given equal consideration.”
- The above clearly shows that Mr Wieck is not afraid to say what he thinks. The difficulty, of course, is that he is misguided and ill-informed in making his comments. Mr Wieck’s comments in paragraph 23 border on being in contempt of court where he says that the project is “being supported all the way along the approval process”. Given the close reference of that statement to his disparaging comments about myself, it is no stretch of the imagination to conclude that Mr Wieck was in effect accusing myself of not bringing an independent, impartial mind to this process. That is highly regrettable. He simply fails to understand the duties and responsibilities placed on myself, particularly in an administrative enquiry such as this, to test the evidence and look for alternatives. Such statements go with the territory, but they do not in any way show or represent a concluded view or opinion on the evidence. It is nothing more than exploring issues as I am required to do; I must take everything before me into account, and, after all, it was the objectors, including Mr Wieck, who object to the grant of the rail loading facility. He, by his very objection, has brought into question the very thing that he complains about me enquiring about. He simply does not understand the process, although I am sure that in his mind he thinks that he does.
- I have no intention as part of this hearing to engage in a determinative process pitting water devining against expert groundwater modelling. Perhaps that would have been the case, and necessary to do, had Mr Wieck put himself forward as a groundwater expert based on his knowledge and self-stated abilities as regards water devining. However, Mr Wieck did not seek to make himself an expert witness before the court. His evidence therefore, must be subsidiary to the expert evidence received.
- As consequence of the manner in which Mr Wieck gave much of his evidence, a great deal of it must be disregarded. However, as I have tried to indicate, all of the views expressed by Mr Wieck are, in my view, his honestly held opinions.
- There are a couple of aspects of Mr Wieck’s evidence that survive all elements of attack, even though he did his best to discredit himself.
- I have no doubt whatsoever that Mr Wieck runs a highly successful dairying operation which is amongst the best in the country. I also have no doubt that Mr Wieck committed millions of dollars towards the automation of his operations on the basis that Stage 3 would not be proceeding, and that he was caught by surprise when revised Stage 3 received CG approval.
- Mr Wieck’s dairying business will be greatly impacted if, for whatever reason, there is a loss of groundwater to supply his business. In light of my findings regarding groundwater evidence, it is reasonable for Mr Wieck to be concerned about the interactions between his groundwater and revised Stage 3.
- Additionally, Mr Wieck showed raw emotion and gave evidence in very genuine terms, in my view, when speaking about his great desire to hand the business on to his grandson so that the dairy farm could continue to be one of Australia’s best for many generations to come. As such, Mr Wieck’s views on intergenerational equity also survive his own self destruction of his evidence.
- Grant Noel Wieck was called to give evidence by Noel Wieck, who is his father. Grant Wieck is a level 1 MRA and EPA objector. Grant Wieck, together with his wife Kylie and his father Noel and Fay Wieck, own and operate the farming property “Chelmonte”. I have discussed the nature of the family business at the commencement of my analysis of Mr Noel Wieck. It is unnecessary to repeat any of that here, including relevant evidence as to the dairying operations conducted by the Wieck family.
- Mr Grant Wieck provided 2 statements to the court which are exhibits 515 and 520.
- NAC has provided relatively short submissions regarding Mr Grant Wieck. I am in general agreement with those submissions.
- Mr Grant Wieck gave very controlled and clear answers to questions he was quite slow speaking and careful in his answers. He was also strong and determined in his responses.
- His evidence of course suffers because he is a level 1 objector and because, by his own admission, he is philosophically opposed to new thermal coal mining, and he considered revised Stage 3 to be a new project.
- I accept all of Mr Grant Wieck’s evidence regarding his successful dairying business and so much of his evidence which was in general support of his strong desire, like that of his father, to ensure that intergenerational equity operates to protect the farmers of the future.
- Glenn Norman Beutel provided 3 statements to the court. They are exhibits 523, 524 and 525.
- Mr Beutel continues to reside in his family home at Acland. He also owns a rental property at Acland and other vacant land at Acland. Mr Beutel lives by himself and, quite clearly from his evidence, he has no intention of moving.
- Mr Beutel is a level 2 MRA and EPA objector. He gave evidence at the hearing and participated extensively as a party throughout the hearing.
- I have dealt with both the evidence and submissions of Mr Beutel, where appropriate, in other parts of my reasons and I will not repeat them here. I was highly impressed by the manner in which Mr Beutel gave his evidence. He showed himself to be a very intelligent, thorough gentlemen who did his best to give honest answers to all questions he received. I did not get the impression from any of his answers that he was attempting to be contrived.
- As NAC points out in its submissions, NAC clearly has difficulties in communicating with Mr Beutel. Mr Beutel, in his evidence, was completely open about this.
- I find myself in general agreement with the analysis of the evidence of Mr Beutel as set out in part 73 of NAC’s submissions.
- Overall, despite the fact that Mr Beutel is a level 2 objector and clearly against revised Stage 3 proceeding, I found his evidence open, balanced and reasonable. Of course, his lay evidence should not be preferred over that of expert opinion evidence where I have found such expert evidence reliable.
- Ian Whan was called to give evidence by DDEC. His statement is exhibit 1198.
- Mr Whan lives in Felton and he holds the position of secretary of the Felton Hall Association and President of the Friends of Felton. Mr Whan explained the role of the Felton Food Festival and a video of that festival was played to the court. It is exhibit 1200. Mr Whan also explained the manner in which the Felton community reacted when it was faced by a proposal to mine in the area.
- Although Felton is in relatively close proximity by rural standards to Acland, there is no doubt that they are very different communities, as was acknowledged by Mr Whan. While I found Mr Whan to be a credible witness who gave his honest opinion as to what is occurring in Felton, such evidence is of extremely little relevant to the matters before me relating to Acland.
- Angela Margaret Mason is a MRA level 2 objector and also a party pursuant to s 186(d) of the EPA.
- Mrs Mason provided 4 statements of evidence to the court which are marked exhibits 447, 452, 454, and 1201 respectively.
- Mrs Mason attended and contributed as a level 2 objector throughout the bulk of the original hearing. Because of work commitments, she was unable to be personally present at the resumed hearing.
- Together with her husband Paul, Mrs Mason operates a mixed farming enterprise known as “Home-Lea”. Home-Lea is located within MDL 244 and is on the northern side of the current NAC Stage 1 and Stage 2 operations. Home-Lea is located close to the permanent mine infrastructure, CHPP and Rom pad activities.
- Mrs Mason’s husband is a fourth generation farmer in the Highland Plains district. Home-Lea was farmed by Mr Mason’s grandfather Kenneth J Mason and subsequently his son Barry K Mason. Quite clearly, the Mason family has a long association with farming activities in the Acland area.
- Whilst NAC in its submissions has some mild criticisms of Mrs Mason, there is nothing of any serious note raised against her. This, in my view, is completely understandable, given my opinion as to the evidence of Mrs Mason.
- Mrs Mason is to be commended for the manner in which she conducted herself throughout this hearing, both when giving evidence as a witness and as a party.
- Mrs Mason clearly has difficulties living near NAC’s mining operations and those difficulties and past experiences explain why she lodged her MRA objection and became a party to the EPA matter.
- I found her evidence to be balanced and reasonable. However, having said that, it must be remembered that she is a lay witness before the court. This is particularly relevant to those areas of her evidence for which there was expert evidence given, such as relating to noise from traffic.
- Mrs Mason is certainly to be commended for her diligence in sitting up all night to do her own traffic count of truck movements. However, as pointed out by NAC, her evidence is deficient as she did not include diesel four wheel drive vehicles in her count. However, the traffic expert was able to accept a number of the propositions put to him by Mrs Mason and his evidence was amended accordingly. Overall, I found the bulk of Mrs Mason’s evidence reliable and honestly given.
- Sharyn Munro was called by Dr Plant to give evidence. Her affidavit is exhibit 504.
- Ms Munro is a writer and an author. She lists in her affidavit three books that she has written, with the book of importance being “Rich Land, Wasteland” (Pan Macmillan/exile, 2012). Rich Land, Wasteland is about Acland. As well as interviewing people in the Acland community, Ms Munro has stayed in email and phone contact with several local people, especially the Plant family and Glenn Beutel.
- Ms Munro considers herself an activist and a greenie, and has participated in protests associated with mining activities. It is her opinion that there should be no more thermal coal mines because “It’s probably going to be declared toxic worldwide in my life time”.
- I agree with the submissions of NAC that Ms Munro’s political views taints her evidence.
- Also, Ms Munro freely acknowledged that the information she collected for her book was a compilation of the stories of others and what she had read in newspaper articles.
- Ms Munro has clearly written book about Acland to support her political views and her activist position. Her evidence can be given little, if any weight. At any rate, it is clearly more preferable to hear evidence directly from witnesses with firsthand knowledge rather than second or third hand knowledge as relayed by Ms Munro.
Dr John Standley
- As already indicated, John Standley is in the rather unique position of being a level 2 EPA objector, an expert witness called by himself, and a lay witness. Separately in these reasons I have provided my evaluation of Dr Standley as an expert witness. It is accordingly unnecessary for me to repeat details of his qualifications and my findings of credit worthiness regarding his expert evidence. The comments that follow relate purely to Dr Standley as a lay witness before this court.
- Dr Standley’s affidavit is exhibit 509. It is a short affidavit and relates to issues of cropping and soils in the Acland area and exhibits a number of documents on those topics.
- Of course, this court had the benefit of expert evidence from Mr Thompson relating to soils and rehabilitation.
- Consistent with how Dr Standley conducted himself throughout the entirety of the hearing in whatever capacity he was engaged in, as a lay witness Dr Standley presented as a thorough gentlemen. He is always prepared to defer to others who have expert knowledge in a particular field.
- I find Dr Standley’s lay evidence to be reliable, but, as is the case with so much lay evidence in this hearing, where such lay evidence is inconsistent with expert evidence which I have accepted, I prefer that expert evidence over lay evidence. It follows that, because of the extensive evidence given by experts in the fields in which Dr Standley touched in his lay evidence, his lay evidence is of little benefit to the court.
Dr Tanya Plant
- Tanya Merilyn Plant gave evidence on her own behalf. She is a level 2 MRA and EPA objector and played a significant part in the hearing.
- Dr Plant lives on the property “Samarai” with her husband Dr Steven Ward (also a level 2 MRA and EPA objector) and their two children.
- Dr Plant is the only child of Sid and Merilyn Plant of Samarai. She grew up on Samarai in the house that her parents still reside in. Dr Plant received primary and secondary schooling in the district. She was Dux of her high school, and went on to obtain a Bachelor of Applied Science Rural Technology with First Class Honours from the University of Queensland, Gatton. Subsequently, Dr Plant won a Rhodes Scholarship and completed her doctorate at the University of Oxford, focusing on international agricultural trade. She also studied microeconomics and international relations subjects at Oxford.
- Clearly, Dr Plant has an impressive academic record. However, the evidence that she gave in this hearing was that of a lay witness.
- Dr Plant’s property Samarai is made up of eight adjoining lots, totalling approximately 1,200 ha. The property in predominantly used for grazing cattle.
- Dr Plant explains in exhibit 487 that her family has been farming a conglomerate which has grown over time commencing with her great great grandfather, Sam Plant.
- Dr Plant clearly has a strong attachment to Samarai as was evident from both her affidavit and oral evidence. I will not detail all of Dr Plant’s affidavit and oral evidence; time and space simply do not allow it.
- I have in other parts of these reasons made comments and findings with respect to attacks made on Dr Plant by NAC. I will not repeat those issues here, save to say, in the majority of cases, I have found NAC’s complaints against Dr Plant overstated and unjustified. NAC, speaking generally, complains about Dr Plant not having proof for what she says, yet in the same breath NAC is prepared to criticise Dr Plant on the basis of little or no evidence. Take for example paragraph 69.47 of NAC’s submissions. Those submissions state as follows:
“In relation to her alleged "promise" of data that was shown to be inaccurate, Dr Plant suggested that Mr Sheppard from the Applicant had told her words to the effect "it's your word against mine" and this had offended her. To have her word challenged was offensive and she specifically denied that Mr Sheppard might have said that it was his memory against hers. It was the challenge to her veracity that contributed to her distrust of the Applicant and contributed to her disengagement from dealing with the Applicant. However, Dr Plant was shown an email she had sent to Mr Sheppard in which she herself had quoted him as saying it was "your memory against mine". Clearly the two statements have different connotations and, given her veracity on this issue was not challenged, could form no reasonable basis for her so called further distrust of the Applicant. It is submitted Dr Plant has convinced herself of something which simply did not happen and this has fed her distrust of the Applicant.”
- In my view, looked at objectively, there is little difference between a statement such as “it’s your word against mine” compared to “your memory against mine”. ‘Your memory against mine’ is a phrase often heard before courts and resolved by both parties giving evidence and the court arriving at its view as to what evidence it prefers. Of course, evidence as to a word given under oath is evidence as to the truth of what is said. In like manner, evidence of use of the word “memory” under oath is also a truthful account of a memory. In other words, the proof of either statement requires, in a court setting, for a person to swear as to the accuracy of their memory or their word, which amounts to the same thing. In my view, Dr Plant had reason to be upset, assuming either connotation of the words were used, challenging her honesty and recollection. I should add that NAC had ample opportunity to call Mr Sheppard to give evidence of his version of events in this regard. Apart from the limited evidentiary role that he played on site on 1 September 2016, Mr Sheppard did not provide any other direct evidence to the court, although he did act as “tour guide” on each of the courts inspections at Acland, and he was also present in court on a number of occasions and, indeed, called out an answer from the back of the court in response to a point put by one of the objectors.
- Dr Plant certainly presented at times during both her evidence and her participation at the hearings as nervous, anxious, and highly emotional. I attribute much of her emotion to what virtually amounts to an overzealous effort to do the right thing in all of her interactions with the court and court processes.
- Although I have accepted Dr Plant’s evidence over that of NAC’s in other parts of these reasons, that is not to say that a high level of weight can be given to all of her evidence. Dr Plant certainly has a fixation of being anti-NAC, and this overflows into her evidence and her general views regarding NAC. NAC in its submissions part 69 do set out some circumstances where Dr Plant has been either inconsistent or given over emphasis to certain aspects of her evidence.
- At the end of the day, Dr Plant’s evidence before this court is lay evidence. Where that evidence directly in conflict with expert evidence which I have found reliable and accept, obviously Dr Plant’s evidence does not prevail. However, on key issues that I have already made findings on, I find Dr Plant to be caring, truthful and doing her best to give accurate evidence to the court. Dr Plant also tendered a large number of documents, and those documents of course speak for themselves.
- Pamela Aileen Harrison is a level 2 EPA objector. She provided three affidavits in evidence before the court, which are exhibits 482, 1801 and 1802 respectively.
- Mrs Harrison actively participated in the great bulk of the hearing. She is to be highly commended for this, given that she is now 81 years of age.
- Mrs Harrison explains in her first affidavit how she has spent her entire life working in farming occupations including as a jillaroo, planting and harvesting crops, fencing, general labouring, as well work with all kinds of animals.
- In 1997 Mrs Harrison and her husband sold their property at Ducklo and they then built what she called her “dream home set up for our golden years” on 17 acres on one of the four separate deeds on “Bremar” at Highland Plains. Bremar is owned by Mrs Harrison’s daughter and son in law, Margaret and Brett Hassall.
- After moving into her new home at Highland Plains, Mr and Mrs Harrison started up a tourist business promoting Alpacas. As well as showing live Alpacas, Mrs Harrison spun alpaca wool and hand knitted and crocheted products from alpaca wool. She also had a memorabilia display.
- NAC mining of Stage 1 commenced in 2002 approximately 5 km from where she lived. Over the next 5 years, the mine progressed steadily towards her residence.
- The bulk of Mrs Harrison’s evidence, both in affidavit and oral form, is dedicated towards the impacts that she experienced as a result of Stage 1 and Stage 2 operations.
- Mrs Harrison’s daughter and son in law ultimately sold Bremar to NAC and they relocated to Yalangur.
- Mrs Harrison’s reason for becoming a level 2 objector and taking such an active part in the hearing was explained by her to be her attempt to do all she could to ensure that others did not have to experience what she had experienced from Stages 1 and 2.
- As is the case with other level 2 objectors who have participated to a large extent in the hearing, relevant aspects of their evidence and/or submissions have been taken into account in my analysis of key issues. With respect to Mrs Harrison, I again will not repeat them here.
- NAC in its submissions, part 77, states that Mrs Harrison has no actual evidence of the mine having adversely impacted her alpaca business and, indeed, the business is now flourishing.
NAC appears to base this submission on the fact that Mrs Harrison’s alpaca business is doing well at the new property. This was, however, not the key thrust of Mrs Harrison’s evidence.
- I accept her evidence that NAC’s Stage 1 and Stage 2 mining had a negative impact on her alpaca business at Bremar. NAC’s submissions read almost as if they had done her a favour by causing her to move her alpaca business to a new location. It is a pity that NAC in its submissions could not accept the impacts that dust, noise, and overspill of light had on Mrs Harrison, her alpaca business and tourists that came to visit the alpaca business as a consequence NAC’s Stage 1 and Stage 2 operations.
- I have absolutely no reason to doubt the evidence of Mrs Harrison in this regard.
- The other aspect of Mrs Harrison’s evidence relates to the sale agreement between NAC and her daughter and son in law regarding the sale of Bremar, including Mr and Mrs Harrison’s dream home. I agree with NAC that there are clear issues between Mrs Harrison and her family relating to the sale of Bremar and purchase of a new property. I also agree that they are family matters rather than issues attributable to NAC, save that it was NAC’s mining of Stages 1 and 2 which caused the sale of Bremar to occur in the first place.
- Merilyn Helen Plant is a level 2 MRA and EPA objector. She attended a reasonable amount of the time during the hearing. Mrs Plant gave evidence on her own behalf. She has lived at Samarai all her married life since 1969. Mrs Plant is married to another level 2 objector, Sid Plant, and is the mother of Dr Tanya Plant.
- Mrs Plant provided two lay witness statement in evidence before the court, which are exhibits 483 and 484.
- Mrs Plant is elderly and at times the court was advised of health issues impacting her. When she gave her oral evidence she was clearly distressed. On a number of matters, her memory failed her. However, it is my firm view that her inability to recall details was honestly a result of memory failure and not out of any deliberate attempt to deceive the court.
- Overall, taking account of her memory failure, I found Mrs Plant to be an honest person doing the best that she could in the circumstances to give her evidence to the court.
- However, underlying this of course is the fact that she is a level 2 objector.
- Just as lay witnesses called by NAC tended to give the benefit of doubt to NAC, Mrs Plant’s starting position is to give the benefit of blame to NAC. That said, I did find her understanding and recollections of her evidence regarding the “boycott” and her asthma to be consistently given.
- NAC in its submissions point to the fact that of “her making allegations about the mines poor behaviour, when in fact there is no actual evidence of this”. That is of course a very sweeping statement for NAC to make in the face of clear evidence from objectors and lay witnesses that they have not been treated well by NAC.
- At the end of the day, however, this case has been ultimately decided, in the main, by expert evidence. Mrs Plant’s evidence, just like the evidence of others who either support or oppose the mine simply provides a backdrop in which the expert evidence is viewed.
- Sidney Arthur Plant is a level 2 MRA and EPA objector. He provided a statement to the court which is exhibit 485 and the exhibits to his statement are exhibit 486.
- Mr Plant and his family have a long history in the rural industry. He has lived on Samarai with his wife Merilyn since 1969. He has never lived anywhere else other than on the family farm.
- Mr Plant spent about the same amount of time at the hearing as his wife. The court was also informed at various stages of the hearing of serious health issues involving Mr Plant.
- Unlike his wife, Mr Plant presented as a strong personality. In my view, he also presented as an honest person. Despite my views as to Mr Plant’s honesty, it must borne in mind that, just like other objectors, and indeed his wife, if there are two sides to a story, one favouring NAC and one against NAC, Mr Plant will choose to believe the one against NAC.
- Apart from my conclusions regarding Mrs Plant’s memory loss, I simply repeat and rely upon my findings and observations with respect to Mr Plant.
- Certainly, in its submissions, NAC pointed out instances where Mr Plant made allegations which he was not able to substantiate from an evidentiary sense.
- Bretton John Faris Hassall was called by Mrs Harrison to give evidence. His statement is exhibit 1843. Mr Hassall is Mrs Harrison’s son in law.
- NAC provides its analysis of Mr Hassall’s evidence at paragraphs 77.23 to 77.44. By and large, I agree with NAC’s submissions. However, NAC’s submissions primarily relate only to the sale by Mr and Mrs Hassall of their property to APC.
- I have already touched upon elements of this sale in Mrs Harrison’s evidence. As NAC puts it in its submissions, Mr Hassall’s recollection of events was far from accurate.
- Save for generally agreeing as I have with NAC’s submissions in this regard, it is unnecessary for me to consider the matter further for the same reason as NAC submitted with respect to Mrs Harrison; that is, it is a family matter with nothing to do with NAC, again, save for the fact that it was the operations of NAC’s Stage 1 and Stage 2 mine which caused the sale of Mr and Mrs Hassall’s property to occur in the first place.
- Although I share NAC’s view as regards Mr Hassall’s evidence regarding the sale of his property, there is other evidence that was given by Mr Hassall that I felt was quite compelling.
- The evidence that Mr Hassall gave of the impact of Stage 1 and Stage 2 mining operations on Bremar are consistent with the evidence of Mrs Harrison. Further, such evidence is consistent with the evidence of other objectors.
- I note in particular the difficulties and frustrations that Mr Hassall experienced in trying to bring complaints to the attention of DHP.
- I accept Mr Hassall’s evidence regarding noise and dust at Bremar. I also have no reason to disbelieve Mr Hassall’s evidence that his wife was ill during the time of NAC’s mining operations near Bremar and that she was not subject to the same health issues prior to NAC’s mining operations and has not had those health symptoms since moving away.
- Dr Mark Stephen Copland was called by Dr Plant to give evidence. His statement is exhibit 505.
- Dr Copland is a member of the Social Justice Commission of the Catholic Diocese of Toowoomba.
- It is Dr Copland’s evidence that he has known a number of people living in the vicinity of Acland for the past 6 years.
- Dr Copland has attended a number of community events and people have expressed to him a high level of anxiety, despair and hurt. He likened the experience of those people to a recent Encyclical Laudato Si of Pope Francis on ‘human ecology’.
- NAC submits that Dr Copland’s evidence was irrelevant to the matters before the court.
- In my view, little relevance is to be gained from Dr Copland’s evidence, except that is provides another level of support for the evidence of objectors who have been, in their words, impacted by Stages 1 and 2 and the proposed revised Stage 3. As such, it would be improper to disregard Dr Copland’s evidence in its entirety as NAC would have me do.
- I accept Dr Copland’s evidence, but am mindful that it is of little weight or assistance for the final resolution of these matters.
- Peter Faulkner was called by Dr Plant to give evidence. His statement is exhibit 503.
- Mr Faulkner is a past resident of Oakey and is a past president of OCAA.
- NAC is critical of Mr Faulkner’s evidence because he failed to engage with NAC when president of OCAA. Mr Faulkner was invited by the CRG, as President of OCAA, to present OCAA’s concern at a meeting of the CRG. He declined to attend the meeting.
- Mr Faulkner lessened his credibility when he spoke of his general mistrust of the government and its department due to his claims that they are not impartial between citizens and mining companies.
- Mr Faulkner gave quite believable evidence that he did not support a boycott of businesses that supported the mine as he considered it important that the owners of those businesses saw him.
- Mr Faulkner’s evidence is of value in showing evidence of the other side of the community divide. However, his evidence must be viewed via the paradigm of a person who concedes that OCAA was formed to be a conduit to inform the community and stop the mine. He clearly prefers agricultural activities being undertaken on rural land to that of coal mining.
- Christopher John Loveday was called by the statutory party to give evidence. His statement is exhibit 365 and the amendments to his statement is exhibit 1870.
- Mr Loveday holds the position of Director of Impact Assessment and Operational Support with the statutory party. His previous position with EHP was as the Manager of Assessmentcoal in the Environmental Services and Regulation Division of EHP in Emerald.
- Mr Loveday holds a Bachelor of Environmental Science from Central Queensland University. He has 11 years’ experience in environmental impact assessment and regulation of mining and mineral processing project as an officer of the Queensland Government in EHP and its predecessors.
- In his former positon, he was delegated the power of the Chief Executive of the administering authority under the EPA to make decisions in response to, amongst other things, EA amendment applications.
- I could go through Mr Loveday’s evidence in forensic detail, but I have chosen not to do so, mainly because of the already length size of this decision, but also because, given the role of the court to hear and consider objections under the EPA and then to make recommendations to the administering authority, it is not necessary for me to go further.
- There are a number of aspects of the actions that had been attributable to EHP throughout these preceding’s that I could make comment on, but as has been pointed out strongly by the submissions of the statutory party, this hearing is not an inquiry into the operations of the statutory party or anything of the like. I agree.
- In other parts of my decision, I have made various comments and expressed concerns regarding complaints processes. Mr Loveday’s evidence did nothing to ease my concerns.
- On a positive note, I accept that Mr Loveday, as an officer of EHP properly delegated, has undertaken his duties, in accordance with the EPA, to assess the draft EA amendment application.
- It was a pity that Mr Loveday and the statutory party was not of more assistance to the court in suggesting possible amendments to the draft EA consistent with the evidence given in this hearing. I reject the statutory party’s submissions that for Mr Loveday to do so would in effect be bringing into existence two draft EA’s. That is patently nonsense. The EA that I have to consider is the amendment application to Environmental Authority EPML 00335713 and the draft EA referred to the Land Court as a result of submissions and objections thereto. That is the draft EA before the court. All that Mr Loveday and the statutory party was asked to do was to consider amendments that the administering authority make consider as appropriately worded for consideration by this court as part of the making of recommendations to the administering authority. In other EPA objections heard by myself in the Land Court, EHP/the statutory party has been extremely helpful in providing suggested conditions that the court may consider consistent with evidence given during an objections hearing which have greatly informed the court in making its recommendations in those other matters to the administering authority under the EPA.
- Due to the stance taken by Mr Loveday and EHP, I have been left with little option but to rely on the drafting efforts of NAC and the objectors and my own attempts to indicate amendments that I consider appropriate to the draft EA.
- I should also state for the record that I was disappointed in Mr Loveday’s evidence that the current EA contains “complaint driven conditions” and that Mr Loveday’s understanding of this is that if no complaint is received, there has been no breach in conditions. Of course, I am not here to judge or make findings as such relating to the current EA, and I will refrain from doing so, save to say that I understood the current EA to be based on principles of protecting the environment and that a breach of EA conditions would be a breach of EA conditions whether or not a complaint was received.
- Although I am refraining from making lengthy comments regarding Mr Loveday’s evidence, I have of course made lengthy comments as to the contents of the draft EA throughout this decision, and I have taken all of Mr Loveday’s evidence into account, and all of the submissions received with respect to Mr Loveday’s evidence into account, in my considerations of all aspect of the draft EA.
- As set out elsewhere in these reasons, Mr Sheppard, an officer of NAC, gave evidence during the concurrent hearing of evidence on the afternoon and night of 1 September 2016. I gave full details of Mr Sheppard’s employment responsibilities, etcetera, in my analysis of noise.
- Of course, Mr Sheppard was not providing expert evidence to the court as part of the concurrent evidence given at the inspection with the noise experts. Rather, Mr Sheppard was giving evidence as an officer of NAC of equipment operating at the time that the noise experts took various noise readings.
- I found Mr Sheppard’s evidence to be freely and honestly given and to be sufficiently detailed and precise so as to assist the noise experts and the court. I have no reason to doubt any of Mr Sheppard’s evidence in this regard. Mr Sheppard also undertook the role of “tour conductor” on the various inspections that the court undertook in the Acland district. He clearly had a very good understanding of the evidence and issues before the court and was able to direct the court’s attention to matters which could be observed which related to evidence before the court. In many ways, because of the depth of knowledge that he clearly demonstrated during the inspection process, he may very well have been of assistance to the court in giving evidence before the court. However, it was of course NAC’s decision not to call him other than for providing evidence as part of the joint expert noise inspection evidence. This also meant that Mr Sheppard was not able to give his account as to what he had said in the “your word/memory against mine” debate as put in evidence by Dr Plant. Key Issue – Air Quality and Dust
- As was the case with the issue of Noise and Vibration, extensive evidence was provided by lay and expert witnesses with respect to air quality and dust. Mr Simon Welchman was called as an expert witness by NAC, while Dr John Taylor was called as an expert witness by OCAA.
- Mr Welchman and Dr Taylor produced two Joint Expert Reports and individual reports. Dr Taylor also provided some additional modelling for the court’s consideration.
- Mr Welchman in his oral evidence assisted the court with what was called ‘Air Quality 101’ which was a brief overview to explain concepts. He had this to say:
“So there are four dust metrics principally that we consider to determine the effect of dust on the environment. We have dust deposition, which is the amount of material that falls into a gauge, which is essentially a 150-millimetre funnel. So it’s the amount of dust that falls into that gauge over a 30-day period. That material is weighed and the amount that’s called insoluble solids is what is compared to this limit of 120. So it’s the material that isn’t soluble that is relevant to that limit of 120 milligrams. We then have – so that’s a depositional rate per square metre. We then have three metrics as a concentration of material in air, and they’re expressed as a microgram per cubic metre of air. The first is TSP, which is total suspended particulates. It is the material that would be collected in a high volume air sampler of a TSP type. It’s essentially material that has an aerodynamic diameter of about 50 to 70 micrometres. There is then two other metrics known as PM10 and PM2.5, and they’re defined by the particle size. So the PM10 metric is particles that are 10 micrometres or less in size, and the PM2.5 metric is particles that are 2.5 micrometres and smaller. And those three metrics overlap. So PM10 is a subset of PM – is – sorry, PM10 is a subset of TSP. PM2.5 is a subset of both PM10 and TSP. So TSP brackets, the two other size ranges, and the others fall – fall within TSP. PM10 and PM2.5 are defined on the basis of their potential to affect health. So the size is important because there is a degree of correlation between the particle size, its concentration, and health outcomes.”
- In terms of the difference between air quality and dust, dust can be seen and is a nuisance and can interfere with one’s amenity of life. Air quality is measured by reference to particulate matter which cannot be seen. These particles (e.g. PM10 and PM2.5) can be small enough to pass through the throat and nose, and once inhaled can cause serious health issues. There is emerging evidence that both short term and long term exposure to PM2.5 particles poses particular health concerns.
- Evidence from nearby residents such as Mrs Harrison, Mrs Mason, Mr Beutel and the Plant family indicate that dust has been an ongoing issue for them since NAC began its open cut coal mining operations some 15 years ago. In fact there has been over 100 complaints recorded on NAC’s complaint’s register regarding dust and another 30 or so dust related complaints to EHP.
- In response to air quality and dust issues, NAC has monitored air quality and dust for 27 days over an 11 year period at locations around the mine. Additional monitoring has also taken place at Balgowan over 27 days from December 2011 to April 2012.
- Further air quality and dust monitoring has occurred at Jondaryan (near the JRLF).
- Dr Taylor’s evidence is that air quality and dust monitoring undertaken by NAC has been very limited and completely inadequate to provide any indication of the potential impacts associated with the mining operations. Dr Taylor’s view is that past monitoring does not adequately cover the range of operational and meteorological conditions to understand air quality and dust impacts associated with current or past operations.
- OCAA submits that less than 2% of operating days have been monitored by NAC.
- Mr Welchman does not agree that past monitoring has been inadequate. Mr Welchman’s evidence is that past monitoring data has some utility to provide information on dust levels over time. Also as pointed out by Mr Welchman, and NAC in its submissions, the current EA does not require ongoing air quality and dust monitoring, only monitoring requested by EHP in response to dust complaints; and that monitoring has not shown any exceedances of EA limits.
- In terms of the evidence of dust concerns raised by nearby residents, Mr Welchman indicates that lived experiences can give an indication of dust nuisance issues but not whether limits have been exceeded or not. NAC point out that other nearby residents such as Mr Ballon who lived across the road from Mrs Harrison have provided evidence that they have not had dust issues with the mine.
- The evidence of Mrs Harrison, Mrs Mason, Mr Beutel, and the Plant family in particular cannot be ignored. I have no doubt they have been greatly inconvenienced and impacted by dust produced by the mine and given their evidence, it is quite possible EA limits with respect to dust and particulate matter have been exceeded. I do not place much weight on Mr Ballon’s evidence or other nearby residents who have received benefits from the mine in terms of employment or property sales. Either consciously or subconsciously they are likely to overlook noise and dust concerns with the mine given the benefits they receive from NAC.
- The current complaints based system in dealing with air quality and dust issues is of little value because any testing mandated by EHP (sometime after a complaint has been made), is likely to have occurred when operational and particularly meteorological conditions were different to those experienced by nearby residents when they experienced the dust nuisance and made their dust complaints. Still conditions or light winds are very important in terms of exposure to particulate matter and dust. Essentially, investigations by EHP at a later time with potentially very different conditions suffer from the same difficulties as the investigation of noise complaints.
- Because no regular monitoring has been undertaken by NAC in or around the mine site, it is impossible to confirm whether EA air quality limits have or have not been adhered to. I suspect limits may not always have been adhered to, given the lived experiences of Mrs Harrison, Mrs Mason, Mr Beutel, and the Plant family.
- NAC are correct in their assertion that under the current EA they are not required to undertake ongoing monitoring but in light of the number of complaints made to it regarding air quality and dust, I would have expected a more regular and comprehensive monitoring regime be undertaken, even if for their own benefit to understand what air quality and dust emissions they are producing and to ensure they are not contributing to ongoing health and nuisance concerns for their neighbours. Experts – areas of agreement
- The experts agree:
- (a)The dispersion model in the EIS and relied upon by the Coordinator-General (CG), is generally in accordance with regulatory requirements but it is inaccurate with respect to the air quality and dust levels that can be anticipated. The experts disagree on the extent of the inaccuracy.
- (b)There is a high risk that dust from the mining activities could exceed limits in the draft EA. To combat that risk the EIS has proposed a range of controls.
- (c)The controls to be implemented to minimise potential for air quality impacts are to be contained in the Air Emissions Management Plan (AEMP) and include:
- (i)Operational dust control measures
- (ii)Blast fume management procedures
- (iii)Dust forecasting system
- (iv)Air quality monitoring
- (v)Adaptive management of operations.
- (d)Air quality and dust objectives/limits can be achieved through development and diligent application of the AEMP.
- (e)Ultimately the ability of the mine to operate within the limits set by the draft EA, will be reliant on the adaption and/or restriction of operations in response to either, or a combination of, continuously observed monitoring and/or forecasting of adverse weather conditions.
- (f)The Air Quality Management Plan (AQMP) as provided for in the EIS and the AEMP as required by the draft EA, are dynamic documents that should be reviewed regularly for their effectiveness in minimising the likelihood of environmental harm and nuisance.
- (g)Stage 3 can be conducted and managed so as not to cause adverse impacts on flora, fauna and agricultural activities.
- (h)Stage 3 can be conducted and managed so as not to cause air quality objectives for trace elements to be exceeded.
- (i)The AQMP and AEMP provide adequate procedures and monitoring for blasting to be undertaken safely.
- (j)Coal dust emissions from trains can be adequately and reliably managed through the use of measures proposed in the EIS.
- (k)Except with respect to conditions B5-B12 in the draft EA, and the narrow areas of disagreement re real time online reporting and monitoring PM2.5, the CG conditions and the draft EA conditions are adequate to ensure the mine will not adversely impact air quality.
Experts – areas of disagreement
- In terms of areas of disagreement between the experts, a number of matters need to be addressed.
- Dr Taylor has proposed two additional monitoring locations to the three proposed in the CG conditions and reproduced in the EA. These additional locations are near sensitive receptors 7 and 8 in the north and also near sensitive receptors 38 and 39 in the north-west. In Dr Taylor’s view, monitoring is the only method of obtaining reliable data of air quality and dust levels. Dr Taylor’s modelling indicated increased dust levels to these areas than what has been predicted in the EIS model.
- Dr Taylor also believes that the AEMP should include PM10 monitoring via trend monitoring at three additional locations to the north, north-west and east of the mine to improve understanding of air quality data.
- Despite Mr Welchman disagreeing with the need for the additional monitoring proposed by Dr Taylor, NAC has agreed to undertake this additional monitoring. This means that by agreement there will be compliance standard air quality and dust monitoring to the east, north, north-west and west of the mine, as well as a central location at Acland.
- Although no party or expert has requested air quality and dust monitoring to the south of the mine, I am concerned that people living in this area have no idea whether the air they are breathing is harmful or not. Looking at the south, there are no sensitive receptors there near the mine boundary with sensitive receptors 22, 28, 29 and 34 the closest, all approximately 5 kilometres from the mine.
- Despite no sensitive receptors being identified close to the mine, there are houses located within or near 1 kilometre to the south of the mine, with people presumably mine workers and their families, or families who rent properties from NAC or APC living in those houses. NAC have submitted that places within the boundary of the mining lease, or places owned or leased by APC, or places in which an agreement has been reached by the occupant and NAC to provide measures to mitigate against the impact of mining activities, should all be excluded from the definition of a sensitive place.
- However in my view particularly with regards to air quality, more so than dust, exposure to potentially high levels should not be contracted out of under any circumstances. There is emerging evidence that short term and long term exposure to particulate matter particularly PM2.5 particles, is dangerous to health and there is no evidence of a safe level of exposure to these particles. Every person whether they be a mine worker or their spouse or their children or their grandparents, or people who rent properties from NAC or APC should not be exposed to unsafe levels of particulate matter. I note Dr McCarron, Dr Plant and Mrs Mason have adopted this view in their submissions.
- Consequently I disagree with NAC’s amendment of the definition of sensitive place in the draft EA. I recommend that the definition remain as it is to include a dwelling …. or other residential premises. Mitigation measures may go some way to reducing a person’s exposure to particulate matter and dust but even short term exposure to high levels of PM.2.5 can be unsafe, particularly to vulnerable members of society such as children and the elderly. Hence NAC should not be able to contract out of its obligation to provide safe and clean air for all nearby residents. Consequently there would also be no need to update Figure X for sensitive receptors as proposed by NAC in its amendments to Figures in the draft EA.
- I also do not agree with the addition of clause A16 in the draft EA proposed by NAC in relation to Mitigation. Mitigation measures should be a matter of agreement between the parties and should not be forced on nearby residents.
- I agree with Dr Taylor when he states that monitoring is the only reliable method of obtaining data regarding air quality and dust levels. I recommend that an additional monitoring location be inserted in the draft EA within 1 kilometre to the south of the mine to ensure that all people living in this area are not subjected to unsafe air quality and dust levels. I recommend that exactly the same monitoring be undertaken to the south as that proposed in the draft EA for the other monitoring locations.
- I note Mr Loveday’s evidence that EHP would be open to considering further monitoring locations raised by the experts and identified by the Court in this process. Air quality and dust monitoring to the south has not been raised by the experts but that may be because no sensitive receptors close to the mine have been identified to the south. On a purely common sense basis nearby residents to the south should receive the same protection as all other nearby residents, and to ensure this occurs, monitoring to the south of the mine needs to take place.
Online real time monitoring
- Dr Taylor and Mr Welchman disagree on the appropriate air quality and dust reporting requirements. Dr Taylor believes that real time meteorological and ambient air quality monitoring data should be available online to demonstrate the openness and commitment of NAC to manage air quality, and provide neighbouring residents detail and perspective with regard to the impacts they may experience.
- Dr Taylor commented that it is becoming increasingly important for industrial and other operations that have potential to adversely impact a surrounding community to be open about the extent and management of their impacts.
- Dr Taylor provided several examples of industrial organisations (including Mt Isa Mines) who provide online data in real time without quality assurance issues.
- OCAA submits:
“Given the Applicant’s past reluctance to provide information and data to the community, its poor management in preventing dust impacts, and high risk of exceedances, the Applicant must be required to make any forecasting and real time monitoring available online to the community in – at least – close to real time. This is done by other similar industries in Australia, and there is no substantiated risk or cost to the Applicant that would warrant otherwise.”
- OCAA further submits: “Mr Welchman’s opposition to additional reporting can be summarised as follows.
- (a)It is onerous, and not something generally required in the Queensland mining industry, and may divert the mine from the normal activity of managing the activity.
- (b)The information is potentially ‘spurious’ that ‘might create a wrong impression’ or be misunderstood with a lack of context, until a proper quality assurance process is possible.
Nevertheless, Mr Welchman did agree:
- (a)the idea of online real-time air quality data is not new, and is increasingly becoming normal;
- (b)while he said that the example of Mt Isa Mine was a special circumstance given its history, he was not aware of any similar mine to Acland in Queensland with regard to proximity to sensitive receptors;
- (c)after being shown examples of online data, which he was aware of, the ‘sky hasn’t fallen in’ because of data being available online for Jondaryan and in Hunter Valley, and that he was not aware of resources being diverted as a result of the data.
- (d)the websites for Hunter Valley and Mt Isa monitoring include explanation of the reporting data available, the validation process, and quality assurance procedures;
- (e)that online data can assist in education as it will help people understand the effects of the mine and may have the benefit of reduced contact by the relatively small number of landholders to the Applicant.”
- Mr Welchman believes that provision of monitoring data online in real time is fraught with danger as this data is not quality assured and may be misrepresented, misunderstood and misused. The cause of elevated levels cannot be readily determined without further analysis and in his view the provision online of monthly environmental monitoring reports as provided for by CG condition 3 is sufficient.
- NAC submits that the Mt Isa Mines example is distinguishable as it relates to a specific threat of sulphur dioxide emissions from stacks. OCAA counter that although the specific threat is different here, a threat nevertheless exists, and protection and education of the public is the rationale behind online real time monitoring.
- Mr Welchman’s (and NAC’s) concerns about real time online monitoring data being misunderstood and misused by community members is unconvincing. Having sat through 98 days of hearing in this matter I have been impressed by the sincerity, acumen and demeanour of the Level 2 objectors who represented themselves at the trial. If they are an example of the Acland community, then I hold no concerns that community members would be unable to understand the significance of real time online monitoring data. NAC’s website would no doubt contain relevant interpretive information, including that online monthly reports will interpret and comment on the monitoring data. The regular monthly online environmental reports compiled by NAC will also assist residents to understand the real time data.
- Despite the failure of the existing complaints based EA to meet community concerns with respect to air quality near the mine (such as EHP only requiring monitoring of air quality after a complaint has been lodged when conditions may be different, and then to look at dispute resolution with the complainant), the current EA provisions requiring NAC to meet specific air quality and dust limits is sound. A logical extension to this limits based system is to have monitoring publically available in real time so when community members believe that they are being impacted by excessive dust or particulate matter levels, they can immediately check the nearest monitor online for recorded levels. Such a system ensures compliance as EHP (the regulator) has immediate access to the monitoring data and the monthly environmental reports (see clause A14 in the draft EA). The availability of the monitoring data may also assist nearby residents and NAC, as although residents may believe they are being unlawfully impacted, monitoring may show that limits are being met.
- Importantly, not just monitoring results, but, as Dr Taylor recommended, the dust forecasting system should also be made available online in real time, so that residents can ascertain what the current risks for them are and take appropriate action.
- There is in my view a great distrust (in both directions) between many members of the Acland community and NAC. In fact EHP received the highest number of submissions they have ever received with respect to a mining application (over 1,400). The great majority of community members who gave evidence for NAC have either received, or will receive, a benefit (directly or indirectly) from NAC, or are in line to receive a benefit from NAC if Stage 3 proceeds. It is understandable that community members living close to the mine and who are not receiving a benefit from NAC are concerned about the mine’s impact on them, whether that be air quality, dust, noise, water etc. By the provision of online real time air quality and dust monitoring and forecasting data NAC will become accountable and hopefully trusted by all community members.
- I endorse the view of Dr Taylor with respect to this matter:
“In my opinion making real-time and historic monitoring data available online is an important step in New Acland demonstrating their commitment to understand and manage the potential impacts to air quality resulting from the proposed Stage 3 operations. Provision of system operational detail and forecasts for future days will also assist those closest to the mining operations to manage their activities with respect to the mines activities: i.e. when to avoid, and when it may be most suitable, carrying out activities close to the mine.”
- Dr Taylor believes that there should be a PM2.5 monitor at Acland in conjunction with the monitoring of PM10, TSPs (total suspended particles) and dust levels. The main reasons why Dr Taylor believes PM2.5 should be monitored appear to be:
- (a)There is no evidence of a safe level of exposure or a threshold below which no adverse health effects could occur for both PM10 and PM2.5, although PM2.5 is a heightened risk factor and the court should be cautious in its approach to PM2.5.
- (b)There has been no monitoring of PM2.5 todate at the mine site sufficient to draw any clear conclusions as to PM2.5 levels emitted by this mine or its ratio with PM10.
- (c)The uncertainty with respect to predicted levels of PM2.5 in the EIS model.
- (d)PM2.5 monitoring will provide data that may assist NAC in developing their adaptive management strategies over time.
- (e)Monitoring at Balgowan shows a PM2.5 to PM10 ratio of greater than 50% on 6 occasions.
- (f)Assure sensitive receptors who may be exposed to PM2.5s, that safe PM2.5 levels as prescribed in the EPP (Air) are being met.
- Mr Welchman disagrees that specific PM2.5 monitoring is required. Mr Welchman’s reasons are as follows:
- (a)PM2.5 is a subset of PM10, hence when PM10 is measured a ratio is applied to predict PM2.5 levels. The EIS has predicted PM2.5 levels of less than 20% PM10 levels. Both experts agree that 20% is usually standard for a mine and there is nothing out of the ordinary with respect to this mine, except the proximity of sensitive receptors and this proximity does not change the ratio.
- (b)EPP (Air) and NEPM limits for PM2.5 are 50% of the PM10 limits. There is nothing to suggest that PM2.5 will be anywhere near as high as 50% PM10 for this mine, hence if PM10 limits are met so will PM2.5 limits be met.
- (c)In normal mining operations PM10 limits will be reached before PM2.5 limits.
- (d)Significant costs in the order of $50,000 plus installation and running costs.
- (e)PM2.5 monitoring is not normal practice for mining activities.
- The emerging evidence with respect to the detrimental health effects of PM2.5 is concerning. Nearby residents are understandably worried about it, particularly as the science improves and the ability of PM2.5 to pass through the lungs and into the bloodstream becomes better understood.
- PM2.5 is a subset of PM10 so the submission by NAC is that PM2.5 does not need to be measured despite its potential danger. NAC submit the exact ratio of PM2.5 to PM10 is uncertain but it is likely to be around 20% but certainly not more than 50%.
- I note that despite 15 years of operation NAC have never measured PM2.5 levels at the mine site.
- I also note that the anticipated levels of safe exposure to particulate matter is decreasing. For example the current EA has a 24 hour averaging limit for PM10 of 150ug/m3 while the draft EA has reduced that figure to 50ug/m3. Also PM2.5 limits listed as advisory standards in the 2003 NEPM have now been made actual standards. The current NEPM has also set a goal to reduce PM2.5 limits even further by 2025.
- In light of the uncertainty with respect to the actual ratio of PM2.5 to PM10 existing at the mine and at nearby residences; the potential serious health consequences of exposure to PM2.5; the changing level of knowledge and concern with respect to safe levels of exposure to particulate matter particularly PM2.5; and the insignificant costs of monitoring PM2.5 when compared to the overall costs of the revised Stage 3 expansion project; I believe that NAC should provide a PM2.5 monitor at Acland as suggested by Dr Taylor. I make this recommendation also noting that NAC have made submissions that they are a good corporate citizen who cares about the welfare of their community. The fact that PM2.5 monitoring is not normally undertaken in mining activities carries little weight in this decision, as unlike most mines, this mine is surrounded by many nearby residents, and science based concerns regarding PM2.5 are continuing to evolve. Just because something was acceptable in the past does not mean that the present should not adopt current best practice to reduce risk.
- I also note that in terms of monitoring PM2.5, Dr Jeremijenko believes PM2.5 should be monitored. Dr McKenzie believes PM2.5 levels can be estimated as they are a proportion of PM10 (and there are costs implications) but in an ideal world PM2.5 should be measured.
- As PM2.5 is to be monitored, then it would make sense that the EPP(Air) and NEPM PM2.5 standards are included in the draft EA, and NAC be required to comply with these PM2.5 limits. Hence I recommend that condition d) be added to clause B1 of the draft EA to provide for the addition of PM2.5 limits as follows – 25ug/m3 (24 hour average) and 8ug/m3 (annual average).
- The issue then becomes one of whether the setting of the PM2.5 limits and its monitoring at Acland are conditions inconsistent with the CG’s conditions. I have discussed elsewhere in this decision the law relating to what constitutes an inconsistent condition. In line with my reasoning on that point, my view is that monitoring PM2.5 and imposing a requirement on NAC to meet the current PM2.5 air quality limits in the EPP (Air) and NEPM is in harmony with the current EA conditions and not inconsistent with them. These conditions just add to the air quality and dust regime prescribed by the CG for the safety and amenity of residents living near the mine – they are not inconsistent with it.
Annual PM10 standard
- Notwithstanding the experts agree that the EPP (Air) standards are appropriate and adequate, OCAA (and other objectors) submit that the annual PM10 standard of 25ug/m3 as provided for in the 2016 NEPM should be incorporated into the draft EA to protect the health of sensitive receptors.
- OCAA submits that the standards in both the EPP (Air) and the Commonwealth NEPM are able to be considered by the court as part of the statutory criteria under s 191(g) EPA.
- OCAA submits this annual PM10 standard is not part of the draft EA because the NEPM was updated after the draft EA was completed by EHP in August 2015.
- While s 7 of the National Environment Protection Council (Queensland) Act 1994 requires Queensland to implement the NEMP, it has not yet done so via the EPP (Air). Mr Loveday indicated that any changes to the EPP (Air) would not occur until 2018.
- OCAA also submitted that despite the EPP (Air) being amended in 2008 to reduce the PM10 24 hour average standard from 150 to 50ug/m3, EHP has never amended NAC’s existing EA to reflect this change. Hence if the annual PM10 limit is not inserted in the draft EA now, who knows when residents will receive the safeguard to their health the annual PM10 limit offers.
- EHP has submitted that both the EPP (Air) and NEPM can be considered but where there is any inconsistency between the two, the EPP (Air) should prevail as the NEPM has not been implemented in Queensland.
- NAC can see no reason to include the annual PM10 limit in the draft EA. NAC submit the air quality experts are satisfied with the existing limits. Also EHP will implement the new NEPM standard via the EPP (Air) in due course and it will then have power to amend NAC’s EA to add this annual PM10 limit at that time.
- NAC further submit that to add this annual PM limit to the draft EA would be inconsistent with the CG’s stated conditions.
- It is noted that the annual PM10 standard is not part of the EPP (Air) but it has been included in the latest version of the NEPM (25 February 2016) and as such it reflects the latest scientific understanding of protection from exposure to particulate matter.
- I am concerned that NAC’s current EA has not been updated by EHP with respect to the PM10 24 hour average as prescribed in the EPP (Air) in 2008. I am concerned that EHP has allowed NAC to operate under PM10 24 hour average limit of 150ug/m3, despite the limit in the EPP (Air) being 50ug/m3 since 2008 and in the NEPM since 2003. This inaction by EHP is quite concerning and leads me to have no confidence that EHP will act to amend NAC’s EA after they adopt the NEPM PM10 annual standard into the EPP (Air).
- Although the latest version of the EPP (Air) (8 July 2016) has not included the annual PM10 standard, I can see no valid reason why the nearby residents to the New Acland coal mine should not have the benefit of the latest scientific understanding with respect to safe exposure levels to particulate matter, being the requirement not to exceed the annual average PM10 standard contained in the NEPM of 25ug/m3. Hence with respect to the draft EA I recommend that this annual average PM10 standard of 25ug/m3 be included as a compliance condition in clause B1b) and a standard to monitor for in each of the monitoring locations described in Table B1.
- NAC have submitted that the insertion of this condition is inconsistent with the existing conditions in the draft EA. I see the addition of this condition as just another part of the comprehensive compliance and monitoring regime conditioned by the CG to ensure the safety of nearby residents to the mine by regulating limits for air quality and dust, and as such it is in harmony with and not inconsistent with the regime proposed by the CG. Daily TSP standard
- OCAA (and other objectors) submit that the 24 hour average TSP limit of 80ug/m3 should be conditioned in the draft EA. This limit is included in Table B1 as a limit to monitor but it has not been conditioned as a compliance limit in section B1 of the draft EA.
- OCAA submits:
“OCAA notes that Mr Welchman was under the impression that Table B1 monitoring requirements would be enforceable limits, which he repeated numerous times during his evidence. This was particularly in relation to the TSP daily limit of 80ug/m3. For example, he listed it as a limit in his table comparing the draft EA with the NEPM Air, and reiterated his understanding of it as a limit in his evidence in chief:
So you’ll see there is an annual average total suspended particulate limit of 90 micrograms. So in addition to what is there for as an annual average, the draft EA also includes a 24-hour average limit for TSP of 80 micrograms per cubic metre.
However, Mr Welchman did not then agree that the TSP daily limit of 80 should be conditioned as a limit. He gave reasons such as it not being in the EPP Air, that it was secondary to health in importance and that not all exceedances would be a nuisance. This is despite agreement with Dr Taylor, reaffirmed in his evidence in chief, that the appropriate air quality objectives were used in the EIS, including the TSP daily limit of 80. He also noted that at the JRLF, the TSP daily limit became “probably the most critical pollutant”.
When pressed under cross-examination, Mr Welchman ultimately did not come up with a good reason why it should not be an enforceable limit. The Applicant fails to mention in its written submissions this final evidence on the issue from Mr Welchman. The fact that Mr Welchman agreed to it being an appropriate nuisance standard is sufficient for the Court to consider it, particularly as the EPP Air is just one of the criterion the Court is to consider.
Given this evidence, the TSP 24 hour average nuisance of 80ug/m3 should be applied to any conditions of approval, particularly given the lived experiences of dust nuisance from surrounding landholders such as Mrs Harrison and Mrs Mason, and the findings of the experts regarding this limit at Jondaryan (see section 7.2.4).”
- NAC dispute that the TSP 24 hour standard should be conditioned in the draft EA. NAC rely upon Mr Welchman’s evidence that he does not consider it to be a critical condition and from time to time an exceedance of this limit may not actually cause a nuisance.
- Although the 24 hour average TSP standard of 80ug/m3 is not included in the EPP (Air) or the NEPM as a standard, it is recognised as a legitimate standard by both Mr Welchman and Dr Taylor. I also note it appears in the draft EA as a standard to be monitored in Table B1.
- Given its presence in the draft EA to be monitored it would make sense to have this standard conditioned as a limit not to be exceeded. I can see no logical reason not to have it as a conditioned limit in the draft EA and in that regard I agree with Mr Welchman. Therefore I recommend that the 24 hour average standard for TSP of 80ug/m3 be inserted as a conditioned limit as part of clause B1c) of the draft EA.
- In terms of any potential inconsistency with the CG conditions, I see the addition of this condition as just another part of the comprehensive compliance and monitoring regime conditioned by the CG to ensure the safety of nearby residents to the mine by regulating limits for air quality and dust, and as such it is in harmony with and not inconsistent with the regime proposed by the CG. The 5 day exceedances condition
- OCAA (and other objectors) submit that the 5 exceedances allowed per year for PM10 (24 hour average) limit of 50ug/m3 as prescribed in condition B1b) of the draft EA, should be removed.
- OCAA submits that the NEPM had a 5 day exceedance condition for the 24 hour average PM10 standard for exceedances including natural events. The current 2016 NEPM replaces the 5 day exceedance rule with an exceptional event rule.
- The EPP (Air) has a 5 day exceedances rule for the 24 hour average PM10 standard and this has been repeated in the draft EA. OCAA submits that Mr Welchman provided evidence that the 5 day exceedances rule has been used to avoid compliance with PM10 limits (regardless of whether or not there are intervening unusual events such as bushfires).
- The MMCG state at page 8:
“The five exceedances for the PM 10 standard outlined in B4(b) were introduced to account for the impact of bushfires, dust storms and fuel reduction burning for fire management purposes. The five exceedances are in essence arbitrary in that the number was chosen as it is difficult to determine exactly the number of times these events may happen in any one year. More than five exceedances as a result of one or more of these events would not be considered to be a breach of condition.”
- OCAA submit to avoid any confusion the draft EA should be further conditioned to provide an exceptional event rule similar to that found in the current NEPM.
- NAC submit that as the EPP (Air) is silent on the requirement that the 5 days of exceedances are limited to unusual events such as bushfires, there is no basis for now inserting such a condition in the draft EA, and to do so would be inserting a condition inconsistent with the CG’s conditions.
- NAC submit that the NEPM conditions are not relevant to the interpretation of the EPP (Air) conditions and in any event the NEPM conditions will be adopted in the EPP (Air) by EHP in due course.
- In my view, it would make sense to condition the draft EA as per an exceptional event rule as outlined in the current NEPM, so that NAC would have to always meet the 24 hour average PM 10 limit of 50ug/m3 unless there was an exceptional event such as a bushfire, with the onus being placed upon NAC to prove that the exceptional event influenced the PM10 readings.
- This is so especially because the MMCG quite clearly spells out that the 5 exceedances allowed for breaching the PM10 24 hour standard is there to account for exceptional events such as bushfires etc.
- However the EPP (Air) is silent on why the 5 exceedances have been allowed and the draft EA just says that 5 exceedances are allowed with no other reference to why this is the case.
- I am not bound by the EPP (Air) and can utilise the NEPM to prescribe conditions in the draft EA but I must be especially careful those conditions are not inconsistent with the CG conditions.
- Section 203(1)(a) EPA prescribes that the administering authority may impose a condition on an EA where that condition is necessary or desirable.
- In this matter it is both necessary and desirable that the 5 exceedances condition in the draft EA be made clear and explained so that everybody knows what it means. That is the 5 days of exceedances mentioned in the draft EA are limited to those exceptional events as described in the MMCG and they are not available generally as 5 free days for NAC to emit unsafe levels of PM10 for exposure to nearby residents.
- In terms of any potential inconsistency with the CG conditions, I see the addition of this condition as just part of the comprehensive compliance and monitoring regime for air quality and dust proposed by the CG and as such it is in harmony with and not inconsistent with the regime proposed by the CG. This extra condition merely explains the 5 day exceedances condition already contained in the draft EA; it does not take it away. It may take away NAC’s interpretation of this condition but that is not the same thing. The reasonable and feasible condition
- OCAA and other objectors submit that the reasonable and feasible condition in B1 of the draft EA should be removed. The draft EA at condition B1 provides in part:
“The environmental authority (holder) shall ensure that all reasonable and feasible avoidance and mitigation measures are employed so that dust and particulate matter emissions generated by the mining activities do not cause exceedances of the following levels when measured at any sensitive receptor or commercial place:”
- Based on the existing modelling, to meet the draft EA air quality and dust limits NAC will have to engage its adaptive management strategy. Dr Taylor’s reworking of the model led to his evidence that NAC may have to shut down virtually all mining activities for 50% of the year to comply with the set limits.
- OCAA’s concern is that NAC may be able to avoid its obligation to meet the particulate matter and dust limits set in the draft EA by saying at any particular time it was not reasonable or economically feasible to shut down mining activities so as to meet the set limits. If that were the case human health at sensitive receptors living near the mine would be put at risk.
- OCAA submits it would be untenable for Stage 3 to be approved if ultimately NAC could cause exceedances, unchecked, because the only solutions available to it were not financially reasonable, feasible and or practical to the overall project or NAC. In these circumstances OCAA submits the court should recommend refusal of Stage 3.
- NAC submit that there is no evidence that the adaptive management system would not be feasible or workable.
- NAC submit that Dr Taylor’s evidence should not be preferred over Mr Welchman’s evidence. Mr Welchman was critical of Dr Taylor’s modelling. Even using Dr Taylor’s model, Mr Welchman’s calculates only 1,641 hours a year would require adaptive management controls compared with Dr Taylors 7,119 hours. On Mr Welchman’s review of Dr Taylor’s model, adaptive management controls would be needed for some part of 178 days per year.
- NAC submit that the adaptive management strategy will be enhanced by the monitoring data and invoking the strategy may not necessarily lead to shutting down mine activities.
- Finally NAC submits that using reasonable and feasible avoidance and mitigation measures (as described in the draft EA) is not a novel concept, rather it is consistent with environmental standards across Australia and is included in the MMCG.
- NAC rely upon the fact that there is no evidence their adaptive management strategy will not be workable and effective. I note the evidence of Mr Welchman and Dr Taylor that a diligent application of this strategy combined with the dust forecasting system will ensure air quality limits are met. If this is the case, then why does the requirement to meet air quality limits need to be subject to the words reasonable and feasible mitigation action?
- Mr Welchman was cross-examined on this point by Mr Holt. Mr Welchman maintained that the reasonable and feasible requirement should be kept in the draft EA because there are circumstances when mitigation action may not be reasonable or feasible. When pressed to explain his answer Mr Welchman referred to events causing exceedances of air quality limits which were not under the control of the mine, where the mine is doing all it can do.
- Mr Holt then suggested the mine would not be liable for exceedances it did not cause, so in those circumstances he asked Mr Welchman when would the reasonable and feasible condition be relevant so as to allow the mine to legitimately exceed its limits – Mr Welchman could not think of another situation when this condition would be applicable.
- Mr Loveday also could not think of a reason for inclusion of the rider reasonable and feasible except an unusual event such as a bushfire. Mr Loveday indicated that EHP would be prepared to consider taking these words out of the condition to make the draft EA clear and unambiguous.
- I do not find it necessary to determine which evidence I prefer from Mr Welchman or Dr Taylor regarding the predicted time that NAC will have to shut down at least part of its operations; it is sufficient to note it is likely to be quite substantial.
- I am concerned that the adaptive management system and the dust forecasting system have not yet been developed and tested. Yet the evidence from the experts is that with diligent development and application of these systems NAC will be able meet their air quality and dust limits prescribed in the draft EA. The consequences of NAC not meeting their air quality and dust limits are that nearby residents are exposed to potentially unsafe levels of particulate matter.
- There has been no satisfactory explanation provided as to why NAC’s obligation to meet air quality and dust levels should be subject to their taking reasonable and feasible mitigation action. In effect this condition does seem to provide a way out for NAC to avoid complying with set limits – i.e. it is just not feasible to shut this part of the plant down at this time as production is needed to meet NAC’s contractual obligations (such as deadlines).
- There is also no need to have the reasonable and feasible condition in the EA if elevated air quality and dust levels are found and this is due to factors beyond NAC’s control. If there has been some unusual event such as a bushfire, NAC would be able to easily satisfy EHP it has not caused any exceedances and hence it would not be in breach of its EA.
- I note the words reasonable and feasible are part of the MMCG, however having carefully considered all the evidence on this point, I do not see how these words add anything worthwhile to the condition and I believe that these words should be removed from the draft EA. I recommend that condition B1 now read:
“The environmental authority holder shall ensure that dust and particulate matter emissions generated by the mining activities do not cause exceedances of the following levels when measured at any sensitive receptor or commercial place.”
- The other issue with this change is whether it is inconsistent with the CG conditions. With respect to this condition it could be argued that even on a very narrow definition of inconsistent, the removal of these words constitute a changing of the condition so that it is inconsistent with the original condition. This change though is simply removing unnecessary words from clause B1 and provides certainty and clarity for all parties, and on that basis, on balance, I am of the view that it is not inconsistent.
Commencement of the draft EA and removal of conditions B5 – B12
- The draft EA says at B1:
“At the commencement of Stage 3 New Acland mine project mining activities, the holder of the environmental authority must comply with conditions B1-B4 below.”
- NAC wishes to change this condition which is not a CG condition, to the following:
“At the Commencement of Stage 3 Mining Activities the holder of the environmental authority must comply with conditions B1-B4 below and conditions B5-B12 cease to apply.”
- In the definition section of the draft EA, NAC has proposed defining Commencement of Stage 3 Mining Activities as follows:
“The commencement of removal of overburden from ML50232 for the Manning Vale East Pit, the Manning Vale West Pit or the Willeroo Pit as shown on Figure 1 – Revised Project Overview – Mine Area.”
- NAC submits that conditions B5-B12 are intended to apply only to such time as they are replaced by conditions B1-B4 at the commencement of mining activities for Stage 3. Conditions B5 – B12 of the draft EA reflect conditions B1 and B3-B9 of the existing EA. Conditions B1-B4 and B5-B12 in the draft EA cannot operate simultaneously as they are unworkable and B1 is inconsistent with B6.
- OCAA is agreeable to deleting conditions B5-B7, with conditions B1-B4 to commence when the EA is issued. OCAA does not agree with the deletion of conditions B8-B12 but notes they may be inconsistent with the CG conditions.
- Mr Loveday gave evidence from EHP’s perspective that his intention with respect to clauses B1-B4 and B5-B12, was that clauses B1-B4 would apply from the commencement of Stage 3 activities and conditions B5-B12 were inserted to cover NAC’s activities from when the draft EA was approved until the Stage 3 project commenced. Once Stage 3 commenced then clauses B1-B4 would cover the entire site/project going forward and B5-B12 would have no effect. Mr Loveday said he could not see any reason not to incorporate the definition in F2 regarding the commencement of Stage 3 for noise limits in the air quality and dust conditions. In F2 the draft EA noise limits start from the commencement of mining activities (removal of overburden) from the Manning Vale East Pit, the Manning Vale West Pit or the Willeroo Pit.
- Pursuant to s 200(1) of the EPA an environmental authority will take effect from when it is issued or when EHP states a day or event when it will take effect from. Section 200(2)(a) of the EPA provides that despite s 200(1), an EA cannot take effect before the relevant resource tenure it is authority for, is granted.
- It appears EHP issued the draft EA on the basis it would take effect from when the associated MLs were granted and hence conditions B5-B12 would come into effect. However once NAC commenced its Stage 3 mining activities, then conditions B1-B4 would come into play and conditions B5-B12 would no longer be applicable. This is certainly the view of NAC who has sought to define the commencement of Stage 3 mining activities as when overburden is moved from any of its three mining pits in Stage 3.
- The definition as to when Stage 3 mining activities commence as proposed by NAC is largely consistent with the definition in clause F2 of the draft EA with respect to when the more stringent noise limits are applicable. However NAC has added the words from ML50232 to the definition in F2. Presumably this was done because NAC has already commenced removing overburden from the Manning Vale East Pit (referred in the evidence as the West Pit).
- However in my view NAC has already undertaken Stage 3 mining activities in the broad sense as understood by the bulk of witnesses (lay and expert) and other evidence by mining that part of the Manning Vale East Pit located within the existing ML50216.
- Therefore as NAC has already commenced its Stage 3 mining activities there is no need for either the NAC amendment of the first paragraph in clause B1 to delay applicability of the new air quality and dust limits until Stage 3 commences, or NAC’s proposed definition of what constitutes the commencement of its Stage 3 operations in the definition section of the draft EA. The same comments apply with respect to F2.
- Further as the draft EA will be effective as soon as EHP issues it and DNRM grants the relevant MLs, there is no need for the entire first paragraph in B1. I would also recommend that conditions B5-B12 be deleted from the draft EA. There is no need for these conditions (reflective of the existing EA) to be part of the draft EA for as soon as it is issued and DNRM grant the MLs, the EA will be fully operative and conditions B1-B4 will be effective to govern all of NAC’s existing and new operations after that time.
- The first paragraph of clause B1 and conditions B5-B12 in the draft EA are not CG imposed conditions and can be deleted. Mirrored changes should occur with respect to part F of the draft EA relating to noise.
Dust forecasting system and modelling
- OCAA (and other objectors) submit that a critical pre-condition to the commencement of Stage 3 operations is to conduct revised modelling to address deficiencies in the EIS modelling and to develop, test and validate the forecasting system.
- OCAA submits that the experts agree that the existing modelling could be refined to reduce uncertainties and to enhance NAC’s understanding of operations and conditions.
- Further they submit that the forecasting system is undeveloped and untested, and NAC due its poor past performance should just not be trusted with such an important system, without some oversight from EHP. To that end OCAA have submitted that clause B3 in the draft EA be amended to include the following:
- (a)the draft AEMP be submitted to EHP for approval, with no commencement of Stage 3 activities until the AEMP has been approved and implemented;
- (b)the draft AEMP must include:
- (i)results of testing and validation of the forecasting system; and
- (ii)an independent review by an appropriately qualified and experienced person of the likely effectiveness of the forecasting system; and
- (c)replace “aimed to avoid elevated levels of dust” in B3(d) with “to avoid or minimise dust”.
- NAC submit that amending condition B3 is unnecessary as both experts did not raise these concerns. The proposed clauses were not part of Dr Taylor’s amended draft EA proposal.
- The EIS model is certainly not perfect, with experts and objectors all raising concerns about it. However both experts have provided evidence that it can be relied upon and with diligent application of adaptive management strategies and the forecasting system, air quality and dust objectives can be met. In these circumstances I feel compelled to recommend that the modelling not be revised as part of the draft EA conditions. There is also concern that such a clause may be inconsistent with the CG conditions.
- With respect to the dust forecasting system, I note that this system is a recommended condition of the CG via Schedule 4 which states that NAC is required to undertake the Stage 3 project in line with commitments NAC has made at Appendix D. Commitment 257/258 is to implement a dust forecasting system to provide daily predictions of upcoming meteorological conditions and potential risk of air quality impacts from mining operations from the revised project.
- Also at clause B3c) as part of the AEMP, NAC is to develop a system to identify adverse meteorological conditions likely to produce elevated dust levels including PM10.
- Although this forecasting system has not as yet been created and therefore is totally untested and unproven, the bottom line is that such a system must be developed by NAC and further NAC must ensure they meet air quality and dust limits conditioned in clause B1 of the draft EA. If NAC choose not to develop the forecasting system and/or it does not work, then they could well be in breach of their EA and enforcement action taken against them by EHP. I also note that the AEMP is to be developed and implemented by a suitably qualified and experienced person. In these circumstances I do not believe there is sufficient gravitas to warrant further conditioning of the forecasting system or require the AEMP to be approved by EHP before commencement of Stage 3 activities.
- I do though recommend that the dust forecasting system as defined in commitment 257/258 of NAC’s register of commitments for Stage 3 be specifically conditioned in the EA as part of Condition B3. This dust forecasting system is an important tool for both NAC and nearby residents and given NAC have agreed to it as part of their commitments to Stage 3, there would appear no reason why it should not be conditioned in the EA.
- The object of the overall forecasting system is to reduce or minimise dust at nearby residents and hence I recommend that the wording of B3d) be altered as per the request of OCAA.
B3d) should read;
“A dust control strategy which activates a timely implementation of dust control management actions aimed to avoid or minimise dust including PM10 at a sensitive receptor or commercial place due to mining activities.”
- I do not believe for reasons already stated that the amendment of condition B3 is inconsistent with a CG condition as it seeks to clarify the existing condition not change it. Other recommended amendments to the draft EA
- NAC has proposed to add the words and experienced after the words, suitably qualified … in B3 when describing the person who will develop and implement the AEMP. NAC has also added in the draft EA, the definition of a suitably qualified and experienced person in relation to air emissions as a person who is a Registered Professional Engineer of Queensland (RPEQ) under the provisions of the Professional Engineers Act 2002 and has demonstrated competency and relevant experience in relation to air emissions.
- I see no issues with these two proposed additions to the draft EA and would recommend them. I do not believe the addition of these words is inconsistent with the CG condition but are an integral part of them.
- NAC has proposed to add the word holder in the first line of the second clause in B1 after the words The environment… Again this proposed amendment is necessary to make sense of this clause.
- Mr Loveday in cross-examination by Mr Holt and Dr Plant said that an environmental authority holder such as NAC should bear the onus of proving to EHP that they are complying with the EA conditions, otherwise compliance action may be taken.
- EHP in its submissions at Annexure A 1.5 confirm that they would be prepared to reword the draft EA to make it clear that NAC would bear the onus of proof (not sensitive receptors) in terms of showing they have been compliant with set limits in the draft EA.
- There does not appear to be any submissions made to the contrary to this position.
- In any event I strongly endorse this position. NAC is the one who is, and will potentially, creating environmental harm for its own profit in this relatively closely settled farming community, with many residents residing there long before NAC arrived. If NAC is provided with an environmental authority to mine, then the onus of proof should be on it to show EHP that they have not caused environmental harm and have not exceeded air quality and dust standards prescribed in the EA. I recommend the EA be altered to make this position clear and unambiguous.
- I would not anticipate such a clause would be inconsistent with the existing CG conditions.
- Mr Loveday’s attention (in cross-examination by Dr McCarron) was drawn to the fact that the EPP (Air) 24 hour PM10 limit has been 50ug/m3 since 2008 and yet NAC’s EA has not changed in those 8 years to reflect this, as the current EA still has a 24 hour PM10 limit of 150ug/m3. Mr Loveday was concerned that NAC’s current EA had not changed but could not offer any valid reason why it had not changed to reflect the EPP (Air) standards.
- In response to the question whether the draft EA should contain a clause that it will automatically update to reflect any change in EPPs, Mr Loveday agreed such a change was worth consideration by EHP.
- No submissions were made contrary to this position.
- Given that sensitive receptors and nearby residents to the mine have likely been exposed to higher PM10 limits than prescribed under the EPP (Air) and NEPM for the last 8 years because EHP has not bothered to change NAC’s current EA, it is imperative that EHP implement a condition in the draft EA (perhaps by consent with NAC) that limits set in the EA will automatically change to reflect changes in the EPPs, if not the NEPM.
- I would anticipate such a clause would not be inconsistent with the existing CG conditions.
- Mrs Mason (and other objectors) requested the Court recommend that the existing EA PM10 24 hour standard be altered from 150ug/m3 to 50ug/m3 as reflected in the EPP (Air) and NEPM. This is not a recommendation the Court can make when dealing with an application for approval of new MLs and a new EA. However as a matter of common sense I am sure EHP will consider this issue in light of their consideration of the draft EA and when or if that draft EA might issue and be effective.
Key Issue – Noise
- Extensive evidence was provided to the Court by lay and expert witnesses with respect to the issue of noise. Two experts assisted the Court with their opinions. Mr Shane Elkin was called by NAC, while Mr John Savery was called by OCAA.
- It is fair to say that the expert evidence with respect to this key issue is complex with a lot of detail. There are complicated concepts behind the technical information.
- In order to remove some of the complexity, Mr Elkin provided the Court with a 3 page document titled Acoustic Fundamentals, which became exhibit 940. Exhibit 940 is as follows:
- Mr Elkin then went on to give an explanation for the 3 diagrams set out above from exhibit 940. He called his explanation Acoustics 101. He explained Acoustics 101 during examination in chief by Mr Job in the following way:
“MR JOB: Yes. Now, we see there’s three pages to this document, but, Mr Elkin, can you walk us through it?---Sure. I guess the purpose of acoustics 101, your Honour, and the court, is to try and explain as simply as I can the fact that the particular number that you see can have quite varying effects in terms of its implications. So the number is – and you’ll see on the next slide when I get there – is just part of the descriptor that needs to be taken into account when you’re evaluating acoustics. The reason why, as you can see up on that example, is that noise fluctuates from a fairly steady state, something like an air conditioner, through to highly variable noise sources. And when you’re measuring over, in this case, the timing level of 150 seconds, or minutes, or whatever it wants to be, you can see that that instantaneous sound pressure level depicted by the – the moving black line moves all over the place. Now, we’re going to refer a lot to maximum noise levels throughout my evidence. You can see in that example that it sits up at around 120.
This is by way of just an example, that’s all, rather than paying any particular attention to the absolute levels on the Y-axis there. So when we talk about maximum noise levels we’re talking about the maximum level that is measured out of that full fluctuating noise over whatever sample period it is we’re looking at. You’ll see on there, also, another important parameter in relation to talking about this case, and that is the Leq, or the equivalent continuous noise level. I will continue to refer to it as the Leq. Laypeople sometimes describe it as the average noise level. And so what that’s able to do in acoustic energy terms, which is logarithmically based, is to, essentially, say if you took all that fluctuating noise, and you would bring it back to a constant noise, that’s what the level would be. So the Leq can vary quite dramatically from the Lmax and, indeed, other parameters.
And, on example, we see that at slightly below 70 dB?---That’s correct.
All right?---The 10, 50 and 90 that you see there, just by way of general explanation, are statistical levels, and what it’s saying is that that L10 green line means that 10 per cent of the measurement interval was above that level. You – if you were to take the total area of those four peaks, one being multi-jagged – that would be 10 per cent of the time. Similarly, the 50; there’s the same amount of time above the line as there is below the line. And one of the other parameters, the L90, or what’s quite often described as the background noise level, is that level exceeded for 90 per cent of the time. The underlying hum of the community might be a layperson’s description for that particular parameter, and you’ll see there that only 10 per cent of the time are you below that blue line.
All right. Does that deal with that page?---It does.
Could we have the second page, Deputy Registrar. Is it the second or – you’re after the text, were you, Mr - - -?---I was after the third one, yes.
Mine was out of order. I’m sorry?---So now that you’ve been able to see that visual picture of what happens in terms of fluctuating noise, we go to an example, and I’ve chosen the draft EA night-time Leq as the example to talk about. You can see that we have the numerical value of 37 dB there. So that’s – decibels is what the dB stands for. The A weighting that you see there – dBA means that we’re talking the raw acoustic signal and we’re filtering that based on the subjective response of humans to a linear noise source. And so in nearly all environmental noise assessments that we do – not all – blasting’s different – low frequency noise issues are different – but, in terms of A, that’s what we normally use for adjudicating on how a human would respond to that noise level. The Leq you now have a feel for.
So it’s that average energy or that average noise level over the interval that you are measuring. The 15 minute is merely depicting the time period over which you would do that assessment or measurement, indeed. You also have a little ADJ that’s commonly put there, an abbreviation for adjusted. And so when environmental noise is heard at someone’s house, if it contains elements of tonality or impulsivity – they’re adverse characteristics in terms of the noise emission, and so we would penalise the value that comes up on your sound level meter. You’d go out there, you’d do the A, the Leq, the 15 minute bit. You might say 40 by way of example on
– on the meter, and via either measurement techniques or subjective techniques in
35 adjudicating on tonality or impulsivity you would then say, well, it’s not actually 40, even though that’s what the meter said. I’m going to call it 42, by way of example.
Thank you. Then if we go to the second page?---It’s probably – Mr Job, if I could just go back? There are probably a few - - -
Sorry?---That’s all right. It’s – probably a few other elements just to talk about while we’re on – on that bit. That is, when one states a noise level, a sound pressure level like that, there also needs to be an accompanying position to where that’s measured, and certainly in the case of – of this project that will be, roughly, about four metres 45 away from a noise affected facade. So we need to get close to the noise sensitive location, but we need to be far enough away from the facade of that to not count for any facade reflection that takes place.
All right?---There is also the use of a low frequency filter, which you’ll see talked about, and it’s proven time and time again that when you’re talking about mine noise at distance, at sensitive receptors, that that mine noise sits in about the 630 Hertz band or less, and so you’re going to see little descriptors like LF in some of the material, standing for low frequency. So the Centanex unit that’s out there at the present time, and indeed other forms of noise measurement equipment, are able to look at what the energy is like down in that – that lower part of the spectrum, which is what’s going to be attributable to mine noise. And I’d just make one last comment, too, just by way of explanation in terms of directionality. So some instruments that are out there are able to perform directional calculations in terms of the measured noise level. At the present time these – where the Centanex unit is set up in the Acland community it’s – it’s looking at acoustic energy in the north-east quadrant, which contains all of the existing stage 2 mining operations. And so what the machine is doing in that instance is ignoring the low frequency noise that’s occurring in the other 270 degrees and picking up only the 630 Hertz or less energy that’s coming from that quadrant. And so there is a difference, as you’ll see in a lot of the monitoring literature, between omnidirectional – if I’m using omnidirectional throughout the course of this evidence it’s 360 degree measurements. There’ll be a difference between the omnidirectional noise level, which is picking up that acoustic energy in 360 degrees, and that which is being focused into that north-east quadrant.
The second page?---Sure.
Thanks, Deputy Registrar?---And by way of talking about breaking the noise down – so in this case we’re taking narrow band noise levels, or a depiction thereof, in the green bars, and, as Mr Savery’s rightly pointed out, there’s the ability for us in the measurement world to be able to then look at noise in terms of one-third octave band and octave band information. And so what happens is you take a group of those narrow band green bars, if you like, and you’ll see in the solid brown or tan colour that a group of those come together to form what we call one-third octave bands, and then you’ll see that there are three of those solid tanned groupings that sit inside that – the dotted octave band, and, hence, one-third – three one-thirds equal a whole. So you can see how one can go through and look at examples. This one, again, is purely illustrative, but it’s probably quite appropriate for a lot of the analysis that we’re doing out on site, and that is that you might consider the initial lump being mine noise or sitting down in lower frequency bands, and then you might consider insects sitting up in higher one-third octave bands, and by utilising frequency analysis in your measurement techniques you’re able to make that distinction on – on what the noise level may be.”
- Mr Elkin and Mr Savery helpfully set out a summary of their areas of agreement and disagreement in their JER, which is exhibit 406. They summarised their areas of agreement this way:
SUMMARY OF AREAS OF AGREEMENT
- 456The areas of agreement between the experts are summarised below:
- 457Meteorological data used in the 2014 EIS noise assessment was appropriate;
- 458AS1055.2 outlines possible methods of noise assessment but does not specify noise limits;
- 459The assessment time for noise modelling and compliance monitoring is 15 minutes in accordance with the draft EA conditions;
- 460Noise limits based upon PNCG or MMCG are not practical nor feasible for the Stage 3 project, given the proposed mining activities, the prevailing meteorological conditions near Acland and the relatively close locations of the sensitive receptors to the mining operations;
- 461Achievement of any of the EPP(Noise) derived noise limits will be difficult for NAC to achieve at any of the near sensitive receptor locations, depending upon the meteorological conditions, and will require considerable attention to noise monitoring and continuous, ongoing adaptive noise management if it is to successfully achieve the objective of operating in compliance with the noise limits during all daily time periods;
- 462The number of real,time noise monitoring stations should be increased to a minimum of three, namely at Acland, western location and northern location;
- 463Real,time noise monitoring to be expanded to include spectral frequency analysis using one, third octaves;
- 464Real,time noise monitoring systems must be able to be effective in the day/evening and night periods, implying that extraneous noise, particularly insects can be quantified in all daily periods;
- 465Permanent and attended noise monitoring systems must be able to monitor LAmax (FAST response) instantaneous noise levels during each 15 minute assessment period at night for protection of sleep disturbance;
- 466The historical performance of NAC in responding to and investigating noise complaints prior to the TARP (and installation of the “real time” Sentinex monitor) was not satisfactory.
- 467NAC’s recent historical performance in monitoring noise levels and implementing noise mitigation (since the implementation of the TARP) has improved significantly for the Acland sensitive receptors. Both experts agree that still further improvements in noise monitoring can be made, particularly for all other sensitive receptors.
- 468Continuation of the monthly noise monitoring and reporting in the form currently conducted by D Moore is not supported.
- Likewise, the experts set out in part 13 of their JER a summary of their areas of disagreement. The summary of areas of disagreement is as follows:
13 SUMMARY OF AREAS OF DISAGREEMENT
- 469The areas of disagreement between the experts are summarised in the table below:
Background noise levels provided local context for assessing annoyance (health, wellbeing and amenity)
Background noise level is not required to assess health, well-being and amenity impacts
WHO Report and enHealth reports focussed upon the urban environment.
WHO Report and enHealth reports are applicable to all environments
Recommended noise limits of these reports should be reduced by 5dB for low noise very rural environments
Recommended noise limits are appropriate
Noise limits derived from PNCG and MMCG (both based on exceedance of background noise levels) provide the best protection of health, well-being and amenity
Noise limits should be acoustic quality objectives from EPP(Noise) Schedule 1
Outdoor noise limits based upon
EPP(Noise) should be based upon
background creep requirements, i.e. LAeq,
adj, 15min 35 dBA at night and LAeq, adj, 15min
40 dBA in the day/evening
Outdoor noise limits based upon
EPP(Noise) should be based upon
Schedule 1, i.e. LAeq, adj, 15min 37 dBA at
night and LAeq, adj, 15min 42 dBA in the
day/evening for a partially closed window
Outdoor noise limits of LAeq, adj, 15min 37
dBA at night and LAeq, adj, 15min 42 dBA in
The day/evening are not appropriate because they provide the least protection of health, well-being and amenity of all noise limits considered by the experts.
Outdoor noise limits of LAeq, adj, 15min 37
dBA at night and LAeq, adj, 15min 42 dBA in
the day/evening are appropriate
The minimum noise reduction recommended from the existing night noise limit of 40dBA is
5dBA to achieve a “clearly noticeable” noise reduction compared to the current Stage 2 noise emission levels, for the Acland, northern and north-western sensitive receptors.
A reduction of 3dB will provide a benefit to the sensitive receptors compared to the current noise emission limits.
Outdoor sleep disturbance limit of 47dBA
Outdoor sleep disturbance limit of 52dBA
Wandoan noise limits of LAeq, adj, 15min 35 dBA at night accord with EPP(Noise) background creep requirements and are appropriate for NAC if rating criterion are applied to Stage 3.
Wandoan noise limits should be increased to LAeq, adj, 15min 37 dBA at night to be appropriate for NAC Stage 3.
Noise of trains during loading on rail loop to be assessed using mine noise limits whilst trans are within the mining lease
Noise of trains during loading to be assessed using the draft EA noise limits of LAmax 56 dBA and LAeq 24 hours 50dBA anywhere on the spur line from Jondaryan provided rail noise is distinguishable from other mining noise
Low frequency noise assessed from all sources using outdoor LCeq, 15min 60dBC followed by indoor assessment, but only if LFN problem indicated.
Low frequency noise from locomotive assessed using indoor Leq, 15min 50dBL and balanced spectrum
Noise modelling does not indicate compliance with LAeq, adj, 15min 37dBA at night
Noise modelling indicates compliance with
LAeq, adj, 15min 37dBA at night
Compliance in the day/evening and night is only achieved with noise reduction of 2dB as a result of “utilisation”
Utilisation provided by NAC is appropriate
Noise modelling must demonstrate compliance can be achieved for both day/evening and night periods, since different operations are planned for the day/evening and night periods
EIS noise modelling is sufficient for “planning” purposes. Thorough noise monitoring system then most appropriate for ensure EA conditions are met..
Noise modelling has omitted important and potentially significant sources in noise modelling conducted for the night and day/evening scenarios, such out-of-pit overburden bunds, etc
Noise modelling cannot cover all scenarios and is appropriate. Focus upon monitoring not modelling.
Noise modelling sound power levels already incorporate “averaging” of use and further utilisation noise reduction is not appropriate
Noise modelling sound power levels are appropriate
Noise modelling assumes that all of the NAC noise mitigation commitments have been implemented but NAC has not provided a timetable of proposed noise mitigation in its commitments.
NAC noise mitigation commitments are sufficient
Noise modelling contains no noise character adjustments to account for possible tonality, impulsiveness or a safety factor for operational variations or uncertainty
NAC will focus upon engineering noise
controls targeting tonal/impulsive noise (a stated commitment), real –time monitoring and shut-down of plant or equipment if noise levels exceed EA conditions
Current real-time noise monitoring is ineffective during the night/day/evening period after 5am due to extraneous noise
Modifications to the existing monitoring system will be required to monitor noise during the day and evening periods however the current system has evolved because the vast majority (if not all) noise complaints happen at night.
Regular attended noise monitoring be continued and expanded based upon one-third octave noise analysis and suitable methods to quantify extraneous noise, particularly insects. Such monitoring to expand upon the three permanent real time monitoring location to include other potentially impacted sensitive receptors.
Given the expanded (to 3 locations) “real time” noise monitoring system, operator- attended monitoring can be reduced to (a) dealing with specific complaints not able to be assessed using the “real time” system, (b) for confirming the relationship between Leq and Lmax indices for this mine and/or for verification of “real time” monitoring system results.
Ultimate risk for Stage 3 rests with NAC for noise mitigation costs to comply but also rests with sensitive receptors who will suffer adverse health, well-being and amenity impacts while the noise mitigation requirements are being determined and in the necessary delays between determination and implementation of suitable and effective noise mitigation measures.
Ultimate “risk” for Stage 3 rests with NAC given the “live” nature of the proposed monitoring and the need to proactively release monthly noise monitoring reports
Unfortunately previous complaint and monitoring history for the Stage 2 project, as far as can be gleaned from relevant documents discovered, submitter statements and monitoring reports does not always appear to fully support the NAC commitments re sensitive receptors and noise emission levels, health, wellbeing and amenity for the new Stage 3 Project.
NAC are committed to turning sources off, etc and will do everything in their power to comply with noise limits and liaise/negotiate with sensitive receptors to minimise/prevent adverse health, wellbeing and amenity impacts from the Stage 3 project.
- Early in his evidence in chief, Mr Elkin summarised the differences between himself and Mr Savery this way:
“Broadly speaking, looking at the three elements of the assessment, the criteria, the modelling and the monitoring, John and I differ – Mr Savery and I differ on the criteria section, and there’s justifications provided by Mr Savery and myself in our reports. In terms of the modelling side there’s a general disagreement there, in that Mr Savery believes the modelling’s unsatisfactory for the purposes of determining if compliance with the draft EA conditions can be achieved. With the additional modelling that I’ve undertaken since the development of the EIS, I believe it is sufficient. In terms of the monitoring, I think there’s broad agreement between the two of us. There’s – there’s detail that’s got to come about, and everyone agrees that there’s still a monitoring and management regime by the Noise and Vibration Management Plan that needs to be agreed to and peer reviewed, which I agree with. And so, broadly speaking, I think we both agree there is a system, and there might be some question marks about the existing system, but there are technologies available to do the right thing for stage 3. I guess there’s one other difference, and that is that Mr Savery’s – had a very strong emphasis on past performance in a lot of his analysis and statements and, I guess, I’ve got a bias towards the stage 3 future operations. So that’s what the appeal’s about.”
- There has been a very large amount of evidence given, and exhibits tendered, relating to historical noise complaints by residents living in proximity to Stages 1 and 2 and the manner in which those complaints were dealt with, both by NAC and the statutory party.
- NAC’s overriding submission in this regard is that it has not been prosecuted for any breach of its current EA as regards noise and its past performance has therefore been satisfactory. The statutory party strongly resists any action by this Court to even look at its performance in handling complaints made to it, let alone the adequacy or otherwise of its responses to those complaints. The objectors on the other hand have provided the literal ‘truck load’ of evidence and material detailing what they say to be unacceptable levels of noise generated by NAC’s operation of Stages 1 and 2. Looking at all of the evidence before me in its entirety, in my view the objectors who have made noise complaints have not been well served in the past by either NAC or the statutory party. My independent, considered view on what I have before me is consistent with the evidence given by the objectors that they have actually been treated very poorly by both NAC and the statutory party.
- I could spend literally dozens and dozens and dozens of pages of this decision analysing the evidence given by various objectors and the NAC response thereto both in its submissions and in evidence that it called. At the end of the day, however, I do not believe it is necessary to go much beyond what is contained in the areas of agreement in the JER of Mr Elkin and Mr Savery. To avoid any doubt, the area of agreement that I am referring to is paragraph 466 of exhibit 406 which says as follows:
“The historical performance of NAC in responding to and investigating noise complaints prior to the TARP (an installation of the ‘real time’ Sentinex monitor) was not satisfactory.”
- Lest it be said by NAC that the area of agreement simply refers to NAC’s performance in responding to and investigating complaints rather than any evidence of failure to comply with EIS noise requirements, I specifically refer to the evidence of Mr Elkin when he was extolling the virtues of the proposed Stage 3 monitoring:
“Well, as a servant of the court, I think a robust competent monitoring regime is going to do two fundamental things. Number one: it’s going to provide the community with better protection than what they received in the past, and that’s going to come about not only by the technologies but also the greater spatial coverage that both Mr Savery and I agree with, and what it’s also going to do is to be – afford New Hope, the miner, the professional flexibility to be able to do what they need to do on a day-to-day, hour-to-hour, month-by-month basis and still stay within the EA conditions.”
- To remove any doubt as to the experts’ view as to the historical performance of NAC in implementing noise mitigation that was not satisfactory (prior to TARP), reference should also be made to the point of agreement between Mr Elkin and Mr Savery set out in paragraph 467 of exhibit 406 where they point out that NAC’s recent historical performance in monitoring noise levels and implementing noise mitigation since the implementation of the TARP has improved significantly for the Acland sensitive receptors, being those residents who reside in homes in proximity to the Stage 1 and Stage 2 operations. That statement is completely consistent with my understanding of their joint positon expressed in paragraph 466 of exhibit 406.
- It is also noteworthy that both experts also agree in paragraph 467 of exhibit 406 that still further improvements in noise monitoring can be made, particularly for all other sensitive receptors.
- There was also important evidence given by Mr Elkin during cross-examination by Mr Holt:
“All right. Well, I’m not going to take you through documents chapter and verse because you’ve indicated that you relied wholly on the voracity of the material that was provided to you, and I understand that, but - - -?---Thank you.
- - - for your comment let me put to you a series of propositions which ultimately may well come out of the evidence, or we expect will come out of the evidence, related to that statement that I’ve just read out to you. Firstly, that there were, in fact, 45 noise complaints made to DEHP between 1 January 2010 and 31 July 2015, rather than 10; second, that even taking compliance at its broadest, that is, complaint with an exceedance of 40 at the same time, there were four noncompliances over that period; that DEHP would – had evidence before them of at least 22 instances of actual non-compliance with 40 dB; that NAC, in fact, notified DERM – or DEHP – themselves of an additional 38 instances of non-compliance; that it follows that DEHP was aware of 60 noncompliances during that relevant period; and that, in addition to those made to DEHP, there were 22 noise complaints recorded on the NAC complaint register in that period of time, additionally to the complaints that were made to DEHP; and, finally, that the noise complaint register to NAC does not appear to be correct because, for example, Mrs Mason made many more complaints, on days provable by phone records, that are recorded in the NAC complaints register.
Now, I understand – and I’m not going to take you through all of the documents that demonstrate that, but as the noise expert here and someone who’s relied on past performance, if those things are made good – if those propositions are made good does it start to shake your confidence in NAC’s performance previously and, thus, in turn, on their capacity to comply with noise conditions in the future?---Yes to the first part and no to the second part.
For the reasons you’ve given?---Correct.”
- Having considered all of the evidence, and despite the objections of NAC and the Statutory Party, I broadly and generally accept the evidence of the objectors as regards their experiences with respect to noise from Stages 1 and 2 without taking the time to specifically consider each and every circumstance. In short, I accept the preconditions that cause Mr Elkin’s confidence in NAC’s past performance in relation to noise to be shaken.
- At this juncture, it is appropriate to give my views as to the credit of Mr Elkin and Mr Savery as expert witnesses.
- Turning first to Mr Elkin, I found him to be a highly credible expert witness. He clearly understood his obligations to the Court. He was honest, frank and truthful throughout his evidence in providing his considered opinion as to the appropriateness of various aspects of evidence relating to noise and vibration. He was prepared to concede points when a contra positon was put to him, even when that position would clearly not assist NAC.
- The difficulty in this matter is that I have almost identical findings regarding Mr Savery as an expert witness. He too was frank, honest, truthful and forthright in giving his expert opinion to the Court, and was prepared to change, adopt, or modify his opinion, even when such changes would not favour the objectors.
- Thankfully, my task in dealing with this key issue is made easier in light of the amount of agreement reached between Mr Elkin and Mr Savery, not only in their JER, but also in their evidence and, in particular, in their concurrent evidence on site on 1 September 2016.
- The evidence given by Mr Elkin and Mr Savery during the afternoon and evening of 1 September 2016 provides a very good insight, not only to the level of agreement they reached even when using different acoustic tools, but also in reducing the complex evidence in this matter down to quite clear concepts.
- The concurrent evidence taken on 1 September 2016 was extremely beneficial to my final determinations with respect to this key issue. It is appropriate to quote from the concurrent evidence of Mr Elkin and Mr Savery from that afternoon and evening in some detail. I have excluded, in the interests of space the evidence given by Mr Sheppard as regards the machinery that was operating at each place where concurrent evidence was taken, but I have of course fully taken all such evidence into account.
- During the course of their concurrent evidence on 1 September 2016 Mr Elkin and Mr Savery had this to say:
“UNIDENTIFIED SPEAKER: Yes. For the purpose of a transcript. We are at Mr Beutel’s home. And we will now here jointly from the two experts. If you can please come closer to the microphone. If you could please advise your – the findings that you’ve had from your instrumentation at this point.
HIS HONOUR: Yes. If you can please indicate your findings. And if you’d kindly identify yourselves before you speak and indicate areas of any agreement and disagreement. Whoever wants to go first.
MR SAVERY: Sure. We’ve - - -
HIS HONOUR: Identify yourself for the transcript.
MR SAVERY: John Savery. We’re using two different instruments. The instrument that Mr Elkin is using has a filter for the overall levels, which means that he can measure the LEQ, which is the average of everything that’s there for all sources as well as the average for the low frequency, which is what we’ve talked about in regard to the TARP system. The system that I’ve got doesn’t give a direct result for the low frequency LEQ, but it does show the variation of the – what we call a time history so that we both agree that the level that Mr Elkin’s instrument has measured as the low frequency LEQ is about 42, and if you look at the meter that I have you’ll see that the line that’s varying as the noise from the mine is round about 42. So there’s agreement in terms of the level of noise that comes from the mine. We’ve had the parrots or whatever they are up here chirping, and when you look at the plot that I’ve got you’ll see there was two. One which is of everything and one which is of the mine. And the one which is of everything is parrots and anything else that you might imagine as part of this environment that’s not in that low frequency component.
MR ELKIN: Yes. It’s Shane Elkin. I would agree with those statements. 42 in environmental acoustic terms – we wouldn’t go to decimal places in a situation like this, and 42 – I concur with John – would be a mine-related number. And somewhere round 49 – when you look at the other extraneous noise sources that John was referring to. And those measurements are over about a one-minute representative period.
HIS HONOUR: Yes.
MR SAVERY: John Savery again. We talked briefly about tonality impulsiveness, and if you listen now there’s really nothing that you’d say would stand out as being tonal or impulsive, although when you were – when you walked here and arrived you would have heard some reversing beepers, and there was – I’m not – Tom will know what it is, but there’s something that’s sort of going jankajankajank.
UNIDENTIFIED SPEAKER: Yes. That’s the tracked vehicles backing up.
MR SAVERY: And you’d say that’s an impulsive-type sound. So if that was happening for a fair proportion of the measurement then you’d say that’s just perceptible, and you’d penalise it by two. If it was there all the time and it was clearly noticeable, then you’d say the level would be penalised by five. But it’s kind of - - -
UNIDENTIFIED SPEAKER: It wasn’t – we sort of agreed for the period that we did, anyway - - -
MR SAVERY: Yes.
UNIDENTIFIED SPEAKER: There really wouldn’t have been a correction applied 20 to that for that [indistinct]
MR SAVERY: But you can see the mine noise is variable. So it’s going to depend on when you measure and what’s actually going on over there.
UNIDENTIFIED SPEAKER: Sure.
MR SAVERY: So it’s either – it’s probably a zero or a two, depending on which side of the fence you happen to be on, probably.
HIS HONOUR: And the wind direction.
UNIDENTIFIED SPEAKER: Is north or north-northeast by my internal compass, your Honour.
MR SAVERY: It’s coming from the – John Savery. Coming from the mine direction.
HIS HONOUR: “Coming from the source of mine noise” might be a way of putting it.
UNIDENTIFIED SPEAKER: Yes. Yes.
MR ELKIN: It’s bringing – carrying noise from the mine towards this measurement location, your Honour. Shane Elkin.
HIS HONOUR: Yes. If you could please – we are now located at the rear of Mrs Harrison’s former residence facing towards - - -
HIS HONOUR: Stage 1 and stage 2. Yes.
MS HARRISON: Stage 1 to there and stage 2 around there.
HIS HONOUR: Yes. Thank you. If you could please advise the results of the readings at this point.
MR ELKIN: Yes, your Honour. Shane Elkin. Both John and I would agree that the noise is essentially inaudible here. We have been unable to pick any audible mine noise. The wind is still mostly northerly by my internal compass. The levels on my sound level meter were showing at the low frequency levels, 630 hertz and below – were showing very early 20s. The wind picked up a little bit, and it finished at around 26, 27 decibels, but that’s fundamentally wind noise.
MR SAVERY: I think – John Savery. The plot will show compared to the previous one – if you look at the plot that’s showing, the frequency plot, there is – in the low frequency there was nothing. It’s – there was nothing there, which means that our perception is being corresponded by the meter, that we can’t really perceive low frequency noise. But there is a high frequency band which is the birds you can hear.
HIS HONOUR: And just for clarity for the transcript, the wind direction is blowing towards the mine or beside the mine.
MR SAVERY: Yes.
HIS HONOUR: We’re upwind - - -
MR SAVERY: Yes.
HIS HONOUR: - - - of the mine.
MR ELKIN: Yes. That’s correct. Yes.
HIS HONOUR: Yes.
MR ELKIN: Sorry, your Honour. I wouldn’t say directly upwind, but it’s certainly carrying the noise away to a fair component.
HIS HONOUR: Yes.
MR ELKIN: That is correct.
HIS HONOUR: We are now located at the entrance to Mason Farm, and if we can have details of the readings, please. First, details of the wind.
MR ELKIN: Similar to the last one. Shane Elkin. Similar to the last one, your Honour. The breeze has dropped but is still essentially taking the noise away from 25 the monitoring location.
HIS HONOUR: So the noise – the wind is coming from the north.
MR SAVERY: North.
MR ELKIN: North [indistinct]
HIS HONOUR: With the mine basically towards south.
MR ELKIN: Correct.
MR SAVERY: John Savery. The low frequency noise level that we’re measuring in the absence of cars going past is in the order of 25 dB, and the overall level which in this case is dominated by the insect noise is around about 46. And you will see that on the plot here that there is no low frequency noise and in here there is none. But this band here, which is this one going across, is insects, and there’s also a much higher frequency sound, which is this one here, which is also insects. It could be a different insect. Which one it is we don’t know. But this is the problem we’ve spoken about previously where there’s mine noise, low frequency noise which you’d see in here, but this is the dominant – this is dominant. So you need to get rid of it to actually work out what noise component there is from the mine. But in this case there is nothing that we can observe that you could say is low frequency noise sourced from the mine. But in this case.
MR ELKIN: Shane Elkin. I would agree with everything there, that my unit was essentially agreeing with John’s. 27 in terms of low frequency, but my subjective observation was that the mine is inaudible.
HIS HONOUR: Yes. If I could please have the – we are currently located at Sid and Merilyn Plant’s property at their house. If I could have the joint report, please.
MR ELKIN: Yes. Basically the – Mr Elkin, Shane Elkin. We have the wind again 35 blowing the noise away from this monitoring location. The mine is inaudible. The low frequency 630 hertz and less energy sitting around 37 DBA, but that is attributable to wind noise. The overall noise level with that extra wind noise and other insects sitting around 43, 44, 43 DBA.
MR SAVERY: I agree. Savery.
UNIDENTIFIED SPEAKER: I couldn’t hear you.
MR SAVERY: John Savery. I agree the dominant noise is insects, apart from the wind. No evidence of any low-frequency [indistinct].
HIS HONOUR: Yes. We’re now located at Dr Plant’s home, and the wind’s directions is still blowing from the same direction. I think the experts can confirm at a stronger velocity.
UNIDENTIFIED SPEAKER: Yes.
MR ELKIN: That’s correct. From a northeast direction. The handheld anemometer’s showing sort of between two and a half and three and a half metres per second. Definitely subjectively stronger. Shane Elkin.
MR SAVERY: That’s correct. Noise - - -
HIS HONOUR: Identify.
MR SAVERY: Sorry. John Savery. The noise level low frequency is about 30, and that’s purely as a result of wind. There’s no evidence of any mechanical noise from mining activities. And the overall level from – again predominantly the wind with some insects is more like 38, 39 decibels. So no evidence of mining noise at this location.
MR ELKIN: Shane Elkin. I would concur with those values. My sound level meter’s showing numbers within about a dB of that. Certainly 30, around 30 for the low frequency. There was some evidence of very distant road traffic noise coming from fundamentally the northeast direction, but it was very faint.
MR SAVERY: I agree with that. Yes. Savery.
HIS HONOUR: We are now located approximately at sensitive receptor 36. And I’ll have the experts give their joint view.
MR ELKIN: Yes. Look. At this location it would appear that haul truck noise on the way to Jondaryan as well as general mine noise was audible in the order of about 30 to 31 DBA in terms of the low frequency energy, which you’d attribute to the mining activity. The wind in this location continues to blow in roughly the same direction, and therefore we’re now in a situation where the noise is being carried much more advantageously to this location. Shane Elkin was saying all that.
MR SAVERY: John Savery. The – yes, I concur with that. The energy from the mine was in the range of 500 to 800 hertz, so there was very little low – really low frequency, like below 250 hertz, although we did capture one lovely moo which showed up as part of that. But there’s insects at 2.5 kilohertz, which are continuing and varying up and down. The mine noise is – yes, varies between 31 to perhaps 35 depending on just how the wind, I suspect, is blowing and activity on the haul road – the product haul road to Jondaryan. As you get something coming past the level goes up. But it’s still in that same frequency range.
HIS HONOUR: And the wind direction?
MR SAVERY: I have no idea.
MR ELKIN: Still believe it’s in a north-easterly direction, your Honour.
HIS HONOUR: Yes. If I can have the report from the joint experts, please. We’re located where we began at Mr Beutel’s home at Acland.
MR ELKIN: Shane Elkin. We find that the wind direction appears north-easterly again, therefore carrying the noise towards this location. We conducted a couple of short-term measurements here. One was sitting at around 42. Another one was sitting at around 40 in terms of the mine noise that we would say or I would say is noise that’s attributable to the mine. The character of the noise – there’s no tonality there. There’s a few faint instances of impulsivity, mainly track dozer noise. “Dozer track noise”, I should say. My professional opinion is that I probably wouldn’t adjust for it, but it’s borderline.
MR SAVERY: John Savery. I concur with that. I think the measurement here shows that the mine noise is quite variable, and there was one in that period that we – the two minutes or so we measured – was one that I’ve got on the screen here where the maximum of the low-frequency noise was about 49 for whatever action they were doing. The other thing that’s different here than some of the other locations is that, in the zone of low frequency that we’re saying is the area of mining noise, the characteristic that we’re seeing is bands that are continuous, which is much more consistent with engine noise as against something that’s more random. We’d say that’s just the breeze or the wind. So the levels that we’re recording in 41 or 42 low frequency is pretty consistent with noise from the mine.
And I would – in terms of character I think a two-minute measurement is too short, because there’s periods where the noise is not very loud, and there are other times when the noise does have a character, and I think you’d have to listen to it for a longer period to make a judgment to say, yes, on a probability basis that’s really annoying or maybe it isn’t so annoying because it’s only happened occasionally. So – but it’s likely – I would probably say it’s likely you would apply a two dB penalty based on what we heard when we were actually doing the measurement.
MR ELKIN: I think that would probably be our only point of disagreement. Shane Elkin. Based on the sample that we listened to there. As I said, it’s borderline.”
- I realise of course that the measurements taken by Mr Elkin and Mr Savery were for a much shorter duration than that set out in the draft EA. It is unfortunate that time constraints did not allow the opportunity for an extended period of time for measurement at each sensitive receptor that the Court visited.
- The object of the exercise was to do a circuit of the mine, hopefully with the same prevailing weather conditions including wind direction (which was essentially achieved) at an evening/night time of relevantly consistent mining operations in Stages 1 and 2.
- Despite the limited amount of time at each sensitive receptor, it was, in my view, telling evidence that there were elevated noise levels at Mr Beutel’s residence on both occasions. These noise levels were relatively consistent even with the number of hours between the first stop at Mr Beutel’s residence and the last stop at his residence.
- It is a matter of some concern that the elevated levels were measured at a time when NAC should have been actively undertaking its TARP process and therefore actively preventing excess noise.
- The technical evidence given by both noise experts, limited as it was, was certainly consistent with the evidence of noise impacts at his residence as provided to the Court by Mr Beutel. To remove any doubt, I accept Mr Beutel’s evidence in this regard.
- Another point from the evidence given on 1 September 2016 was that noise impacts of the mining operations on sensitive receptors is wind and atmospheric dependent.
- The wind was essentially blowing from the mining operations towards Mr Beutel’s residence. There was, effectively, no mine noise to the north of the mining operations or, to put it another way, upwind of the mining operations. Those sensitive receptors include Mrs Harrison’s former residence; Mason’s farm; Dr Plant’s residence and Mr and Mrs Plant’s residence.
- When I consider the evidence from 1 September 2016 in light of all of the evidence of excessive noise given by lay witnesses at the hearing, I am left in no doubt that, had a further inspection and concurrent evidence been taken at sensitive receptors on an evening and night when the wind was blowing in the opposite direction, the results would have been that the noise readings at Mr Beutel’s residence would have been significantly lower, whilst the readings at those sensitive receptors to the north would have been somewhat or even significantly higher.
- This demonstrates what I can only call the folly of the regime under the current EA. Without real time monitoring and recording of noise levels at least at sensitive receptors located at Mr Beutels’s residence; a sensitive receptors in the north and sensitive receptors to the east and west, the noise levels actually experienced by the sensitive receptors are so variable and wind and environment dependent as to make monitoring of noise levels some days or weeks after a complaint, with perhaps significantly different atmospheric and wind directions, of no benefit or utility.
- An analogy to me is a person walking down say George Street in Brisbane on Tuesday night being robbed and making a complaint to the police that night that he was robbed, with the police attending George Street in the middle of the day, two days later and noting that no robbery was taking place. That situation is, of course, laughable, and I also would consider it absurd were it not for the fact, clear from the evidence before me, that that is the way it seems complaints have been dealt with under the current EA conditions.
- I now turn to consider specific aspects of the draft EA relating to noise. An examination of exhibit 1872, which is the draft EA colour coded to highlight CG conditions, shows that all of the conditions in F are CG stated conditions save for F7. The EA noise conditions in that part of the draft EA relating to noise as set out in condition F are as follows, with the CG conditions highlighted.
Agency interest: Noise
The holder of this environmental authority must ensure that noise generated by the mining activities does not cause the criteria in Table F1 – Noise limits (existing operations) and
Table F1b – Noise limits (operations) to be exceeded at a sensitive place or commercial place.
Table F1a – Noise limits (existing operations)
Noise level dB(A) measured as
7am – 6pm
6pm – 10pm
10pm – 7am
Noise measured at a ‘Noise sensitive place’
LAr , 1hour
Table F1b: Noise limits (operations*) (includes construction activities)
Noise level dB(A) measured as
7am – 6pm
6pm – 10pm
10pm – 7am
Noise measured at a ‘Noise sensitive place’
LAeq, adj, 15 min
LAmax rail spur
LAeq(24hr) rail spur
Noise limits in Table F1a – Noise limits (existing operations) only apply until the
commencement of mining activities (removal of overburden) for the Manning Vale East Pit, the Manning Vale West Pit or the Willeroo Pit as shown on Figure 1 – Revised Project Overview – Mine Area.
If monitoring indicates the potential for exceedance of the relevant limits in Table F1a – Noise Limits (existing operations) and Table F1b – Noise Limits then the environmental authority holder must immediately implement noise abatement measures to avoid exceeding the relevant limits.
Airblast overpressure nuisance
The holder of this environmental authority must ensure that blasting does not cause the limits for peak particle velocity and air blast overpressure in Table F2 – Blasting noise limits to be exceeded at a sensitive place or commercial place.
Table F2: Blasting noise limits
Blasting noise limits
Sensitive or commercial blasting noise limits
Monday to Friday 7am to 6pm
Saturday 9am to 1pm
Monday to Friday 6pm to 7am Saturday 1pm to 9am
Sunday and Public Holidays^
115 dB (Linear) Peak for 9 out of 10 consecutive blasts initiated and not greater than 120 dB (Linear) Peak at any time
Ground vibration peak particle velocity
5mm/second peak particle velocity for 9 out of
10 consecutive blasts and not greater than 10 mm/second peak particle velocity at any time
^ Blasting not permitted on public holidays
Monitoring and reporting
Noise monitoring and recording must include the following descriptor characteristics and matters:
a) LAN,T (where N equals the statistical levels of 1, 10 and 90 and T = 15 15 to 60 mins); b) background noise LA90;
The holder of this environmental authority must develop and implement a blast monitoring program to monitor compliance with Table F2 – Blasting noise limits for:
Notwithstanding any other condition of this environmental authority, noise from the activity must not cause an environmental nuisance, at any sensitive place
- By its submission, NAC is not saying that the draft EA conditions for noise should be granted. Rather, it has proposed amendments to the draft EA noise conditions as
* Pursuant to the Land Court Rules 2000, rule 21 (Power to correct mistakes), this recommendation was amended on 14 June 2017 to rectify a clerical error whereby Angela Mason was omitted as a MRA level 2 objector on the cover page.
set out at Annexure C to its submissions. The changes that NAC seeks to the draft EA are as follows:
- Before giving my conclusions with respect to the various arguments put by OCAA and NAC regarding the proposed amendments by NAC to the draft EA, it is appropriate that I consider the EPP (Noise). The starting point is a consideration of the legislation underpinning the EPP (Noise).
- Pursuant to s 176(2) of the EPA, the administering authority when considering a variation application must take account of various matters, including, at 176(2)(b)(iv) the standard criteria.
- It is noteworthy that pursuant to s 191 of the EPA, as already referred to, the Land Court must consider in its objections decision a number of matters, including at s 191(g) the standard criteria.
- It is of course through part(a) of the definition of standard criteria in schedule 4 of the EPA that the precautionary principle; intergenerational equity; and conservation of biological diversity and ecological integrity are relevant. For purposes of my analysis of noise however, it is appropriate to turn to various parts of the definition as set out in (b)-(l). In particular, I note the following extracts from (b) to (l) as follows:
- (b)any Commonwealth or State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development; and
- (e)the character, resilience and values of the receiving environment; and
- (g)the best practice environmental management for activities under any relevant instrument, or proposed instrument, as follows—
- (i)an environmental authority;
- (ii)a transitional environmental program;
- (iii)an environmental protection order;
- (iv)a disposal permit;
- (v)a development approval; and
- (i)the public interest; and
- (l)any other matter prescribed under a regulation.
- It is common ground between the parties that the EPP (Noise) is applicable and applies in light of the above inclusions within the definition of standard criteria. In case there should be any doubt, I note the full name of EPP (Noise) is Environmental Protection (Noise) Policy 2008 SL No. 442. It was made by the Minister for sustainability, climate change and innovation on 26 November 2008 and notified by gazette of 12 December 2008 at pages 2044-53. It commenced on 1 January 2009.
- A number of parts of the EPP (Noise) require further consideration. Section 5 sets out the purpose of the policy which is to achieve the object of the EPA in relation to the acoustic environment. Section 6 then goes on to set out how the purpose of the policy is to be achieved by (a) identifying environmental values to be enhanced or protected; and (b) stating acoustic quality objectives for enhancing or protecting the environmental values; and (c) providing a framework for making consistent, equitable and informed decisions about the acoustic environment.
- Section 7 of the EPP (Noise) provides as follows:
7 Environmental values for the acoustic environment
The environmental values to be enhanced or protected under this policy are—
- (a)the qualities of the acoustic environment that are conducive to protecting the health and biodiversity of ecosystems; and
- (b)the qualities of the acoustic environment that are conducive to human health and wellbeing, including by ensuring a suitable acoustic environment for individuals to do any of the following—
- study or learn;
- be involved in recreation, including relaxation and conversation; and
- (c)the qualities of the acoustic environment that are conducive to protecting the amenity of the community.
- The management hierarchy for noise as set out in s 9 of the EPP (Noise) is particularly relevant. It provides as follows:
9 Management hierarchy for noise
- (1)This section states the management hierarchy for an activity involving noise.
See section 51 of the Environmental Protection Regulation 2008.
- (2)To the extent that it is reasonable to do so, noise must be dealt with in the following order of preference—
Example for paragraph (a)—
locating an industrial activity in an area that is not near a sensitive receptor
- (b)secondly—minimise, in the following order of preference—
- (i)firstly—orientate an activity to minimise noise;
Example for subparagraph (i)—
facing a part of an activity that makes noise away from a sensitive receptor
- (ii)secondly—use best available technology;
Example for paragraph (c)—
using heavy machinery only during business hours
- The noise experts all made reference to s 10 of the EPP (Noise). It sets out as follows:
10 Controlling background creep
- (1)This section states the management intent for an activity involving noise.
See section 51 of the Environmental Protection Regulation 2008.
- (2)To the extent that it is reasonable to do so, noise from an activity must not be—
- (a)for noise that is continuous noise measured by LA90,T—more than nil dB(A) greater than the existing acoustic environment measured by LA90,T; or
- (b)for noise that varies over time measured by LAeq,adj,T—more than 5dB(A) greater than the existing acoustic environment measured by LA90,T.
- The first part of schedule 1 has also been referred to extensively by the noise experts and is as follows:
Time of day
Acoustic quality objectives
(measured at the receptor) dB(A)
dwelling (for outdoors)
daytime and evening
health and wellbeing
dwelling (for indoors)
daytime and evening
health and wellbeing
health and wellbeing, in relation to the ability to sleep
library and educational institution (including a school, college and university) (for indoors)
when open for business or when classes are being offered
health and wellbeing
childcare centre or kindergarten
for business, other than when the children usually sleep
health and wellbeing
childcare centre or kindergarten
when the children usually sleep
health and wellbeing, in relation to the ability to sleep
school or playground (for outdoors)
when the children usually play outside
health and wellbeing, and community amenity
hospital, surgery or other medical institution (for indoors)
health and wellbeing
Time of day
Acoustic quality objectives
(measured at the receptor) dB(A)
hospital, surgery or other medical institution (for indoors)
anytime, other than visiting hours
health and wellbeing, in relation to the ability to sleep
retail activity (for indoors)
activity is open for business
health and wellbeing, in relation to the ability to converse
protected area, or an area identified under a conservation plan under the Nature Conservation Act 1992 as a critical habitat or an area of major interest
the level of noise that preserves the amenity of the existing area or place
health and biodiversity of ecosystems
marine park under the Marine Parks Act 2004
the level of noise that preserves the amenity of the existing marine park
health and biodiversity of ecosystems
park or garden that is open to the public (whether or not on payment of an amount) for use other than for sport or organised entertainment
the level of noise that preserves the amenity of the existing park or garden
- A crucial aspect of determining the issue of appropriate noise levels in this case is a determination of what source should best be used to determine appropriate noise limits.
- Mr Elkin considers EPP (Noise) schedule 1 most appropriate. Mr Savery considers either PNCG or MMCG appropriate and, in addition or in the alternative, considers EPP (Noise) section 10 preferable to EPP (Noise) schedule 1.
- The differences that arise depending upon which source is relied upon was set out in the noise JER, exhibit 406, in a table at SP26. In its submissions, OCAA has summarised the JER table into a more simplified, easy to read version. The OCAA summary has not been challenged by NAC as to its accuracy in NAC’s reply submissions.
- The summary table prepared by OCAA and set out in its submissions at paragraph 640 is as follows:
EPP Noise section 10