Nothdurft v QGC Pty Limited[2017] QLC 41

LAND COURT OF QUEENSLAND

1. [1]
   Mr & Mrs Nothdurft have an agreement with the respondents (QGC) about compensation for the effects of QGC’s coal seam activities on their property, Bellara. They want the Court to review the agreed compensation. The Court can do so if there has been a material change in circumstances. Mr & Mrs Nothdurft say a number of circumstances have changed materially. Although QGC does not accept Mr & Mrs Nothdurft’s allegations about changed circumstances, it did not seriously contest there had been some changes. It did challenge the materiality of any changed circumstances and, if any were found to exist, the scope of the review.
2. [2]
   Mr & Mrs Nothdurft say the Court must assess compensation afresh on the changed circumstances. If that assessment exceeds the original compensation, QGC must pay the difference. QGC disagrees. It argues the Court can only review the original compensation to the extent it is affected by the change. That is a more confined exercise, looking only at what has changed and how the change affects Mr & Mrs Nothdurft.
3. [3]
   Those arguments raise the following legal and factual issues:

   • When and to what extent can the Court review agreed compensation?
     1. (a)
        What is the meaning of the phrase a material change in circumstances?
     2. (b)
        Assuming there is a material change, what is the scope of the review?
   • Has there been a material change in circumstances?
   • Can or should the Court amend the compensation agreed by the parties?
4. [4]
   Before addressing those questions, the following matters are agreed and provide context for the reasons that follow.

Background 

5. [5]
   Mr & Mrs Nothdurft own, live and work on Bellara, a 348.9ha property 27km south of Chinchilla. They use the land for cropping, running beef cattle and conducting a manure spreading business called Western Downs Spreading and Contracting.
6. [6]
   QGC’s activities on Bellara are part of a coal seam gas project known as QCLNG Project. That project entails gas extraction from coal seams in the Surat Basin. The gas is piped to local compression and processing facilities and then transported by an underground pipeline network to Curtis Island near Gladstone. There, the gas is turned into liquefied natural gas for export markets. 
7. [7]
   QGC’s activities on Bellara are regulated under two petroleum leases and an environmental authority.^[1]  The EA was issued on 17 October 2014 and covers the QCNLG Project as a whole, not just activities on Bellara under the two PLs. Presumably, this replaced an earlier EA. There appeared to be no contest about any change in EA conditions and I have made this decision on that understanding. 
8. [8]
   There are seven coal seam gas wells on Bellara. They are connected by underground gathering lines which transport gas to trunklines which convey the gas to a field compression facility. There are two Field Compression Stations in the vicinity of Bellara: the Argyle FCS, about 3.61km north of the Nothdurfts’ home; and the Kenya FCS, about 6.612km to the south.
9. [9]
   After compression, the gas is transported by pipeline to the Kenya Central Processing Plant, about 5.662km south of the home, where it is further compressed for transportation.
10. [10]
    Water extracted from the wells is transported through a similar system of gathering lines and trunk lines to storage ponds and, ultimately, the Kenya Water Treatment Plant, 5.797km south of the home.
11. [11]
    Within a 2.5km radius of the Nothdurft’s home, there are 36 wells and 17 high point vents. There are also three permanent locations for flaring; a process which allows the rapid release of gas from the Project infrastructure to manage pressure or for safety reasons.
12. [12]
    The parties have entered into two compensation agreements for the compensatable effects of the activities authorised by the PLs on Bellara. The first agreement was made on 15 February 2005. It was superseded by the second, made on 10 April 2006. All infrastructure on Bellara was constructed under one or other of those agreements.

13. [13]
    Mr & Mrs Nothdurft seek the following orders under the Petroleum and Gas (Production and Safety) Act 2004:

14. [14]
    Section 537DC applies to conditions of the compensation agreement, not of a PL or, indeed, an EA. Mr Houen, the lay agent for Mr & Mrs Nothurft, did not propose any particular conditions, other than payment of money by way of compensation and costs. It is not necessary to consider s 537DC further.
15. [15]
    Section 537C was in Chapter 5 Part 5 of the Petroleum and Gas (Production and Safety) Act 2004 when the application was filed on 17 March 2016. That Part has since been repealed and replaced by apparently equivalent provisions in another Act.^[2] The parties agree the application should be determined on the law as it stood when the application was made. That is the proper course to take in the absence of any contrary intention.^[3]
16. [16]
    Before turning to the issues, I note Mr Nothdurft appeared to raise an issue which is beyond the scope of this application. In a statement attached to his affidavit he said a Mr Robson, on behalf of QGC, made some statements during discussions leading up to the parties entering into each compensation agreement. He said he believed these statements. For the second compensation agreement, he said: we felt we had no alternative but to agree.^[4]  
17. [17]
    This could be regarded as a challenge to the validity of enforceability of the agreement. However, Mr Nothdurft did not apply to set aside the compensation agreement and I did not hear argument about whether the Court could grant such relief. This decision, therefore, deals only with the application pursuant to s 536C and does not deal with any other right of action that may be open to Mr & Mrs Nothdurft. 

When and to what extent can the Court review agreed compensation?

18. [18]
    This is the first time this Court has been asked to review compensation for activities authorised by a PL.
19. [19]
    Section 537C confers the review function on the Court:

20. [20]
    The dispute between the parties raises two questions about the interpretation of that section:

    1. (a)
       What is the meaning of the phrase a material change in circumstances?; and 

2. (b)
   Assuming there is a material change, what is the scope of the review?

What is the meaning of the phrase a “material change in circumstances”?

21. [21]
    The requirement of materiality is frequently used by the law as a threshold constraint or qualification. Sometimes materiality is used to invoke an obligation, such as to disclose information. On other occasions it is used, as here, to confer a right or benefit. 
22. [22]
    Materiality can only be assessed by reference to the thing to which it must be material. Commonly, a fact, information or a circumstance will be assessed for its materiality to a decision or approval. 
23. [23]
    An example of materiality to a decision is the information a patient must have in deciding whether to give consent to a medical procedure. In defining the scope of a medical practitioner’s duty of disclosure to their patient, the High Court considered a risk was material if a reasonable person in the patient’s position would be likely to attach significance to the risk in deciding whether to give consent to the recommended procedure.^[5] 
24. [24]
    An example of materiality to an approval is the requirement to provide information on an application for permanent residency. The Full Federal Court determined a statement provided with an application will be false and misleading in a material particular if the statement may affect the relevant decision.^[6]
25. [25]
    Although s 537C has not been previously considered by the Court, a similar provision in the Mineral Resources Act 1989, has been.^[7] It employs the same threshold requirement of a material change in circumstances as a pre-condition to reviewing compensation. In interpreting that provision, the Land Appeal Court said:^[8]  

“It is enough to note that the condition is satisfied when there is a material difference between the circumstances for the mining lease when the compensation was originally agreed or determined, and the circumstances for the mining lease at the date when the change is said to have occurred, the change relating to circumstances relevant to the agreement about or determination of compensation.”                                       (emphasis added)

26. [26]
    Under the PGPS Act^[9] the tenure holder is liable to compensate the landowner for any compensatable effect^[10] the landowner suffers that is caused by the authorised activities. Adopting the same reasoning in interpreting s 537C, the change in circumstance must be material to the agreement about or determination of compensation for, any compensatable effect suffered by the landowner as a result of the authorised activities. 
27. [27]
    That does not necessarily require a material change to the activities which are authorised under the PLs. There could be a material change to the compensatable effect of the authorised activities. For example, an increase in scale or intensity, a change to the way the activity is conducted, or an unanticipated (or unauthorised) impact of the activity might result in a material change to the compensatable effect of the activity.  
28. [28]
    The focus on effect rather than activity means not every change in circumstance that might be relevant to compensation will require review of the original compensation. The requirement of materiality qualifies the degree of relevance. Something is material if it is of significance or importance.^[11] It must be of moment or of significance, not merely trivial or inconsequential.^[12] If reliance is placed on a change in amenity, the impacts must be more than minimal.^[13]
29. [29]
    In determining whether there has been a material change in circumstances, then, the Court must be satisfied of two things. Firstly, that the circumstances have changed. Secondly, that the change is material. In this case, it must be material to the agreement about compensation.

If there is a material change in circumstances, what is the scope of the review?

30. [30]
    The second issue of interpretation relates to the Court’s function if it finds there has been a material change in circumstances. That is governed by s 537C:

(3) In carrying out the review, the Land Court may review the original compensation only to the extent it is affected by the change.

31. [31]
    Original compensation is the compensation liability agreed to under a conduct and compensation agreement or decided by the Court.^[14] Compensation liability is the liability of the petroleum authority holder to the landowner for the compensatable effects^[15] suffered by the landowner and caused by the authorised activities.^[16]
32. [32]
    Mr & Mrs Nothdurft seek a review of compensation to recognise the actual impacts to date and future impacts of the CSG activities. During the hearing, their agent, Mr Houen, submitted the Court would have to determine compensation afresh on the changed circumstances. In his written submissions, he explained this further. He submitted no method of review is mandated by the relevant provision.^[17] As the original compensation did not distinguish between different heads of compensation, he submitted the Court should ascertain the “global” compensation payable as if no agreement had been entered into and deduct the original compensation to determine the value attributed to the change. If the original compensation exceeds the Court’s determination, no change is made. If the Court’s determination exceeds the original compensation, QGC must pay the difference.^[18]
33. [33]
    Mr Houen said that is consistent with the decision of the Land Appeal Court in ERO Georgetown Gold Operations Pty Ltd v Henry.^[19] He relied on a passage of that judgment, part of which is set out above (at [25]). The quoted passage does not support Mr Houen’s submission. The appeal in that case was against the Member’s finding there had been a material change in circumstances, not about the scope of the review. The passage Mr Houen relied upon explains how to assess whether there has been a material change in circumstances. It did not address the Member’s assessment of compensation. The Land Appeal Court did not need to consider how the review should be undertaken.

34. [34]
    Unless a contrary legislative intent is clear, statutes which provide for compensation are ordinarily interpreted liberally.^[20] They should not be construed as subject to limitations or qualifications which are not found in the terms of the statute.^[21] In interpreting s 536C, the Court must prefer the interpretation that will best achieve the purpose of the Act.^[22] The purpose identified for the PGPS Act that is most directly applicable to this matter is the purpose to facilitate and regulate the carrying out of responsible petroleum activities… in a way that…appropriately compensates owners or occupiers of land.^[23]  
35. [35]
    Section 537C imposes an express limitation on the Court’s function: to the extent it is affected by the change. The limitation must serve some purpose. It must be read with the purpose of appropriately compensating a landowner in mind. However, Mr Houen’s submission gives it no meaning at all.
36. [36]
    Section 537C, read as a whole, indicates the review is not an opportunity to consider compensation afresh. It does not invite consideration of the appropriateness of the original compensation, on the circumstances as they then existed. On a fair reading of the entire section, the scope of the review is confined by the compensatable effects of the material change. The limiting phrase used in s 537C(3) is reinforced by the further restriction imposed by s 537C(4). It prevents the Court from carrying out or continuing with the review if it considers the original compensation is not affected by the change. 
37. [37]
    I interpret s 537C(3) as meaning the Court is limited to considering whether additional compensation should be awarded for the compensatable effects suffered by the landholder which are caused by the material change in circumstances. That requires the Court to identify the compensatable effects of the material change and consider whether they justify compensation not already provided for.
38. [38]
    That is consistent with the approach adopted by Member Smith in Henry v ERO Georgetown Gold Operations.^[24] As far as I have been able to determine, that is the only case in which the Court reviewed compensation, albeit for a mining lease under s 283B of the MRA. That provision does not include the same explicit limitation as appears in s 537C of the PGPS Act. Nevertheless, Member PA Smith determined what additional compensation had to be paid for the material change in circumstances. His judgment does not contain any reasoning about the scope of the review. Apparently there was no dispute about that. The valuer called by each party conducted their assessments in the same way. They each identified an amount of additional compensation for the effect of the landowner of the change in circumstance. That makes sense. 
39. [39]
    Accordingly, if the Court finds there has been a material change in circumstances it must identify the compensatable effect of that change and determine whether it warrants additional compensation.

Has there been a material change in circumstances?

40. [40]
    Mr & Mrs Nothdurft raised a number of circumstances which they claim to have materially changed since the conduct and compensation agreement was reached. At the beginning of the hearing, because of some preliminary argument about the admissibility of some affidavit evidence filed by Mr & Mrs Nothdurft, Mr Houen was asked to clarify what they said were the circumstances giving rise to a material change in circumstances. Mr Houen’s response is an exhibit.^[25] It confirmed Mr & Mrs Nothdurft abandoned reliance on radiation emissions as a circumstance.
41. [41]
    However, in his written submissions, Mr Houen recast an important issue relating to health impacts. That is addressed later in these reasons. In considering whether there has been a material change in circumstances, then, I have adopted the circumstances Mr Houen used in his submissions:^[26] 

    • Non-compliance with noise limits
    • Discontinuance of untreated CSG water supply
    • Gases emitted
    • Incorrect well locations
    • Owners’ time and resources responding
    • Dust - contamination of rainwater tanks
    • Perceived health risks in living in or around this gasfield
    • Need to relocate place of residence and relocate Western Downs Spreading and Contracting office and depot

Non-compliance with noise limits

42. [42]
    Mr & Mrs Nothdurft contend noise levels at their home are frequently and substantially in breach of conditions of the EA. As a result, they say Bellara is no longer suitable for residential use or for some aspects of their business. QGC accepts there have been some noise exceedances, but deny they are as frequent or substantial as Mr & Mrs Nothdurft allege. They also dispute the allegation that noise renders the property unsuitable for residential or business use.

The noise conditions

43. [43]
    Since at least 26 July 2011, the EA has contained noise conditions currently numbered E7 to E10. Condition E7 prescribes noise limits depending on the time of day and whether the noise is short, medium or long term. Condition E8 provides for adjustments to the noise limits for noise that is tonal or impulsive. Condition E9 allows QGC to enter into an Alternative Arrangements Agreement with affected persons, such as Mr & Mrs Nothdurft, in which case the limits imposed by E7 will not apply. Condition 10 imposes an additional limit for low frequency noise. It applies regardless of the other conditions, including, it seems, E9. The conditions are set out below:  

44. [44]
    Noise is commonly defined as unwanted sound that disrupts normal human activities or diminishes the quality of the human environment. It is usually not constant and can vary considerably over time. For this reason, noise levels are expressed in terms of maximum noise levels, averages, and statistical measures such as percentiles. Transient environmental noise sources, such as passing aircraft or motor vehicles, produce noise which is usually of short duration. Stationary sources such as urban freeways, transmission lines, transformers and substations, and some commercial and industrial facilities can emit noise over a longer period.^[27]
45. [45]
    A noise assessment involves examining the nature and characteristic of a noise. It also considers the contributions of various noise sources. Contributions to noise levels, other than the activity regulated, include ambient noise generated by a mixture of natural sources, such as weather, insects and birds, and manmade sources such as traffic and other business or industrial operations.^[28]
46. [46]
    An investigating officer responding to a noise complaint must gather basic information relating to the complaint and noise source. This includes, but is not limited to the following factors:^[29] 

    • the type of noise;
    • the time the noise happens;
    • a subjective assessment of the source noise (i.e. is the noise audible within the complainant’s backyard and/or house; is the noise at a level that would preclude sleep or prevent the complainant from enjoying the confines of their own home; or impact upon the complainant’s ability to watch television etc.);
    • the duration of the noise;
    • the frequency of the noise (both the tone/pitch and how often it occurs); and
    • notes of any other noise that can be heard (i.e. extraneous noises and any observation as to their relations in sound level (e.g. traffic noise is much louder than the noise under investigation, or the noise under investigation can be heard clearly over other noises etc.)).
47. [47]
    The pertinent limits in this case relate to the night time noise levels and low frequency noise at the Nothdurft home as a result of QGC’s activities. This requires consideration of total sound and whether any exceedance can be attributed to QGC’s activities.
48. [48]
    There are two measures for noise between 10pm and 6am and both are “A” weighted limits. An “A” weighting seeks to approximate the response of the human ear.^[30] 
49. [49]
    The first limit is L_{Aeq,adj,15min.} That is the measure of the constant sound level over a 15 minute period, adjusted if necessary for tonality and impulsiveness. The constant sound level is the equivalent of the total sound energy to the time-varying sound level measured over the same time period.^[31] 
50. [50]
    Adjustments for tonality or impulsiveness must be made in accordance with condition E8. Tonality is when a sound produces a definite pitch sensation for a listener. Examples of tonal sound include insects and whining or whistling sounds.^[32] Impulsive noise includes unwanted, almost instantaneous sharp sounds such as clicks and pops. Examples are gunfire and explosions.^[33]
51. [51]
    The second limit is Max L_{pA,15 mins.} That measures the highest noise level during a 15 minute period.^[34]
52. [52]
    The low frequency noise limit is not conditional on time of day or night. It contains a number of criteria for measurement. Low frequency noise occurs in the 10Hz to 200Hz frequency range. Natural sources of low frequency noise are wind, the sea and thunder. It is considered more annoying indoors, more audible at night and may have a throbbing or rumbly characteristic.^[35]

Mr Nothdurft’s evidence about noise

53. [53]
    Mr Nothdurft alleged frequent exceedances of noise limits based on his own measurements of noise. He said he had become experienced in noise measurement.^[36] He produced various complaint forms which refer to noise measurements he had taken with what he described as a level 2 sound level meter.^[37] He also produced several video clips of his noise measurements in action.^[38] 
54. [54]
    For the purposes of assessing compliance with noise requirements, the Department of Environment and Heritage Protection requires noise levels to be measured in accordance with its Noise Measurement Manual and with the Australian Standard AS1055 Acoustics – Description and measurement of environmental noise.^[39] 
55. [55]
    The discussion of the conditions and the process of assessing noise demonstrates, although it could hardly be disputed, that noise measurement requires specialised knowledge. Mr Nothdurft is neither trained nor qualified in measuring or assessing noise. 
56. [56]
    Although DEHP accepted Mr Nothdurft’s readings as a basis for his complaints, it did not accept them as evidence the noise conditions were exceeded, for enforcement purposes.^[40] At the hearing, QGC called evidence from Ms Gillian Adams, a scientist with specialist training whose expertise and independence was unchallenged. DEHP accepts her as an independent suitably qualified person to audit QGC’s compliance with EA conditions.^[41]
57. [57]
    Ms Adams watched Mr Nothdurft’s videos and considered them indicative at best and not in accordance with applicable noise measurement practices and methodologies. She said it takes skill and professional experience to undertake the detailed analysis required to remove extraneous noise such as insects and to determine the noise contribution of particular sources, in this case QGC’s plant. She raised questions about the calibration, including field calibration, of the meter used by Mr Nothdurft. She questioned whether a wind sock was used to limit extraneous wind noise on the microphone. She concluded Mr Nothdurft’s videos are not reliable evidence of the issues and of nil assistance in confirming QGC’s plant noise impacts.^[42]  

58. [58]
    There is evidence that contradicts complaints made by Mr Nothdurft based on his own readings. For example, some of QGC’s noise monitoring coincided with dates on which Mr Nothdurft reported to DEHP that noise exceeded the EA limits. On 26 August 2015 and 27 October 2016, QGC provided DEHP with tables of its measurements on the dates complaints were made. QGC’s results and analysis were contrary to Mr Nothdurft’s assertions.^[43] In their correspondence with DEHP, QGC raised possible explanations for the difference between Mr Nothdurft’s readings and their analysis. These included the issues raised by Ms Adams. Mr Nothdurft acknowledged insect noise could be heard in one of the recordings. He also acknowledged he has no expertise to identify which particular noise sources contribute to overall noise levels.^[44]
59. [59]
    Further, DEHP investigated a complaint made by Mr Nothdurft on 26 August 2016 and, having regard to QGC’s monitoring, concluded there was no evidence of non-compliance with the EA limits.^[45]

60. [60]
    Mr Nothdurft was not able to meet the challenges made to the reliability of his readings. Mr & Mrs Nothdurft called no expert evidence to substantiate his evidence. In the circumstances I place no weight on his evidence about noise measurements. I will, of course, consider his evidence about how the noise intruded or disturbed him and his family. 

QGC monitoring

61. [61]
    QGC undertook noise monitoring over numerous periods from August 2014 to April 2017. It did both attended and unattended noise monitoring. Attended noise monitoring has its obvious meaning. Unattended noise monitoring occurs over a period and involves audio recording and data collected from a noise logging machine and weather station.^[46] 

62. [62]
    QGC has provided reports of its monitoring dating back to July 2015. The reports certify compliance with noise measurement standards.^[47] QGC also provided source data for its monitoring over periods since 28 August 2014.^[48] 
63. [63]
    Mr Houen submitted the measured noise does not represent the noise to be expected for normal operations or peak output operations, because the reports do not reveal the operational status of wells and infrastructure during the monitoring. In response to that argument, QGC provided comprehensive information about the historic and operational status of relevant infrastructure. 
64. [64]
    Mr Houen does not appear to have analysed that data. Yet he invited serious inferences about QGC’s conduct and Ms Adams’ professionalism. He submitted Ms Adams’ action in disregarding the noise and compliance implications of operational status data for wells within the Residence buffer raises an issue regarding her Instructions.^[49] This suggests that QGC had manipulated both its monitoring and Ms Adams’ evidence and that Ms Adams was unprofessional in disregarding relevant information. He laid no foundation for the attack on either. QGC’s closing submissions include a detailed analysis of the information.^[50] Mr Houen did not respond to that at all.

65. [65]
    Mr Houen is a lay advocate and is not subject to the ethical standards which apply to legal professionals. Nevertheless, he is a paid agent for a party to proceedings and the Court expects honesty and candour from all representatives. It also expects that representatives will not maintain allegations about a party’s conduct or an expert witness’s independence and professionalism, without some basis for doing so.
66. [66]
    QGC also answered other criticisms made about Ms Adams’ reports, which Mr Houen has not responded to. In the absence of any alternative analysis, I accept QGC’s analysis and submissions about the operating conditions and the circumstances in which Ms Adams undertook her investigations.
67. [67]
    I find QGC did not make any significant alterations to the operation of the infrastructure on or near the property during periods of noise monitoring compared with other time periods. I accept Ms Adams’ evidence about compliance with noise conditions for the periods she investigated and reported on. 
68. [68]
    This brings me to another submission by Mr Houen which is an example of, at best, poor analysis of the evidence and, at worst, an attempt to misrepresent it to the Court. Mr Houen submitted 16 of the 23 noise monitoring reports before the Court identified exceedances of the night time noise limit.^[51] Regrettably, his analysis is inaccurate in some respects and is misleading overall. Numerous reports overlap, so that more than one report deals with the same period of monitoring. Mr Houen’s use of reports, rather than instances of exceedances, creates a false impression. 
69. [69]
    His submissions about the noise monitoring evidence suggest he did not give due consideration to it. That is surprising. Noise impacts are critical to Mr & Mrs Nothdurft’s case that they must relocate their home and aspects of their business.
70. [70]
    In the circumstances, I have placed no reliance on Mr Houen’s assertions about the effect of the evidence about compliance with noise limits. 

DEHP enforcement action 

71. [71]
    DEHP issued two Penalty Infringement Notices fining QGC $11,385 on each occasion for contravention of a noise condition. Both were issued on 4 February 2016: one for an infringement on 9 April 2015; the other for infringement between 27 and 28 June 2015.^[52] 
72. [72]
    In addition to those exceedances, there is evidence of noise exceedances in other periods in 2015 (8 to 23 April and 11 June to 6 July) and 2016 (12-13 July and 6 October to 6 November).^[53] Again, without reproducing the detail, I accept QGC’s submissions about the results of their monitoring which is helpfully summarised in a detailed table referenced back to the original source of the information.^[54] QGC’s close analysis of the reports and its correspondence with DEHP demonstrates the difficulty in analysing monitoring data, particularly in adjusting results for ambient conditions and attributing noise to particular sources. 

73. [73]
    The evidence does not establish that exceedances were frequent and substantially in breach of the EA. Nevertheless, it does show there was a basis for Mr & Mrs Nothdurft’ complains about night time noise in 2015 and 2016. 
74. [74]
    The evidence also establishes QGC took this issue seriously.
75. [75]
    On 7 January 2016, DEHP approved a Transitional Environmental Program in response to QGC’s proposal to bring its activities into compliance at the Nothdurft home.^[55] The TEP detailed modifications of HPUs and separators at 17 well sites and two HPVs.^[56] It required QGC to implement interim noise abatement measures if directed. QGC was also required to monitor compliance with condition E7 and report on its activities and monitoring results every two months. On 22 August 2016, QGC submitted to DEHP a final report pursuant to the TEP.^[57] On 26 September 2016, DEHP notified QGC that it considered that QGC had satisfied all of the requirements pertaining to the TEP based on the completion of the program on 20 September 2016.^[58] 
76. [76]
    On the same day, DEHP issued an Environmental Protection Order to QGC,^[59] which it revised on 8 November 2016.^[60] This required ongoing monitoring, reporting and independent auditing of noise measurements at the Nothdurft home. Ms Adams was engaged to undertake this work for QGC and gave evidence about her findings at the hearing.
77. [77]
    I reject Mr Houen’s submission that QGC has not shown that the actual incidence of non-compliance has reduced.^[61] The evidence is to the contrary.
78. [78]
    Ms Adams conducted both attended and unattended monitoring in November and December 2016. She conducted site visits to familiarise herself with the QGC noise generating activities. She also undertook a detailed analysis of the nonattended measurement data to identify and determine the QGC plant noise contribution at the Nothdruft home. She assessed that plant noise contribution against the relevant EA conditions.

79. [79]
    As to low frequency noise, Ms Adams concluded there was no evidence of noncompliance with condition 10 of the EA. Although she had not been inside the home, she referred to a DEHP measurement taken internally on 12 July 2016 which was compliant.^[63]  They recorded results well below the indoor level recommended by the World Health Organisation.^[64] Ms Adams concluded the Nothdurft home is suitable for human habitation.^[65]
80. [80]
    There was no substantial challenge to Ms Adams’ evidence despite the evidence that during periods of noise monitoring earlier this year,^[66] potential noncompliance occurred for one night in January and one night in March.^[67] 

Can QGC comply now and in the future?

81. [81]
    Mr & Mrs Nothdurft allege that QGC cannot comply with noise conditions under normal operations and that, in the future, there will be further noise exceedances. To the extent that argument is based on the operational status of QGC’s plant, I have already addressed that topic. 

82. [82]
    Mr Houen relied on QGC’s attempt to negotiate an Alternative Arrangement Agreement with Mr & Mrs Nothdurft as evidence it cannot comply with noise limits in the future.^[68]  
83. [83]
    The EA allows such arrangements to be negotiated. QGC proposed to resolve noise impacts on the Nothdurft home by modifying the home itself to attenuate the noise. Mr & Mrs Nothdurft rejected that option, as they were entitled to do. I draw no adverse inference about them because of that.
84. [84]
    Likewise, I draw no inference about QGC’s ability to meet its noise conditions because it made that proposal. It is hardly surprising QGC would seek the simplest and cheapest method of dealing with the issue. The alternative was to make further modifications to its plant or operations. That is what QGC has done and continues to do. 
85. [85]
    In 2014, QGC modified the hydraulic pressure units on well sites near Bellara.^[69] Under the TEP in 2016, QGC installed a modified design for HPUs and modified the whistling separators at some well sites.^[70] It also installed silencers at some HPVs.^[71] DEHP accepted this work satisfied the TEP requirements of the TEP.^[72] This year, QGC committed to installing a 230m long and 15m high noise barrier for the Kenya CPP, using shipping containers. Ms Adams identified the Kenya CPP as the dominant plant noise source from QGC’s activities near the Nothdurfts’ home. The target date for completion is 16 October 2017.^[73]

86. [86]
    I accept the unchallenged evidence from Ms Tan, for QGC, that it will not restart wells or carry out any other activity in the proximity of Bellara unless first satisfied by noise testing and modelling that the EA limits will not be exceeded.^[74] QGC’s record of engagement with DEHP about noise provides the Court with some confidence about that. I also observe that the EPO is still in effect and DEHP can be expected to remain vigilant about this issue. QGC is required to conduct 11 months of monitoring this year with the report due in October 2017.^[75]

Conclusions about noise

87. [87]
    In conclusion, the evidence establishes the Nothdurft family had an ongoing concern about noise at their home at night. Disturbance by an uninvited activity on the family’s property, particularly where the disturbance occurs during the night in their home, would be a significant consideration in determining compensation. The parties have conducted the case on the assumption that the original compensation assumed the noise conditions would be met. 
88. [88]
    Since 2014, QGC has monitored noise over several periods. Many of Mr Nothdurft’s complaints are contrary to QGC’s records. I have placed no weight on Mr Nothdurft’s recordings which are unreliable for various reasons and record total noise, not necessarily the noise from QGC’s activities. QGC has undertaken various steps to reduce noise impacts at night. I accept it is now able to and is complying with its noise conditions in nearly all respects.

89. [89]
    I do not accept noise exceedances were frequent or substantially above the EA conditions. Nevertheless, over a period of some three years, there is evidence of the following exceedances:

    1. (a)
       The evidence suggests there were exceedances in 2015 during the months of April,^[76] June and July.^[77] The April report indicates that out of a total of 104 night time monitoring hours, exceedance^[78] occurred seven times.^[79] The June/July report demonstrates 11 days of exceedance^[80] over a 26 day monitoring period.^[81] On 23 June QGC took subsequent steps to shut in a number of wellsites resulting in a clear reduction in noise levels.^[82]
    2. (b)
       In 2016 there were exceedances^[83] in July,^[84] October and November.^[85] On 1-2 July 2016, noise levels of between 29 and 31 dB(A) were recorded between midnight and 6am. On the evening of 2-3 July 2016, noise levels exceeded 28 dB(A) and ranged up to 31 dB(A) between 10:45pm and 11:15pm. On 12 July, there was an exceedance of between 4 dB(A) to 7 dB(A) beyond the 28 dB(A) limit. In October and November there were 4, 15 minute periods of exceedance recorded.^[86] Each of these exceedances were between 1 and 2 dB(A) over the noise limit.
    3. (c)
       The 2017 monitoring indicated there was an exceedance on 27 April 2017.^[87] During this exceedance component noise levels from Kenya CPP were estimated to range between 29-31 dB(A) L_{eq,15min,adj.} This was mainly due to downwind conditions enhancing noise from the CPP.

90. [90]
    There has not been continuous monitoring at the Nothdurft home. It is reasonable to infer that these were not the only occasions on which the family experienced unauthorised noise as a result of QGC’s activities. I find Mr & Mrs Nothdurft experienced noise from QGC’s activities in excess of authorised limits in their home at night on an irregular but ongoing basis from early 2015. This is an increase in amenity impacts which amounts to a material change in circumstances. 
91. [91]
    However, noise impacts do not currently render Bellara uninhabitable. There is no evidence Mr & Mrs Nothdurft must relocate any part of their business because of noise. I am not persuaded the experience of noise will worsen in the future. Later in the reasons I will consider whether the material change in the amenity impacts, which is largely in the past, should result in an amendment to the original compensation. 

Discontinuance of untreated CSG water supply 

92. [92]
    Mr & Mrs Nothdurft allege a material change in circumstances arising from the cessation of access to untreated CSG water. Under the Compensation Agreement, QGC gave Mr & Mrs Nothdurft access to untreated CSG water stored on or piped across their property. It is common ground that Mr and Mrs Nothdurft’s access to untreated CSG water ceased in 2010 as a result of regulatory changes which included a CSG Water Management Policy 2010 issued by the Queensland Government.^[88]  
93. [93]
    Mr & Mrs Nothdurft’s rights under the Compensation Agreement were not unconditional. The water could be used only for stock purposes. Further, Mr Nothdurft accepted QGC made no representation or warranty about water quality, accepted it was his responsibility to ensure it could be used for stock purposes and discharged and indemnified QGC in relation to his use of the water.^[89] 
94. [94]
    The prospect of unlimited access to untreated CSG water, if it was or could be made suitable for stock use, would have significance or importance to a landholder’s decision about what compensation should be paid, particularly for a property which is a dry land property.^[90] 
95. [95]
    It is clear that access to water has changed since the Compensation Agreement was entered into. 
96. [96]
    However that change cannot be considered in isolation from other significant developments. Since December 2011, Mr & Mrs Nothdurft have had access to an annual allocation of 100 ML of treated CSG water, under a take or pay agreement with SunWater Limited, which operates the Chinchilla Beneficial Use Scheme. Under that scheme, QGC uses its Kenya Water Treatment Plant to treat water drawn from wells on Bellara and other properties in the vicinity. SunWater pipes the treated water to the Chinchilla Weir for town supply and irrigation. The pipeline traverses Bellara and other properties. The Nothdurft’s agreement with SunWater is compensation for the pipeline easement.^[91]
97. [97]
    QGC argue that either the change is not material or that it should not result in amended compensation, because Mr & Mrs Nothdurft now have access to treated CSG water which is of better quality and can be used for irrigation as well as stock watering.
98. [98]
    I accept the change in access to water is material because it has significance to a dry land property. Whether that should lead to any amendment of the original compensation is addressed later in these reasons.

Gases emitted

99. [99]
    QGC’s EA prohibits it from causing an environmental nuisance at a sensitive place (which includes a home) by releasing any airborne contaminant.^[92] In his statement, Mr Nothdurft said fugitive gases are released from high point vents (HPVs) and other gasfield installations and this constitutes an environmental nuisance. The expert evidence does not support this assertion.
100. [100]
     Responding to a complaint by Mr Nothdurft about constant venting from one of the HPVs, Senior Inspector Ali Jarrahi (an officer with the Department of Natural Resources and Mines) inspected the HPV on 12 February 2016. He concluded there was no safety risk. He tested the area around and adjacent to the HPV with a GMI Gas Surveyor 500 to identify any imminent safety risk of explosive/flammable gasses (Methane). The monitor detected 74% methane in the air immediately above the HPV outlet but not in the surrounding area. Because methane has a light molecular weight relative to air, methane gas is buoyant, travels upward and disperses rapidly. He also used a GMI PS200 personal gas monitor to test for methane, hydrogen sulphide and carbon monoxide. That monitor did not detect the presence of any of those gases in the surrounding area.^[93]

101. [101]
     In further response to Mr & Mrs Nothdurft’s concerns about ambient air quality,^[94]  DNRM investigated and prepared a report called the Argyle Air Monitoring Report dated 16 September 2016.^[95]  Ambient air monitoring and coal seam gas HPV sampling was undertaken at the Argyle gasfield and compared with the results of monitoring at various semi-rural and urban locations. Those tests occurred in stages between May and August 2016. Some testing involved HPVs close to Mr & Mrs Nothdurft’s home.^[96] 

102. [102]
     Sampling results showed all components analysed from ambient air samples were below the minimum detection limit. Components n-octane and n-decane were detected above the ambient air guidelines in the HPV samples. However, they are samples taken direct from the emission source and it is expected that chemical components will be identified there. These samples were reported to provide context for the reader as it is expected that ambient air samples will contain lower concentrations than those present in the source.^[97]
103. [103]
     Despite these reports, which were not challenged, Mr Houen relied on Mr Nothdurft’s lay evidence about gas emissions. I accept that Mr Nothdurft gave evidence about what he perceived but his evidence did not prove to be reliable. For example, he said there were about 10 large gas flares within a 2.5km radius of their home.^[98] The agreed statement of facts, however, records the parties’ agreement there are only three permanent locations within a 10km radius. Further, there was no challenge to Ms Tan’s evidence that flares burn only rarely at these locations and that temporary flares on gathering lines occur infrequently (approximately once a year) and last no more than a week.^[99] Mr Nothdurft also said there are four HPVs located 80m to the southwest and another one 120m to the northeast of their home.^[100] In fact they are much further away, as is demonstrated by an aerial photograph which shows both the home and the HPVs that Mr Nothdurft referred to.^[101]

104. [104]
     Mr Nothdurft said he had tested fugitive gas emissions at the property at 80% methane. He said others (not identified) assisted with testing (no details of what, when or where) using appropriate equipment (not identified).^[102] I place no reliance on that evidence. 
105. [105]
     Mr Nothdurft also said the extent of the nuisance was being investigated through independent testing.^[103] Two rounds of sampling were undertaken for Mr & Mrs Nothdurft by Gary Hall, an employee of Air Noise Environment: between 20 April and 19 May 2016 and between 19 May and 8 June 2016.^[104]  During a review in November 2016, Mr Houen informed the Court the testing did not establish any exceedance for fugitive gases.^[105] 

106. [106]
     In his written submissions, though, Mr Houen submitted the fact that the monitoring (conducted by their expert) did not find evidence of gas concentrations does not necessarily mean they do not exist.^[106] If that is intended to infer there is a problem with ambient air quality at the Nothdurft’s home, that submission should be rejected. This is not a case of absence of evidence, as Mr Houen’s submission suggests. There is unchallenged expert evidence before the Court that is contrary to Mr Nothdurft’s assertion. 
107. [107]
     Mr Houen also relied on an extract from the National Pollutant Inventory Website^[107] which reports annual emissions of various substances from the Kenya CPP. The extract relates to 2015/2016 and Mr Houen particularly noted the data on formaldehyde. 
108. [108]
     He submitted a hypothetical prudent purchaser would:^[108]

“be influenced by knowledge that the Property is a short distance from, and at times downwind of, a source where high volumes of various harmful gases, including as at the latest report 80,000kg/year of formaldehyde, are emitted. As a result of these matters, the value of the Applicants’ land is less than it otherwise would be if the gases were not present”.

109. [109]
     There are a number of difficulties with that submission. Firstly, these are largely airpoint readings: that is they are taken at the source of the emission. Certainly the reading for formaldehyde is. The expert evidence addressed ambient conditions in the vicinity of HPVs, including some close to the Nothdurft home. 
110. [110]
     Secondly, the impact of emissions on market value is only relevant if Mr & Mrs Nothdurft establish a material change in circumstances arising from those emissions. There is no evidence QGC is causing an environmental nuisance at the Nothdurft home, rather the evidence is to the contrary. Mr & Mrs Nothdurft have not established there has been a material change in circumstances arising from gas emissions. 

Incorrect well locations 

111. [111]
     There are seven wells on Bellara. One, Argyle 12, was constructed under the first compensation agreement. QGC undertook to locate it at least 600m from Mr & Mrs Nothdurft’s home. Although Mr Nothdurft said it is 470m^[109] from the edge of the house yard, he accepted that it is 604m^[110] from the house itself. In any case, it seems the claim about Argyle 12 is no longer maintained as Mr Houen only made submissions about the location of the six wells constructed under the second compensation agreement.^[111] 
112. [112]
     The location for those wells was agreed between Mr Robson, for QGC, and Mr Nothdurft during a walk over of the property in 2005. Mr Nothdurft said the locations were chosen with the aim of minimising disturbance to land use, cropping and grazing activities. White pegs were placed at the agreed locations.^[112] Mr Robson carried a hand held GPS and recorded the co-ordinate points for each peg.^[113]
113. [113]
     In his submissions, Mr Houen maintained that three wells, called Argyle 18, 27 and 21 are not in the agreed locations. Another well, Argyle 22 (formerly called Argyle 136) was moved by agreement reached between Mr Rickson, for QGC, and Mr Nothdurft. For that change, QGC paid Mr & Mrs Nothdurft an additional $4,000.^[114]  Mr Houen submitted a further $4,000 should be paid for each of the other three wells.
114. [114]
     QGC provided a map which illustrated the actual location of the wells (marked with a red dot) and Mr Robson’s GPS coordinates for the wells (marked with a yellow dot).^[115] That map was not challenged during the hearing. It is reasonable to infer from it that there was a problem with Mr Robson’s GPS co-ordinates. How that occurred is not important. The map shows all six wells are in fact located at a different point to the place indicated by Mr Robson’s GPS co-ordinates. For two of the wells, Mr Robson’s co-ordinates place them south of Bellara’s southern boundary.^[116] It is improbable Mr Nothdurft would have agreed to peg locations off his own property. During evidence, he said he did not.^[117]
115. [115]
     Even accepting the three wells were constructed at different locations to those agreed, Mr & Mrs Nothdurft must establish the different locations represent a material change in circumstance. Mr Houen submitted the effect was to disturb improved pasture land rather than undeveloped scrub land.^[118] It is not clear what evidence he relied on in making that submission. The aerial image on which the actual and proposed well locations were mapped shows that for all three wells the actual locations are within what appears to be undeveloped scrub land. 
116. [116]
     The only specific evidence of impact arising from a different location for any of the three wells relates to Argyle 27 (formerly Argyle 129). Mr Nothdurft said QGC breached an undertaking Mr Robson gave to stay away from an eagle’s nest tree. He said the nest was abandoned by about 2015 and attributed that at least partly to disturbance because of that well.^[119] Assuming Mr Nothdurft’s belief about that is well founded, it is not clear how that can constitute a material change in circumstances. Compensation is paid for the compensatable effects of QGC’s activities. No link was drawn between disturbance of the nest and the compensatable effects of QGC’s activities on Mr & Mrs Nothdurft. 

117. [117]
     In conclusion on this issue, I am not satisfied that any of the three wells complained of are located differently than actually agreed between Mr Robson and Mr Nothdurft. Even if I am wrong about that, Mr & Mrs Nothdurft have not shown that any change in location amounts to a material change in circumstances.

Owners’ time and resources responding

[118] Mr Nothdurft says there has been an excessive, ongoing draw on his time and resources devoted to dealing with disputes. Mr Nothdurft’s statement links this directly to concerns about noise.^[120] The evidence before the Court shows that both parties have spent considerable time and other resources in dealing with that issue. I have already found that there has been a material change in circumstances in relation to noise. Any amendment of the original compensation flowing from that finding will also take into account the consequential impacts of having to devote time to raising and responding to noise in excess of authorised limits.

Dust – contamination of rainwater tanks 

119. [119]
     This issue relates to dust from vehicle movements on Noel Robinson Road, a mainly gravel road which runs north/south adjacent to the western boundary of Bellara, in close proximity to the home.^[121] The road provides access to an industrial quarry/camp known as Ostwald’s Quarry. The entrance to Ostwald’s Quarry is 650m to the south of the home, where Noel Robinson Road intersects with the Kogan Condamine Road. Aside from the Kogan Condamine Road, Noel Robinson Road does not provide access to any other public road. 
120. [120]
     Noel Robinson Road also provides access to several rural properties, including Bellara, and including rural properties on which QCLNG Project infrastructure is located. It is no longer an access road for either the Kenya CPP or Kenya FCS.^[122] 
121. [121]
     Mr & Mrs Nothdurft allege the Respondents’ operations have contaminated their rainwater tank as a result of:

     1. (a)
        severe dust created by QGC-related traffic travelling along Noel Robinson Road, which has collected on the Applicants' roof and deposited into the Applicants’ rainwater tanks; and 
     2. (b)
        the road dust containing harmful heavy metals as a result of QGC using CSG water for dust suppression purposes. 
122. [122]
     It is clear that if dust was a problem in the past, it no longer is. QGC accepts that about 20 vehicles a day pass the Nothdurft home on this road, although it estimates that only 60% relates to traffic from QGC or their contractors.^[123] Mr Nothdurft said dust settled down when construction ended in about 2012.^[124] That is also when QGC funded the upgrade to bitumen seal 300m of road near the entrance to Bellara.^[125] 
123. [123]
     As to the past, QGC put the traffic on the road at its peak between 2007 and 2012.^[126] Mr Nothdurft said there was a lot of dust during the construction phase.^[127] I accept that this is an amenity impact that could constitute a material change in circumstances. It is difficult to determine whether there is a material change in circumstances, though, because of the lack of evidence about dust during the relevant period. Mr Nothdurft said he made many complaints.^[128] However, the only documented complaint about dust that he produced was made in October 2015.^[129] That is well after the relevant period.
124. [124]
     Further, the real complaint appears to be contamination of drinking water, not amenity impacts of dust. In his statement, Mr Nothdurft said QGC used untreated CSG water for dust suppression.^[130] During evidence, he conceded he did not know where water used for dust suppression came from.^[131] 
125. [125]
     QGC denies it used untreated CSG water for dust suppression and submitted there is no evidence the Nothdurfts’ rainwater tank was contaminated. It led evidence about its practices and procedures since 2012. I accept use of untreated CSG water for dust suppression since 2012 would either be prohibited or only allowed with an internal approval and subject to water quality. ^[132] However, there is no evidence from QGC about its practices prior to 2012. That is the period that Mr & Mrs Nothdurft were most concerned about.
126. [126]
     Mr Houen submitted there is strong circumstantial evidence (which he did not identify) showing the Applicants’ domestic rainwater tanks were sampled and found to be heavily contaminated with metals etc.^[133] The only potential basis for that submission is a brief hearsay account by Dr McCarron of tests said to have been done by someone else. That evidence from Dr McCarron was excluded on objection by QGC at the beginning of the hearing. Mr & Mrs Nothdurft did not lead any evidence from a person who had sampled or tested the water. Mr Houen did not seek time to secure such evidence. There is no explanation for why that was not done. 

127. [127]
     This is an issue on which there is an absence of evidence. Mr Houen’s submission about contamination about the rainwater tank has no foundation in the evidence and I reject it. I find there is no material change in circumstances arising from dust contamination of the rainwater tank.

Perceived health risks inherent in living in or around this gasfield

128. [128]
     Mr & Mrs Nothdurft’s position in relation to ill health shifted during the course of proceedings. 
129. [129]
     Initially, it seemed that they were alleging that they and their children suffer illhealth as a result of excessive noise and fugitive gas emissions and that represented a material change in circumstances. I have already given my finding that there is no evidence of fugitive gas emissions affecting the Nothdurft home. In any case, in his written submissions, Mr Houen recast this issue as one of perceived risk that affects market value, not an actual impact on the health of any member of the Nothdurft family.
130. [130]
     That shift is consistent with the forensic decisions taken by Mr Houen, presumably on instructions from his client, not to pursue that allegation. During pre-trial preparation for the hearing, it appeared Mr & Mrs Nothdurft did intend to call expert evidence about their health. Their compensation materials included an affidavit of Dr McCarron which contained, amongst other things, a record of some symptoms she observed in the Nothdurft family and her opinion about the cause of those symptoms. QGC objected to these passages from Dr McCarron’s evidence because Mr Houen had informed the Court during pre-trial directions hearings that she would not be relied upon as an expert. Had QGC been advised otherwise, they would have sought to have the family independently examined so Dr McCarron’s evidence could be tested.

131. [131]
     However, Mr Houen repeatedly and expressly maintained Dr McCarron was not called as an expert on any topic, a stance he reiterated on the morning the hearing commenced.^[134] 
132. [132]
     Upon QGC’s objection to Dr McCarron’s affidavit at the commencement of the hearing, I allowed only limited passages of her affidavit^[135] which went to her survey of individuals about their perceptions of the effect of CSG activities on their health. That is because Mr Houen advised the Court that her evidence was relevant to the Nothdurft’s argument that the value of their land was diminished by the petroleum tenure, because of a widespread perception of increased health risks. He confirmed Dr McCarron’s affidavit was not relied on to demonstrate the perceptions of risk were well founded. Mr Houen’s insistence that Dr McCarron was not called as an expert was inconsistent with his argument the Court should accept her opinion about the health of the Nothdurft family. 

133. [133]
     As I have already observed, Mr Houen is not a lawyer. In this jurisdiction, the parties have the right to be represented by an agent who is not legally qualified.^[136] Some latitude was given to Mr Houen and I endeavoured to ensure he understood the implications of his decisions and that he held instructions in relation to them.
134. [134]
     In giving reasons on QGC’s objection to Dr McCarron’s affidavit, I observed that those passages expressing an opinion about the health of any member of the Nothdurft family would have to be excluded if she was not relied upon as an expert. I also observed that if Mr Houen wanted to change the position he had earlier announced, he could make that application.^[137] Mr & Mrs Nothdurft were given an opportunity to lead further evidence about health impacts and they did so, in a very limited way.
135. [135]
     It seems that Mr & Mrs Nothdurft made an informed choice not to lead expert evidence of health symptoms, diagnosis or possible cause. Ultimately, the only evidence to support the initial allegation came through Mr Nothdurft. He said he and his family suffered severe ill health as a result of the CSG activities. He can say what he personally experienced and I would accept his description of symptoms he said he observed in other members of the family. He is not qualified to diagnose any particular condition or express an opinion about the cause of any symptoms. 
136. [136]
     Mr Nothdurft also gave evidence of his children consulting a paediatrician in NSW. Mr Houen did not seek leave to call evidence from the specialist himself. That may be because he could say little of any value. Mr Nothdurft said the specialist said the environment could not be ruled out,^[138] although it is not clear what the specialist observed or diagnosed in the children. 
137. [137]
     Mr Houen’s submissions clarified that the issue maintained by Mr & Mrs Nothdurft relates to perceived health risks, not actual health impacts. In those circumstances, it is unnecessary to make a finding about actual health impacts. I observe, however, that if Mr & Mrs Nothdurft had maintained their initial allegation, I would not have found in their favour. On the evidence before the Court there is no basis for making the serious finding that any member of the Nothdurft family suffers health impacts attributable to QGC’s activities.^[139] 

138. [138]
     Returning to perceived health risks, I accept perceptions can affect market value and, in determining compensation that may be relevant. However, Mr & Mrs Nothdurft must establish there is a material change in circumstances. That must mean actual circumstances, not perceptions about them.  I fail to see how a perception, without foundation in fact, can constitute a material change in circumstances. 

Need to relocate their place of residence and relocate Western Downs Spreading and Contracting office and depot

139. [139]
     This issue rests on other allegations. Central to Mr & Mrs Nothdurft’s valuation evidence is the proposition they have to relocate their home and some aspect of their business because of noise exceedances and gas emissions. I have already explained my findings about both these issues.  There is no evidence gas emissions are creating a nuisance at the Nothdurft home. While there have been noise exceedances over time, I find the home is not rendered uninhabitable. There is no evidence that the business needs to be relocated. I am not satisfied that situation is likely to change in the future. 
140. [140]
     Given those findings, I am not satisfied there is a need to relocate the home and business as alleged.
141. [141]
     I am comforted in that conclusion by Mr Nothdurft’s own assertions about the property – not to the Court but to potential purchasers. He listed Bellara for sale on Gumtree towards the end of 2015. Initially, he listed it for sale at $3.5 million, but in early 2016 he increased it to about $4 million. Mr Nothdurft said he was testing the market to see what it was worth in preparation for negotiations with QGC, as he had proposed they buy them out. In his advertisement, Mr Nothdurft described Bellara as ideal for bed and breakfast.^[140] That description belies his allegation they must relocate home and business because of the impact of QGC’s activities.

Can or should the Court amend the compensation agreed by the parties?

142. [142]
     I have found there have been material changes in circumstances due to the cessation of access to untreated CSG water and because of some exceedance of noise conditions. Whether the original compensation should be amended as a result of those changes depends on the compensatable effects of the changed circumstances.
143. [143]
     The term compensatable effect is defined in s 532(4):