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New Acland Coal Pty Ltd v Ashman (No 7)[2018] QLC 41

New Acland Coal Pty Ltd v Ashman (No 7)[2018] QLC 41

LAND COURT OF QUEENSLAND

CITATION:

New Acland Coal Pty Ltd v Ashman & Ors (No 7) [2018] QLC 41*

PARTIES:

New Acland Coal Pty Ltd

(applicant)

 

v

 

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)

 

and

 

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)

 

and

 

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)

 

and

 

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)

 

and

 

Angela Mason

(EPA s 186(d) party)

 

and

 

Department of Environment and Science

(EPA statutory party)

FILE NOs:

EPA495-15

MRA496-15

MRA497-15

DIVISION:

General Division

PROCEEDING:

Remitted hearing of applications for, and objections to, mining leases and related environmental authority

DELIVERED ON:

7 November 2018

DELIVERED AT:

Brisbane

HEARD ON:

2 – 4 October 2018, written submissions closed 19 October 2018

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER:

I make the orders and recommendations set out in Appendix A to these reasons.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority – objections to applications – where mining objections hearing resulted in recommendations to refuse applications – where that decision set aside for errors of law on judicial review – where applications and objections remitted to the Court constituted by a different Member to conduct a further mining objection hearing on limited issues – whether the court has jurisdiction to conduct the remitted hearing – whether the Court’s function in conducting a mining objections hearing under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 requires it to undertake a two-stage balancing exercise on all issues – where the exercise of discretion by the Member conducting the remitted hearing was constrained by findings and conclusions of the Member who conducted the first hearing – where there were disputes about what statements from the first decision were binding on the Member conducting the remitted hearing

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority – objections relating to noise further considered – whether noise limits in the draft environmental authority are adequate to regulate the noise impacts of the mine – whether an area being mined on an existing mining lease under the existing environmental authority was part of the application to amend the environmental authority – whether revised noise conditions should apply to that area when the amended environmental authority commences (if granted)

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority objections – where court found the conditions of the draft environmental authority did not adequately regulate the noise impacts of the mine – where it found some conditions should be imposed that are inconsistent with conditions stated by the Coordinator-General under the State Development and Public Works Organisation Act 1971 – whether the court has power to make recommendations that are conditional on the changes to the conditions stated by the Coordinator-General – where the court found it has that power – where the court made conditional recommendations that the applications are granted and, in the alternative, recommended the applications are refused

Environmental Protection Act 1994 s 107, s 110, s 117, s 185, s 191(1)(f),  s 215(1), s 215(2)(n), s 226, s 235

Environmental Protection Regulation 2008 s 51

Environmental Protection (Noise) Policy 2008 s 5, s 6, s 7

Mineral Resources Act 1989 s 269(4)

State Development and Public Works Organisation Act s 54B, s 47C, s 54B(3)

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99, cited

Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, cited

Deuchar v Gas Light and Coke Co [1924] 1 Ch 422, cited

Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) LGRA 238, cited

Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72, cited

Knight v FP Special Assets Ltd (1992) 174 CLR 178, cited

McBain v Clifton Shire Council [1995] QCA 513, cited

New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, considered

New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, considered

New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, considered

Oshlack v Richmond River Council (1998) 193 CLR 72, cited

R v Gough; Ex parte Australasian Meat Industry Employees Union (1965) 114 CLR 392, cited
Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473, cited

Taralga Landscape Guardians Inc v Minister for Planning RES Southern Cross Pty Ltd (2007) 161 LGERA 1, cited

Tickner v Chapman (1995) 57 FCR 451, cited

APPEARANCES:

D Gore QC and B Job QC (instructed by Clayton Utz) for the applicant

Dr C McGrath of Counsel (instructed by Environmental Defenders Office) for Oakey Coal Action Alliance Inc.

K Barlow QC (instructed by the Department of Environment and Science) for the statutory party 

P King for Darling Downs Environment Council Inc.

Dr T Plant, Dr S Ward, S Plant, M Plant, Dr J Standley, N Wieck, A Mason, A Harrison, G Beutel, Dr G McCarron, respondents in person

Background

  1. [1]
    Acland is a small town north of Oakey, on the Darling Downs, 160 km west of Brisbane. Since 2001, New Acland Coal Pty Ltd has operated an open cut coal mine called the New Acland Coal Mine. Stage 1 of the mine commenced in 2001. Stage 2 of the mine was approved in 2006. Stage 2 is very close to Acland, which no longer functions as a town. One of the objectors and his tenants are the only residents. If stage 3 is approved, what remains of the township will be surrounded by the mine.
  1. [2]
    This case deals with Stage 3, which involves applications for two new mining tenures and amendments to the existing environmental authority (EA).
  1. [3]
    The Stage 3 applications have run a tortuous path that is well-documented elsewhere. Suffice it to say that the proposal to expand the mine, now known as Stage 3, was declared a significant project under the State Development and Public Works Organisation Act 1971 in 2007. The scope of the Stage 3 Project was significantly revised in 2012 and was refined in 2014. It was then assessed by the Coordinator-General (CG), who issued his Evaluation Report on the Environmental Impact Statements for Stage 3 in December 2014. The CG’s report included conditions for the EA (stated conditions). The statutory party (now DES but then known as DEHP) issued a draft EA on 28 August 2015.
  1. [4]
    There were 27 objectors to the applications for two mining leases (MLAs) under the Mineral Resources Act 1989. There were 35 objectors to the draft EA issued by DEHP under the Environmental Protection Act 1994. Twenty of them objected to both the MLAs and the draft EA. Amongst the objectors were two organisations: the Oakey Coal Action Alliance and the Darling Downs Environment Council. Most of the objectors are landholders who live in the vicinity of the mine. Some trace their family connection in this area back to 1848.
  1. [5]
    The mining lease applications (MLAs), the draft EA, and the objections to them, were referred to the Court for an objections hearing for the Court to make recommendations to the Minister for Natural Resources and Mines (as the department then was) in relation to the MLAs, and to the Chief Executive of DEHP, in relation to the draft EA.
  1. [6]
    Member Smith conducted the objections hearing and made his recommendations on 31 May 2017. That decision was judicially reviewed early in 2018. Justice Bowskill set aside his Honour’s recommendations and remitted the applications and objections to the Court for further hearing, on a limited basis. Justice Bowskill ordered a different Member conduct the remitted hearing, bound by most of Smith M’s findings and conclusions.
  1. [7]
    I conducted the remitted hearing on the evidence before Smith M. The parties raised issues about: the jurisdiction of the Court; the scope of the remitted hearing; what findings and conclusions bind me; what the noise conditions should be; whether NAC mining an area (known as West Pit) under the existing EA is lawful or relevant to the hearing; and whether the applications should be refused on public interest and other grounds.
  1. [8]
    In these reasons, I often refer to the objectors collectively. On the whole, the objectors had shared concerns, even if they made different arguments about them, or made those arguments in different ways. Further, those objectors who represented themselves agreed, in large part, with the submissions made by OCAA, which was legally represented in the hearing.
  1. [9]
    I mean no disrespect to any objector by not referring to them directly. Their individual submissions, both written and oral, assisted me to understand how past activities affected them, and their concerns about future operations. Their contributions to the hearing ensured I never lost sight of the fact that the recommendations I make have real consequences, for real people. I have taken each of their submissions into account in making my recommendations.[1]
  1. [10]
    Ultimately, I have made conditional recommendations to grant the MLAs and to approve the application to amend the EA. The recommendations are conditional, in the sense that they do not have effect unless certain things take place. I will hear from the parties about a reasonable time to allow for that to happen. If the condition is not fulfilled, I recommend the applications are refused.
  1. [11]
    My reasons explain how I arrived at those recommendations. I have addressed the issues raised by the parties by considering these questions:
  1. What is the Court’s jurisdiction and function in the remitted hearing?
  1. What should be the noise conditions for Stage 3?
  1. Is NAC’s mining of the West Pit relevant to the remitted hearing?
  1. What recommendations should I make?

What is the Court’s jurisdiction and function in the remitted hearing?

  1. [12]
    OCAA challenged the Court’s jurisdiction to conduct the remitted hearing and the parties had different views about how the Court should fulfil its function in this hearing. I will address those issues, before turning to the merits of the applications.

Does the Court have jurisdiction to conduct the remitted hearing?

  1. [13]
    OCAA argued the Court could not continue with the remitted hearing and should refer the draft EA back to DES to consult with the CG to remove conditions dealing with groundwater.[2]
  1. [14]
    Justice Bowskill determined the Court could not consider the key issue of groundwater in the objections hearing of NAC’s applications. OCAA relied on her Honour’s reasoning that this was beyond the Court’s jurisdiction because impacts on groundwater quantity will be the subject of NAC’s application for a licence under the Water Act 2000.[3]
  1. [15]
    The logical consequence of that reasoning, OCAA submitted, is that the CG cannot fix and DES cannot approve a draft EA that includes conditions dealing with groundwater quantity: i.e. depletion of ground water available for other uses. As the draft EA referred to the Court includes such conditions, the referral is not valid.
  1. [16]
    I reject that submission for a number of reasons.
  1. [17]
    Firstly, DES invokes the Court’s jurisdiction by referring a draft EA to the Court for an objections hearing.[4] What is required is a valid referral. It is possible to sever invalid conditions without vitiating the authority to which they attach.[5] OCAA appeared to accept that when it said the referrals were ultra vires to the extent they imposed conditions relating to groundwater monitoring.[6]
  1. [18]
    Secondly, this argument was not before Bowskill J. Nor was it a ground of objection or otherwise raised in the hearing before Smith M.
  1. [19]
    Thirdly, the Court must read Bowskill J’s reasons in context. Her Honour decided the particular factual subject matter of the key issue of groundwater is beyond the Court’s jurisdiction.[7] That was groundwater depletion.[8] Her Honour drew a distinction between groundwater quantity and groundwater quality.[9] She confirmed the Court could consider Schedule D of the draft EA, which includes the groundwater conditions.[10]
  1. [20]
    Accordingly, it does not follow from her Honour’s reasoning that the Court has no jurisdiction to proceed with the remitted hearing, because the draft EA contains conditions dealing with ground water. That would be directly contrary to the orders she made and what she said during the hearing.
  1. [21]
    The same reasoning applies to another submission by OCAA, which it is convenient to deal with here. Although this was not a challenge to the Court’s jurisdiction to conduct the remitted hearing, it affects what issues the Court can consider.
  1. [22]
    OCAA argued the Court cannot consider the wider economic benefits of the mine, including employment growth, because the mine cannot proceed without first securing a water licence. I also reject that argument.
  1. [23]
    The water licence is another approval NAC will require for some, but not all, of the activities the mining leases and amended environmental authority would approve, if granted.
  1. [24]
    Further, Bowskill J referred, without demur, to Smith M’s findings about the economic benefits of the mine. The Court is bound by his findings and conclusions on that topic.[11] I am satisfied the Court can consider the wider economic benefits of the mine in the remitted hearing.

What is the Court’s function on the remitted hearing?

  1. [25]
    Justice Bowskill remitted the applications and objections to the Court for further hearing on a very limited basis.[12] The Court is not bound by any of Smith M’s findings or conclusions regarding groundwater and, to the extent they are connected, inter-generational equity, because the depletion of groundwater is beyond the jurisdiction of the Court in this hearing.
  1. [26]
    Nor is the Court bound by Smith M’s conclusions about noise. Otherwise, his Honour’s findings and conclusions bind me in conducting the remitted hearing and making my recommendations.
  1. [27]
    In making those orders, her Honour’s intention was to avoid unnecessary re-litigation, or re-examination of issues,[13] because:[14]

“It would be entirely inimical to the interests of justice to permit the parties to avoid the binding effect of the findings and conclusions already reached by the Land Court, after a full hearing, which are not tainted in any way by the outcome of this judicial review proceeding.”

Does this require the Court to engage in a two-stage balancing exercise?

  1. [28]
    My exercise of discretion is necessarily constrained by those of Smith M’s findings and conclusions that bind me. However, the parties perceived the practical effect of that constraint on how I would exercise the Court’s function on the remitted hearing quite differently.
  1. [29]
    NAC submitted there is no scope for recommending refusal on any issue except noise. It said that I should conclude the noise limits set by the CG are acceptable, despite Smith M’s finding that lower noise limits were appropriate. In any case, even if I do not accept the CG’s noise limits are acceptable, it would be unreasonable to recommend refusal on that ground alone. Member Smith made no other binding finding or conclusion that favoured a recommendation to refuse the applications.
  1. [30]
    Although it did not directly address the question, it was implicit in the submissions for DES that my reasoning about noise is central to the recommendation. It said I am bound by the finding that lower noise limits are appropriate but may, in making my recommendations, consider NAC’s arguments about noise. I must decide whether, on balance, to recommend the grant or refusal of the applications.
  1. [31]
    OCAA argued there was little scope for the Court to form a favourable conclusion on noise on the draft EA conditions, given Smith M’s findings. The objectors generally argued the CG’s conditions were neither appropriate nor acceptable and I should recommend refusal if those conditions are to apply.
  1. [32]
    Further, OCAA and other objectors submitted my consideration is more wide-ranging that forming a conclusion about the noise limits. Member Smith decided to recommend refusal on limited grounds. Only one of those is now before the Court. However, I must look at all of his Honour’s binding findings and conclusions afresh. He made other findings that the Court could weigh in the balance in making a recommendation on the applications.
  1. [33]
    The difference between the parties, to some extent, reflects different views about the balancing exercise in weighing the various factors the Court must consider in making its recommendation. NAC’s submission about the two-stage balancing exercise has implications for mining objection hearings generally.
  1. [34]
    NAC submitted the effect of Bowskill J’s reasoning is that the Court must engage in a balancing exercise at two levels. First, in the context of the individual key issues and secondly in the context of the ultimate recommendation.[15]
  1. [35]
    To consider a matter requires an active intellectual process. The Member hearing the matter must bring their mind to bear[16] upon the salient facts that give shape and substance to the matter[17] and the arguments or opinions in relation to that matter. The Court may need to make findings of fact relevant to the matter where they are in contest. It must engage with the arguments made about the matter.
  1. [36]
    However, that does not necessarily require the Court to undertake a balancing exercise, separately, in relation to each key issue. The same can be said of the statutory criteria the Court must consider.
  1. [37]
    The danger in adopting a two-stage approach in a mining objection hearing is that it may distract the Court from fulfilling its statutory function. In exercising its discretion, the Court is not making a series of decisions on each key issue, leading to an ultimate decision. The key issues arise from the objections. They are unlikely to, and in this case they do not, address all the statutory criteria the Court must consider. To conclude whether to recommend refusal or approval on each key issue risks undermining a proper consideration of how all the relevant factors weigh in the balance.[18]
  1. [38]
    Further, the Court must make its decision, on a consideration of all the statutory criteria, including the matters raised by way of objection. That is where the weighing up or balancing exercise must be undertaken. That calls for a holistic consideration of all the relevant factors.
  1. [39]
    The passage that NAC relies upon in advocating a two-stage process is in a section of Bowskill J’s judgment about how the Court should have applied the principle of intergenerational equity.[19] That specific context is important. The principle of intergenerational equity is one of the principles of ecologically sustainable development. Her Honour accepted the Court should not view any one of the principles of ecologically sustainable development in isolation, with one given overriding weight.[20] Justice Bowskill concluded Smith M had not considered any other principle and had proceeded on the basis that a breach of the principle of intergenerational equity warranted refusal. Her Honour found that was not the correct approach.[21]
  1. [40]
    Her Honour identified the particular reason the Court must engage in a balancing exercise when applying the principles of ecologically sustainable development. However, it does not follow that she concluded the Court must engage in some sort of balancing exercise, individually, on every key issue. That is not what she said.
  1. [41]
    Further, when discussing the issue of noise, her Honour’s reasons suggest the contrary. She said Smith M’s reasoning does not demonstrate weighing up (or balancing) considerations leading to a view that, in the exercise of the discretionary power reposed in him, it was appropriate to recommend refusal.[22]
  1. [42]
    Justice Bowskill then discussed the options that were open to Smith M and observed that:[23]

“this is part of the balancing exercise that is inherent in the exercise of the discretionary power – is the view held by the Court about a condition, which is inconsistent with a Coordinator-General condition, such that it is appropriate to recommend refusal? Or do other considerations outweigh the inconsistent condition, such as to lead to the view that it is appropriate to recommend approval, despite the constraint on the conditioning power?”

  1. [43]
    Justice Bowskill said the Court must weigh up (that is balance) the various considerations that each statute requires it to take into account in order to arrive at its recommendation. She referred to authorities that establish that no one consideration and no combination of considerations is necessarily determinative of the result.[24] Terms such as take into account and consider leave it to the Court to decide what, if any, weight it should give to each of the matters specified.[25]
  1. [44]
    Nevertheless, while I agree with OCAA’s submission that I must exercise the whole of the discretions in s 269 MRA and s 190 EPA, I am necessarily constrained in how I may proceed. Member Smith’s conclusions, as well as his factual findings, bind me. His Honour expressly excluded recommending refusal on many key issues, even in the face of factual findings that were adverse to NAC.
  1. [45]
    For example, he said he would not recommend refusal on the key issues of economics (at [1056]), agricultural economics (at [1082]), climate change (at [1094]), mental health (at [1265]), community and social environment (at [1417]) and other objections (at [1750]). He also said he would not recommend refusal on the statutory criteria of past performance (s 269(4)(g) at [1793], [1824]).
  1. [46]
    I will not engage in a two-stage balancing exercise, but my discretion is not at large. I will consider the issue of noise and all his Honour’s binding findings and conclusions and, weighing them in the balance with any further findings I make in this hearing, decide what recommendations to make.

What are the binding findings and conclusions?

  1. [47]
    I am grateful for the parties’ assistance in the rather onerous task of identifying which passages of Smith M’s very lengthy judgment contain binding findings and conclusions. OCAA provided a marked up version of his Honour’s judgment, which has been my base reference. It is not surprising that there were some disagreements between the parties about what binds me. However, it is only in relation to noise that this has real consequence.
  1. [48]
    To the extent that I need to resolve disagreements about findings and conclusions, I have done so at the relevant point of my reasons, and, in doing so, I have applied the following principles, which do not appear to be controversial:
  1. (a)
    I am not bound by Smith M’s legal reasoning.
  1. (b)
    Findings are findings of fact.
  1. (c)
    Conclusions are the decisions on the key issues and on the application of the statutory criteria to the facts.
  1. (d)
    The following types of statements are not findings or conclusions:
  1. (i)
    uncontroversial background information;
  1. (ii)
    extracts from the evidence (although Smith M may have reproduced them to support or explain a finding);
  1. (iii)
    references to the evidence led or the findings made in a different case;
  1. (iv)
    comments about a witness, their credit or their demeanour (although Smith M may have made the comments to support or explain a finding);
  1. (v)
    general observations and commentary.

What should be the noise conditions for Stage 3?

  1. [49]
    NAC argued the CG’s stated conditions are acceptable, consistent with the statutory requirements, impose stricter limits than now apply, and are more closely monitored and easily enforced than the existing EA.
  1. [50]
    DES did not advocate for particular noise conditions. It observed NAC’s arguments were relevant in deciding what recommendations to make, but submitted I could not recommend different noise limits to those set by the CG. Further, it said NAC’s proposal to alter the definition of noise sensitive places is inconsistent with the CG’s conditions, as are some other amendments proposed by NAC.
  1. [51]
    OCAA and the other objectors argued I should recommend refusal of the applications because of the noise impacts, amongst other things, particularly the loss of good quality agricultural land. If, however, I decide not to recommend refusal, I must give effect to Smith M’s findings about the appropriate noise limits, which would make a real difference to their quality of life. Further, there should be continuous real-time monitoring with publicly available data, to hold NAC to account.
  1. [52]
    Before starting on this issue, I must observe that NAC made many of the arguments put to me in this remitted hearing to Justice Bowskill in the judicial review hearing.[26]  Justice Bowskill found there was no error of law in his Honour’s interpretation or application of the Environmental Protection (Noise) Policy 2008 or that he had failed to take into account something he was required to.[27] I am bound by Smith M’s finding as to the appropriate noise limit and I cannot revisit that. Nevertheless, as DES submitted, I can consider those arguments in deciding what recommendations to make on the applications. That is, they may affect the weight I give to the finding in the balancing exercise.
  1. [53]
    There is an issue about noise I will mention now, relating to the mining of an area known as West Pit. I have addressed that later in these reasons.
  1. [54]
    I will consider those various arguments by addressing the following questions:
  • What statements did Smith M make about noise that are binding findings?
  • What are the arguments about the noise limits?
  • Should the noise limits apply to all noise sensitive places?
  • How should the noise impacts of the mine be monitored, reported, and enforced?

What statements by Member Smith about noise are binding findings?

  1. [55]
    Member Smith addressed the key issue of noise between [714] to [816] of his reasons. He also stated his core finding at [3]. There were some differences between the parties about which of his statements are binding findings. I have applied the principles I outlined at [48] in deciding that only the statements set out below are binding findings. In large part, I have accepted the submissions by DES about the passages I have excluded. They are, variously: conclusions; legal reasoning; extracts from the evidence that did not state a finding; commentary; references to the evidence in the Xstrata case; or analysis of the findings and reasoning of President MacDonald, then President of this Court, in Xstrata.
  1. [56]
    I consider the following findings by Smith M about noise are binding findings:[28]

“[3] As regards noise, I have found noise levels should be set at 35 dB for evening and night time…

[721]  …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.

[722]  …:

“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.”

[724]  …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.

[727]  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.

[737]  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.

[738]  …the elevated levels were measured at a time when NAC should have been actively undertaking its TARP process and therefore actively preventing excess noise.

[739]  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.

[740]  …noise impacts of the mining operations on sensitive receptors is wind and atmospheric dependent.

[741]  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.

[742]  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.

[743]  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.

[764] …Prior to Stage 1 and Stage 2, Acland was a quiet rural area at which the revised Stage 3 is proposed to operate. Of course, if the revised Stage 3 does not gain approval, at the conclusion of mining operations under of Stages 1 and 2, Acland will return to being a quiet rural environment.

[773]  …the appropriate noise level for evening and night operations should be set at 35 dB for each and not at 42 dB and 37 dB ...

[775]  …the specific noise that the mining activity itself should be allowed to make at a maximum is 35 dB in the evening in night in accordance with s 10, and that, when total noise is taken into account for the purposes of schedule 1, the appropriate schedule 1 levels are 42dB and 37 dB…

[776]  In my view it is entirely appropriate that the EPP noise s 10 levels should apply in this matter…

[793]  …since 2014 NAC has been using an unvalidated Quattro monitor.

[794] …it is not relevant that the Quattro unit is not validated.[29]

[796]  …data obtained from the unvalidated equipment is, or has been, it would seem, used by NAC in response to any noise complaints that it has received in the last few years as a result of Stage 1 and Stage 2 operations.

[798]  I accept Mr Elkin’s evidence that the new directional Quattro monitor is used in the Hunter Valley in New South Wales. I also accept that it is a matter of the Quattro monitor being validated by the appropriate process, not that it is unfit to ever be validated.

[802]  … NAC has already in a sense begun its revised Stage 3 mining activities by mining the proposed Manning Vale East Pit (West Pit) albeit under the existing ML.

[809]  …The provision of this data[30] online in real time will take out the adversarial complaints based process which has not worked and ensure NAC are directly accountable to EHP for its noise emissions. As with air quality, no doubt NAC will have online information explaining noise data and clarify its noise emissions in its monthly publically available environmental reporting, see CG (condition 3) and EHP (A14). It is vital for community relations and wellbeing that local residents can access real time noise monitoring data. I am confident local residents would not be upset or confused by the raw data. In fact the provision of this data may help local residents become more aware of what level of noise is acceptable.”

  1. [57]
    It is evident that much of what Smith M said about this key issue is not binding in this hearing. That does not mean the rest of his reasons on the issue of noise are irrelevant.
  1. [58]
    I will have particular regard to the evidence his Honour specifically mentioned to support his findings. Member Smith had the benefit that I have not had of hearing the witnesses give their evidence and hearing oral submissions that provide context for the lengthy and detailed written submissions made by the parties. I consider I can have regard to his legal reasoning where that was not found to be wrong, and, also, his conclusions except the ones overturned. Respectfully, I will give due weight to his Honour’s reasoning on issues I must still resolve, where that reasoning is either clearly stated or a matter of necessary inference from a non-binding statement or reference to the evidence.
  1. [59]
    By way of example, Smith M (at [717]) reproduced the section of the joint expert report of Mr Elkin (called by NAC) and Mr Savery (called by OCAA) that recorded their areas of agreement. Although he did not say so, I infer that he has accepted that evidence and found those matters were established to his satisfaction.

What are the arguments about the noise limits?

  1. [60]
    Because Smith M’s finding about the appropriate noise limits for Stage 3 are binding, I cannot revisit the question of what limits are the appropriate limits for the mine. As DES submitted, the arguments made by NAC are relevant to how I weigh that and other findings in the balance when deciding what recommendations to make.[31]
  1. [61]
    I should also indicate here how I will deal with the issue of NAC’s past performance regarding noise under the existing EA. That was the subject of a great deal of evidence, and his Honour made a number of important findings about that. Those findings bind me.
  1. [62]
    Member Smith broadly and generally accepted the objectors’ evidence about their experiences of noise from the mine.[32] He refrained from making any findings about NAC’s compliance with the existing EA.[33] No party asked me to take a different approach and I have not. Member Smith said the question for Stage 3 is whether the limits set for noise in the draft EA were sufficient to protect and safeguard human health.[34] Putting to one side the dispute about what noise limits should apply, Smith M said he was confident NAC would comply with the set limits or be subject to immediate enforcement action because of the draft EA conditions and the further conditions about monitoring and reporting.[35] His Honour’s findings as to the appropriate noise limit must be considered in that wider context.
  1. [63]
    I must consider any regulatory requirement imposed on DES under a regulation made or an EPP approved under the EPA.[36] That means, in relation to the key issue of noise, I must consider ch 4 pt 2 of the Environmental Protection Regulation and the EPP.[37] DES (or the DEHP as it then was) conducted an environmental objective assessment[38] of the draft EA. I must have regard to that but need not undertake the assessment myself.[39]
  1. [64]
    The purpose of the EPP Noise is to achieve the object of the EPA in relation to the acoustic environment.[40] The EPP furthers that purpose by identifying environmental values to be enhanced or protected and specifying Acoustic Quality Objectives to achieve that.[41] One environmental value is the qualities of the acoustic environment that are conducive to human health and wellbeing. Many of the concerns expressed by objectors relate to those qualities, which include the amenity of the community and a suitable acoustic environment in which individuals can sleep, study or learn, be involved in recreation, relax, and engage in conversation.[42] Schedule 1 to the EPP contains AQOs prescribed for enhancing or protecting those environmental values. In the circumstance of this mine, the relevant AQO is for noise inside a dwelling.
  1. [65]
    Mr Elkin and Mr Savery prepared a number of reports, provided a joint expert report and were tested under cross-examination at the hearing. Although they did not agree on the noise limits, and used quite different methods to arrive at them, they agreed on a great deal. Particularly, they agreed:[43]
  1. achievement of the noise limits will be difficult at any of the near sensitive receptors depending on meteorological conditions and will require considerable attention to noise monitoring and continuous ongoing adaptive noise management;
  1. prior to the Trigger Action Response Plan (TARP), NAC’s performance in response to noise complaints was not satisfactory;
  1. under the TARP and with monitoring noise and implementing noise mitigation, NAC’s performance had improved significantly and further improvements can be made; and
  1. some refinements should be made to NAC’s real-time monitoring system.
  1. [66]
    There were some disagreements about modelling at the original hearing and, to a more limited extent, at the remitted hearing. OCAA raised this in the context of arguments about NAC’s ability to comply with noise limits, whatever they are. I do not consider it necessary to resolve the debate about modelling methodology in this hearing. The expert evidence is clear that NAC must continue with and improve their adaptive management of noise. I note that the strategic modelling methodology that Mr Savery recommended is reflected in the proposed conditions.[44] I will return to consider how that fits with the monitoring and reporting conditions later in the reasons.
  1. [67]
    The real focus of the parties’ submissions in the remitted hearing was on the different noise limits recommended by the experts.
  1. [68]
    Mr Elkin said the limits stated by the CG are appropriate. They are derived from the indoor dwelling AQO in the EPP Noise. They are 35 dBA for daytime (7am to 7pm) and evening (7pm to 10pm) and 30 dBA for the night (10pm to 7am). Because they are indoor levels, and noise is monitored outside the dwelling, the limits must be adjusted.
  1. [69]
    The experts agreed a 7 dBA façade reduction is appropriate. It is a conservative reduction and assumes the worst affected façade.[45] Bedrooms located on the side or rear facades would experience greater attenuation of between 3 to 5 dBA and 10 dBA. Contrary to the submissions made by some of the objectors, that does not assume closed windows. It assumes partially closed or open windows. If the windows are closed, the reduction would be at least 20 dBA.[46]Applying a 7 dBA façade reduction results in limits of 42 dBA for daytime and evening and 37 dBA for night.
  1. [70]
    The limits Smith M found were appropriate are based on Mr Savery’s recommendation: 42 dBA for daytime and 35 dBA for evening and night. That is a 5dBA reduction for the evening and a 2 dBA reduction at night from the CG’s conditions.
  1. [71]
    As I read Mr Savery’s evidence, his starting point was that this area was otherwise a very quiet environment and he thought lower limits would better protect the health, wellbeing, and amenity of the mine’s neighbours.
  1. [72]
    The experts agreed the area has very low background noise levels without the mine.[47] They did not agree, though, on whether the AQO levels were adequate. Mr Savery thought not, because, he said, they are based on World Health Organisation and enHealth Reports that focus on urban environments. Mr Elkin did not agree with that. He said they were applicable to all environments.[48] The EPP Noise does not draw the distinction that Mr Savery did.
  1. [73]
    There are some features of Mr Savery’s reasoning that concern me, some of which Smith M referred to. Mr Savery arrived at his levels by applying what he described as the minus 5 dBA adjustment for very rural environments.[49]
  1. [74]
    Firstly, in making that adjustment he relied on the Model Mining Conditions Guidelines (MMCG). It uses background noise levels as the reference point for setting noise limits. Mr Savery adopted deemed minimum background noise levels of 30 dBA in the evening and night and 35 dBA in the daytime in his analysis. This was an artificial exercise, but much about the assessment and adjustment of noise has an element of artificiality and subjectivity.
  1. [75]
    Mr Savery said the MMCG (and the Planning for Noise Control Guideline (PNCG)) provide the best protection of health, wellbeing and amenity of all sensitive receptors.[50] Member Smith rejected his reliance on MMCG and noted the PNCG has been overtaken by the EPP Noise.[51]
  1. [76]
    Further, I note Mr Savery agreed with Mr Elkin that noise limits based upon PCNG 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.[52]
  1. [77]
    Secondly, Mr Savery relied on the background creep provision of the EPP Noise to support his minus 5 dBA adjustment. Background creep is the progressive increase of background levels as more activities contribute to the acoustic environment. Section 10(2)(b) provides that, to the extent that it is reasonable to do so, variable noise from an activity must not be greater than 5 dBA greater than the existing acoustic environment.
  1. [78]
    It seems to me that Mr Elkin’s approach to the noise limits was orthodox. Background creep is a useful measure for noise limits set by reference to the existing background level. The CG’s limits are not that type. They apply to the total noise level recorded regardless of the background levels. Under the CG’s conditions, NAC’s obligation is to ensure noise from its activities do not cause the total noise to exceed those limits.
  1. [79]
    NAC submitted that Mr Elkin said the CG’s conditions are “anti-creep“. But that misunderstands his evidence. He said that they were anti-creep if you take the existing background levels as the starting point.[53] The acoustic environment for this area has significantly changed from a very quiet rural area to one affected by noise from a continuous mining operation. That is a relevant factor in deciding what limits should apply.
  1. [80]
    NAC submitted the difference between the limits is the difference between what is preferred or desirable and what is acceptable. The objectors strongly disagreed. They said the difference was between acceptable and unacceptable noise.
  1. [81]
    Member Smith’s primary concern about noise was its impact on the health and wellbeing of the mine’s neighbours. He returned to noise when considering the key issue of health. He referred to expert evidence that the range of health impacts from noise from a mine that operates 24 hours a day includes:[54]
  1. sleep deprivation, which has been linked to numerous adverse health outcomes;
  1. hearing damage or loss; and
  1. learning difficulties in children.
  1. [82]
    Member Smith did not find that noise from the mine had caused those impacts. His Honour expressed his concern about the health impacts of the noise levels set in the draft EA and found the limit of 35 dBA is sufficient to protect human health and wellbeing.[55] That is not the same thing as a finding that the CG’s limits would cause those impacts.
  1. [83]
    It seems to me that Member Smith considered lower limits were more protective of health, but he did not make a positive finding that the CG’s limits put health at risk.
  1. [84]
    Here, I must observe there was evidence from Mr Savery, as well as Mr Elkin, that the AQO levels used as the reference point for the CG’s conditions, are protective of health. Mr Savery agreed that, as long as progressive or background creep does not exceed the AQO objectives, health and wellbeing are protected.[56] It is not clear what Smith M made of that evidence.
  1. [85]
    Further, it is not clear what Member Smith made of the evidence of Dr McKenzie, the expert engaged by NAC to give expert evidence on health issues. Member Smith said he preferred the evidence of Dr McKenzie over the evidence of Dr Jeremijenko, the expert called by Dr Plant.[57] However, when addressing noise and health, Smith M did not advert to the specific evidence summarised below.
  1. [86]
    Dr McKenzie said noise at levels below 45 dBA has not been shown to produce adverse health effects or significant sleep disturbance.[58] The predicted noise levels in the EIS for sensitive receptors are unlikely to disturb sleep significantly and are well below the levels that cause hearing damage or learning difficulties in children.[59] The noise conditions in the draft EA are quite stringent and he did not consider there would be any health impacts as a result of the noise.[60]
  1. [87]
    Further, I take note of the DEHP’s assessment of the CG’s noise limits. The CG intended his stated conditions would implement all the requirements of the EPP Noise.[61] The DES undertook an environmental objective assessment[62] of the conditions and found in favour of the applications. There is nothing in the EOA to suggest the CG wrongly applied the EPP Noise in arriving at his stated conditions or that the CG’s limits put the residents’ health and wellbeing at risk.
  1. [88]
    Taking all of that into account, I accept the CG’s limits are acceptable, at least in most circumstances.
  1. [89]
    However, there are features of this mine that put the limits into sharp relief. This mine is in a closely settled rural area, with low background noise levels (absent the mine), and with neighbours very close to the mining operations. The mine operates 24-hours a day, 7-days a week and NAC has a history of poor response to noise complaints.
  1. [90]
    There is a range of factors that affect the subjective experience of noise. One important factor is the meaning and history associated with the noise. This is called non-acoustical factors, psycho-acoustics or psycho-social acoustics.[63] This factor is pertinent when considering the wellbeing of the neighbours of a mine that is operating continuously, and which has a poor track record on noise. Member Smith did not expressly refer to this factor in his reasons, but it is clear he had the objector’s experience of noise from the mine at the forefront of his mind. He referred to NAC’s poor response to complaints repeatedly in his reasons.
  1. [91]
    Justice Bowskill observed that his Honour’s finding about the appropriate noise limits was based on his assessment of the lay witnesses.[64] Member Smith found NAC had exceeded its conditions from time to time,[65] and at Mrs Mason’s premises, that has occurred frequently.[66] Mr Elkin noted noise at Acland exceeded the night time noise limits on 131 nights since January 2015.[67] Member Smith also accepted evidence from some of the objectors about significant sleep disturbance.[68]
  1. [92]
    Member Smith accepted the evening limits should be the same as for the night. Typically, in the evenings, in our homes, we eat our evening meal, our children do their homework, we relax from the day’s activities and we prepare for our next day’s work. That is not always a peaceful time. NAC referred to evidence from Mr Savery to that effect. He agreed that, in a typical household during the evening period, the indoor domestic noise levels could be 35, 40 or higher. But that concession was qualified and his evidence about should be read in context. This is what Mr Savery said:[69]

“Let’s take a typical evening scenario of, say, 7 o’clock. The ABC News is crackling in the background and dinner’s being cooked. So far, reasonably realistic? - Probably.

The motor fan on the range hood or in the oven spinning around. Yes? -

Possibly. Yep.

Fridge might be humming and the general clatter of kitchen noise, utensils, washing up, whatever. It’s probably safe to assume that there might be an odd bit of 20 conversation going on in the household? -

Yes.

What sort of noise levels inside the house are we talking about in that scenario? -

Well, it’s going to vary, depending on the activity that’s – that’s taking place. But it – it could well be in – in and above the level range that we’re talking 25 about in the 35, 40, 45, those – or even higher – on an instantaneous basis.

I was using a typical house, not my house?

Sure.”

  1. [93]
    The distinction between instantaneous noise and constant noise is an important one in interpreting Mr Savery’s evidence about that topic.
  1. [94]
    It is true the AQO makes no distinction between daytime and evening. However, the evening period extends until 10pm. In a rural environment, people tend to go to bed earlier and rise earlier to start work on their farms. Their night may well start before the evening period specified for an AQO ends.
  1. [95]
    I accept that the CG’s conditions involve a substantial improvement on the existing EA conditions.[70] Further, the CG’s limits are stricter than the AQO levels,[71] because noise is averaged over a 15 minute rather than a one hour interval, as Schedule 1 contemplates.
  1. [96]
    NAC submitted the experts agreed the improvement between existing mining noise and noise that complies with the CG’s conditions will be somewhere between perceptible and half as loud.[72] However, the difference the experts noted compared noise that exceeded the existing EA limits and noise that complies with the CG’s conditions.
  1. [97]
    Mr Elkin said the difference in the night time limit between 40dBA (existing) and 37dBA (draft EA) is not a vast change.[73] The difference between 40dBA and 35dBA, as Smith M found to be appropriate for both evening and night, is clearly perceptible.[74]
  1. [98]
    Member Smith was entitled to draw upon the evidence given by Mr Savery in finding lower noise limits were appropriate in the particular circumstances of this mine, operating as it does, in this particular closely settled rural environment. There is nothing in the EPP Noise to prevent DES imposing lower noise limits than those consistent the AQO in Schedule 1. Although NAC has made some valid arguments, I consider the lower limits are more conducive to the wellbeing of a community which has been adversely affected by noise for many years.

Should the conditions apply to all noise sensitive places?

  1. [99]
    NAC proposed amendments to the CG’s conditions to allow it to agree with the owner of a noise sensitive place about alternative mitigation measures (F11). There are two elements to the proposal.
  1. [100]
    One element is the definition of noise sensitive place, which excludes any that are within the boundary of the mining lease, owned or leased by NAC or subject to agreement with the owner for provision of alternative measures to mitigate noise impacts. That would affect condition F1. DES says this is inconsistent with the CG’s condition. It would also affect monitoring locations for compliance purposes.
  1. [101]
    The second element is a mechanism for an owner to request alternative measures. That is proposed condition F11. If the owner and NAC cannot agree on what measures should be implemented or how, the Chief Executive or President of the Institute of Engineers will make a binding decision.
  1. [102]
    DES say that is not inconsistent with the CG’s conditions, but may be inconsistent with the function of the EA. OCAA says it should be amended to preserve the owner’s right to seek other remedies.
  1. [103]
    There is evidence of an accepted industry practice to offer alternative mitigation measures.[75] I can see the sense in having some mechanism to enable this to occur. What concerns me is how the conditions interact. It is reasonable to allow an owner to reach an agreement about noise with NAC, provided their health, or that of an occupier of the dwelling, is not put at risk.
  1. [104]
    I recommend the proposed conditions are amended so as to:
  1. (a)
    allow owners to agree to alternative measures, but only if those measures are expected to result in compliant noise levels, generally; and
  1. (b)
    exempt places that meet those requirements from compliance monitoring.
  1. [105]
    To the extent that these changes are inconsistent with the CG’s conditions, that is something that can be addressed under the recommendations I have made.

How should the noise impacts from the mine be monitored, reported, and enforced?

  1. [106]
    The parties agree on many aspects of the regime for monitoring, managing and reporting against the revised noise conditions. Other than the limits themselves, the other noise conditions will commence when the amended EA does, if approved. I address the staging of the noise limits in the section of my reasons dealing with mining the West Pit.
  1. [107]
    The mechanism in the existing EA is unsuitable for a noisy activity operating continuously in a closely settled rural environment. Member Smith found the complaints based compliance system was adversarial and ineffective. The objectors’ frustration with NAC and DES is understandable. I have already referred to some of the evidence and some of Smith M’s findings about past noise.
  1. [108]
    The draft EA contains the monitoring conditions stated by the CG. DES provided me with a table (marked H for identification) which represents various versions of the proposed noise conditions which are more extensive than the CG’s conditions. The first column is titled the Land Court conditions. The table also refers to amendments proposed by NAC or OCAA, and contains brief editorial comments by DES, including about inconsistency with the CG’s conditions.
  1. [109]
    Because Smith M recommended refusal of the applications, he did not include a set of recommended amendments or reformulated conditions. He did, however, express his view on a set of noise conditions proposed by NAC in its submissions to Smith M at the original hearing.[76] That is the basis of the entries attributed to the Land Court in document H. In fairness, their source is NAC and they include revisions based on Smith M’s reasons.
  1. [110]
    NAC’s proposed conditions are more comprehensive than those stated by the CG. As I read them and the CG’s report, they are also consistent with the CG’s intention. Their genesis is in NAC’s proposal in the EIS and AEIS that it use a real-time noise monitoring and adaptive management system. NAC tested this under the TARP to see if an adaptive management program will reduce noise. This system uses real-time noise monitoring data, analysed frequently, to enable it to predict noise levels at sensitive receptors, isolate noise sources and, if necessary, adjust operations by shutting down plant, moving equipment or suspending operations to achieve compliance.
  1. [111]
    The noise experts considered the TARP and suggested improvements, which NAC adopted in its proposed conditions.[77] The experts agreed the system had improved NAC’s performance and further improvements could be made.[78] Mr Savery agreed that, with the benefit of monitoring, and with proper management, attenuation, and adaptive measures, NAC could comply with the noise limits in the draft EA.[79]
  1. [112]
    Member Smith made the following observations about NAC’s proposed conditions:
  1. Delete Table F1a, delete the reference to that table in F1, and delete F2 (this relates to staging the revised noise conditions until stage 3 commences, an issue that I will address when considering the mining of West Pit);[80]
  1. Delete the note that would otherwise allow exceedances 15 times per night;[81]
  1. F5 check consistency with CG conditions;[82]
  1. F9 delete and replace with a condition requiring NAC to post online publically available real time noise monitoring data from all its monitors;[83]
  1. Table F3 change monthly monitoring to continuous monitoring.[84]
  1. [113]
    He also observed the proposed amendment of Figure 1 may be inconsistent with the CG conditions.[85] Again, I will deal with that aspect of noise conditions when considering the mining of West Pit.
  1. [114]
    Otherwise, Smith M supported the amendments proposed by NAC.
  1. [115]
    Taking NAC’s proposed conditions, as revised in accordance with Smith M’s observations, the contest that has arisen in this hearing is about two amendments proposed by NAC.
  1. [116]
    Firstly, NAC proposes a note is added to F8, the condition formulated by NAC to implement the real time performance monitoring system. The note would have the effect that this monitoring would be used for performance management rather than monitoring for compliance with Table F1b – Noise limits (operations).
  1. [117]
    Secondly, NAC proposed, as it did at the original hearing, that compliance noise monitoring at the noise sensitive places would be monthly. Member Smith had preferred continuous monitoring, as proposed by OCAA.
  1. [118]
    DES submitted the first proposal is inconsistent with F5 as it attempts to limit its use. It also submitted the second proposal is inconsistent with Table F1b, which imposes noise limits that relate to all days and times.
  1. [119]
    I do not accept either submission. The CG’s stated conditions were far less comprehensive and prescriptive than the conditions proposed by NAC either at the original hearing or during the remitted hearing before me. F5, as stated by the CG, did not deal with real time performance monitoring. Table F1a states conditions that always apply, but does not require continuous compliance monitoring. Nor did any other of the CG’s conditions. What the CG’s conditions did do was state the noise limits that apply and require NAC to monitor and report against specified criteria. It did not specify where, how or how often monitoring was to occur. Specifying monthly monitoring does not mean NAC is excused from complying with noise limits at all times.
  1. [120]
    Condition F8 and Table F3 should not be read in isolation. They form part of a comprehensive monitoring, management, and reporting regime. They provide for compliance monitoring (F5 and Table F3), performance monitoring (F8), mine management that is responsive to monitoring (F3), public, on-line and real time access to noise monitoring data (F9), and a comprehensive Noise and Vibration Management Plan (F10).
  1. [121]
    NAC referred to the evidence given by the noise experts about monitoring, in particular to the evidence of Mr Savery.[86] Mr Savery drew a distinction between performance monitoring and compliance monitoring. The purpose of performance monitoring is to obtain information from generic directions that will assist NAC to know what they can operate within the noise limits at all times of the day. That is why the monitoring is done at locations at Acland and to the east, north, and west of the mine (F8). NAC must achieve compliance, on the other hand, at every sensitive receptor. Mr Savery said he would undertake compliance monitoring using attended measurements. That is not consistent with continuous compliance monitoring.
  1. [122]
    Mr Savery said:[87]

“And – so the first step in terms of the monitoring that Mr Elkin and I have discussed, I would put that in the aspect of performance monitoring for management purposes because at the moment, the mine is operating without a clear or concurrent regular picture of what its footprint of impact is, apart from the focus on Acland. Because if it did have that focus, it would know what caused the problems at the (Kuhl) residence that Mr Moore measured and what Mrs Mason is reporting. But it isn’t. and that says to me that its operations are not focused on those things. It’s very Acland-centric. So the first step in trying to achieve compliance has to be a performance monitoring system. Now, that – that doesn’t need to be at every house. That – that needs to be – needs direction to give them some sense of that. And I think compliance then is another issue. And compliance is really something that has to be achieved at each house – at each sensitive receptor. And – so you’ve almost got two – two requirements here. If thy (sic) have any chance of achieving compliance, they must be able to manage what they do. And to manage what they do, they need information from those generic directions. I think that is the key first point, and compliance, hopefully, then can follow. But without that first step, they’ll never comply because they have no information to help them do it.”

  1. [123]
    Member Smith briefly observed that continuous monitoring “fits in nicely with the requirement to have noise monitoring data posted online in real time and publicly available”.[88]  His Honour did not refer to the evidence, or the distinction drawn by the experts between compliance and performance monitoring, or that the monitoring was being conducted at different locations under F5 (which referenced Table F3 and the sensitive receptors) and F8, which specified fewer, and possibly different locations for generic monitoring.
  1. [124]
    Member Smith’s cursory treatment of this issue can be explained by the fact his Honour had resolved to recommend refusal because of his view about the noise limits. He only addressed them for the sake of completeness.[89]
  1. [125]
    Respectfully, I am persuaded by the evidence from the experts, and will not rely on this passage of his Honour’s reasons, which does not bind me. I am satisfied that Table F3 as proposed by NAC is not inconsistent with the CG’s conditions and gives effect to the recommendations made by the experts.
  1. [126]
    That deals with one of NAC’s proposed amendments. The other is the note to F8 about the use made of the data. NAC’s concern, no doubt, arises from OCAA’s submission that free on-line access to real time monitoring data would provide people living around the mine with the practical ability to enforce noise (and dust) conditions. However, OCAA accepts the raw monitoring data requires expert interpretation and may need correction if used for compliance purposes.[90] That approach is reasonable and sensible.
  1. [127]
    The Noise and Vibration Management Plan (F10) must include:

“d) a comprehensive noise management system that uses a combination of predictive meteorological forecasting and real-time noise monitoring data to guide the day to day planning of mining operations and the implementation of both proactive and reactive mitigation measures to ensure compliance with these conditions, improved understanding of noise data at the monitoring locations in Table F3 – Compliance noise monitoring location and frequency and its correlation with the noise data collected from the locations specified in condition F8”

  1. [128]
    This is a very clear acknowledgement that real-time noise monitoring is to improve performance and to support NAC in using proactive and reactive mitigation measures to ensure compliance. The note to F8 proposed by NAC is consistent with that and with the expert evidence before the Court.
  1. [129]
    NAC proposed two further amendments in response to concerns raised by objectors. Firstly, NAC adopted Dr Plant’s suggestion that the NAC must submit its Noise Monitoring Program to DES within 3 months of the EA commencing, and must implement it within 3 months of it being approved.[91]
  1. [130]
    Secondly, NAC proposed an addition to F10 based on a recommendation by Mr Savery in the joint noise report. This would result in an independent acoustic consultant reviewing the monthly noise report format, after 12 months of reporting, to ensure information presented from the noise monitoring is clear, open and unambiguous.[92]
  1. [131]
    Both those conditions should be included in the EA. Further, the EA should include conditions F3 – F11, as drafted in document F, with the revisions referred to in this section of my reasons.

Is NAC’s mining of the West Pit relevant to the remitted hearing?

  1. [132]
    OCAA and a number of objectors raised concerns about NAC’s mining of an area on ML50216 referred to as the West Pit. NAC say it is lawful to mine West Pit under the existing EA. It said the revised noise conditions will apply to West Pit when mining commences on MLA50232. NAC sought an amendment to Figure 1 to the draft EA, to update the configuration of West Pit. DES took no position on the West Pit.
  1. [133]
    OCAA and the other objectors say the existing EA does not authorise NAC to mine West Pit. That area was not assessed for Stage 2, but had been assessed for Stage 3. The Stage 3 conditions should apply immediately, if the draft EA is amended.
  1. [134]
    Those arguments raise the following questions:
  • Is it unlawful for NAC to mine West Pit under the existing EA?
  • Should the revised noise conditions for Stage 3 apply to mining of West Pit when the EA commences?
  • Should I recommend that Figure 1 of the draft EA is updated?

What is the West Pit?

  1. [135]
    Before addressing those questions, I will provide some context about the West Pit. The West Pit is an active mine pit on ML50216, being mined under the conditions of the existing EA. The West Pit is in an area to the north of the boundary between ML50216 and MLA50232, one of the tenures applied for in Stage 3. It is close to the township of Acland and to its only residents, who include Mr Beutel, one of the objectors to the Stage 3 applications.
  1. [136]
    NAC started mining West Pit during the original hearing before Smith M, without first giving either the parties or the Court notice that it intended to do so. The existing EA[93] does not define the mine pits. Some conditions name other pits, but there is no reference to the West Pit in the EA.
  1. [137]
    NAC had not previously identified that area as part of Stage 2. The 2006 EIS for Stage 2 described the key elements to include extending mining into the Southern and Central Pits.
  1. [138]
    NAC first identified the area of West Pit when it described Stage 3 of the mine. In the EIS for Stage 3, the AEIS for Stage 3 and the CG’s Evaluation Report on Stage 3, the area of West Pit formed as part a Stage 3 pit. Except for one critical figure in the CG’s report (Figure 1 to stated condition A2), the West Pit area was always represented as part of the Manning Vale East Pit and as part of Stage 3. The area is not separately named as West Pit in any of those documents.
  1. [139]
    The CG’s evaluation report includes this statement: “Figure 2.1 shows the location of the project.”[94]
  1. [140]
    That figure shows a pit called the Manning Vale East Pit shaded in green and extending across two mining leases: the existing ML for Stage 2 (ML50216) and the ML applied for in Stage 3 (MLA50232). The legend for the figure describes the green coloured areas as Stage 3 Pit Areas. The parties accepted the area shaded green for the Manning Vale East Pit on ML50216 is in the vicinity of what is now called West Pit.

New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41

  1. [141]
    Importantly, the CG’s stated condition A2 uses a figure that had a different representation of the Stage 3 mining pits. This has implications for how the CG’s revised noise limits apply.

“A2 In carrying out the mining activity authorised by this environmental authority, the holder of this environmental authority must comply with Figure 1 (Revised Project Overview – Mine Area).”

  1. [142]
    Manning Vale East Pit is still shaded green, but in this figure its northern edge is the boundary between ML50216 and MLA50232. To the north of that boundary, on ML50216, there is an area hatched orange. The parties accept the hatched area is approximately the same area as shown in figure 2-1 above (as part of the Manning Vale East Pit). In the legend to Figure 1, under the heading Disturbance Areas – Stage 2, areas hatched orange are described as “mining areas”.

New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41

  1. [143]
    Condition A2 and Figure 1 appear in identical terms in the draft EA.[95] That is to be expected, because the draft EA must include the stated conditions.[96]
  1. [144]
    I should also refer to the figure that appears in the draft EA prepared by NAC for the remitted hearing (document F).[97] It includes condition A2 in identical terms to A2 of the CG’s stated conditions. However, Figure 1 is different. There is a dispute about whether the Court can recommend a draft EA that includes the revised Figure 1 and I will return to that later. For present purposes, I refer to it because it identifies a different area for West Pit, and one which NAC says has been updated to reflect mining operations.

New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41

  1. [145]
    This delineation of West Pit now extends to the southern and western boundaries of ML 50216 and closer to the town of Acland and Mr Beutel’s residence.

Is it unlawful for NAC to mine West Pit under the existing EA?

  1. [146]
    Because of what occurred at the original hearing and the scope of the remitted hearing, I have decided I cannot or should not determine whether mining West Pit is unlawful under the existing EA.

The original hearing

  1. [147]
    Member Smith concluded Stage 3 had commenced with the mining of West Pit.[98] A sensible reading of his Honour’s reasons is that he recognised that NAC had earlier identified the area mined as West Pit as part of Stage 3, although it had later undertaken it as part of Stage 2. Member Smith decided the revised air quality and noise limits should apply to West Pit as soon as the amended EA, if approved, commences. I am bound by his findings about the former. That is, the EA should provide that the revised air quality conditions apply as soon as the EA commences.
  1. [148]
    When discussing NAC’s approach to community engagement, Smith M said NAC’s actions in opening up West Pit without telling its neighbours was a classic example of it falling back on its legal entitlements rather than community engagement and goodwill.[99]  That suggests he accepted NAC was legally entitled to mine West Pit.
  1. [149]
    That is hardly surprising, since it was not in issue. Mr Boyd, on behalf of NAC[100]  gave evidence that NAC did not need further approval to mine West Pit. In its submissions at the original hearing, OCAA adopted the same stance.[101]

The scope of the remitted hearing

  1. [150]
    OCAA concedes its position on West Pit has now changed. Although there was some inconsistency in its submissions, ultimately, OCAA did not seek a ruling that NAC is contravening the EPA. However, OCAA submitted the Court should not accept NAC’s assertion that mining West Pit is lawful.[102]
  1. [151]
    NAC submitted its mining of West Pit is lawful,[103] but its primary position was that the Court did not have to and could not determine that question in this hearing.[104]
  1. [152]
    NAC raised a number of arguments. I was persuaded by the first: this is an issue that lies outside the scope of the remitted hearing. Justice Bowskill framed orders that would prevent “re-litigation of issues, including issues not the subject of the review proceeding”.[105] The issues of fact and law were joined between the parties and defined by the course of the original hearing.[106] The lawfulness of NAC mining West Pit was not in issue.
  1. [153]
    Even if I am wrong about that, and I am not constrained by Bowskill J’s orders, I would not determine this point on the remitted hearing. Whilst I have had lengthy submissions from both NAC and OCAA on the point, I have heard no evidence about the salient facts.
  1. [154]
    Further, I have not been assisted by any submissions by DES, which has statutory responsibility for the matter. It made no submissions about whether mining West Pit under the existing EA is lawful, nor did it make any argument about the Court’s jurisdiction to consider the question.[107]
  1. [155]
    NAC submitted the Court should not assume there has been no correspondence or other contact between NAC and DES about the matter.[108] The obvious inference is that there has been, but there is no evidence about that before me.
  1. [156]
    There is a range of procedures available to DES under the EPA to investigate and respond to an unauthorised activity that causes environmental harm or nuisance. It is reasonable to infer this is a live issue for DES. It has the power to amend the existing EA if it considers it is necessary or desirable to do so because of a significant change in the way in which, or the extent to which, the activity is being carried out.[109] It also has other enforcement options, both civil and criminal, that it may be considering.
  1. [157]
    This Court should be careful not to prejudice DES in properly discharging its statutory responsibilities. That is particularly important to this hearing because the Court is acting on dated evidence and the hearing as being conducted for a different and very limited purpose.

Should the revised noise conditions for Stage 3 apply to mining of West Pit when the EA commences?

  1. [158]
    Assuming the application is granted, when the amended EA comes into force it will apply across the 4 MLs, according to the terms of the EA. Although there was some debate about that early in the hearing, by the end it seemed all parties accepted that was so. There remained disagreement, though, about staging the new noise limits for mining under the amended EA.
  1. [159]
    The draft EA includes two sets of noise limits. The first, Table F1a, applies to existing operations. The second, Table F1b, applies once mining commences on ML50232.
  1. [160]
    NAC has proposed a different formulation for this condition, but I will address that later. The effect of either formulation is that the new noise conditions will not apply until NAC starts to remove overburden from the pit areas on ML50232. That means the mining of West Pit would remain subject to the existing EA noise conditions until that time.
  1. [161]
    OCAA and the other objectors oppose deferring the new noise limits in that way. Member Smith thought there was no purpose in doing so, because he said Stage 3 commenced when NAC started mining West Pit. NAC says it did not apply for approval to mine West Pit as part of Stage 3. In any case, there is a purpose in deferring the new noise limits. This issue is complicated by statements made by Smith M on this topic and the disputes between the parties about whether those statements bind me in the hearing.
  1. [162]
    The following questions arise:
  • What did NAC apply for?
  • Did Smith M make a binding finding that Stage 3 commenced when NAC started to mine the West Pit?
  • Does condition F2 serve a purpose?

What did NAC apply for?

  1. [163]
    NAC argued West Pit is not part of any of the applications before the Court. That is certainly so for the mining lease applications, because West Pit is not within either MLA 50232 or MLA 700002. However, I cannot accept that argument in relation to the application to amend the EA.
  1. [164]
    An environmental authority authorises an activity. For a resource activity, an applicant must also be an applicant for the relevant tenure.[110] A resource activity is an activity that involves a mining activity.[111] A mining activity is an activity authorised for a mining tenement or under another approval under the Mineral Resources Act 1989.[112] An application to amend an EA must describe the proposed amendment and the land that it will affect.[113]
  1. [165]
    NAC described the proposed amendment in its application as:[114]

“Amendment to environmental authority EPM 00335713 to add mining lease application 50232 and mining lease application 700002 for the New Acland Coal Mine Stage 3 Project for the extension of the Mine’s operating life by the progressive development of two new resource areas in MLA 50232 in three new pits, construction of a rail spur and balloon loop and associated infrastructure. The New Acland Coal Mine Stage 3 Project is described in detail in chapter 3 (project description) of the environmental impact statement (EIS) in chapter 3 (revised project amendments) of the additional information to the EIS (AEIS) (see www.aclandproject.com.au). Given the proposed amendment relates to new relevant resource tenures for the authority that are new mining leases, the proposed amendment is considered to meet the criteria for a major amendment.”

  1. [166]
    NAC put particular emphasis on the phrase “two new resource areas in ML50232 in three new pits”.[115]  However, that is too narrow a reading of the description. On its face, the description of the proposed amendment incorporates the detailed description of the project in chapter 3 of the EIS and chapter 3 of the AEIS. The addition of the two new tenures is an amendment that NAC required, but other amendments to the draft EA arise from the activities, not the tenures. As already observed, the amended EA will apply to the activities on all the tenures, if granted. The detailed description of the activities is contained in the application documents on which NAC relied, and which the CG, and DES, assessed.
  1. [167]
    In chapter 3 (project description) of the EIS, the New Acland Coal Mine Stage 3 Project was described as:[116]

3.3 Revised Project Overview

The revised Project overview is shown in Figure 3–1. The key elements of the revised Project are outlined in the sections below.

3.3.1 Mine Development

The mine will consist of the following key components:

continuation of existing mining activities to progressively extend to parts of the Manning Vale and Willeroo resource areas within MLA 50232, located to the south and west of current MLs 50170 and 50216;”

  1. [168]
    That refers to parts of the Manning Vale resource area within MLA50323, implying that another part of that resource area is within ML50216. It is also consistent with the plan to start on ML50216, because it talks of progressively extending to the south of ML50216.
  1. [169]
    That reading is consistent with the figure referred to - Figure 3.1 – Revised Project overview, which shows the West Pit area as part of the Manning Vale East Pit:[117]
  1. [170]
    In chapter 3 (revised project amendments) of the AEIS, specific revisions were made to the description of the project in the draft EIS, none of which refer to the West Pit. That chapter also includes this statement:[118]

“There are no other amendments proposed to the revised Project to that described in the draft EIS.”

  1. [171]
    Further, the AEIS it includes Figure 3.1-A – Revised Project Amendment, which shows the West Pit area as part of the Manning Vale East Pit.[119]

New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41

  1. [172]
    Finally, attached to the AEIS is the revised EMP for the project, which included this in its description of the revised project:[120]

“Figure 1-1:

  • the area of land within MLA 50232 that includes the new Manning Vale East, Manning Vale West and Willeroo mining areas;
  • the existing mining and out-of pit-dumps areas located on MLs 50170 and 50216;”

New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41

  1. [173]
    In deciding what NAC applied for, I have taken into account the proposed amendment described in the application to amend the existing EA, and the project descriptions, including the relevant figures, in the documents identified in the application.
  1. [174]
    It is also relevant that, when the CG assessed Stage 3, he did not exclude areas on existing mining leases from his consideration. That is evident from the text of his report, as well as the pictorial representations of Stage 3, for example:

“Most of the stage 3 expansion will be located on mining lease application (MLA).”[121]

“The key components of the project include:

mining and out of pit dumps located on mining lease 50216”[122]

“The project, including the progressive development of two new resource areas across three pits, is largely within MLA 50232. The MLA was lodged in 2007. Areas of the existing mining leases will also be used for the mine’s expansion.”[123]

“The proponent proposes to gradually mine the three pits generally from north to south until 2029 as shown in figure 2.2.”[124](emphasis added)

  1. [175]
    I particularly note that Figure 2.2 shows Stage 3 mining commencing on ML 50216, including within the West Pit area.

New Acland Coal Pty Ltd v Ashman (No 7) [2018] QLC 41

  1. [176]
    I find NAC’s proposed amendment to the existing EA included West Pit as part of Stage 3.
  1. [177]
    Further, I am satisfied the noise conditions that apply to mining West Pit is a matter that relates to the proposed amendment.[125] It is, therefore, something that I can consider when making my recommendation on the application to amend the EA.

Did Smith M make a binding finding that Stage 3 commenced when NAC started to mine the West Pit?

  1. [178]
    This question requires me to resolve a dispute about the status of some of Smith M’s statements.
  1. [179]
    His Honour considered it was not necessary to defer the commencement of revised noise conditions, because Stage 3 had commenced with the mining of the West Pit.[126]  Because he linked his reasoning about noise to his reasoning about air quality, I must divert briefly to discuss his Honour’s conclusions about the air quality conditions for the amended EA.
  1. [180]
    Member Smith said:[127]

 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.”

  1. [181]
    The effect of Bowskill J’s orders is that all of Smith M’s findings and conclusions in relation to all issues except noise bind me in this hearing. So, for air quality conditions, I must make a recommendation that is consistent with his Honour’s conclusion above.
  1. [182]
    For the noise conditions, while his Honour’s findings bind me, his conclusions do not. This means I must decide whether his statements about staging the noise conditions are findings or conclusions.
  1. [183]
    OCAA and DES submit the following is a finding that binds me:[128]

“…NAC has already begun its revised Stage 3 mining activities by mining the proposed Manning Vale East Pit (West Pit) albeit under the existing ML.”

  1. [184]
    In its first submissions, NAC agreed with OCAA and DES about this. Later, it revised its position and characterised this as a non-binding conclusion.
  1. [185]
    I accept the submission by OCAA and DES that this is a binding finding.
  1. [186]
    Member Smith continued:[129]

“In my view, as soon as the draft EA is approved and MLs are granted, then Stage 3 has begun and hence there is no need for conditions to regulate NAC’s existing operations.”

  1. [187]
    NAC and DES both say this is a non-binding conclusion. OCAA says it is a binding finding. I accept the submission by NAC and DES that this statement is a non-binding conclusion about the effect of the draft EA coming into force. On one reading, it is also inconsistent with his Honour’s finding that Stage 3 had already commenced; that is, before the draft EA is approved.
  1. [188]
    In summary, I am bound by Smith M’s factual finding that Stage 3 commenced when NAC started to mine West Pit, but not by his conclusion that there is no need for conditions for existing operations to continue.
  1. [189]
    Member Smith said Stage 3 had commenced, at least as it was “understood by the bulk of witnesses (lay and expert) and other evidence”.[130] He did not identify what other evidence he meant. Perhaps he had in mind the numerous references to the area of West Pit as part of the Manning Vale East Pit. If that is what he intended, I have set out relevant passages from the EIS, AEIS, and the CG’s report which demonstrate there was ample evidence before the Court that supported his Honour’s finding.
  1. [190]
    I reiterate, his Honour’s finding is not about the legality of NAC mining West Pit under the existing EA. It is a relevant factual finding that binds me in deciding what recommendation to make on the application to amend the EA. 

Does condition F2 serve a purpose?

  1. [191]
    NAC says there is a purpose served by staging the new noise conditions, for three reasons. Firstly, there is a need for a transition period to allow it to implement measures to mitigate noise and meet stricter conditions for mine operations. NAC raised this in its draft EMP attached to the AEIS[131] and proposed the following condition:[132]

3.5.9. Proposed Environmental Authority Conditions: Schedule D – Noise

Noise limits

D1 The holder of this environmental authority must ensure that noise generated by the mining activities does not cause the criteria in Table D1a Summary of Noise Limits (Transitional Period) to be exceeded at a sensitive place or commercial place.

Table D1b Summary of Noise Limits (Revised Conditions) will replace Table D1a Summary of Noise Limits (Transitional Period) within 2 years of the commencement of construction activities on Mining Lease 50232.”

  1. [192]
    This proposal does link the timing of revised conditions to the activities on ML50232. NAC made that proposal in June 2015, more than 3 years ago.
  1. [193]
    For some time, NAC has managed its existing operation under the TARP. The CG referred to this in his report in December 2014:[133]

“The mine’s current operation has implemented a Trigger Action Response Plan (TARP) trial to test the ability of an adaptive management program to reduce noise. The TARP has used real-time noise monitoring, which resulted in instructions being relayed to site to cease or modify noisy operations. The trial has been used by the proponent to understand if compliance with EPP (Noise) levels could be achieved. While the full suite of noise - attenuated equipment is not yet operational, the proponent has advised that improvements to noise levels have been achieved due to the TARP trial.”

  1. [194]
    If the transition was required to prepare to meet stricter conditions, the delay in this application process has provided time for NAC to prepare to meet them. Further, the TARP has provided a structured process within which that could occur. Given those circumstances, I am not persuaded this remains a valid reason to defer applying new noise limits to the mining operations.
  1. [195]
    Secondly, NAC relies on the CG’s imposed condition 4, which relates to rail infrastructure. An imposed condition[134] is different to a stated condition.[135] For this project, the stated conditions are those conditions set out in Appendix 2 to the CG’s report. The relevant conditions are those included in the draft EA. Condition F2 is one of those.
  1. [196]
    An imposed condition may, but need not be, included in some other approval. The one that NAC relies upon is not in the draft EA. The CG is the entity that has jurisdiction for the condition.[136] It is in the following terms:[137]

“Rail infrastructure

Condition 4. Train load-out facility: New Acland Coal Mine Stage 3

  1. (a)
    The new train load-out facility, rail loop and rail spur for the project is required to be the sole distribution point for all railed product from the first day of operations of the stage 3 project.
  1. (b)
    The Coordinator-General is to be notified in writing at least two weeks prior to the new train-load out facility becoming operational.

The Coordinator-General is to have jurisdiction for this condition.”

  1. [197]
    NAC submitted this means that until this work is completed, the existing mining leases would continue to be regulated by the existing EA noise limits. However, imposed condition 4 is not part of the draft EA. That suggests it is not related to the noise conditions for the mining operation. That impression is reinforced by what the CG had to say about the condition in his report:[138]

“To ensure the timely construction of the new train load-out facility, I have set a condition that the new TLF will be the sole distribution point for all railed product produced by the project, from the day of first operations of stage 3…

The condition I have set requiring that the TLF must be the sole distribution point for all coal from the day of first operation of the stage 3 project provides certainty about the time by which use of the existing rail loadout facility will cease.”

  1. [198]
    The CG did not refer to noise, except for concerns raised by the local community about noise impacts from the Jondaryan Rail Load-out Facility. The purpose of imposed condition 4 is to ensure a timely transition from that facility to the on-site TLF (which the amended EA, if approved, will regulate).
  1. [199]
    Further, the CG did not refer to imposed condition 4 when addressing the noise impacts of on-site activities for the Stage 3 project.[139]
  1. [200]
    Taking that into account, I am not persuaded the CG’s imposed condition 4 is a reason to defer the revised noise limits.
  1. [201]
    The third reason NAC gave for staging the noise conditions is that it must construct infrastructure before Stage 3 commences. I accept stage 3 involves significant infrastructure that cannot be constructed until the approvals are granted. What is not clear is why the revised noise conditions should be deferred until that is done. The construction of the infrastructure is, it seems to me, part of Stage 3.
  1. [202]
    To the extent that this submission relies on imposed condition 4, I have already addressed that. In any case, condition F2 does not reference the imposed condition. F2 does not prevent NAC removing overburden on ML 50232 before all Stage 3 infrastructure is constructed. That means NAC could trigger the revised conditions while some infrastructure was under construction. Whether that would make sense as a matter of mine management is a different question. My point is that F2 would not restrain NAC from doing so if it wished to.
  1. [203]
    Although I am not bound by his Honour’s finding that there is no purpose in the existing conditions continuing once the amended EA commences, respectfully I agree with his conclusion that the revised conditions should apply to mining West Pit when the amended EA commences, if approved.
  1. [204]
    One of the objectors, Mr Beutel, lives in very close proximity to the West Pit. It matters not to him whether the mining is on one tenure or another. His distress about noise from past activities is vividly recorded in a file note by a staff member of DEHP who recorded Mr Beutel called at 4:58am on 20 January 2014 “in a very distressed state and was screaming for the noise to stop.”[140]
  1. [205]
    That relates to past activities, not mining West Pit, but there was evidence before Smith M about noise from current mining, including of West Pit.
  1. [206]
    During the hearing, expert evidence was taken on site from the noise experts. Member Smith found “there were elevated noise levels at Mr Beutel’s residence on both occasions”.[141] That is, at the beginning and end of the site visit. Member Smith expressed his concern that elevated levels were measured when NAC was using the TARP and should have been actively preventing noise.[142] In fairness, he also observed that the measurements were taken over a shorter period than required by the conditions.[143] Therefore, they do not equate to compliance readings.
  1. [207]
    When the CG evaluated the noise impacts of the Stage 3 project, it included the West Pit area. The CG did not differentiate between mining on different tenures when discussing his requirements for noise. He incorporated Figure 5.1 showing the sensitive receptors for the mine and that figure showed the same configuration for the Manning Vale East Pit as shown in the other figures I have referred to.
  1. [208]
    In his report, the CG said:[144]

5.2 Noise and vibration

For the management of noise and vibration, the outcome I require is that with the application of sufficient mitigation measures and by meeting all relevant Environmental Protection (Noise) Policy 2008 (EPP (Noise)) standards, the project is able to operate without creating adverse noise impacts for sensitive receptors (SRs), such as homesteads, located close to the mine.”

  1. [209]
    Like all the other figures in the CG’s report, except Figure 1, Figure 5.2 shows the West Pit area as part of the Manning Vale East Pit. Further, the joint expert report about noise was prepared on the same assumption.[145]
  1. [210]
    There is no consideration in the CG’s report of NAC mining part of Stage 3 under the existing EA. That is not surprising, given NAC did not decide to mine West Pit until 2016.
  1. [211]
    Before Smith M on 8 July 2016, counsel for OCAA asked Mr Boyd, for NAC, when the decision was made to mine some of Manning Vale East. He replied:[146]

“Look, I think it’s – it’s always been contemplated that that area would be mined. It’s most efficiently mined as a part of the stage 3 development and consistent with the stage 3 development. We took the view early this calendar year that, given the – that the length of – all the delays in the approval process and our desire to maintain continuity of employment for our workforce and continuity of production, we took the view that – that we would re–look at that area and determine whether we could mine it as a part of stage 2, given it sat on the stage 2 mining lease.”

  1. [212]
    Those are good reasons to look again at what NAC could mine under its existing EA.
  1. [213]
    It is surprising, that the CG’s stated conditions, issued in December 2014, included a figure that identified the West Pit area as a Stage 2 disturbance. At that time, on Mr Boyd’s evidence, NAC had always contemplated mining that area as part of the Stage 3 development.
  1. [214]
    Figure 1, which has the effect of applying the existing noise conditions to West Pit, is inconsistent with every other pictorial representation of Stage 3 in the EIS, AEIS and CG’s report. None of them name an area as West Pit (and nor does Figure 1). All of them include the West Pit area as part of the Manning Vale East Pit.
  1. [215]
    I am not persuaded there is any good reason to defer commencement of the new noise limits until mining commences on ML50232. NAC has a poor history of responding to noise complaints. The CG’s conditions addressed that with lower noise limits and a more effective monitoring, reporting and compliance regime to improve NAC’s compliance with the EPP Noise. Set against the background of the descriptions and pictorial representations of the Stage 3 Project, Figure 1 appears anomalous.

Should I recommend that Figure 1 of the draft EA is updated?

  1. [216]
    Before closing the discussion of West Pit, I will address NAC’s proposed condition A2, which refers to a revised version of figure 1. That is the figure which shows West Pit extending to its southern and western boundaries (see [142] above).
  1. [217]
    DES argued the revised figure is inconsistent with the CG’s condition A2. That is one reason not to make a recommendation that includes the revised figure proposed by NAC. The larger area identified in NAC’s revised figure 1 extends beyond the area notified, whether as part of the Manning Vale East Pit or otherwise. It is beyond the area stated by the CG in his conditions.
  1. [218]
    NAC submitted figure 1 in the CG’s stated conditions is marked as “indicative only”. “The actual state of the existing operations as at the time the new EA is granted would be an obvious example of what was contemplated in the figure.”[147]
  1. [219]
    However, NAC also submitted, as against OCAA, that:

“to the extent that reliance is placed (by OCAA in its submissions) upon the ongoing mining of West Pit since the hearing before Member Smith concluded on 20 April 2017, it is impermissible to rely upon knowledge of that fact, pursuant to the orders made by Bowskill J.”[148]

  1. [220]
    Those two submissions from NAC do not sit together comfortably.
  1. [221]
    If I recommended the revised figure 1 as a condition of the EA, I would be making a recommendation about an area not applied for as part of Stage 3 and not identified for mining in the CG’s stated conditions, whether as a Stage 2 disturbance area or as part of Stage 3. I would also be acting with knowledge of the ongoing mining of West Pit, a matter that NAC submitted was irrelevant in this hearing. Accordingly, I will not make a recommendation to revise Figure 1 in the way NAC has requested.

What recommendations should I make?

The balancing exercise

  1. [222]
    Because of the nature of this remitted hearing, and the orders that govern the process, the exercise of deciding what recommendations to make is both unusual and artificial. I must exercise my discretion taking into account the evidence before Smith M and having regard to the relevant statutory criteria and the matters raised in the objections. However, in doing so, I am bound by Smith M’s findings on all issues before the Court, and his conclusions on all issues but noise.
  1. [223]
    Member Smith summarised his findings and conclusions at the beginning of his reasons. They are:

“[2]  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.

[4]  Regarding lighting, the issues that come from light spill are adequately dealt with.

[5]  For visual amenity, all proposals put in place to lessen the visual impact of the mining operations are appropriate.

[6]  As regards traffic, transport and roads the disruption to traffic caused by revised Stage 3 would be minor and are considered acceptable.

[7]  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.

[8]  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.

[9]  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.

[10]  Regarding biodiversity/flora and fauna, the draft EA is appropriately conditioned to meet all aspects of concern.

[11]  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.

[12]  The expert evidence reveals no evidence of a fall in land values attributable to NAC’s operations.

[13]  The livestock and rehabilitation issues, together with land use and soils, are appropriately managed under NAC’s proposals.

[15]  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.

...

[17]  All surface water concerns have been addressed by further conditions proposed by NAC.

[18]  Other objections have been dealt with in the body of my decision. None of those objections have been made out by the objectors.”

  1. [224]
    Member Smith said these passages provided a “short analysis of …core findings with respect to the key issues.”[149] I have taken these into account, and the findings and conclusions that support them. I have also taken into account Smith M’s binding findings about the statutory criteria.
  1. [225]
    On some issues and criteria, his Honour’s conclusions favour the applications. He concluded, variously, that: the issue was not adverse to NAC; NAC could manage it appropriately under the conditions of the draft EA; the objection was not made out; or NAC had met the statutory requirements.
  1. [226]
    The relevant conclusions are about: lighting;[150]visual amenity;[151]traffic transport and roads;[152]economics;[153]agricultural economics;[154]climate change;[155]biodiversity/flora and fauna;[156]land values;[157]livestock and rehabilitation issues, together with land use and soils;[158] other objections (than the key issues);[159] compliance with the provisions of the MRA;[160] the mineralisation of the land or the purpose for the lease;[161]the level of development and utilisation of the mineral resources applied for;[162]the size and shape of the land and surface area applied for;[163] NAC’s financial and technical capabilities to carry on the mining activities;[164]and disadvantage to an existing holder of or applicant for other mining tenures.[165]
  1. [227]
    On other issues and statutory criteria, Smith M made findings that do not favour the applications, but said his concerns could be addressed by amended or additional conditions. The relevant conclusions are about air quality and dust,[166]mental and physical health,[167]surface water,[168] the lease term.[169]
  1. [228]
    On other issues and criteria, although Smith M made findings adverse to NAC, he expressly concluded he would not recommend refusing the applications for that reason. Relevant conclusions are about community and social environment[170] and NAC’s past performance.[171]
  1. [229]
    There are some statutory criteria on which Smith M has made no binding findings or conclusions because he found against NAC on the basis of concerns about groundwater and, associated with that, intergenerational equity, and noise.[172] Those are MRA criteria dealing with adverse environmental impacts (s 269(4)(j)); whether there is a good reason to refuse (s 269(4)(l)); and whether mining is an appropriate land use taking into account current and prospective uses of the land (s 269(4)(m)).
  1. [230]
    The remaining MRA criterion that I must specifically mention is whether the public right and interest will be prejudiced (s 269(4)(m)). Excluding the non-binding parts of his Honour’s statements on this criterion, the only finding is about factors that demonstrate the public right and interest will not be prejudiced.[173]
  1. [231]
    Further, Smith M made no explicit conclusions about specific criteria under the EPA. He said he had specifically considered all of the matters the Court must consider under s 191 of the EPA in considering all the matters set out in his decision.[174] No party took issue with that approach.
  1. [232]
    NAC has focussed on his Honour’s conclusions on each key issue. Correctly, it observed that Smith M formed only one conclusion that is adverse to NAC. As you would expect in a 459-page judgment, Smith M has made numerous findings. The objectors have referred me to many of them, and the evidence that supports them. Some objectors, including Dr Plant, Ms Mason, the Darling Downs Environment Council, and OCAA argued I should take a different view to Member Smith on certain statutory criteria, such as whether the public right and interest will be prejudiced if the mining leases are granted.
  1. [233]
    In principle, I accept that is so. In practice, though, I see little scope for making an unfavourable recommendation on any issue other than the noise impacts from the New Acland Stage 3 Project, because most of Smith M’s conclusions favour approval.
  1. [234]
    I have already explained (at [28] to [46]) why I think it is both unnecessary and inappropriate to engage in a balancing exercise and draw a conclusion on each key issue or statutory criterion. Nevertheless, this is what Smith M did. That necessarily constrains my discretion in weighing up his findings: significantly so.
  1. [235]
    But for Smith M’s individual conclusions on each issue, I would have weighed his positive and adverse findings in the balance, in a more comprehensive and holistic way. Some issues may have had greater significance than I can give them because of his Honour’s conclusions. One example is his Honour’s findings on NAC’s past performance. There is a distinct incongruity between Smith M’s findings and his conclusion on this issue, particularly given his concerns about past performance included NAC’s response to noise complaints. However, I must give effect to his conclusion that NAC’s unsatisfactory past performance is not a reason to refuse the applications.[175]
  1. [236]
    Member Smith also made unfavourable findings about the past impacts of dust,[176] sleep disturbance,[177] mental health,[178] and the loss of Acland as a town.[179] These involve findings about impacts. I will take them into account in the balancing exercise. However, I must also give effect to his Honour’s ultimate conclusions on those issues.
  1. [237]
    The focus of Dr McCarron’s submissions, as you might expect, was the health impacts of the mine. Member Smith concluded additional conditions can address concerns regarding mental and physical health.[180]
  1. [238]
    Mr Plant, the DDEC, Dr Plant and Mr Weick stressed the loss of good quality agricultural land and identified this as an issue of intergenerational equity. The definition in the Intergovernmental Agreement on the Environment is:[181]

“3.5.2 The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.”

  1. [239]
    Member Smith referred to the following passage from a judgment of (then) Justice Preston (now CJ) of the Land and Environment Court of NSW:[182]

“The attainment of intergenerational equity in the production of energy involves meeting at least two requirements. The first requirement is that the mining of and the subsequent use in the production of energy of finite, fossil fuel resources need to be sustainable. Sustainability refers not only to the exploitation and use of the resource (including rational and prudent use and the elimination of waste) but also to the environment in which the exploitation and use takes place and which may be affected. The objective is not only to extend the life of the finite resources and the benefits yielded by exploitation and use of the resources to future generations, but also to maintain the environment, including the ecological processes on which life depends, for the benefit of future generations. The second requirement is, as far as is practicable, to increasingly substitute energy sources that result in less greenhouse gas emissions for energy sources that result in more greenhouse gas emissions, thereby reducing the cumulative and long-term effects caused by anthropogenic climate change. In this way, the present generation reduces the adverse consequences for future generations.”

  1. [240]
    Member Smith concluded “there are no concerns regarding climate change caused by revised Stage 3.”[183] I am bound by that finding. A fair reading of Smith M’s reasons was that he found (except as it related to groundwater concerns) no other evidence justified refusing the applications relying on the principle of intergenerational equity.[184]
  1. [241]
    Member Smith accepted the land around Acland was amongst the best 1.5% of agricultural land in Queensland.[185] He referred to OCAA’s submissions about the loss of agricultural land, with apparent acceptance: 457 ha to voids and 923 ha because of the requirement to return only 50% to marginal cropping and 50% to grazing quality.[186] Having identified that loss, Smith M found that, as a matter of agricultural economics, Stage 3 should proceed.[187]
  1. [242]
    Other findings that are relevant from an intergenerational perspective include the term of the lease, which Smith M recommended be 25 years,[188] with active mining expected for only 12 years.
  1. [243]
    Further, the draft EA rehabilitation conditions require progressive rehabilitation (H18). Member Smith accepted the evidence of Mr Thompson, NAC’s expert on livestock and rehabilitation issues, in all but one respect.[189] Member Smith made no recommendation about that. No party made any submission to me about the conditions governing rehabilitation. However, Smith M identified a further condition to protect topsoil in areas that will be used for out of pit dumping.[190] That condition will promote the rehabilitation outcomes provided for in the draft EA.
  1. [244]
    Ultimately, Member Smith concluded the draft EA was appropriately conditioned for biodiversity/ flora and fauna,[191] and to manage livestock and rehabilitation issues and land use and soils.[192] Those findings are important for the statutory criteria, not just for the EA but also for the MRA, particularly those criteria for which there is no binding conclusion by Smith M:[193]
  1. Will there will be any adverse environmental impacts, and, if so, the extent thereof? (MRA s 269(4)(j))
  1. Has any good reason has been shown for a refusal to grant the mining lease? (MRA s 269(4)(l))
  1. Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? (MRA s 269(4)(m))
  1. [245]
    Mr Beutel expressed his desire to protect the graves of the Wells children. NAC has recommended a condition is added to the ML50232, consistent with Mr Beutel’s suggestion.[194]
  1. [246]
    In concluding Stage 3 should proceed on economic grounds,[195] Smith M accepted the mine will deliver significant benefits.  He referred to the royalties, albeit reduced, the cost benefit analysis of Dr Fahrer, the direct and indirect employment, and the revenue to Aurizon and QR.
  1. [247]
    Mrs Plant and Mrs Harrison spoke about the polarisation of views about the mine and the division within the community and within families. Member Smith expressed the hope that, once mining ceases, the division in the community will effectively dissipate.[196] Although he said that in the context of making different recommendations to the ones I have made, the same holds true regardless of the fate of the applications.
  1. [248]
    What is particularly important, if Stage 3 proceeds, is that there is an effective system for monitoring and responding to the adverse impacts on residents and to improve communication and relations between the mine and the residents. Member Smith made many observations about the need for NAC to improve its relations with its neighbours. There is evidence that NAC has taken steps in the right direction. Its conduct in opening West Pit without prior warning was a step in the wrong direction. Relations with the community is relevant to what is sometimes referred to as a social licence to operate.
  1. [249]
    The proposed conditions relating to air quality and noise as well as those dealing with complaint management, should mitigate impacts and build confidence that the mine takes its neighbours’ concerns seriously.[197]
  1. [250]
    All of the objectors were concerned about the noise from the mine. I have dealt with the arguments about noise extensively in these reasons. The noise conditions proposed by NAC, as revised in my reasons, provide for a very different regime for the monitoring, reporting and enforcement of noise conditions than apply to the mine now. However, as Member Smith concluded in the original hearing, there are two further changes that are necessary to address the objectors’ legitimate concerns about noise, to protect their wellbeing, and to ensure the EA is appropriately conditioned to manage and mitigate noise from the mine.
  1. [251]
    The first is the noise limits. Member Smith made a binding finding that lower noise limits were appropriate. While I accept the CG’s noise limits are usually appropriate, there are special features of this mine, operating continuously in a closely settled and otherwise very quiet rural area. The neighbours’ negative experience with noise, particularly under Stage 2 of the mine, and the inadequate response to their complaints in the past, is likely to affect their subjective experience of the noise from Stage 3.
  1. [252]
    The second issue is the staging of the revised noise limits. Member Smith made a binding finding that Stage 3 has commenced. Whether or not the existing EA authorises mining in West Pit, once the amended EA commences it will apply to all tenures. NAC identified, assessed, and applied for approvals for amendments to an EA to authorise the activities for Stage 3, a project that included the West Pit area. The CG drew no distinction in his evaluation report between the West Pit area and the Manning Vale East Pit as a whole. The CG’s stated noise conditions adopted a Figure that, for the first time, identified the West Pit area as a Stage 2 disturbance. At that time, NAC still conceived of the area as part of Stage 3. It did not make its decision to mine West Pit under the existing EA until more than a year later. Against that background, the effect of staging the noise conditions as they apply to West Pit seems anomalous. It could well be a mistake. NAC has not explained its genesis. There is nothing in the CG’s report to explain it. NAC has not made a case for deferring the commencement of the revised noise limits until the overburden is removed on ML50232.
  1. [253]
    If I could, I would recommend DES make those two amendments to the draft EA and then grant it, but I cannot do that. The amended conditions would be inconsistent with the CG’s stated conditions. Therefore, I must, as Bowskill J observed, consider what recommendations to make given Member Smith’s findings and mine about the appropriate conditions to regulate noise.
  1. [254]
    In deciding what recommendation to make I have to weigh that in the balance with the many positive conclusions that bind me. Taking into account all Member Smith’s binding findings, there is a very strong case for the applications to be granted. He identified them when considering whether the public right and interest will be prejudiced (s 269(4)(k)). Particularly, Member Smith referred to the economic benefits of the project. Although some objectors questioned whether this means economics trumps the environment, Smith M made many findings about the conditions that would mitigate or manage environmental impacts and recommended improvements to them where he thought that was needed.
  1. [255]
    Nevertheless, what noise limits apply and when they commence have real consequences for the people directly affected by the noise. The principle of intra-generational equity has some application here. Intra-generational equity involves considerations of equity within the present generation.[198] It can be considered in relation to the disproportionate use of resources, but here it relates to the neighbours bearing a disproportionate burden of the adverse impacts in order for this generation to access the resources.
  1. [256]
    In a case involving an open cut coal mine in NSW, the Land and Environment Court considered the noise and social impact of the mine on local villagers. The Court noted:[199]

“distributive injustice would be caused by the distribution of the burdens of the project in several ways: first, on local villagers, by limiting their ability to live in a clean and healthy environment – intragenerational equity;”

  1. [257]
    A close neighbour will always be more affected than a distant neighbour. However, Smith M found:[200]

“the objectors who have made noise complaints have not been well served in the past by either NAC or the statutory party… they have actually been treated very poorly by both NAC and the statutory party”

  1. [258]
    He also noted:[201]

“In my assessment of the mental health evidence I have found that the local community is deeply divided between those who have received a benefit from the mine or will receive a benefit from revised Stage 3; and others who live near the mine and do not receive any benefits from it, only costs in terms of noise, dust, etc. or concerns with respect to water supply etc.”

  1. [259]
    Although I am bound by Smith M’s conclusion that the past performance of NAC is not a ground for refusing the applications, I consider his adverse findings about NAC’s response to noise complaints elevates the importance of findings that noise impacts are inadequately conditioned. If that were addressed, I would recommend the grant of all applications, subject to the conditions approved in these reasons. I cannot do that, but I am satisfied there is an alternative course.

Can the Court make a conditional recommendation?

  1. [260]
    NAC submitted I should recommend the grant of the MLs and EA subject to the noise limits stated by the CG. If, however, I conclude I should refuse the applications unless the EA imposes the lower noise limits Smith M found to be the appropriate, NAC submitted I can and should make a conditional recommendation. The condition being that the recommendation would only take effect upon the CG stating a condition for the EA that imposed those lower noise limits.
  1. [261]
    OCAA urged the Court to recommend the applications be refused. However, it accepted the Court has the power to make a conditional recommendation.
  1. [262]
    DES did not agree. However, it appears to have misinterpreted NAC’s submissions.
  1. [263]
    In its first submissions, DES said NAC suggested the Court “may recommend approval on condition that the amendments to the EA not take effect unless and until the CG alters his conditions to accept the noise level conditions that the court considers to be appropriate.”[202] It then explained why such a condition would be inconsistent with a CG condition and, therefore, contrary to s 190(2) and s 205.
  1. [264]
    In its supplementary submissions it maintained the Court could not impose such a condition of the EA, nor could it recommend when an approved EA could take effect.[203]
  1. [265]
    As I understand the parties’ submissions, they did not advocate either course. Rather, they adopted an option identified by Justice Bowskill in her reasons of 2 May 2018:[204]

“[337] Even where the inconsistent condition is considered sufficiently important by the Land Court that, in its absence, the approval ought to be refused, there may be other options available, including making any recommendation for approval subject to a condition that it not take effect unless and until an application is made by the proponent to the Coordinator-General to change the condition, and on the basis of that application, or otherwise (for example, on the Coordinator-General’s own initiative) the condition being changed, consistent with the Land Court’s recommendation.” (emphasis added)

  1. [266]
    Clearly, what her Honour contemplated was a conditional recommendation, in the sense that the recommendation has no effect until the condition is fulfilled.
  1. [267]
    I accept her Honour’s observations are obiter and do not bind the Court. However, she made them after hearing from the parties, including DES, and after considering the provisions referred to by DES.
  1. [268]
    Her Honour was well acquainted with the relevant provisions, having examined them closely.[205] After she identified the possibility of the Court making a conditional recommendation, she considered how applications are processed by the relevant decision-makers after the Land Court has made its objections decision.She also referred to the power of the CG, whether on application or on his own initiative, to state a different condition for the project. Having canvassed those provisions, she concluded:[206]

“…there is clearly a continuing cooperative approach, as between the MRA Minister, the State Development Act Minister and the administering authority under the EPA. In those circumstances, particularly where this is the only basis on which the Land Court would recommend refusal (preference for an inconsistent condition), it seems entirely reasonable and appropriate to allow for this process to occur.”

  1. [269]
    NAC argued Justice Bowskill’s reasoning was well-grounded in legal principle. As a general proposition, it is inappropriate to read a provision that grants powers to a court by making conditions or imposing limitations not found in the words used.[207] The necessity for the court to exercise the power judicially favours the most liberal construction.[208]
  1. [270]
    A statutory power to do something carries with it the power to do whatever may be fairly regarded as incidental to, or consequential upon, the power.[209] This is not a question of absolute necessity on the one hand, and mere inconvenience on the other. The test is whether it is reasonably incidental to carrying out a statutory object.[210]
  1. [271]
    DES misapprehended the course of action identified by Justice Bowskill and it did not address any of the authorities to which NAC referred.
  1. [272]
    Justice Bowskill accepted it was entirely reasonable and appropriate to allow an applicant to apply for and the CG to consider amending the stated conditions for an EA. The CG did not have the same evidence from expert witnesses as Smith M did. Further, he did not have the benefit of observing those expert witnesses being tested under cross-examination. The legislation establishes a continuing cooperative approach by decision-makers which would allow them to have regard to fresh evidence or to evidence they have already considered being looked at in a different context.
  1. [273]
    I am satisfied that making a conditional recommendation is reasonably incidental to the Court’s power to make recommendations about the applications.
  1. [274]
    If I am wrong about that, I would have adjourned the objections hearing to allow NAC to apply for, and the CG to consider, amendments to his stated conditions to impose the lower noise limits that Smith M found to be appropriate, and, to apply those noise limits to all mining activities once the EA commences.

Conclusion

  1. [275]
    For the reasons I have given, I make the orders and recommendations set out in Appendix A to these reasons.

FY KINGHAM

PRESIDENT OF THE LAND COURT

Appendix A

1. Orders relating to the application to amend EPML00335713

1.1 The recommendation stated in paragraph 1.2 is subject to the condition that it does not take effect unless and until:

  1. (a)
    The applicant applies to the Coordinator-General to amend the stated conditions that are conditions F1 & F2 of the draft amended environmental authority (EPML00335713):
  1. (i)
    to impose the following noise limits

Noise level DB(A) measured as

All days

7am – 6pm

6pm – 10pm

10pm – 7am

LAeq,

42

35

35

Adj, 15 min

 

 

 

LAmax

-

-

50

LAmax rail spur

-

-

56

LAeq(24hr) rail spur

-

-

50

and

  1. (ii)
    to apply those noise limits to noise from mining activities on all tenures subject to the environmental authority when the environmental authority, as amended, takes effect; and
  1. (b)
    The Coordinator-General amends those stated conditions; and
  1. (c)
    The administering authority incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority.

1.2 Subject to the condition stated in paragraph 1.1, I recommend the Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, approve the application to amend EPML00335713 on the conditions stated in the draft environmental authority, subject to such additions and amendments as are necessary to give effect to these reasons and the reasons of this Court given on 31 May 2017.

1.3 If the condition in paragraph 1.1 is not fulfilled by 31 May 2019, or if before that date, the Coordinator-General decides not to amend those stated conditions, I recommend the Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, refuse the application to amend EPML00335713.

2. Orders relating to the application for mining lease ML50232

2.1 The recommendation stated in paragraph 2.2 is subject to the condition that it does not take effect unless and until:

  1. (d)
    The applicant applies to the Coordinator-General to amend the stated conditions that are conditions F1 & F2 of the draft amended environmental authority (EPML00335713):
  1. (i)
    to impose the following noise limits

Noise level DB(A) measured as

All days

7am – 6pm

6pm – 10pm

10pm – 7am

LAeq,

42

35

35

Adj, 15 min

 

 

 

LAmax

-

-

50

LAmax rail spur

-

-

56

LAeq(24hr) rail spur

-

-

50

and

  1. (ii)
    to apply for mining on all tenures subject to the environmental authority when the environmental authority, as amended, takes effect; and
  1. (e)
    The Coordinator-General amends those stated conditions; and
  1. (f)
    The administering authority incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority.

2.2 Subject to the condition stated in paragraph 2.1, I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989 that ML50232 is granted, subject to the following conditions:

  1. (g)
    That the term of the lease is 25 years; and
  1. (h)
    The holder will:
  1. (i)
    Further investigate the location of the Wells children’s graves using an archaeologist familiar with this identification process;
  1. (ii)
    if any burial is located, the form, depth and nature of any burial must be recorded and kept as an archival document as a record of such burial practices; and
  1. (iii)
    comply with any legal requirements and have regard to policies and guidelines relating to removal of human remains.

2.3 If the condition in paragraph 2.1 is not fulfilled by 31 May 2019, or if before that date, the Coordinator-General decides not to amend those stated conditions, I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that the application for ML50232 is refused.

3. Orders relating to the application for mining lease ML700002

3.1 The recommendation stated in paragraph 3.2 is subject to the condition that it does not take effect unless and until:

  1. (i)
    The applicant applies to the Coordinator-General to amend the stated conditions that are conditions F1 & F2 of the draft amended environmental authority (EPML00335713):
  1. (i)
    to impose the following noise limits

Noise level DB(A) measured as

All days

7am – 6pm

6pm – 10pm

10pm – 7am

LAeq,

42

35

35

Adj, 15 min

 

 

 

LAmax

-

-

50

LAmax rail spur

-

-

56

LAeq(24hr) rail spur

-

-

50

and

  1. (ii)
    to apply for mining on all tenures subject to the environmental authority when the environmental authority, as amended, takes effect; and
  1. (j)
    The Coordinator-General amends those stated conditions; and
  1. (k)
    The administering authority incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority.

3.2 Subject to the condition stated in paragraph 3.1, I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that ML700002 is granted, subject to the condition that the term of the lease is 25 years.

3.3 If the condition in paragraph 3.1 is not fulfilled by 31 May 2019, or if before that date, the Coordinator-General decides not to amend those stated conditions, I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that the application for ML700002 is refused.

4. Procedural Orders

4.1 By 4pm on 28 February 2019, the statutory party must file in the Land Court Registry and provide to all active parties a draft amended environmental authority that incorporates any additional conditions or amendments necessary to give effect to these reasons and those of the court made on 31 May 2017.

4.2 Any application for costs of the original hearing before Member Smith or of this remitted hearing is adjourned to a date to be fixed, on the party applying and giving seven days’ notice to the Court and every other party.

4.3 I direct the Registrar to provide, as soon as practicable, a copy of these orders and the reasons to:

  1. (l)
    The honourable Minister for Natural Resources, Mines and Energy; and
  1. (m)
    The honourable Minister for State Development, Manufacturing, Infrastructure and Planning.

Footnotes

[1]  To the extent that those submissions did not raise issues beyond the Court’s jurisdiction, or introduce evidence that was not before Smith M.

[2] Outline of Submissions for the Rehearing on behalf of the Oakey Coal Action Alliance Inc filed 8 August 2018, [69]-[74].

[3]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [226]-[236]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [40].

[4]Environmental Protection Act 1994, s 185.

[5]Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72; McBain v Clifton Shire Council [1995] QCA 513.

[6]  Outline of Submissions for the Rehearing on behalf of the Oakey Coal Action Alliance Inc filed 8 August 2018, [69].

[7]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [4], [226]-[239].

[8]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [14], [16], [84]-[86], [1337], [1436]-[1799].

[9]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [189]-[243]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [40].

[10]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [40]; Affidavit of Mark Geritz filed 5 June 2018, 168-169.

[11]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [4]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [36].

[12]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [377]-[380]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [27]-[40].

[13]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [379]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [34].

[14]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [37].

[15]  Applicant’s Reply filed 17 September 2018, [49].

[16]Tickner v Chapman (1995) 57 FCR 451, 495.

[17]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99, [44]-[45].

[18]Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473.

[19]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [265].

[20]  Ibid [267].

[21]  Ibid [272]-[275].

[22]  Ibid [333].

[23]  Ibid [336].

[24]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [271].

[25]Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, [46].

[26]  Applicant’s Outline of Argument before Bowskill J, [262].

[27]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [305].

[28]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [721]-[809].

[29]  Because of the opening phrase of [795].

[30]  Real time noise monitoring data.

[31]  Statutory Party’s Submissions filed 7 September 2018, [24].

[32]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [727].

[33]  Ibid [571].

[34]  Ibid [1187].

[35]  Ibid [1199].

[36]  EPA, s 191(1)(f); New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [287].

[37]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [288].

[38]  EPA, s 51.

[39]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [293].

[40]Environmental Protection (Noise) Policy 2008, s 5.

[41]  Ibid s 6.

[42]  Ibid s 7.

[43]  Joint Report of Noise Experts filed 22 February 2016, 74-75.

[44]  T 47-18, line 7 to 47-20, line 31; T 47-31 lines 39 to 44.

[45]  Joint Report of Noise Experts dated 22 February 2016, [190]-[191].

[46]  T 40-20 line 34 to 40-21 line 7.

[47]  Joint Report of Noise Experts dated 22 February 2016, [57].

[48]  Ibid [76].

[49]  Further Statement of Evidence: Acoustic and Vibration Assessment and Engineering dated 24 March 2016, [10].

[50]  Joint Report of Noise Experts dated 22 February 2016, [118].

[51]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [761]-[762].

[52]  Joint Report of Noise Experts dated 22 February 2016, [460].

[53]  T40-20 lines 1-6.

[54]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1155].

[55]  Ibid [1196].

[56]  T 47-75, line 37 to 47-76, line 7.

[57]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1134].

[58]  Statement of Evidence to the Land Court by Dr David McKenzie dated 1 March 2016, [12.1].

[59]  Joint Expert Report: Health Impacts of the Proposed Stage 3 Mine dated 29 January 2016, 20-21.

[60]  T 57-10, lines 11 to 15.

[61]  Coordinator-General’s Evaluation Report on the Environmental Impact Statement dated December 2014, [5.2].

[62]  DEHP Environmental Authority Assessment Report dated 19 October 2015.

[63]  Joint Report of Noise Experts dated 22 February 2016, [47].

[64]  Affidavit of Mark Geritz filed 5 June 2018, 166-167.

[65]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1792].

[66]  Ibid [1194].

[67]  Ex 939; Ex 1114, 30.

[68]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1183], [1185].

[69]  T 47-56, lines 12 to 28.

[70]  T 40-15, lines 30 to 33; T 42-58, lines 17 to 37; T 47-14, lines 28 to 31.

[71]  T 40-15, lines 30 to 33; T 47-13, lines 43 to 45.

[72]  Outline of Submissions on behalf of the Applicant for the Remitted Hearing filed 17 July 2018, [30]; T 47-15, lines 1 to 8; T 47-13, lines 43 to 45; T 47-14, lines 28 to 31, 40 to 41, 44 to 47; T 47-15, lines 7 to 8.

[73]  T 41-17, lines 26 to 47.

[74]  Joint Report of Noise Experts dated 22 February 2016,  [46]; T 42-59, lines 16 to 23.

[75]  T 40-56, lines 1 to 4; T 47-50, lines 39 to 46.

[76]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [800]-[806].

[77]  Joint Report of Noise Experts dated 22 February 2016,  [350]-[352].

[78]  Ibid [467].

[79]  T 47-13, lines 5 to 10, 28 to 41.

[80]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [801]-[804].

[81]  Ibid [805].

[82]  Ibid [806].

[83]  Ibid [810].

[84]  Ibid [812].

[85]  Ibid [816].

[86]  Applicant’s Supplementary Reply filed 19 October 2018, [94]-[101]. 

[87]  T 45-68, line 39 to 45-69, line 9.

[88]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [812].

[89]  Ibid [800].

[90]  OCAA Further Submissions on NAC’s Tables 1 and 2 filed 12 October 2018, [11].

[91]  Applicant’s Supplementary Reply filed 19 October 2018, [89].

[92]  Applicant’s Supplementary Reply filed 19 October 2018, [115].

[93]  Ex 15.

[94]  Coordinator-General’s Evaluation Report on the Environmental Impact Statement dated December 2014, 1.

[95]  Ex 9.

[96]  EPA, s 205(2); State Development and Public Works Organisation Act 1971, s 47C.

[97]  NAC Proposed Environmental Authority marked Document F on 2 October 2018, 65. 

[98]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [683]-[685].

[99]  Ibid [391].

[100]  T 64-8, line 38 to 64-11, line 20.

[101]  Closing Submissions on behalf of the Oakey Coal Action Alliance Inc filed 13 September 2016, [1648]-[1649], [1786], [1809].

[102]  OCAA Submissions on Jurisdiction to Consider Existing Mining Operations filed 3 October 2018, [86].

[103]  Applicant ’s Supplementary Reply filed 19 October 2018, [22]-[56].

[104]  Ibid [3]-[21].

[105]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [29].

[106]  Ibid [32] (citing Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518).

[107]  Statutory Party’s Supplementary Submissions filed 12 October 2018, [17].

[108]  Applicant’s Supplementary Reply filed 19 October 2018, [19].

[109]  EPA, s 215.

[110]  EPA, s 117.

[111]  EPA, s 107.

[112]  EPA, s 110.

[113]  EPA, s 226.

[114]  Ex 3, 6-7.

[115]  Applicant’s Supplementary Reply filed 19 October 2018, [75].

[116]  Ex 21, 3-2.

[117]  Ex 21, 3-5.

[118]  Ex 90, 19.

[119]  Ibid 20.

[120]  Ex 100, 3-4.

[121]  Ex 16, iii.

[122]  Ibid 3.

[123]  Ibid 11.

[124]  Ibid 4.

[125]  EPA s 235.

[126]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [683]-[687], [802]-[804].

[127]  Ibid [684].

[128]  Ibid [802] .

[129]  Ibid.

[130]  Ibid [684].

[131]  Ex 5, 27; Ex 100, 9.

[132]  Ex 100, 57-58.

[133]  Ex 16, 21.

[134]  SDPWO Act, s 54B.

[135]  Ibid s 47C.

[136]  Ibid s 54B(3).

[137]  Ex 16, 58. 

[138]  Ibid, 35.

[139]  Ibid, 17-22.

[140]  Ex 1195. 

[141]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [737].

[142]  Ibid [738].

[143]  Ibid [735].

[144]  Ex 16, 17.

[145]  Joint Report of Noise Experts dated 22 February 2016,  4.

[146]  T 64-8, lines 13 to 20.

[147]  Applicant’s Supplementary Reply filed 19 October 2018, [125].

[148]  Ibid [17].

[149]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1].

[150]  Ibid [713]-[816].  

[151]  Ibid [830]-[844].  

[152]  Ibid [845]-[870].  

[153]  Ibid [871]-[1056].  

[154]  Ibid [1057]-[1083].  

[155]  Ibid [1084]-[1094].  

[156]  Ibid [1095]-[1131].  

[157]  Ibid [1266]-[1275].  

[158]  Ibid [1276]-[1302].

[159]  Ibid [1730]-[1771].

[160]  Ibid [1776]-[1777], [1809]-[1810].

[161]  Ibid [1778], [1811]. 

[162]  Ibid [1779]-[1780], [1812].  

[163]  Ibid [1781]-[1782], [1813].

[164]  Ibid [1786]-[1787], [1817]-[1818].

[165]  Ibid [1794], [1825]. 

[166]  Ibid [576]-[712]. 

[167]  Ibid [1132]-[1265].  

[168]  Ibid [1683]-[1729].  

[169]  Ibid [1785], [1816].

[170]  Ibid [1422]. 

[171]  Ibid [1793], [1824].

[172]  Ibid [1799]-[1800], [1802]-[1803], [1804]-[1806], [1807], [1808].

[173]  Ibid [1804].

[174]  Ibid [1837].

[175]  Ibid [1793].

[176]  Ibid [587].

[177]  Ibid [1183], [1185].

[178]  Ibid [1245], [1252]-[1258].

[179]  Ibid [75].

[180]  Ibid [11] [1189]-[1193], [1196], [1199], [1206], [1256], [1262].

[181]  Intergovernmental Agreement on the Environment (1992).

[182]Taralga Landscape Guardians Inc v Minister for Planning RES Southern Cross Pty Ltd (2007) 161 LGERA 1, [74].

[183]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [9].

[184]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [257]-[263].

[185]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1299].

[186]  Ibid [1068].

[187]  Ibid [1082]. It should be noted that his Honour’s assessment about that was based on the estimate of a further 20,000 ha being put at risk due to permanent impacts on groundwater.

[188]  Ibid [1743].

[189]  Ibid [1288]-[1292].

[190] Ibid [1294].

[191]  Ibid [10], [1128].

[192]  Ibid [13], [1276]-[1285], [1288]-[1302].

[193]  Because the conclusion is based on groundwater concerns and, associated with that, intergenerational equity.

[194]  Applicant’s supplementary Reply Submissions filed 19 October 2018, [181]; New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1434]-[1435].

[195]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1050]-[1056].

[196]  Ibid [1391].

[197]  Ibid [624], [625], [641], [650], [673], [686], [687], [697], [699], [701], [703], [705], [710], [1417], [1424]-[1427]; and the conditions recommended in these reasons relating to noise.

[198]Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48, [38].

[199]Bulga Milbrodale Progress Association Inc v Minister for Planning & Infrastructure (2013) 194 LGERA 347, [485].

[200]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [721].

[201]  Ibid [1387].

[202]  Statutory Party’s Submissions filed 7 September 2018, [26].

[203]  Statutory Party’s Supplementary Submissions filed 12 October 2018, [14]-[15].

[204]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [337].

[205]  Ibid [326]-[330].

[206]  Ibid [338].

[207]Oshlack v Richmond River Council (1998) 193 CLR 72, 81.

[208]Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205.

[209]R v Gough; Ex parte Australasian Meat Industry Employees Union (1965) 114 CLR 392, 422.

[210]Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd

(1989) LGRA 238; Deuchar v Gas Light and Coke Co [1924] 1 Ch 422, 435.

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Editorial Notes

  • Published Case Name:

    New Acland Coal Pty Ltd v Ashman & Ors (No 7)

  • Shortened Case Name:

    New Acland Coal Pty Ltd v Ashman (No 7)

  • MNC:

    [2018] QLC 41

  • Court:

    QLC

  • Judge(s):

    Kingham P

  • Date:

    07 Nov 2018

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