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Hail Creek Coal Holdings Pty Ltd v O'Loughlin[2023] QLC 22

Hail Creek Coal Holdings Pty Ltd v O'Loughlin[2023] QLC 22

LAND COURT OF QUEENSLAND

CITATION:

Hail Creek Coal Holdings Pty Ltd & Ors v O'Loughlin & Ors [2023] QLC 22

PARTIES:

Hail Creek Coal Holdings Pty Limited, 

Marubeni Resources Development Pty Ltd, and

Sumisho Coal Development Queensland Pty Ltd

(applicants)

v

Michael Thomas O'Loughlin Junior, Clayton Douglas

O'Loughlin, Tarquin Michael O'Loughlin, and Jarrod Patrick O'Loughlin

(respondents)

FILE NO:

MER065-23

DIVISION:

General

PROCEEDING:

Application to decide compensation and conduct

DELIVERED ON:

8 December 2023

DELIVERED AT:

Brisbane

HEARD ON:

18, 19 and 20 October 2023 

HEARD AT:

Brisbane

MEMBER:

JR McNamara

ORDERS:

I determine for MDL 442: 

  1. Ten Thousand, Three Hundred and Fifty-four dollars and Fifty cents ($10,354.50) be paid pursuant to and in satisfaction of the general liability to compensate under s 81 of the Mineral and Energy Resources (Common Provisions) Act 2014;
  1. Twenty-five Thousand, Nine Hundred and Fortyseven dollars and Thirty-three cents ($25,947.33) representing negotiation and preparation costs be paid pursuant to and in satisfaction of any liability under s 91 of the Mineral and Energy Resources (Common Provisions) Act 2014.
  1. That the disputed terms of the Conduct and Compensation Agreement are decided in accordance with the Schedule attached to these orders.
  1. Any submission as to costs must be filed and served within 28 days of the publication of these reasons. 

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the Applicants hold a Mining Development Licence (MDL442) located within the Respondents’ land – where the Applicants propose to conduct advanced exploration activity on the Respondents’ land – where the Respondents are a family enterprise operating Exevale station – whether the impacts of exploration activity cause claimed effects on cattle – whether such effects are compensatable effects pursuant to s 81 of the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCPA)whether proposed exploration activity and associated noise and disturbance cause ‘mismothering’ of calves – where the court heard such evidence for the first time – where the Respondents claim compensation for loss of opportunity for a time beyond the duration of the proposed exploration activity – where the Respondents claim reduced income as a result of the reduction of calves caused by proposed exploration activity – where the Respondents claim reduced value of meat sold due to reduction of weight gain caused by proposed exploration activity – where the Respondents claim compensation for additional management time under s 81(4)(b) MERCPA – where the parties agree on compensation under s 91 MERCPA – where the Court determines compensation under s 81 MERCPA 

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – CONDUCT OF MINING OPERATIONS – where the Applicants propose drilling and exploration activity on the Respondents’ land – where draft conduct and compensation agreement provides for conditions of rehabilitation – where Respondents’ seek inclusion of ‘dust and soil’ under biosecurity clauses – where conduct clauses are presented in a draft conduct and compensation agreement – where the Court determines disputed conduct conditions under s 96 MERCPA 

Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) ss 81, 91, 96 

APPEARANCES:

S Holt KC (instructed by Allens) for the applicants

E Morzone KC with D Whitehouse (instructed by Wallace and Wallace Lawyers) for the respondents

Introduction 

  1. [1]
    The Respondents, the O'Loughlins, own and operate Exevale Station.  The 25,488 ha property is approximately 150km west of Nebo and runs an average of between 5,500 and 6,200 head of cattle in 29 paddocks. The herd is 100% Brahman and is a closed herd except for bulls brought in from time to time. The property, in the relevant area, is dissected by Turrawulla Road. 
  2. [2]
    The Applicants, Hail Creek Joint Venturers (HCJV), hold mineral development licence 442 (MDL 442).  They also hold Environmental Authority EPSX00602113 (the EA). They propose to carry out ‘advanced activities’ on Exevale, specifically the drilling of 15 boreholes and the rehabilitation of one existing borehole.
  3. [3]
    Under the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCPA), the Applicants are liable to compensate the O'Loughlins for each compensatable effect they suffer because of the Applicants’ activities.  
  4. [4]
    As far as applications concerning compensation for the effects that mining and exploration activities might have on a cattle enterprise, this matter presented bases of claim not considered before by this Court.  While the nature of the ‘cause’ (or causes) is not unusual (exploration drilling), it is some of the claimed ‘effects’ which are. Those include the mismothering of calves and/or impact on fertility of cattle. Critical to the claim of the Respondents was the evidence of Veterinary Behaviour Specialist, Dr Kersti Seksel, on these issues.  Based on the opinions of Dr Seksel, compensation was quantified for the Respondents by Dr Michael Stephens. 
  5. [5]
    Other areas of disagreement concern some clauses in the draft conduct and compensation agreement (CCA); whether managerial time is adequately compensated; and whether some of the compensation claimed is otherwise already agreed. Throughout these reasons all references to “the draft CCA” are references to agreed clauses and Special Conditions unless otherwise stated.  I will address the disputed clauses in the CCA at the end of these reasons.

The advanced activities

  1. [6]
    In their compensation statement,  the Applicants say that they have allowed for a ‘180-day window’ within which their exploration activities, including postdisturbance rehabilitation activities, will be undertaken.[1] That includes the time for cultural heritage and environmental inspections, the creation of new access tracks and drill pads, undertaking the drilling activities, undertaking sampling and logging of the drill holes, and rehabilitating the drill sites and new access tracks.  They say they will not be on the land at all times during the 180-day period.

Preparation and location 

  1. [7]
    During opening submissions, Senior Counsel for the Applicants presented Queensland Globe imagery comprising four plans: the first showing the cadastral boundaries of Exevale and the road reserve; the second included the proposed drill sites and access tracks; the third included affected Exevale paddock boundaries; and the fourth included an overlay of a Powerlink (transmission line) easement (below).[2] The imagery confirms that three Exevale paddocks will be impacted by the proposed advanced activities: the Front Paddock, the Bullock Paddock, and the Three Springs Paddock.

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

Exhibit 20: Map 4 - Exevale Cadastral Boundaries; Exevale Proposed Drill Plan and Tracks; Exevale – Selected Paddock Boundaries Approximate; Exevale – Powerlink Easement

  1. [8]
    Dr Stephens was engaged by the Respondents to provide an opinion on the economic impacts and/or loss of profits that the Respondents might suffer having regard to the activities of the Applicants. Usefully included in Dr Stephens’ report, is the following table:[3]

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

  1. [9]
    A more detailed plan showing the location of the proposed advanced activities (below) was attached to the 10 July 2023 Affidavit of Exploration Superintendent Bradley Pearson.[4] The plan shows the location of the road reserve (shaded) and the actual physical location of Turrawulla Road (mostly off alignment just to the east of the road reserve).  The road reserve and the physical road are in a NNW/SSE alignment. The outline of MDL 442 can be seen, as can the location of 15 proposed drill holes and the existing drill hole to be rehabilitated.  Three of the drill hole sites are on the road reserve. The remaining 12 sites are in relatively close proximity to either the road reserve and/or the physical road.  The plan shows (in yellow) 1.5 km of existing access tracks intended to be used, and (in green) 6.75 km of new tracks proposed for access to drill sites. 

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

  1. [10]
    In the hearing, it was accepted that the distance between the most northern drill site and the most southern was approximately 7 kilometres.

Disturbance

  1. [11]
    Each drill site will consist of a drill pad – an area of 30 metres x 33 metres, or 0.1 hectare.  The dimensions of the disturbance area at any one location are limited by the EA to a maximum 1000m2.[5] There will be only one drill hole per drill pad unless a ‘re-drill’ is required, in which case the second hole will be in close proximity to the first.  Mr Pearson, in his affidavit, says that when the sites were inspected it did not appear that any of the sites required any slashing, nor did it appear that any levelling was required.[6] In evidence,[7] Mr Pearson noted that during an inspection tour with the O'Loughlins, he was unable to identify any access to one site, R008, and it was uncertain if that site would be drilled. 
  2. [12]
    Existing tracks are claimed to be ‘fit for use’ by the Applicants’ contractor vehicles.  New tracks will be approximately 4 metres wide, established by slashing or rolling, and requiring minor earthworks, if necessary, through waterways.[8] Mr Pearson noted that a number of watercourse crossings “required work to provide safe passage to the sites”.[9]  

Equipment on site

  1. [13]
    The Applicants’ contractors will use Turrawulla Road to get to either an existing track, or a new access track in order to access each drill pad.  An equipment laydown area has been identified on the map,[10] and can be accessed from an existing track a short distance to the east of Turrawulla Road, just south of the three most northern drill sites. 
  2. [14]
    The equipment is listed in the CCA Schedule 1: Tenement Holder’s disclosure, paragraph (j) in the version handed to the Court during closing submissions by Senior Counsel for the Applicants. It says the company will use vehicles and equipment necessary to undertake the drilling that will likely consist of: 1 item of earthmoving equipment; 1 medium truck; 2 drill rigs with onboard compressor units; 2 support trucks; 2 water trucks; 5 light 4WD vehicles; 2 coring sloops; 2 rod sloops; 2 box trailers; 2 fuel trailers; and 2 compressor trailers. 
  1. [15]
    In evidence, Mr Pearson said that light vehicles will ferry people on and off site each day.  A geophysical logger would attend the site “relatively infrequently” to undertake logging activities “in batches”,[11] as would the cement truck. The other equipment, once brought on to Exevale would remain until completion of the drilling program. As agreed between the parties, Special Condition 21.4 of the draft CCA provides:

“21.4 In order to minimise the number of vehicles entering the Land to perform the Activities, the Tenement Holder intends to implement a system where:

  1. a)
    the majority of vehicles and machines will remain on the Land for the duration of the Activities once they have entered the Land for the first time; and
  2. b)
    the Tenement Holder’s Associates will travel to the Land in a vehicle that will be left at the boundary of the Land, and then will exit that vehicle and use a vehicle that has remained on the Land to travel to the location of the Activities.

However, it is acknowledged by the parties that there will be some vehicles that will need to enter and exit the land on multiple occasions, and the provisions of Special Conditions 21.1 to 21.3 will apply.”

Activities on site 

  1. [16]
    In evidence, Mr Pearson said that works would start in the north, and move progressively to the south, operating two drilling rigs “as close as possible to one another” simultaneously.  
  2. [17]
    The ‘advanced activities’ involve the drilling of 10 (100mm) open holes and 5 (123mm) partially cored holes.  The drilling process involves water injection. The average depth of each hole is 190 metres. The deepest hole is about 237 metres.[12] The disturbance (open hole versus cored hole) is the same. Open (chip) holes might take 2 days to drill, cored holes might take 3-4 days.[13] Mr Pearson says the open holes will take a total of 15 drilling days, the partially cored holes 25 drilling days.  Two drill rigs will operate simultaneously. The workforce will work a 13 days on, 8 days off roster.  None of the Applicants’ staff or contractors will be on Exevale during the 8 days ‘off’ period.  Because 2 drilling rigs will be operating simultaneously the total 40 ‘drill days’ could potentially be completed in 20 ‘real time days’. Equipment necessary to complete the activities will be left on a drill pad until completion of each hole.[14]
  1. [18]
    The onsite workforce identified in the CCA Tenement Holder’s disclosure, Schedule 1 paragraph (j) in the version handed to the Court during closing submissions by Senior Counsel for the Applicants consists of 3 drill rig crew members, 1 rig Manager and 2 Geologists. 

Issues not in dispute

  1. [19]
    Ahead of the hearing, the parties filed a list of the compensation issues not in dispute.[15] The following amounts of compensation are agreed:
    1. $1,312 for deprivation of possession of the land’s surface (s 81(4)(a)(i));
    2. $0 for diminution of value of the land (s 81(4)(a)(ii);
    3. $5,558 for diminution of the use of the land (s 81(4)(a)(iii));
    4. $0 for severance of any part of the land from other parts of the land or other land the Respondents own (s 81(4)(a)(iv).
  2. [20]
    Ahead of the hearing, there was an unquantified claim for ‘negotiation and preparation’ costs for the purposes of s 91 MERCPA. These costs represent costs incurred by the Respondents during the negotiation of the CCA prior to the commencement of proceedings in the Land Court. The second affidavit of the Respondents’ lawyer, Mr Gregory John Smart, filed 13 October 2023[16] annexed three invoices for work performed during the negotiation of the CCA on behalf of the Respondents totalling $25,947.33. At the hearing this amount was accepted[17] by the Applicants as an appropriate award under s 91 MERCPA.

Issues in dispute  

  1. [21]
    Dr Stephens did not categorise the components of claim by reference to the s 81 criteria. He approached the task of assessing compensation by identifying what he considered to be ‘increased costs and lost income’. The broad headings in his report are: reduction in grazing area, reduced number of animals for sale, and reduced value of the animals or meat sold. 
  1. [22]
    Nevertheless, the parties filed a list of issues of fact and law in dispute[18], framed as claims for additional compensation under s 81(4)(a)(iii) and for compensation under s 81(4)(a)(v) and s 81(4)(b):
    1. The Respondents say that in addition to the agreed compensation for diminution of use of the land ($5,888 per s 81(4)(a)(iii)), they should also be compensated for the consequential loss being a reduced carrying capacity. In closing submissions, the Respondents say there is a partial dispute about the amount claimed for diminution of use. The Respondents assess that additional loss at $7,433.88 and frame it as a “loss of opportunity to grow out 4 AEs … for each year until such time as that area is rehabilitated.”[19]
    2. The Respondents claim $156,388.52 (corrected to be $151,068 at the hearing) for reduced income as a consequence of fewer animals for sale, attributable to a reduction in calves caused by the advanced activities. 
    3. The Respondents claim $83,306.93 (recalculated as $79,399 at the hearing) for the reduced value of the animals or meat sold due to the reduction in live weight gain as a result of the advanced activities. 
    4. An amount for upwards of 400 hours additional management time at a rate of $101 per hour totalling in excess of $40,000. In closing submissions, the amount claimed is $28,684 and is brought under s 81(4)(b). 
  2. [23]
    A reference in the Respondents’ compensation statement that the advanced activities would have an adverse effect on meat quality (dark cutting) was not reflected in a claim for compensation. In his report at paragraph [52], Dr Stephens[20] says:

“It is accepted by Dr Seksel that the disturbance could cause some loss of value to meat due to dark cutting. Dr Seksel was unable to ascribe a possible dollar loss as a result of dark cutting. It would be reasonable to “trade off” the dark cutting loss with the possible fall in the market price.” 

  1. [24]
    The Applicants accept the Respondents’ assertion that there is not a separate claim for compensation on the basis that any loss is traded off against a fall in price.  The Applicants say however, that their assessment of compensation is not calculated on the basis of a reduction in the market price of 5%. In that way, the Applicants say their compensation assessment favours the Respondents. 
  1. [25]
    There was not a lot of attention given to this issue at the hearing. The evidence strongly suggested that dark cutting was a possible consequence of stress events 24 to 48 hours prior to slaughter (due to handling etc.), and that it might impact heifers more than steers.  In cross examination by Senior Counsel for the Respondents, Mr Newsome (Livestock Expert) said: “I don’t think there’s data supporting the claim that an animal that’s impacted by a drilling event this year will potentially be a dark cutter in three years’ time. I think that is a very long bow to draw.”[21]
  2. [26]
    I will address the issues in dispute in the order they appear in paragraph [22] above.

Loss of opportunity

  1. [27]
    The Respondents say that the agreed amount ($5,888) calculated by the Applicants’ valuer, Mr Cavanagh, for the loss of weight gain was for a period of 180 days only. 
  2. [28]
    The Respondents in oral closing submissions[22] say that the additional compensation claimed ($7,433.88), an AE (adult equivalent) loss, “is for a year” and “that it should be for as long as the rehabilitation takes to re-establish itself and it could be two to three years” and on that basis the additional amount is an annual amount. 
  3. [29]
    The Applicants say that Dr Stephens’ AE analysis has nothing to do with timing or rehabilitation. The Applicants say that the Respondents are already compensated in the agreed amounts under s 81(4)(a)(i) (deprivation of possession of the lands surface) and (iii) (diminution of the use of the land) – and this claim is a “double dip”; they say the Respondents have simply applied a different methodology to get to the same conclusion, that is, an opportunity cost.[23]
  4. [30]
    The three components in calculating compensation common to the parties is: the AE stocking rate, the price per kilogram, and the area lost to production including the buffer area around the drill pads.
  5. [31]
    In agreeing to s 81(4)(a)(iii) compensation in the amount of $5,888 for diminution of the use of the land for the 180-day period, it would appear that the Respondents accepted the Applicants’ methodology and component values, that is, the AE stocking rate, the price per kilogram, and the area lost to production.  This is not addressed in Dr Stephens’ report.  However, for the purposes of calculating the ‘loss of opportunity’ the Respondents adopt a different stocking rate and apply a sale price per head.  
  6. [32]
    The methodology Dr Stephens applied was to calculate the stocking rate for the whole property and on the subject area (using “kill sheets”) – then multiply the AE calculations for the area lost to grazing. Dr Stephens then projected reduced output in four years’ time.  
  7. [33]
    In his report, Dr Stephens does not directly engage with Mr Cavanagh’s calculation of loss for deprivation of possession or diminution of the use of the land, he frames it as a “reduction in area”. Although Dr Stephens does not specify the period of the reduction in area in his assessment, losses beyond 180 days would appear to be the basis of the claim.  While it appears from Dr Stephens’ report to be a “one off” claim, the Respondents say that the land will be lost (reduced) for a period well beyond 180 days – because, it was submitted at the hearing, rehabilitation will not be completed within the 180 days.
  8. [34]
    Apart from the drill holes, the impacts on the Respondents’ land will comprise slashing and rolling of grass, some clearing or levelling on drill pads where necessary, some minor earthworks to allow safe passage of vehicles through waterways, and ‘wear and tear’ as a result of numerous vehicles coming and going along existing and new access tracks.  The drilling work is to be progressive, that is, start in the north and move to the south.  On that basis the rehabilitation of the northern sites might commence comparatively early in the 180-day period – and at the latest rehabilitation activities (re-seeding etc) should be completed at day 45 – suggests (on the Applicants’ case) that there would be approximately 115 days remaining for rehabilitation to ‘take hold’.  The less impact caused to the land, the faster the land will rehabilitate – meaning the affected land might return to a fully rehabilitated state progressively.  
  9. [35]
    The success of rehabilitation is weather dependent.

Rehabilitation

  1. [36]
    In the draft CCA Special Condition 19.2[24] says: “Rehabilitation and restoration work is to be carried out (sic) the standard of the immediately adjacent country”.  At 19.3 the Applicant is required to take ‘before and after’ photographs of the drill sites and new access tracks and make them available to the landholder; and at 19.5 they must arrange a site visit with the landholder after rehabilitation has been completed for the landholder to inspect the rehabilitation of the impacted land. 
  2. [37]
    The draft CCA Special Condition 16[25] concerns fencing and provides, inter alia, that where required by the landholder in order to assist rejuvenation of vegetation, fencing around drill sites can remain in place. At the hearing, while the Applicants were open to the possibility of retaining temporary fencing around the drill pads if requested by the landholders they were of the view that it was impractical to fence the new access tracks in their entirety.    
  3. [38]
    In his first affidavit, Mr Pearson says:

“The applicants expect that grass will be re-established over areas affected by the exploration activities to a standard equivalent to surrounding land within 180 days of completion of the exploration and rehabilitation activities on the Land, subject to normal weather conditions. The timeframe for the reestablishment of vegetation is consistent with the Applicant’s experience on other properties similar to the Land. For example, on the adjacent property (Lake Elphinstone Station), following the rehabilitation of two boreholes, the Applicants observed land vegetation cover returning to the same level as surrounding land within approximately 180 days of rehabilitation being complete, under prevailing weather conditions.”[26] 

  1. [39]
    Photographs of Lake Elphinstone Station sites were exhibited to Mr Pearson’s affidavit.  Mr Pearson goes on to say that at follow up inspections on Exevale, if reestablishment of vegetation of the drill sites is not progressing as expected, some form of remedial action may be taken in accordance with the Applicants’ obligations under the EA and in consultation with the landholder. 
  2. [40]
    In cross examination by Senior Counsel for the Respondents some photographs, purported to be of areas of Lake Elphinstone showing incomplete rehabilitation, were shown to Mr Pearson. The precise location of the images was not identified other than to say it was on Lake Elphinstone. The photographs were not tendered. Mr Pearson said that the Lake Elphinstone sites he inspected “were not like that, there was grass establishing itself”.
  1. [41]
    In evidence Mr Thompson, Land Use Planning and Agriculture expert, said that it was his understanding that in general there would be minimal physical disturbance other than slashing as part of the site preparation exercise.[27] He was asked in cross examination by Senior Counsel for the Respondents to assume that there would be some clearing of vegetation and rolling over of grass, and in that context if he would agree that rehabilitation “is not going to occur for a couple of wet seasons, two or three wet seasons?”[28] Mr Thompson said that it is dependent on when the rehabilitation actually occurs. When the same question was put to Mr Pearson he said: “No... definitely not … however it would [depend on] prevailing weather conditions”.[29]
  1. [42]
    Mr Thompson in cross examination said he did not consider vegetation that had “been pushed around … with a root rake or with a back loader or something like, not major disturbance anyway” – but an attempt to rehabilitate going into winter might not succeed if soil temperatures are below 18 degrees. He said you should not try to reseed during the autumn and winter period.[30] Mr Thompson observed that “they should not have these rigs on site when we are going in to the wet season … so the rehabilitation  of these areas, or the reseeding… is done in the early part of the wet season”.[31] Mr Pearson said rehabilitation would require a number of rain events, but not necessarily a wet season.[32]
  2. [43]
    Mr Thompson was asked in cross examination if cattle should be excluded from an area undergoing rehabilitation for a wet season to allow grasses “to shoot” and he said that that was a common observation.[33] Ultimately, Mr Thompson said that for improved pastures or even native pastures, rehabilitation should take no more than one decent seeding season[34] and that it would be good practice to leave temporary fencing in place until the reseeded areas have recovered over the wet season.[35]
  1. [44]
    Mr Clayton O'Loughlin (Respondent) was asked his view on the need for fencing during rehabilitation. He said that the cattle will come along and pull the ‘baby seed’ out and “in my experience as what has happened in the past”.[36] He was asked about rehabilitation without fencing. He said, “some have, some haven’t.”

Conclusions – loss of opportunity

  1. [45]
    Although arguing that their claim is not a ‘double dip’, the Respondents have presented their claim in a way that they seek both the agreed amounts of $1,312 for deprivation of possession of the land’s surface and $5,558 for diminution of the use of the land for the 180-day period the Applicants say will be required to complete the activities including rehabilitation, and the loss assessed by Dr Stephens ($7,433.88) ongoing and annually for 2 to 3 years. 
  2. [46]
    That does appear to be a double dip if it ($7,433.88) was intended to represent compensation for the 180-day period. If, however, it is intended to commence at the expiration of the 180-day period and apply annually from that point until rehabilitation is complete, then perhaps not. However, having accepted compensation for deprivation of possession and for diminution of use as assessed by Mr Cavanagh, and presenting this claim as an additional amount for diminution of use calculated using a different methodology is confusing.  
  3. [47]
    In that regard, I prefer the methodology applied by Mr Cavanagh.  That is, to determine the averaged stocking rate based on his classification of the land having reviewed aerial photography and soils and land type mapping (LongPaddock 2023a and b).  The stocking rate used by Mr Cavanagh was 3.23 ha per AE, and the average daily weight gain of 0.85Kg per day.  Livestock expert (for the Applicants), Mr Newsome thought both were generous in favour of the Respondents.  I accept that Mr Cavanagh’s assessment of the nature of the pasture was conducted on a brief inspection and otherwise using aerial photography and maps. However, in my view the variables are more certain which renders it less prone to error.
  1. [48]
    I accept that the timeframe for rehabilitation and restoration work to be carried out to the standard of the immediately adjacent country can be achieved in the 180-day period in the right conditions as stated by Mr Thompson and Mr Pearson. Agreement to any reasonable request for temporary fencing of drill pads is likely to ensure that outcome in those areas. 
  2. [49]
    In his affidavit, Mr Pearson says he expects the reestablishment of areas affected to be achieved within 180 days of completion of the exploration and rehabilitation activities subject to normal weather conditions. That might just require greater attention being given to the areas impacted towards the end of the drilling and rehabilitation program and the installation of temporary fencing.
  3. [50]
    The amounts of $1,312 and $5,888 as agreed between the parties for compensation pursuant to s 81(4)(a)(i) and (iii) are allowed.  The claim for additional and ongoing compensation of $7,433.88 is disallowed. 

Reduced income – mismothering (survival of calves) or lower birthing rates as a result of the Applicants’ activities 

  1. [51]
    The chain of events which led Dr Stephens to quantify ‘reduced income’, starts with a barely legible spreadsheet which is attached to the affidavit of Mr Clayton O'Loughlin.[37] The spreadsheet lists the numbers of branded calves in each of the 10 years leading up to and including 2010.  The spreadsheet was prepared by Mr O'Loughlin’s sister. According to the spreadsheet, the number of Front Paddock calves branded in 2010 was 321. Handwritten on the spreadsheet is a note saying the 10-year average of branded calves in the Front Paddock was 475.
  2. [52]
    After commenting in his affidavit that Brahman cattle are highly sensitive to stress, Mr O'Loughlin says that: 

“… in or about 2010 we had Powerlink build power lines on the property and were operating in breeder paddocks. During the course of that process, we lost a significant number of calves. Attached … is a spreadsheet showing the reduction in calve numbers we branded.”[38]  

He said that he had observed that: “cattle would run away from the noise during construction and leave their calves which would then be taken by dingoes.” Mr O'Loughlin goes on to say that: “the number of calves we branded in 2011 once the disturbance ended was back in line with our averages.”

  1. [53]
    Upon this premise, the Respondents summarise their ‘reduced income’ claim in written closing submissions at [35] saying the Applicants’ advanced activities: 

“in particular the noise, movement and high visibility of the activities, will cause disruption and stress in the cattle located near to those activities in the three paddocks in which the activities are proposed to be carried on and will result in a higher level of fertility (sic) or loss of calves through mismothering which will then manifest itself in there being a lower number of calves that are branded and then grown out.” 

  1. [54]
    They say the likely reduction in calf numbers at branding is assessed by Veterinary Behaviour Specialist, Dr Seksel to be approximately 32%, having regard to a reduction of that order in calf numbers which manifested itself in 2010 following transmission line construction activities carried out on Exevale by Powerlink.  Dr Stephens accepted the percentage calf loss assessed by Dr Seksel and quantified the financial loss as $151,068.[39]
  2. [55]
    The Applicants say that despite the amount of drilling that has taken place over many decades on rural properties in Queensland, there is no evidence of any reported incident of such impacts caused by exploration drilling and that the claim is based entirely on a theory. 
  3. [56]
    The Applicants say there will be no reduction in calves (as a result of mismothering or as a result of fertility issues) caused by the advanced activities and therefore no compensation to be awarded.  

Calf loss

  1. [57]
    The theories proffered by Dr Seksel in her report seek to explain a seemingly low number of branded calves in 2010 to be the result of mismothering of calves, or, the consequence of lower fertility. 
  2. [58]
    According to Dr Seksel, mismothering can be caused by disrupted communication between mother and calf in the early weeks post-partum which leads to their separation for a period resulting in calves perishing.  She says communications can be disrupted by exposure to excessive noise over a period of several hours and the consequences (mismothering) are more immediate than the fertility impacts. 
  1. [59]
    Because losses due to lowered fertility might not be seen for 2-3 years after stressful events,[40] Dr Seksel concluded that the explanation for a ‘lower than the 10-year average’ number of branded calves in 2010 was due to mismothering caused by the 2010 works undertaken on Exevale by Powerlink. 
  2. [60]
    Dr Seksel expressed the opinion that losses due to lower fertility were negligible given the number of calves branded in 2011/12 were in the expected range. 

Powerlink 2010

  1. [61]
    The Respondents’ case was built around the impact of the activities of Powerlink in the Exevale Front Paddock in 2010 which was presented as the apparent cause of a 32% drop in calf numbers in 2010 (over the average of the 10 years leading up to 2010).  That is, the number of branded calves in 2010 was 32% below the 10-year average. The date of the 2010 muster was 23 May 2010.
  2. [62]
    In her report Dr Seksel said:

“In my opinion the noise due to the movement of heavy vehicles, equipment and presence of personnel involved in the proposed exploration activities will likely be similar to the disturbance levels experienced due to the power line construction activities. On this basis in my opinion where cows in the Front Paddock and Bullock Paddock are exposed to the noise and disturbance, the losses in calf numbers at branding can be expected to be similar, ie 32%.”[41]  

  1. [63]
    Dr Seksel presented her opinion that the drop in calf numbers in 2010 was the result of mismothering due to the activities of Powerlink; that the Applicants’ advanced activities would similarly cause mismothering; and that the Applicants’ advanced activities would result in the same level of reduction in calf numbers to 2010. Dr Stephens quantified the claimed loss based on that opinion.

The annual production cycle

  1. [64]
    Relevant to both the mismothering theory and the impact on fertility theory is the ‘Annual Production Cycle - Table 3 One Production Cycle (3+ Years)’ included in Dr Stephens’ report.[42] Dr Stephens says “one production cycle which from Joining to selling bullocks takes over four years. This production cycle is repeated annually.”[43] The table is reproduced here: 

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

Mismothering in 2010?

  1. [65]
    At the hearing, it emerged that the activities of Powerlink on Exevale were not in fact being carried out in 2010.[44] The Powerlink Nebo to Strathmore transmission line was commissioned in November 2009,[45] before the 2009/10 calving began.[46] The evidence indicated that Powerlink activities on Exevale were completed, at the latest by 15 October 2009. 
  2. [66]
    The mismothering theory is based on the data of a single year, 2010.  
  3. [67]
    While the O'Loughlin spreadsheet discloses the number of calves branded for each of the 10 years leading up to 2010, it only shows the number of cows in the Front Paddock in 2010.  There is no information in the spreadsheet or in Dr Seksel’s report concerning the reproductive capacity of the cows present in 2010, no information about the number of bulls and their fertility, no information about how many were ‘joined’, and no information about how many were lactating.  All this information could be relevant to explain the number of calves branded in 2010.  The only apparent information given to Dr Seksel was that management practices had not changed in the 10-year period, and that there were around 900 cows in the Front Paddock per year.
  1. [68]
    The O'Loughlin spreadsheet discloses that in 2002 there were 379 calves, in 2003 381 calves, both well below the 10-year average – but, due to the absence of relevant information, no explanation could be given to explain the below average number of calves in those years. When suggested to Dr Seksel that this was a profound weakness in the analysis, she said, “It is not great.”[47] 
  2. [69]
    Dr Seksel was asked in cross examination whether the mismothering theory could be discounted completely because the Powerlink works were completed before the 2009/10 calving had started.[48] Dr Seksel declined to fully agree that mismothering was irrelevant saying that she did not like the word “irrelevant”; that “there would always be some evidence of mismothering”; and suggesting there would be lower calf numbers “because they weren’t pregnant” – seemingly reviving to some extent the fertility (lower birthing rate) theory.
  3. [70]
    Relevantly, calving occurs between November and March, and the branding of new calves between April and May. We know now that the Powerlink construction was completed by 15 October 2009, before the 2009-10 calving.  It is a logical conclusion that if there are no calves or few calves at risk of being mismothered, mismothering cannot explain the 2010 results.

Lower birthing rate after 2010?  

  1. [71]
    Although not appearing on Mr O'Loughlin’s spreadsheet,[49] in her statement Dr Seksel says: “In the following year the number of calves branded was 490 so there was no appreciable impact in 2011-12.”[50]
  2. [72]
    As I note earlier, in declining to abandon the mismothering theory, and despite asserting that there was no appreciable fertility impact demonstrated in the 2011-12 branding numbers, Dr Seksel suggested there would be lower calf numbers “because they weren’t pregnant.” There is no evidence concerning the number of calves branded in 2012-13.  Speculation that cows did not conceive due to the activities of Powerlink during the time Powerlink were conducting activities in the Front Paddock is not supported by evidence.  
  1. [73]
    In closing submissions the Respondents submit that if the court does not accept the percentage loss (that is, 32%) “because the nature and extent of the works now proposed are not the same the court is entitled to make its own assessment of such percentage.”[51]

Extrapolation

  1. [74]
    In calculating loss, Dr Stephens applied a 32% reduction (based on the 32% reduction in 2010 determined by Dr Seksel  “if the disturbance occurs during calving”) to  ‘existing branding rates and forecast stock numbers’ and concludes that per 100 cows joined, 16 fewer cattle would be raised to maturity, which across the affected herd numbers of 600 cows equates to a total of 95 head in 4 years’ time.[52] Based on the reduced sale numbers and forecast prices, Dr Stephens calculated the projected reduced income on the assumption of a 5% drop in market price.  There was no significant challenge to Dr Stephens’ methodology.  
  2. [75]
    Notable in the data, and taken into account in Dr Stephens’ calculations were losses expected based on trend data in the Exevale stock reconciliation schedule over 5 years. Dr Stephens says that the calving rate is (preferably) calculated on the number of calves branded, as opposed to calves born, as a percentage of the number of cows ‘joined’.  The number of cows available and ‘fit to join’ is relevant. Dr Stephens agreed that looking at the data in the spreadsheet provided by Mr O'Loughlin and relied on by Dr Seksel, there is no data concerning the number of cows present and the number ‘fit to join’ (eg taking account of the number lactating) or the number in fact ‘joined’ from the spreadsheet.[53]

Causation

  1. [76]
    Causation for either theory is noise and human activity.  According to Dr Seksel exposure to drilling noise and associated human activity can disrupt communication between mother and calf resulting in mismothering; and it can also cause a change in the reproductive hormone balance lowering fertility.
  2. [77]
    The onsite activities, that is, personnel, vehicle and equipment movement have already been adequately described.  
  3. [78]
    In her report, Dr Seksel says:

“There is scientific evidence that cattle show signs of stress when exposed to noise at levels of 85-90 dBA and above. It is also reported that dairy cattle can adapt to noise levels up to 90dB but above this they will be affected (Esmail, 2017).”[54]

  1. [79]
    Unfortunately, the source for this statement (Esmail, 2017), like all 26 sources referenced in Dr Seksel’s report was not provided to the Court in hard copy nor electronically.  In fact, 8 of the 26 referenced documents could not be openly accessed or readily accessed through the Supreme Court library or the University of Queensland library. Some online articles referred to could only be accessed by subscription.  
  2. [80]
    Evidently the Applicants were able to access the Esmail document and in cross examination asked:

“And the way Esmail put it, in fact, was:

The noise threshold expected to cause a behavioural response by cattle is 85 to 90 decibels.

I take it that’s what you were looking to paraphrase? --- Yes.”[55]

  1. [81]
    Expert evidence commissioned by the Applicants was given by Mr Paul King.  In his report, Mr King says he prepared noise predictions using standard noise decay with distance methods to identify potential noise levels as both dB(A) and dB metrics.[56] The dB(A) metric applies significant reductions to Linear levels in the low frequency bands to emulate the human ear – the Linear levels without frequency corrections result in higher dB levels.  Typically, mining equipment has a lot of low frequency noise.[57]
  2. [82]
    Mr King prepared noise predictions for three different source noise levels for a drill rig: Quiet, Average and High, because the actual drilling equipment to be used had not been confirmed (see tables below).  He says that he provided the Linear weighted noise levels because low frequency noise travels a greater distance than the same level of high frequency noise.  His opinion is that daytime ambient background noise levels on the land “in a location well removed from transportation routes” would average 35 to 40 dB(A).  Mr King’s opinion is that: “On the basis of the ambient background noise being at 40 dB(A), where noise from drilling operation is greater than 45 dB(A) it would be clearly detectable to a human ear”.[58]

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

  1. [83]
    In evidence, Mr King was asked about the compounding effect, if any, if two drill rigs were operating at the same time.  Mr King said that the impact on the noise level would depend on the distance between the rigs, but if they were on the same drill pad the noise level would increase by 3 dB.[59] The tables created by Mr King identified expected noise level to a distance of 1000 metres. He said in evidence that at 2000 metres the noise level would reduce by 6 dB (on both scales); and at 4000 metres it would reduce a further 6 dB. 
  2. [84]
    According to Mr King’s tables – noise at or above 90 dB (the noise threshold expected to cause a behavioural response according to Esmail) would be at the drill rig, or on the Linear scale within 25 metres of the drill hole. The Applicants say at worst, 50 metres from the drill rig itself. The consistent evidence was, particularly in relation to Brahman cattle, that when exposed to stressful stimuli cattle will retreat.  In that regard, the Front Paddock is an area of 15,004 acres with 9+ water points.  The distance from Turrawulla Road to the eastern boundary of the Front Paddock is roughly 9 to 10 km. The distance from Turrawulla Road to the western boundary of the 4,475 acre Bullock Paddock is roughly 3 km.[60]
  1. [85]
    The Applicants conclude that the prospect of any exposure at the threshold levels is negligible.[61] 

Conclusions – reduced income

  1. [86]
    The additional claim for reduced income requires my acceptance of cost, damage or loss arising from the carrying out of the advanced activities under s 81(4)(a)(v).  
  2. [87]
    The claim is built around the evidence of Dr Seksel that calves will be mismothered or that there will be adverse effects on fertility as a consequence of the carrying out of the advanced activities.  It is the opinion of Dr Seksel that the likely reduction in calves to be approximately 32%.  Dr Stephens calculates loss in reliance on that opinion.  I would say at this point that in the absence of any evidence of other contributing factors which may affect branding rates in any year, the use of 32% as the basis for calculating compensation is arbitrary.  
  3. [88]
    Dr Seksel holds a Bachelor of Veterinary Science (1977, University of Sydney). She is a Registered Specialist in Animal Behaviour (NSW).  It is apparent from Dr Seksel’s Curriculum Vitae and her evidence that the vast majority of her work, research and publications concern behaviour in small animals, specifically cats and dogs. In cross examination, Dr Seksel said that a 2007 paper titled “How Pain Affects Animals” delivered at the Animal Welfare Science Summit on Pain and Pain Management, although not the focus of the paper, did refer to cattle.  None of Dr Seksel’s published works listed specifically concern livestock behaviour. In her evidence she could not claim to have extensive experience with cattle, or any experience with Brahman cattle, personally or as a Veterinary Scientist.   
  1. [89]
    The theory Dr Seksel presents is that Brahman cattle are flighty; that a noise threshold of 85 to 90 dB is expected to cause a behavioural response; this can cause disrupted communication between mother and calf; and calves may be abandoned and perish.
  1. [90]
    The conclusion that mismothering was the major cause of a reduction in the number of branded calves in 2010 was based on mistaken facts. There were no activities being conducted by Powerlink in the Front Paddock in the relevant period that fit with the mismothering theory.  A reduction in the order of 32% could not possibly be the result of mismothering caused by the activities of Powerlink, as the 2009/10 calving season had not commenced. There is no evidence that the cause of any reduction in the number of calves branded in 2010 was in fact mismothering. In the absence of evidence, any mismothering that might have occurred would be in the normal course and in the normal range, and for reasons unrelated to Powerlink.
  2. [91]
    No other examples were advanced to demonstrate that mismothering is likely to result from activities of the kind and intensity that the Applicants propose to undertake. The evidence led by the Applicants from Mr Pearson, Mr O'Kane (General Manager, Pastoral Division Glencore) and Mr Newsome was to the effect that they were not aware or had no experience of mismothering as a result of drilling activities. Mr Thompson said in his view drilling activities would have none or insignificant impacts on calving rates. 
  3. [92]
    Mismothering in this matter is a theory unsupported by evidence and unobserved by Dr Seksel. 
  4. [93]
    No regard was given for any other factors listed above in [67], unrelated to Powerlink, that might possibly explain a lower-than-average number of calves branded in 2010.  This, the Applicants say, renders the adoption of the percentage reduction unscientific and unfounded.  I agree. 
  5. [94]
    In Dr Seksel’s expert report, she abandoned the theory that the below average number of calves branded in 2010 was due to the impact of Powerlink’s activities on fertility because the number of calves branded in 2011/12 were in the expected range. In reexamination, however Dr Seksel said that the reduction “would’ve been because the cows were stressed, and they failed to conceive.[62] They may have slipped their calves during the construction stage”. This seems to pick up the comment in Dr Seksel’s report where she said: “It would appear the reduced branding rates in 2010-2011 were primarily due to mismothering and possibly slipping of calves pre-term”.    
  1. [95]
    Dr Seksel would appear to be saying that the reduced number might be the stress induced combination of a failure to conceive and the “possibly slipping of calves preterm”. Once again, there is no evidence to support this third theory. It is entirely conjecture.  It is now presented as the only cause, again without considering any of the other relevant factors which might have a bearing of the number of branded calves in 2010.
  2. [96]
    For these reasons, I do not accept the claim for compensation for loss of income as assessed by Dr Stephens based on the opinions of Dr Seksel. 

Reduced value – paused weight gain? 

  1. [97]
    The Respondents claim $83,306.93 (or $79,339.94 assuming 5% market drop) for the reduced value of the animals or meat sold due to reduction in live weight gain of the sale steers grazing adjacent to the activities in the 3 Springs Paddock. Dr Stephens describes it as income lost due to reduced carcase weights arising from reduced live weight gain linked to disruption.[63]  
  2. [98]
    In a nutshell, the Respondents say that the steers in 3 Springs Paddock will not gain weight while the Applicants’ activities are being conducted and they will not regain that weight before eventually being sold.  They will not gain weight because of the stress caused, particularly due to the noise levels produced by the drilling activities. 
  3. [99]
    Three Springs is the paddock in the south and holds steers (only).  The table at paragraph [8] says the paddock holds 400 steers and is an area of 4400 acres with “3 plus springs”.   Of the 15 drill pad sites, 4 appear to be in the 3 Springs Paddock. The drill hole to be rehabilitated is also in the Three Springs Paddock. Two drill sites appear to be close to the northern boundary of Three Springs Paddock. 
  4. [100]
    The parties agree that the distance between the drill sites top to bottom is approximately 7 kilometres and the affected paddocks (Front Paddock, Bullock Paddock and 3 Springs Paddock) are fenced such that there is no free movement of cattle to all drill sites.
  5. [101]
    Critical to Dr Stephens’ assessment is the estimated impact the Applicants’ activities will have on live weight gain of the heavy sale steers grazing the subject area.  Dr Stephens relies on Dr Seksel’s estimate that the disruption will be between 10% and 13%.  Dr Stephens adopted the mid-point, 11.5%. His methodology and calculation appear in his report.[64] The table is reproduced here:  

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

  1. [102]
    In her report, Dr Seksel explains the basis for her estimate:

“In the case of a bullock sold at three and a half years exposed to all 15 drill site operations the estimated pause time for weight gain for that animal would be 135 to 165 days. Three and a half years is 1,275 days so weight gain would be paused for 10 to 13 percent of the time. Therefore, I would expect the final body weight for bullocks in this case will be 10 to 13% less than expected.”[65]

  1. [103]
    The Applicants say that there will be no reduction in weight gain caused by the advanced activities other than that already accounted for and agreed under s 81(4)(a)(i) and (iii).[66] They say the range estimated by Dr Seksel is calculated on the basis that all 400 steers would be exposed to all 15 drill sites and is impacted for between 135 and 165 days is simply implausible. They say for the steers to be exposed to noise at the levels at which cattle show signs of stress, they would need to be standing immediately adjacent, to each and all drilling operations for the duration of the drilling program – which is contrary to Dr Seksel’s evidence concerning the nature of Brahman cattle to the effect that Brahman would move away from the noise created at drill sites. 
  1. [104]
    The Respondents say that 7 sites, being drill sites R009 to C015 will be accessed from within 3 Springs Paddock as will the drill hole to be rehabilitated.[67] The Respondents say that even if the Court were to accept the furthest northern drill sites were out of the range identified by Dr Seksel, they invite the Court to make its own assessment of the degree to which activities would be in range, the length of time and the percentage of time, the time to replenish etc., and offer an alternative calculation based on no less than 7 sites to estimate loss at $35,340.   

What is the claimed cause of a pause in weight gain?

  1. [105]
    According to Dr Seksel the noise generated by drilling activities and vehicle movements will be heard over a considerable distance and will impact cattle by causing stress.[68] Dr Seksel references the evidence of Mr Paul King and the graphs showing sound pressure levels on a Linear (dB) and dB(A) scale. The graphs show a reduction in dB over distance up to 1 km. The graphs are reproduced here: 

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

Hail Creek Coal Holdings Pty Ltd v O'Loughlin [2023] QLC 22

  1. [106]
    I refer to some of the evidence concerning noise at [78]-[84] above. At [84] I say:

“According to Mr King’s tables – noise at or above 90 dB (the noise threshold expected to cause a behavioural response according to Esmail) would be at the drill rig, or on the Linear scale within 25 metres of the drill hole. The Applicants say at worst, 50 metres from the drill rig itself. The consistent evidence was, particularly in relation to Brahman cattle, that when exposed to stressful stimuli cattle will retreat.  In that regard, the Front Paddock is an area of 15,004 acres with 9+ water points.  The distance from Turrawulla Road to the eastern boundary of the Front Paddock is roughly 9 to 10 km. The distance from Turrawulla Road to the western boundary of the 4,475 acre Bullock Paddock is roughly 3 km.”[69]

  1. [107]
    Dr Seksel says that a pause in weight gain can be expected while the HPA (hypothalymus-pituitary-adrenal) axis remains active. Acute stress activation of the HPA axis will trigger the release of, for example, adrenalin raising the reactivity of the animal and preparing it for a fight/flight response. If the trigger is removed, the animal will return to its normal behaviour and the HPA axis is switched off. She says that chronic stress will cause the HPA axis to continue to be active resulting in sustained high levels of, mainly cortisol – with effects which can lead to poor growth rates and poor fertility in livestock.[70]
  1. [108]
    Dr Seksel in her report expresses her opinion that the impact of drilling and associated activities will have a negative impact on weight gain for the duration that the HPA axis and the SAM axis are activated during the stress events.[71] She says that this will be for the duration of the drilling and vehicle movements, and “for some of the animals the HPA axis will remain active for quite some time (i.e. months or even years). The catecholamine release due to the HPA axis activity and SAM axis results in glycogen storages being used and reduced gut activity.”
  1. [109]
    Physiologically, Dr Seksel says this means energy is diverted from weight gain to maintaining stress related activities and replenishing glycogen reserves. Dr Seksel calculates 3 to 5 days to replenish glycogen levels following 6 to 8 days of “relatively intense activity for each drill site”.[72] These are the figures used to calculate 135 to 165 days of estimated weight pause (for cattle exposed to the entire drilling program at peak noise levels), applied over 3.5 years (bullock sold at 3.5 years) to determine a 10-13% pause. 
  2. [110]
    Mr Newsome undertook research on the behaviour of cattle at the New Acland coal mine site during mining operations.  While the operation of a coal mine, including blasting activities, is not directly comparable to drilling operations of the kind proposed, the Acland trials are instructive concerning grazing habits and cattle behaviour close to disruption.  The Respondents say the Acland Noise and Dust Project conclusions provide no probative evidence that drilling would not have a detrimental impact on weight gain. Amongst other things, they note the different breed of cattle, the fact that noise levels at the trial site and the control site were similar, the small herd size, the timeframe, and that the Acland trial weight gain was at the lower end of the expected range.
  3. [111]
    One aspect of Mr Newsome’s evidence not explored was the statement in his report that cattle experience compensatory weight gain and recover quickly from a setback.  He says: “…Livestock experience compensatory weight gain and recover quickly from a setback, gaining more weight once the setback is relieved to return to a similar weight gain pathway.”[73]
  4. [112]
    A review of the material referenced by Dr Seksel which could be accessed could find no mention of compensatory weight gain in this context. 

Conclusion – Reduced value  

  1. [113]
    Dr Seksel calculated the percentage weight gain pause for stock sold at 3.5 years (1,275 days), exposed to all 15 drill sites to be 135 to 165 days, to be 10-13% of the time. Dr Stephens took the midpoint, 11.5% to derive a total loss due to reduced weight gain.
  2. [114]
    The calculations, and the compensation sought, are based on an acceptance that all 400 bullocks in the 3 Springs Paddock would be exposed to all 15 drill sites by being in very close proximity to each drill site for the entire period of the activities.   
  3. [115]
    The theory that there will be a pause in weight gain as a result of the Applicants’ activities requires acceptance that the entire mob in the 4,400 acre, 3 Springs Paddock cannot or will not escape being in close proximity, within perhaps 50 metres, of an extreme disturbance for the entire period that disturbance continues, at drill sites over and over again.  
  4. [116]
    It requires acceptance that despite a disturbance grave enough to cause a pause in weight gain by triggering the release of adrenalin and preparing the cattle for a flight/fight response, the cattle will not flee, and they will not follow the Brahman nature of being ‘flighty’. 
  5. [117]
    The Respondents accept that there are a number of drill sites which are simply too remote from 3 Springs Paddock to cause the level of disturbance to cause the impacts described.  They invite the Court to make its own assessment and offer some alternative calculations based on 7 drill sites.
  6. [118]
    The consistent evidence was that Brahman cattle are flighty and retreat from disruption.  They may be curious and return if they feel no threat – however the physiological changes which occur during exposure to extreme levels of noise would seem to make that unlikely.  
  7. [119]
    Not all the drill sites in the 3 Springs Paddock will be worked at the same time.  Two drill sites are to be worked simultaneously. There is space in the 3 Springs Paddock to enable distance between the bullocks and each of the drill sites and the site to be rehabilitated.  
  8. [120]
    The only example of the behaviour of cattle in the vicinity of a working mine is the New Acland trials that Mr Newsome described.  While the Respondents challenge the probative value of the outcomes of the trial because of the many differences between that mine and the Applicants’ proposed activities, they are instructive to the extent cattle adapt to changes in the environment where there is no direct threat, and did not demonstrate a weight loss or weight pause.
  9. [121]
    In the end, and putting aside the New Acland trials, I cannot conclude that the activities of the Applicants will be responsible for a pause in weight gain at the level the Respondents claim, or at all.      

Additional management time claimed – s 81(4)(b)

  1. [122]
    In written closing submissions, an amount of $28,684 is claimed by the O'Loughlins as consequential loss incurred by the Respondents as a result of the compensatable effects (s 81(4)(b) MERCPA).  The loss is said to be the additional management time required of the O'Loughlins during the drilling program, and for a period for rehabilitation to be completed.
  2. [123]
    The hourly rate ($101 per hour) is agreed.
  3. [124]
    The Applicants proposed a full and final additional management amount of $505 representing a total of 5 hours (as assessed by property valuer Mr Cavanagh) at $101 per hour (a rate assessed by cattle production expert Dr Stephens and agreed).
  4. [125]
    The Respondents in written closing submissions at [51] breakdown the claim as follows: 1.5 hours per day at $101 per hour for 120 days (of the 180-day work plan); and, 1 hour per week for 2 years following completion of the drilling and rehabilitation program at $101 per hour.  
  5. [126]
    The additional management activities the Respondents say are a result of the Applicants’ activities are described in the 25 August 2023 affidavit of Mr Clayton O'Loughlin at [35] as follows:
    1. (a)
      Inspection of vehicles and machines when coming on site;
    2. (b)
      Managing sign in of visitors;
    3. (c)
      Supervising shifting drill pads;
    4. (d)
      Reviewing drill holes which find water;
    5. (e)
      Inspecting tracks; 
    6. (f)
      Inspecting completed drill holes;
    7. (g)
      Inspecting rehabilitation of sites;
    8. (h)
      Potentially needing to muster and re-muster cattle;
    9. (i)
      Additional mustering time for stressed or agitated cattle;
    10. (j)
      Inspection for weeds.[74]  
  6. [127]
    The draft CCA Special Conditions place a number of obligations on the Tenement holder to engage, discuss and consult the O'Loughlins on a range of issues, and the opportunity for the O'Loughlins to inspect and observe various activities of the Applicants. 
  7. [128]
    For example:
    • the Tenement Holder and its associates must sign in and out using the landholder’s log; 
    • the Tenement Holder will ensure that all gates are closed after accessing or leaving any part of the land; 
    • the attendance of the landholder during site access visits is at the landholder’s discretion; 
    • the Tenement Holder will consult with the landholder in relation to access and ground conditions if there has been wet weather; 
    • upon completion of the activities on the land, the Tenement Holder will discuss with the landholder any rehabilitation work considered necessary, a report will be provided to the landholder of the works undertaken and arrange a site visit for the landholder after rehabilitation has been completed; 
    • each vehicle or machine will be inspected by the landholder prior to entry to the land; 
    • the Tenement Holder will work with the landholder to take all reasonable precautions to prevent the spread of weeds; 
    • the Tenement Holder and the landholder will discuss the drilling program in accordance with the landholder’s stock management system and paddock usage to minimise impact and disturbance on their operations. 
  8. [129]
    The Applicants argue that it is a choice the O'Loughlins make if they wish to progressively inspect any or all aspects of the activities undertaken by the Applicants governed by the CCA.  They say that the presumption of regularity should apply, that is, it should be assumed that Applicants will comply with their legal obligations, and that compensation is not the appropriate avenue to deal with possible noncompliance.
  1. [130]
    There is no doubt that landholder management time will be taken up engaging with the Applicants in relation to the various interactions provided for in the CCA.  Where a condition says the Tenement Holder “will work with”; where consultation is expected to result in a response (for example regarding post wet weather access); where landholder consideration needs to be given to a completion report; where the condition places a positive responsibility on the landholder for example, “each vehicle or machine will be inspected”; and where for example the parties “will discuss the drilling program”, the time spent by the landholder is likely to be more than cursory.  
  2. [131]
    Issues concerning management time involving vehicle inspections, rehabilitation and weeds in particular were agitated in the hearing.

Rehabilitation and management time

  1. [132]
    There will be water suppression on tracks to manage dust, stock fencing around sumps and equipment, and rehabilitation work will be undertaken progressively.
  2. [133]
    There are a number of Special Conditions in the draft CCA relating to rehabilitation and the responsibilities of the Applicants and engagement with the O'Loughlins:

19.1 Upon completion of the Activities on the Land; the Tenement Holder’s Responsible Person will discuss with the Landholder’s Responsible Person any rehabilitation or restoration work that is considered necessary by the Landholder. 

19.2 Rehabilitation and restoration work is to be carried out the standard of the immediately adjacent country.

19.3 The Tenement Holder must take photographs of the drill sites and areas the subject of new access tracks before initial disturbance and then again immediately after rehabilitation has been completed. The Tenement Holder must make available these photographs at the Landholder’s request.

19.4 After completion of the Activities, the Tenement Holder will provide a report to the Landholder stating the nature and extent of Activities that were undertaken, and where the Activities were carried out. It will include a plan showing the location of:

  1. a)
    any new access tracks that were constructed, including details of the length of the new access tracks; and
  2. b)
    existing tracks that were used whilst undertaking the Activities.

19.5 The Tenement Holder will arrange for a site visit with the Landholder’s Responsible Person to be undertaken after rehabilitation has been completed for the Landholder to inspect rehabilitation of Land disturbed by the Activities.”[75] 

  1. [134]
    Special Condition 16 in the draft CCA provides:

“Drill pads will be temporarily fenced (to a stock proof standard) only where reasonably required by the Landholder, otherwise stock proof fencing will be erected when required to prevent access to above ground sumps and removed at the conclusion of the drilling activities. Where required by the Landholder, the fencing will remain in place until agreed to by the Tenement Holder and Landholder (acting reasonably) in order to assist in rejuvenation of vegetation. While in place, the Tenement Holder is responsible for the maintenance and repair of these fences and the condition of the fencing will be inspected by the Tenement Holder at regular intervals coincident with monitoring of rehabilitation. The Landholder will advise the Tenement Holder of any repairs to fencing required if it observes any damage to fencing between inspections by the Tenement Holder.”

  1. [135]
    As discussed already Mr Pearson says that the Applicants expect that grass will be reestablished over areas affected by exploration activities to a standard equivalent to surrounding land within 180 days of completion of the exploration and rehabilitation activities on the land, subject to normal weather conditions.[76] He based this conclusion on his experience at other properties similar to Exevale, citing Lake Elphinstone Station as an example. Mr Pearson also says that the Applicants will send a representative to Exevale to check on rehabilitation progress periodically (approximately at 6-month intervals) after the drilling and site rehabilitation is complete. If re-establishment of vegetation at the drill sites is not progressing as expected, remediation may be taken in consultation with the O'Loughlins.
  2. [136]
    The context of the Respondents’ issues regarding rehabilitation concern the “managerial time” imposed on the Respondent landholders during the rehabilitation period. In particular “managerial time looking after the re-establishment of the grasses by keeping cattle away from it…”.[77] Relevant to this is the scale, method, and realistic timeframe for effective rehabilitation; the measures to ensure effective rehabilitation, including fencing and timing of the rehabilitation program; and the conditions which might impact effective rehabilitation. 
  3. [137]
    In cross examination by Senior Counsel for the O'Loughlins, Mr Pearson was challenged regarding the success of rehabilitation at Lake Elphinstone Station.  The evidence concerning the physical impact the Applicants might cause and rehabilitation is discussed in paragraphs [39] to [44] above. 
  4. [138]
    In my view, there will be minimal additional managerial time imposed on the Respondents as a result of the rehabilitation activities of the Applicants.

Conclusions – rehabilitation and management time

  1. [139]
    In the absence of other more compelling evidence, I would adopt the estimate given by Mr Thompson that there might be six routine grazing land inspections a year, and that those inspections could incorporate some additional time spent to observe the progress of rehabilitation.  I note below at [141] that Mr Thompson refers to weed inspections as time incremental to routine inspections. I accept that the additional time would be one-hour inspections, that is 6 hours per year. To ensure that the inspections bridge at least one wet season, I would allow a 2 year period, that is a total of 12 hours at the agreed rate of $101 per hour, a total of $1,212.00.

Weeds and management time

  1. [140]
    The issue here is whether the activities and presence of the Applicants on Exevale imposes additional managerial time on the Respondents to monitor for weeds. 
  2. [141]
    The Respondents say that there will be additional managerial hours spent monitoring for weeds.  Mr Thompson in evidence said that in conducting a routine grazing land management inspection a landowner “would be observing weeds wherever he goes”, and that it would take an “incremental amount of time” around the drill pads and tracks “probably relatively small, in my view”. He said that whoever does the inspection and depending on the weeds, inspections should run for two or three years following implementation.[78] In response to questioning whether the potential for weed infestation as a result of the work of the Applicants imposed additional managerial time on the Respondents, Mr Thompson said “…its in the landowner’s best interest, and I’d be surprised if he didn’t do that”.[79] As for weed inspection of the access tracks, Mr Thompson suggested that his practice is a slow “drive by” when weeds flower (in about April), and is adequate. 

Conclusions – weeds and management time

  1. [142]
    The O'Loughlins’ weed management strategies were not in evidence. I assume that the landowner would in the usual course of business inspect for weeds.  The additional inspection time I accept is needed for the purposes of checking on rehabilitation also takes account the time to conduct weed inspections. That is, the 6 inspections per year for two years paid at a rate of $101 per hour incorporates the time necessary to conduct weed inspections.  The period of 2 years will commence from the time the drilling and rehabilitation work is completed.  The best estimate for that in the evidence is at day 45 when the last of the rehabilitation activities should be completed. 
  2. [143]
    As I state earlier, landholder management time will be taken up engaging with the Applicants in relation to the various interactions provided for in the draft CCA. While I accept the presumption of regularity should apply to matters of compliance, there will be management time taken up where the draft CCA places a positive responsibility on the landholder to engage.  The type of participation the landholder can be involved in is listed at paragraph [128] above.  The Respondents submit that this should be 1.5 hours a day at $101 per hour for 120 days (of the 180-day work plan).  Some of the activities Mr O'Loughlin lists (at [126]) are administrative, some are now accounted for in rehabilitation or weed inspections, and some are purely the choice of the landholder.
  3. [144]
    In my view, compensation is warranted for additional management time for the period the Applicants are carrying out activities on the landholders property, that is during the 45-day period that drilling and rehabilitation activities are conducted.  The Applicants proposed compensation for 5 hours management time in total.  I think that is unreasonable.  There was evidence that the drilling program could be completed in as few as 20 days, because drilling will be happening simultaneously. In addition to the management time, I have allowed for rehabilitation and weed inspections, I will allow compensation for additional management time of 1 hour a day for half of the 45 days at $101 per hour.  That is $2,272.50.  
  4. [145]
    The combined (total) compensation for management time I award under s 81(4)(b) is therefore $3,484.50.       

Conditions of access - CCA 

  1. [146]
    The Originating Application sets out the basis of the application to the Court to decide “the dispute” in regard to the CCA.  I am satisfied that the jurisdiction of the Court to decide the dispute has been properly invoked. 
  2. [147]
    The parties agree that the terms of the CCA are largely agreed, however some terms require resolution. 
  3. [148]
    At the time of oral closing submissions, the parties each handed up versions of the CCA with changes tracked.
  4. [149]
    The Applicants set out the disputed conditions in their written closing submissions. Of those, the court was informed that the dispute concerning Special Condition 21.7 (Reef 2050 Compliance) and Special Condition 26.10 (fire-fighting unit) were resolved. The Applicants also informed the court that Schedule 1 had been amended to accurately reflect the vehicles and equipment necessary to undertake the drilling, as disclosed by the evidence.
  1. [150]
    In closing oral submissions, the Applicants also noted that there were some further matters in the Respondents’ version of the CCA that might not have been previously discussed, in particular under the heading “Activity Conditions” a new Special Condition 16A, and a corresponding amendment to Special Condition 15.  
  2. [151]
    I will address the unresolved Special Conditions in the order they are listed in the Applicants’ closing submissions, and the addition of proposed Special Condition 16A. 

Special Condition 5.3 (mustering rate)

  1. [152]
    The Respondents initially proposed a mustering rate of $350 per person per hour to retrieve cattle for failure to comply with conditions concerning access and the closing of gates.  In the Respondents’ tracked version of the CCA handed to the Court, the rate is amended from $350 per hour per person to $200 per hour per person.  In closing oral submissions, the Applicants say the rate can be either $200 per hour regardless of the number of people participating in the muster or it can be $101 per hour per person, but not $200 per hour per person – which they say is a “double dip”. 
  1. [153]
    In my view, and for the purposes of consistency, the mustering rate in Special Condition 5.3 should be $101 per person per hour. This rate is consistent with the agreed rate for management time and appropriately compensates the Respondents where additional “hands” are required.

Special Conditions 19.5 and 19.6 (rehabilitation)

  1. [154]
    The Respondents’ proposed Special Condition 19.6 is as follows:

“Rehabilitation is deemed to be complete for all or part of the disturbed Land when the Tenement Holder and the Landholder agree in writing, both parties acting reasonably.”

  1. [155]
    The Applicants say it is not appropriate that rehabilitation is only determined to be compete if and when the Respondents agree in writing. There was no detailed submission made by the Respondents to explain and support the proposed Special Condition.  
  2. [156]
    In the circumstances I prefer the Applicants’ version of the Special Condition 19 which appears in full at paragraph [133] above.  

Special Condition 21.2 (vehicle wash down)

  1. [157]
    Under the heading ‘Biosecurity’ in the draft CCA Special Condition 21 (vehicle washdown) proposed by the Applicants provides:

“21.1 All vehicles and machinery of the Tenement Holder and its Associates must be washed down prior to entry of the Land, on each occasion the vehicle or machinery enters the Land, in order to minimise the risk of introducing Weeds to the Land, and the Tenement Holder must obtain a certificate that can be produced to the Landholder as evidence the vehicle or machine has been washed down. 

21.2 Each vehicle or machine will be inspected by the Landholder prior to entry to the Land. If the vehicle or machine has not been sufficiently washed down and there is evidence of seeds or vegetation on the vehicle then (underlining added):

  1. a)
    if the vehicle or machine only requires a minor or spot additional wash down to address the issue, that will occur at the Landholders’ washdown facility on a dedicate area of the Land before the vehicle or machine continues to enter the Land; or
  2. b)
    if the vehicle or machine requires a major washdown to address the issue, the vehicle or machine will be refused entry to the Land, and must depart the Land to be washed down at an external facility before returning to the Land, when it will be inspected again.”
  1. [158]
    The underlined words in special condition 21.2 above are the subject of dispute.  The Respondents say the words ‘soil, dust’ should be included such that it would read: “…and there is evidence of soil, dust, seeds or vegetation…”. The Applicants argue against the inclusion of the word soil.  When the suggestion of the inclusion of the word ‘soil’ was put by Senior Counsel for the Respondents to Mr Thompson (Weed Control Impacts) he responded: 

“Well, you can – you can add the words soil/dust to that thing quite acceptably, but I point you to the term ‘not being sufficiently washed down’ as probably covering that – that concern you have. It’s a definition of what you consider – seeing everything. It comes off the wash down bay and it’s still got dust adhered underneath. It’s not sufficiently washed down in my view.”[80] 

  1. [159]
    The avoidance of dust in vehicles in a rural landscape would seem unlikely if not impossible. Based on the evidence of Mr Thompson and accepting that the presence of soil would indicate that a particular vehicle or machine “has not been sufficiently washed down”, in my view the addition of the words “soil, dust” to Special Condition 21.2 is unnecessary. In my view the wording proposed by the Applicants is preferred.
  1. [160]
    The Respondents also proposed the replacement of the word “major” with the word “further” in special condition 21.2 (b). No explanation for the proposed change was given and the matter was not discussed at the hearing. In my view, the word “major” should remain. 

Special Condition 21.7 (Reef 2050 Compliance)

  1. [161]
    Resolved.

Special Condition 22.4 (responsibility for Weeds)

  1. [162]
    The condition concerns the weed monitoring period relevant to “New Weeds” after completion of the advanced activities. The Applicants say the monitoring period should be 5 years, the Respondents say 10 years.  The Applicants say the only evidence is that of Mr Thompson and that their offer of responsibility for weeds for 5 years after the activities is generous:

“The total duration of the mining company’s period of responsibility for weed control depends on a number of factors:

  • For weed species not present during a baseline assessment, but subsequently found on the disturbed area, responsibility should extend until subsequent inspections do not record the weed on the disturbed area. Typically, this will take two growth seasons. A three year period inclusive of the implementation year is advisable.
  • For weed species present on the disturbed areas prior to the disturbance, the period need only be 1 full growth season. A two year period inclusive of the implementation is advisable.”[81]
  1. [163]
    In the absence of evidence to suggest that a longer period is necessary and warranted, I prefer the Applicants proposed Special Condition 22.4. 

Special Condition 26.10 (fire-fighting unit)

  1. [164]
    Resolved.

Special Condition 26.15 (additional Labour)

  1. [165]
    The Special Condition proposed by the Respondents provided that any labour incurred by the landholder by reason of the activities over the amounts allowed for in Schedule 3 (legal costs) shall be recoverable at a rate of $101 per hour per person. 
  2. [166]
    The Schedule 3 “negotiation and preparation costs” were agreed during the hearing.  
  3. [167]
    The proposed Special Condition would apply in addition to compensation amounts otherwise agreed.  Its purpose is unclear.  There are provisions in the CCA that require the Applicants to pay additional compensation if a breach of the CCA causes the Respondents further loss. In the circumstance, the proposed Special Condition is unwarranted. 

Special Condition 16A (Activity conditions)

  1. [168]
    The “new” Special Condition proposed by the Respondents is as follows:

“16A. The Tenement Holder will:

16A.1 Ensure as often as practicable, that drilling activity will occur on drill locations simultaneously.

16A.2 Ensure drilling activities occur for no more than 10 hours per day in total across both drill pads.

16A.3 Subject to weather or Landholder requirements, ensure that drilling activities occur at adjacent drilling locations.

16A.4 Not drill for more than four consecutive days at any one drilling location without first agreeing with the Landholder.

16A.5 Not deposit or otherwise store any spoil, mud, dirt, chips or swarf extracted as part of the drilling process on the Land, other than as fill for the hole from which same was extracted.”

  1. [169]
    The Respondents say, as is apparent, that these matters have their genesis in the evidence of Mr Pearson, where he outlined his expectation of the work program. The Applicants say the proposed condition “puts a straitjacket” on the Applicants.  
  2. [170]
    In evidence Mr Pearson (Exploration Superintendent) explained how it was intended to undertake the activities within the 180 days proposed.  He described the intention of working north to south, having two drill rigs operating simultaneously, “as close as possible to one another”, “or leapfrog or whatever”, to “go sequentially from north to south”; he said that set up time will depend on landform; the estimated drilling time; averages regarding drill hole and core holes; the geophysical logging; the process of concreting the holes; and rehabilitation.  Much of this is discussed earlier in these reasons.  
  3. [171]
    Mr Pearson was asked by Senior Counsel for the Applicant if he “could see you jumping around”, that is, not proceeding in an entirely linear way. He said: 

“That will depend on things like weather. Some sites may be in areas where it’s – the ground conditions are affected more from rain and will preclude us from being able to get there. It might be two weeks for that area to dry out, in which case we would go to any available – the next available hole. And in working with the landowner as well, sometimes if they’re mustering within a particular paddock or if they say, ‘Look, we’re doing something here. Can you not be there?’ then we’ll work around them.”[82]   

  1. [172]
    When asked by Senior Counsel for the Respondents about landholder engagement required by the CCA, Mr Pearson said: “… the idea is to meet with the O'Loughlins ahead of the time and come up with a plan and a strategy that works in with them.”[83]
  2. [173]
    In closing oral submissions, the Respondents say “that in the absence of there being some restriction to the CCA, the court’s entitled to assume that the activities will occur at the way in which the holder, the tenement holder, will want to carry them out” and “if they don’t want to confine themselves to what Mr Pearson said”, the Court is entitled to assume that they can conduct themselves in any order and in any way during the 180 day period.  
  1. [174]
    Looking at the proposed Special Condition 16A.1 and 16A.3, the Applicants’ evidence is that as far as is practicable it is their intention to drill holes simultaneously and at adjacent drill sites.  It is practical and logical. There is no good reason to include these requirements as Special Conditions. 
  2. [175]
    Proposed Special Condition 16A.2 places a 10-hour cap on drilling, while proposed Special Condition 16A.4 would limit drilling to four consecutive days per drill site. The evidence given was that drilling might be undertaken for 10 hours a day, for 2-3 days per drill site, unless a second drill hole is required.  The Applicants say the cap proposed is arbitrary and unnecessary.  There is no explanation given by the Respondents for the proposed cap. There is no good reason to include this requirement in the Special Conditions.  
  3. [176]
    Finally, proposed Special Condition 16A.5 concerns the storage of material extracted from the drill holes and its disposal. The EA Condition 29 provides that in relation to Exploration drill holes that the holder of the EA must where practical dispose of all unused drill chips to the hole or to a sump pit and backfill the hole above the cap with soil or material similar to the surrounding soil or material.  In my view the obligations on the Applicants in the EA sufficiently address any concern the Respondents might have when proposing this Special Condition.  
  4. [177]
    The proposed Special Condition 16A, and any consequential reference to the proposed condition should not be included in the CCA. 

Conclusion

  1. [178]
    The Applicants must pay the Respondent landowners of Exevale station compensation as follows: 

Head of compensation 

Amount

s 81(4)(a)(i) deprivation of possession of the land’s surface

$1,312

s 81(4)(a)(ii) diminution of the land’s value 

$0

s 81(4)(a)(iii) diminution of the use made, or that may be made, of the land or any improvement on it

$5,558

s 81(4)(a)(iv) severance of any part of the land from other parts of the land or from other land that the eligible claimant owns

$0

s 81(4)(a)(v) any cost, damage or loss arising from the carrying out of activities under the resource authority on the land

$0

s 81(4)(b) consequential loss incurred by the eligible claimant arising out of a matter mentioned in s 81(4)(a)

$3,484.50 

s 91 recovery of negotiation and preparation costs

$25,947.33 

Total compensation   

$36,301.83

Orders

I determine for MDL 442:

  1. Ten Thousand, Three Hundred and Fifty-four dollars and Fifty cents ($10,354.50) be paid pursuant to and in satisfaction of the general liability to compensate under s 81 of the Mineral and Energy Resources (Common Provisions) Act 2014;
  2. Twenty-five Thousand, Nine Hundred and Forty-seven dollars and Thirty-three cents ($25,947.33) representing negotiation and preparation costs be paid pursuant to and in satisfaction of any liability under s 91 of the Mineral and Energy Resources (Common Provisions) Act 2014.
  1. That the disputed terms of the Conduct and Compensation Agreement are decided in accordance with the Schedule attached to these orders.
  2. Any submission as to costs must be filed and served within 28 days of the publication of these reasons. 

Schedule 

Special Condition 5.3

(mustering rate) 

The mustering rate for the purposes of Special

Condition 5.3 shall be $101 per person per hour.

Special Condition 19.6

(rehabilitation)

The Special Condition 19.6 proposed by the Respondents is disallowed.

Special Condition 21.3 

(vehicle wash down)

The Applicants’ form and wording for Special Condition 21.3 is to apply.

Special Condition 22.4

(responsibility for Weeds)

The weed monitoring period relevant to New Weeds shall be 5 years.  The Applicants’ form and wording for Special Condition 22.4 is to apply.

Special Condition 26.15

(additional labour)

The Special Condition 26.15 proposed by the Respondents is disallowed.

Special Condition 16A 

(Activity conditions)

The Special Condition 16A proposed by the

Respondents, and any consequential reference to the proposed condition, is disallowed. 

Footnotes

[1] Applicants’ compensation statement filed 10 July 2023; Ex 3 [15].

[2] The imagery became Ex 20.

[3] Ex 9, 10 [12].

[4] Ex 4, 62 “BRP-4”.

[5] T1-45, lines 23 to 24; Ex 2, Annexure C – EA EPSX00602113.

[6] Ex 4, 9 [32].

[7] T1-35, lines 44 to 47, T1-36, lines 1 to 6.

[8] Ex 4, 4 [16]–[18].

[9] Ex 4, 9 [32].

[10] Ex 4, 62 “BRP-4” Map.

[11] T1-37, lines 33 to 35.

[12] T1-43, line 12.

[13] Ex 4, 9 [34].

[14] T1-39, lines 13 to 15.

[15] Ex 18.

[16] Ex 21.

[17] T1-26, lines 11 to 14.

[18] Ex 17.

[19] Respondent’s written outline of closing submissions [22].

[20] Ex 9, 22.

[21] T2-41, lines 45 to 46; T2-42, lines 1 to 2.

[22] T3-5, lines 3 to 5.

[23] T3-18, lines 3 to 4.

[24] Ex 3, 15.

[25] Ex 3, 14, Special Condition 16.

[26] Ex 4, 13 [55].

[27] T2-53, lines 41 to 43.

[28] T2-54, lines 1 to 8.

[29] T1-34, lines 16 to 18.

[30] T2-54, lines 11 to 22.

[31] T2-54, lines 27 to 30.

[32] T1-34, lines 23 to 25.

[33] T2-54, line 46; T2-55, line 1.

[34] T2-55, lines 15 to 17.

[35] T2-56, lines 4 to 7.

[36] T1-66, lines 23 to 26.

[37] Ex 11, Annexure “CD-07”.

[38] Ex 11, 5 [19].

[39] Dr Stephens in evidence explained that he had made a mathematical error in his report and explained why this was the correct amount.

[40] Dr Seksel says because it may be 1-2 years before they successfully mate after stressful events; Ex 10, 25 [180].

[41] Ex 10, 25 [186]

[42] Ex 9, 12.

[43] Ex 9, 11.

[44] Ex 29.

[45] Ex 29.

[46] Ex 9, 12.

[47] T2-92, line 10.

[48] T2-86, lines 4 to 28.

[49] Ex 11, Annexure “CD-07”.

[50] Ex 10, 25 [183].

[51] Respondents’ written outline of closing submissions [36].

[52] Ex 9, 16.

[53] Ex 11, Annexure “CD-07”.

[54] Ex 10, 9 [68].

[55] T2-93, lines 26 to 31.

[56] Ex 8, 4 [13].

[57] T2-11, line 16.

[58] Ex 8, 5 [20].

[59] T2-3, lines 40 to 45.

[60] T1-83, lines 13 to 23.

[61] Applicants’ written outline of closing submissions [78](c).

[62] T2-98, lines 21 to 23.

[63] Ex 9, 7.

[64] Ex 9, 20.

[65] Ex 10 [175].

[66] Ex 17, 2.

[67] Respondents’ written outline of closing submissions [46].

[68] Ex 10, 18 [127].

[69] T1-83, lines 13 to 23.

[70] Ex 10, 12 [85]-[89], 21 [147].

[71] Ex 10, 23 [166].

[72] Ex 10, 24 [171].

[73] Ex 15 [32].

[74] Ex 11, 7 [35].

[75] Draft conduct and compensation agreement, Special Condition 16.

[76] Ex 4, 13 [55].

[77] T2-55, lines 44 to 47; T2-56, line 1.

[78] T2-56, lines 43 to 45; T2-57, lines 4 to 5.

[79] T2-57, lines 21 to 23.

[80] T2-60, lines 33 to 37.

[81] Ex 16, 8, lines 270 to 278.

[82] T1-30, lines 36 to 44.

[83] T1-36, lines 28 to 30.

Close

Editorial Notes

  • Published Case Name:

    Hail Creek Coal Holdings Pty Ltd & Ors v O'Loughlin & Ors

  • Shortened Case Name:

    Hail Creek Coal Holdings Pty Ltd v O'Loughlin

  • MNC:

    [2023] QLC 22

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    08 Dec 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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