Swan v Santos GLNG Pty Ltd[2017] QPEC 2

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant (Swan) owns two properties near Moura in central Queensland known as Inala (Lot 12) and Mulawa (Lot 3). He also owns other nearby properties which together with Inala and Mulawa he uses for grazing beef cattle and operating a cattle stud. He was born and raised on Inala and, apart from time away with schooling and undertaking an apprenticeship as a diesel fitter, he has lived there all his life. His properties are operated through a trustee company, Shadyland Pty Ltd. He is a beneficiary of the trust and sole director of the trustee company.

2. [2]
   He has provided a number of lengthy affidavits in these proceedings and he gave oral evidence over many hours. He impressed me as a passionate man with a real and abiding love for his property; and a grazier who has always operated his business to the highest standards of land management and animal husbandry. He has extensive lay knowledge of soil and water management and chemistry and grass management and weed control consistent with a man who has devoted his life to the proper management of his property.

3. [3]
   I accept his unchallenged evidence that at present his aim is to have his farm including Inala and Mulawa organically certified.

4. [4]
   In 2008, when his father was still alive, they were approached about the construction of a section of the Gladstone Liquefied Natural Gas Transmission Pipeline (pipeline) through Mulawa and Inala.

5. [5]
   The construction of the pipeline was a massive infrastructure project undertaken by the first three respondents.

6. [6]
   The proceedings involve allegations of various breaches of environmental authorities held by the respondents. The Amended Originating Application (AOA) filed by Swan on 18 August 2015, sets out (at 5-10) the relationship between the first three respondents. For the purposes of these proceedings that relationship is not relevant. I will refer to the first three respondents as (Santos). The fourth respondent was represented throughout by Mr Barclay whose role was neutral and of assistance to the Court. It has never prosecuted or threatened to prosecute Santos for any alleged breaches of the environmental authorities.

7. [7]
   The extent of the pipeline undertaking can be gleaned from the affidavit of Andrew Brier filed 2 October 2015 (C.D.29). From 2012, he held various positions with Santos enabling him to give an overview of the project.

8. [8]
   He describes the process in relation to the construction and commissioning of the 420 kilometre pipeline from the Surat and Bowen Basins in central Queensland to Curtis Island off Gladstone at para 11 of his affidavit:

9. [9]
   The initial contact (and indeed much contact thereafter when difficulties arose) between Swan and Santos, was with their land agent, Dean Salter. After 2012 when Mr Brier commenced employment with Santos, Salter was below him in the Santos chain of command. Salter has filed a number of affidavits but they were not relied upon by Santos.

10. [10]
    As Swan explains, prior to 2008, three other companies had constructed pipelines through the farm. The experience in dealing with those projects informed his negotiations with Santos in relation to the pipeline.

11. [11]
    Ultimately agreement by way of Deeds of Option for Easement, Upfront Compensation with Santos were entered into in relation to both Lots 3 and 12 in late 2010. I accept Swan’s evidence that the main focus of his and his father’s concerns in relation to both properties is as set out in para 33 of his affidavit filed on 26 August 2015:

12. [12]
    The Line Lists in both Deeds (which are annexed to his affidavit) reflect these concerns.

13. [13]
    Approximately 120 properties have been traversed by the pipeline and actual work on the Swan properties to construct the pipeline over Inala and Mulawa commenced around March or April 2013. There is no real dispute that clearing and grading started on the eastern boundary of Mulawa, and then progressed through Mulawa from east to west to the Theodore – Baralaba Road. Thereafter clearing and grading progressed from the Theodore – Baralaba Road through Inala to its western boundary.

14. [14]
    It is common ground that in 2011, Saipem Australia Pty Ltd (Saipem) contracted with GLNG Operations Pty Ltd (which acted and acts) on behalf of Santos, to design, supply, construct and commission the pipeline. As Swan and his common law partner, Ms Alison Hotz, attest in their affidavits, he and she had many dealings with Saipem employees and/or sub-contractors about their concerns about the pipeline construction over Mulawa and Inala as it progressed. No witnesses from Saipem gave evidence in these proceedings.

15. [15]
    Alison Hotz (Alison) has provided a number of lengthy affidavits and also gave oral evidence and was cross examined. She is Swan’s partner and has lived with him at Inala since September 2013. She has known him for many years. In June 2014, Swan gave her a Power of Attorney to enable her to assist him in dealing with many problems he had with the way in which the pipeline was being constructed, which had by then become overwhelming for him.

16. [16]
    She was at a number of meetings when Swan’s concerns were expressed. She took extensive contemporaneous notes. Again, apart from in relation to subtle detail to which I will refer later, her evidence is largely unchallenged. She presented as an intelligent careful witness with excellent recall of events and conversations. She also undertakes (as at all material times she was undertaking) administrative duties on behalf of the trust in relation to the day to day business of the farm.

17. [17]
    Exhibit 7 is a copy of a Farm Plan for Mulawa which generally depicts the area of the pipeline corridor through the property, and ex 8 is a similar Farm Plan for Inala which shows generally the position of the pipeline corridor. There is some evidence that the exhibits may in fact be approximately a kilometre out in a linear sense, but nothing turns on this. The corridor (by reference generally to the easement) is referred to in the AOA and the evidence as the Right of Way (the RoW).

18. [18]
    The RoW proceeds over a length of almost 9 kilometres through both properties. On exhibits 7 and 8 it is described (in part) by reference to each “Kilometre Point” (KP), as it passes west to east. Each KP is assigned a number which represents the distance in kilometres from the western point of the pipeline. KP240 lies to the west of the western boundary of Inala. KP241-243 all lie within Inala, and KP244-248 all lie within Mulawa, and KP249 lies to the north east of the eastern boundary of Mulawa. The RoW is 40 metres wide, with 30 metres for the pipeline trench and 10 metres for access and onsite works.

19. [19]
    Swan was not aware that Santos (at all material times) held Environmental Authorities, one which took effect from 1 November 2011 (the 2011 EA), and another which took effect from 24 March 2015 (the 2015 EA). The terms of each EA are materially the same. The 2015 EA refers to a Meridian Interconnector now constructed on Inala adjacent to the intersection of the RoW and the Moura – Baralaba Road, to connect the pipeline to other Liquefied Natural Gas Transmission Pipelines. The construction of the Interconnector on Lot 12 and partially on the RoW, was the subject of separate litigation in the Supreme Court involving the same (or similar) parties and was compromised on a commercial basis. It only has some relevance to these proceedings to which reference will be made later.

20. [20]
    Swan alleges that almost from the commencement of works by Saipem to construct the pipeline, major events occurred which he now alleges constitute breaches and/or potential breaches, and in some cases, continuing breaches, of the EA’s. For example he alleges that early in the construction phase, and as a result of wet weather making it difficult to work on the RoW, rock was deposited between KP244 and KP245 on Mulawa causing major interference with soil profiles. As a result of vehicles being driven in wet weather, deep wheel ruts and holes were left in the RoW. In April 2013, while he was in hospital, good red soils from around KP243 on Inala were moved into an area around KP242 to enable work to continue in the wet, resulting in what he alleges to be irreversible damage to the soil profiles in that area. He alleges that temporary fencing of the RoW was not complete causing concerns for the safety of his cattle. He alleges that his many complaints to Dean Salter and Saipem representatives were ignored or deflected.

21. [21]
    In October 2013, at a time when the pipeline trenches were being backfilled and the RoW being re-levelled, he alleges that contrary to his express instructions to one Brent Howes,, who was then the “team leader” for Saipem, soil, gravel, rock and other under- bore material from the pipeline excavation works under the Theodore – Baralaba Road, was spread from the road to KP244 on Mulawa, increasing the height of the land in that area by approximately 300–400 millimetres over an area of about 3000m².  He alleges that Howes told him, when they had an angry confrontation about the issue, that he had “been instructed to bury rock in the RoW to get rid of it”, but he would not reveal the source of the instructions.

22. [22]
    He noted that the material had been covered with topsoil. He also alleges that during construction, clay was taken from the large dam on Inala to fill in subsidence both east and west of the KP241, resulting in a significant change in soil profile which is now inconsistent with the profiles outside the RoW.

23. [23]
    He alleges other instances where rock and soils different to those on his property were spread on the RoW. As he notes, the Line Lists acknowledge that Inala and Mulawa were free from surface rock. He also alleges that during construction, berms and contour banks in and around the RoW were disturbed or destroyed and were not, and still have not been reinstated appropriately, except for one large berm reinstalled by him for which he was paid by Santos.

24. [24]
    In paras 171-179 of C.D.22 he complains of multiple examples of waste both along and outside the RoW as a result of the pipeline construction. He complains of dam contamination and serious ongoing problems with subsidence along the pipeline trench area particularly on Mulawa.

25. [25]
    He also complains of inadequate reseeding in the rehabilitation stage, and the proliferation of weed species previously controlled on his property.

The nature of these proceedings

26. [26]
    As pleaded in the AOA, Swan seeks orders pursuant to s 505 of the Environmental Protection Act 1994 (the “EPA”).  The orders sought are as follows:

“1. An order under s 505 of the EP Act that (Santos), cause all works on the applicant’s land to cease until measures have been put in place to secure compliance with the Environmental Authorities granted under the EP Act for the petroleum activities for PPL166.

2. An order under s 505 of the EP Act that (Santos) cause an independent investigation be undertaken as its cost, by an expert appointed by the Court, to identify all respects in which the Environmental Authorities granted under the EP Act for the petroleum activities for PPL166 have been contravened on the applicant’s land and the measures to be taken to remedy these contraventions.

3. An order under s 505 of the EP Act that (Santos) cause the contraventions to be remedied by the measures identified by the independent investigation.

4. Such further or other orders as to the court may seem just to remedy the contraventions of the Environmental Authorities granted under the EP Act for petroleum activities for PPL166 that have occurred on the applicant’s land.

5. An order that (Santos) pay the applicant’s costs of these proceedings on such basis as to the court may seem just having regard to all the circumstances.”

27. [27]
    Relevantly s 505 of the EPA is in these terms:

28. [28]
    There is no dispute that Swan has standing pursuant to s 505(1)(c) of the Act; or that this court has jurisdiction; although an argument is advanced by Santos that Orders 2 and 3 sought in the AOA in their present form are beyond jurisdiction for legal reasons.

29. [29]
    Santos has continuously complained that Swan has not properly particularised what “offences” he alleges have been committed, and indeed made an application to strike out the AOA on the basis that it disclosed no case to answer, which application remained extant at the time of the hearing. Santos was content for its strike out application to be considered as part of its “no case” submission made after the court had heard all of the evidence.

30. [30]
    On 18 May 2016, when I listed the matter for hearing, I ordered Swan to deliver a list of issues which identified those matters which he contends were actionable under s 505 and continuing to affect his land. That list (filed 9 June 2016) did not identify, by reference to any offence under the Act, the section or sections relied upon.

31. [31]
    On day 5 of the hearing (17 June 2016), at a time when Sutherland had given evidence and Mr Brier was about to give evidence, and it was obvious that the matter would need two more days to complete, which were to be 18 and 19 August, I said this to Mr Litster:

“HIS HONOUR:   But there is a threshold question and it seems to me the way the evidence has fallen out, the discretionary issues are more readily discernible and capable of being sorted out and worked out.  But I can tell you I’m struggling at the moment in relation to the threshold question and I was going to ask you that when you make written submissions about section 505, subsection (5), that you identify the offence or offences by specific reference to evidence in the case.

MR LITSTER:   Yes.

HIS HONOUR:   And if you are going to submit that it’s a continuing offence ‑ ‑ ‑

MR LITSTER:   Yes.

HIS HONOUR:   ‑ ‑ ‑ I’d want a commencement date.  If you’re going to submit a specific offence that has a starting and ending date on the evidence, I’m going to ask you to specify that and to refer to the evidence and I think all this about subsection (4) arises out of the fact that to date that’s not been done by you.  You’ve given a list of actionable matters which comes from the grounds, but I’m just expressing to you what my concerns are and I think that’s – well, that’s certainly what your opponent has been talking about all the way through.  So I think this is a product of the fact that you’ve not been prepared to give particulars of the offences – or the offences apart from referring to the affidavits and I don’t want to have to do that myself.  I want you to, as the prosecutor in the quasi-criminal side of it, and I think that’s probably the reason that the – your opponents want to put on evidence in relation to a possible defence, bearing in mind that if leave is granted ‑ ‑ ‑

MR LITSTER:   Yes.

HIS HONOUR:   ‑ ‑ ‑ and you feel that you need to reopen your case or you need to adjourn it to have further investigations done, well, I’ll consider that.  So that’s my response.

MR LITSTER:   I hear what your Honour has said.  I won’t respond at this point in time.  I’ve made my submissions about the defence and I maintain those – my submissions.”

32. [32]
    In his Outline delivered 17 August 2016 Mr Litster identities various paragraphs of the AOA as constituting breaches of s 430 of the EPA (1-55 are the “circumstances”, 56 pleads a breach of s 430); and 58 pleads as an alternative, a breach of s 431 of the Act.

33. [33]
    Sections 430 and 431 are (relevantly) in these terms:

34. [34]
    It is common ground that Swan has the onus of proving that “offences” have been committed on the balance of probabilities governed by the principles explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 363 per Dixon J as the Chief Justice then was).  However the proceedings are entirely civil in nature:  Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558

See also the decision of his Honour Judge Robin QC in Crowther v State of Queensland [2003] QPELR 346;,  the only case that either party could find in which an application had been made by a private citizen for orders under s 505 of the EPA. 

35. [35]
    Santos’s primary position is that there is no case to answer; primarily on the basis that the prayer for relief, and in particular the orders sought in 2 and 3 of the AOA, are incompetent as a matter of law. It then argues, by reference to the conditions of the EA’s said to be breached, that on a proper construction of the terms of those conditions, the evidence does not establish any breach of either s.430 or s. 431 of the EPA. Alternatively, it submits that if the court is satisfied that a breach of s 431 has occurred and has been committed by Saipem, Santos has a defence under s 431(4) of the Act. Even if the court is ultimately satisfied that offences have been committed by Santos, it submits that in the exercise of discretion the court should not grant the relief sought.

36. [36]
    It is common ground that the orders sought are discretionary in nature and that the exercise of the discretion is governed by the principles discussed in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 341 by Kirby P as his Honour then was.

37. [37]
    As to Orders 2 and 3 sought in the AOA Mr Horton QC and Mr Favell submit as follows:

“(a) the relief sought in the AOA lacks the certainty essential to the ground of injunctive relief;

2. (b)
   the relief would impermissibly involve the court delegating its function of being satisfied as the commission of offences under the EP Act to a private citizen (a court appointed expert);

3. (c)
   no part of the relief seeks that the court be satisfied an offence has been or will be committed;

4. (d)
   none of the relief seeks orders directed to remedy or restraining any offences found by the court;

5. (e)
   the relief sought in Order 1 would be futile because the pipeline and the meridian Interconnector have been constructed;

6. (f)
   the relief fails to specify a time by which the order is to be complied with;

7. (g)
   the relief does not meet the requirements of s 505(6)(a) or (b) of the Environmental Protection Act.”

The expert evidence

38. [38]
    When Swan’s Originating Application was filed on 26.5.15, no expert evidence was relied on. Both parties involved experts. Ultimately, the position of Swan is that, on the basis of the evidence of his expert, much more investigation needs to be done to establish the extent of the environmental harm along the RoW. Santos’ position is essentially that:-

1. (a)
   The expert evidence taken at its highest does not establish any breaches of the EA’s; and

2. (b)
   The work undertaken on the RoW since 12.11.15 under the supervision of its expert essentially provides for exactly what is sought by Swan in 2 and 3 of his prayer for relief.

39. [39]
    Mr Manning, on behalf Swan, engaged Steven Dudgeon (“Dudgeon”) to prepare a report relevant to alleged breaches of the EA’s as a result of an inspection by him of the RoW on Inala and Mulawa with Swan on 29 June 2015. As Dudgeon notes in his first report dated 18 August 2015 (CD 18) he drove the length of the RoW and concentrated on locations of major concern to Swan.

40. [40]
    As he notes, prior to the commencement of works, a preliminary soil management plan covering both properties was commissioned by Saipem. Relevantly he notes that the whole of Inala and Mulawa is mapped as Good Quality Agricultural Land (“GQAL”).

41. [41]
    At that first inspection, Swan identified to Dudgeon particular areas of concern, which related to the alleged backfilling of pipeline trenches with shallow sodic heavy clay. As Dudgeon notes, sodic soils have a number of adverse properties including poor surface soil structure, surface crusts, extremely poor plant growth and other issues not conducive to developing pasture along the RoW. He noted five areas of major concern to Swan.

42. [42]
    Area 1 is an area around KP241, in which Dudgeon noted hard setting surface crusts characteristic of subsurface sodic soil. This is the area on Inala where Swan alleges that pipe trenches were backfilled with sodic subsoil clay, taken from what is described in Exhibit 7 as the Big Dam on Inala. Dudgeon noted that the hard setting crusts were not evident in other local areas and “unexpected” in the top soil horizon.

43. [43]
    Areas 2 and 3 (see page 14 of CD 18) are located east of KP242 and west and east of KP243 on Inala, in the area known as Red Hill South on Exhibit 7. Dudgeon (and indeed, Swan) described this as “the farm’s highest quality red earth soils.”

44. [44]
    Dudgeon dug soil inspection pits, and noted in the RoW, that the pit (marked as pit one) had a shallow Red Earth A horizon, less than 250 mm in depth, overlaying a rocky sodic heavy clay layer B horizon. Pit two (see page 15 CD 18), which was dug outside the RoW in the same area revealed a soil profile of “deeper clay loams” to 1m plus.

45. [45]
    Area 4 was west of KP 244 on Mulawa, in the area in which Saipem had spread the gravel rock etc. excavated from under the Theodore – Baralaba road along the RoW and covered it with top soil. Similar results to areas 2 and 3 were obtained and, as well, Dudgeon commented on the presence of a large blue rock in one of the pits he dug which was inconsistent with the soil profile outside the RoW.

46. [46]
    Area 5, also on Mulawa, and east of KP244 revealed similar results, suggesting a shallow soil horizon overlaying rocky sodic heavy clay, which was inconsistent with the soil profile noted in pit 6 in the same area, but just outside the RoW.

47. [47]
    Dudgeon also noticed significant subsidence present, on average, every 250m on Mulawa with an average depth of 0.5m. He also noticed more weeds in the RoW than in the rest of the farm, and a marked visual difference between plants in the RoW and the rest of the farm. He formed an opinion that conditions in the EA 2011 had “not….(been) complied with…”; and detailed reference will be made to the relevant conditions later in these reasons.

48. [48]
    Dudgeon was acting on instructions from Mr Manning. One of the issues that has to be resolved is the adequacy of the case presented by Swan, on the basis that particulars of alleged offences have not been given. I do not criticise Dudgeon for expressing the opinion set out at page 26 of his first report, however, clearly the opinion therein expressed is an opinion of law and not an opinion within his expertise to express.

49. [49]
    He concluded that there was evidence of subsidence; the surface of the RoW had not been returned to a condition which serves the pre-construction use; pipeline trenches had not been rehabilitated; soil horizons are inconsistent with nearby soil profiles, top horizons of soil profile had not been reinstated; the land had not been reinstated to the pre-disturbed soil suitability class; and there was change in pasture including weed infestation.

50. [50]
    He recommended a detailed site survey should be undertaken for soil profile and condition within the RoW, and this should be compared to native adjacent soil profile classifications, and undertaken at a maximum scale of 1:2500; a weed survey; a rehabilitation specific survey to compare the rehabilitation species to the current farming pasture species and a subsidence survey. He recommended from the surveys a revised rehabilitation plan be produced and implemented.

51. [51]
    As a result of Dudgeon’s report, Santos engaged agronomist, Mr Neil Sutherland (“Sutherland”), as an expert. There is no suggestion that either man is not qualified as an expert.

52. [52]
    Sutherland’s first report (dated October 2015) was filed on 5 November 2015 (CD31), prior to a contested review before me on 12 November 2015 in Brisbane. He undertook a site inspection of the RoW on 1 and 2 October 2015, accompanied by two of his staff. He was briefed with a copy of Dudgeon’s report.

53. [53]
    Dudgeon had noted in his first report that although he had a copy of a preliminary Soil Management Plan prepared in 2011, he did not have a Soil Management Plan prepared by Saipem in 2015, which identified a total of four soil orders on the site in accordance with accepted standards.

54. [54]
    When Sutherland undertook his inspection, a representative from Dudgeon’s company was present. Swan was also present for some of the inspection on 1 October and “voiced his concerns”, which Sutherland found “helpful.” Sutherland inspected the RoW from approximately KP241 on Inala, to KP248 at the eastern end of Mulawa. Soils and vegetation cover was assessed at a total of twelve locations with six transects across the RoW. For each of the transects, at the orientated perpendicular to the long section of the pipeline, two sampling points were selected – one within the RoW and the other south of the RoW in an area undisturbed by pipeline works. In large part, his selection of the transects was informed by the areas identified in the Dudgeon report.

55. [55]
    Transect 1 was in a low-lying level area near the western extent of the RoW near KP241 i.e. on Inala. As he notes, the two sampling locations at each transect were selected by using the “rock in the sock” method to randomly select and eliminate bias. This roughly coincides with Dudgeon’s Area 1, but is further to the west. As well as analysing soil horizons, he assessed groundcover on and off the RoW, and the presence of weed species.

56. [56]
    Transect 2 appears to be east of KP242 on Inala in the Red Hill South area. It is approximately in the vicinity of Dudgeon’s Area 2.

57. [57]
    Transect 3 is on Mulawa “near KP243.” From the oral evidence, and by reviewing the aerial photographs at 41-42 of CD31, this area seems to be much closer to KP244. KP243 is on Inala, and roughly accords with Dudgeon’s Area 3.

58. [58]
    Transect 4 is said to be in the vicinity of KP244. Neither transect coincides with Dudgeon’s Area 4, which is of concern to Swan because of the spreading of gravel etc. on the RoW in that area by Saipem from the excavation under the road. Transect 5 is again on Mulawa but, in the report, is not related to a KP. It appears to be east of KP445 and west of KP246. Transect 6 is in the eastern portion of Mulawa and appears to be close to KP248. Sutherland undertook more extensive sampling than Dudgeon, but not (for example) in the western end of Mulawa in the area allegedly contaminated by material removed from under the road.

59. [59]
    His conclusions are set out at 5.3 of his report. His opinion is that there was little difference between the RoW and the undisturbed areas in terms of ground cover. As regards vegetation, he noted observable difference in vegetation composition within a 10m radius at transect’ 3 and 4, and he noted a proliferation of undesirable weed species within the RoW at transect 4. He was only able to locate obvious surface coarse fragments at transect 1 within the RoW.

60. [60]
    In his opinion, soil texture was similar (as between the RoW and undisturbed areas) at transects 1, 4, 5 and 6, but differed markedly at transects 2 and 3. Soil structure was “reasonably consistent” through transects 1, 3, 5 and 6, however at transect 2 and transect 4, there was significant difference between the soils in the RoW and those in the undisturbed area. He noted the presence of coarse fragments (i.e. within the soil) in both the RoW and in the undisturbed areas, but “were notably in higher proportion within the RoW at transects 1 and 2.” He thought these fragments were likely to be blast product, but he did not do sampling in Dudgeon’s area 4 in Mulawa, west of KP244.

61. [61]
    In relation to the important issue of soil profile (horizon) at 390 (page 16 of CD31), he wrote this:

“390. Evidence of mixed layering as determined by colour and/or texture was present within the RoW soils at transects one (0.15-0.30m) and transect five (0.10-0.30m and 0.30-0.50m).  Inconsistencies in the soil horizons between the RoW and the undisturbed areas were also noted at transects two and four.  In the case of transect two, the RoW exhibited multiple shallow topsoil horizons with heavier textures and darker colours compared to the lighter colours and textures of the undisturbed area.  In the case of transect four, the RoW exhibited a massively structured, poorly drained B horizon from near surface (0.15m BGL) in comparison to the moderately structured B horizon encountered from 0.25m BGL in the undisturbed area.  In my view, this indicates the soil profile has not been reinstated to its pre-disturbance condition at these locations.”

62. [62]
    He noted that soil moisture was predominantly higher throughout the undisturbed areas except for transects 2 and 4, and subsidence throughout the length of the RoW, which was particularly evident in the eastern portion of Mulawa.

63. [63]
    He was asked by Santos’ solicitors to address the EA conditions. In relation to condition D11 (EA 2011) after setting out the condition he writes:

“From my inspection and the assessment undertaken, there were multiple areas of subsidence, exposed subsoils (i.e. poor topsoil coverage or absence of topsoil) and poor soil structure, likely to have resulted from the disturbance, noted along the RoW.  This indicates that some parts of the RoW had not been restored to a ‘land use condition that serves the preconstruction use’.  However, the restoration of large parts of the RoW did meet the required condition, in my view.”

64. [64]
    He then addressed conditions H5, H8 and H9 in EA 2011. He concluded from the inspection and assessment undertaken:

“Significant differences in soil horizons between the RoW and undisturbed areas were apparent in transects one, two, four and five.   This included evidence of mixed soil and different soil texture and/or structure.”  

In relation to EA 2011 condition 39, he wrote this:

“From my inspection and the assessment undertaken, I noted the presence of weeds included Parthenium, Horse Bean, Dog Burr, Cat Head, Deadly Nightshade and Scotch Thistle within the RoW, adjacent to and east of transect four and also within other areas generally where soil disturbances (e.g. subsidence, mixed soil and exposed subsoil), had occurred.”

65. [65]
    At pages 25-26 he proposed a program to address the problems of soil inversion, weed infestation, serious subsidence and other issues addressed in his conclusion. He expresses his conclusions as follows:

“Acknowledging that there was to be progressive rehabilitation and the restoration of large parts of the RoW did meet the A conditions, it was evident that some areas had not yet been restored to a condition that serves the land’s pre-construction use.  The soil profiles assessed along the RoW show differences when compared to the undisturbed area.  The management measures that relate to this issue should be augmented to provide the necessary actions to address topsoil depth and exposed subsoils post reinstatement work.  While subsidence was observed within the RoW, the relevant management plans properly implemented are adequate to satisfactorily address the ongoing management of this issue.  Weeds were found to be present mainly in areas exhibiting soil disturbance.  In my view, the management plans that relate to this issue will appropriately address the ongoing management of weeds.  The rehabilitation plan has been implemented within the required timeframe.  However, further repair of the soils and the pastures, together with monitoring and reassessment of the efficacy of the rehabilitation plan measures, need to be addressed.  The opportunity to complete these works in time to capture the most likely rainfall in February-March 2016, means the work should be implemented relatively quickly in my view.”

66. [66]
    In section 8 of his report, he set out his recommendations. He wrote:

“Acknowledging that at least along parts of the RoW, the rehabilitation of the soils and pastures to pre-disturbance conditions may cause more (further) disturbance than desirable, the following procedures should be implemented to help reinstate the soil profiles, address subsidence and manage weeds.

My recommendations for reinstatement and rehabilitation include three options depending on the degree of land form disturbance over the exiting (sic) condition at the time of my site inspection.  The method of rehabilitation should be a simple three-step process of assessment, rehabilitation and monitoring to ensure the rehabilitation has succeeded. 

This three-category process is summarised in the following table, where landform disturbance has been characterised as major, medium and minor.  In these procedures ‘major’ disturbance extends across the entire RoW width, irrespective of the length along the RoW.  ‘Medium’ RoW disturbance is disturbance greater than 150m² in area but less than the width of the RoW and ‘Minor’ disturbance is disturbance less than 150m².  This has been based on well-established grassland management strategy of replacement, renovation or retention.

Notes:

1. Because of the successful pasture establishment across areas of the RoW the subsided areas can be camouflaged.

2. A post-slashing assessment is needed to categorise the areas to be rehabilitated.

3. An “Emu-bob” using five people behind the vehicle should be used to collect sticks and any surface rocks > approx. 100mm diameter for disposal.  The disposal location should be either offsite or if the landholder agrees, on-site.

4. Spraying with gylophosate or equivalent.

5. Soil testing for pH to determine whether gypsum or lime should be incorporated.

6. First pass with “Crocodile” seeder could be used instead of rotavator.

7. Gypsum (soil 1:5 pH >6.5) or lime to be applied depending on soil test pH result.

8. Topsoil to be supplied from farm in consultation with landowner or certified weed-free from offsite.

9. Either Mono-ammonium phosphate or sulphate of ammonia fertiliser to be applied.

10. Drawbar seeding with “Crocodile” or drum seeder equivalent.  Pasture mix to reflect original line list mix (Royal Seeds Biloela).

11. Watering to be completed from single track along RoW centreline if there is no rainfall >5mm within 14 days of seeding and thereafter weekly until 50% groundcover established.

12. Monitoring to be completed on a monthly basis until 75% groundcover established within sward of grasses in sown mix.

13. Reassessment to be completed between months 5 & 6 from seeding date.

14. Further repair to be completed if subsidence reoccurs over more than 5% of the RoW or 75% groundcover is not achieved.”

68. [68]
    As a result, there was a review before me on 12 November 2015 which involved a heated contest between two proposed orders. At that review, Mr Brier gave evidence and was cross-examined. As my reasons for judgment delivered that day reveal (see Exhibit 5 Part 2), ultimately I preferred the order proposed by Santos which required it to carry out the works recommended by Sutherland in his report by the end of January 2016. I noted in those reasons by reference to Swan’s then untested evidence, that he had no faith in Santos’ ability to rehabilitate his land to its pre-construction state unless forced to do so by strict orders. I also noted that Santos had complained that Swan has been obstructive and non-compliant in allowing them onto his land to carry out their legal obligations. Some of those preliminary observations are borne out by my assessment of the whole of the evidence.

69. [69]
    The order proposed on that occasion by Swan, I found, was overly proscriptive, and likely to provoke more argument. Mr Litster made it very clear to me that because the works proposed by Sutherland were not strictly defined; his client strongly opposed the making of the orders that I did make.

70. [70]
    The works proposed by Sutherland were undertaken, and assessed by two environmental officers employed by his firm on 18 and 19 January 2016. As at 25 January 2016 (CD38), Sutherland swore that his recommendations, (apart from ongoing, watering, monitoring and repair), had been implemented.

71. [71]
    In his affidavit filed 14 April 2016 (CD43) he referred to a further inspection by him and one of his employees on 10 March 2016. In his affidavit he states:

72. [72]
    There is significant dispute between the parties as to the extent to which Santos has addressed concerns raised by Swan and Dudgeon in the works supervised by Sutherland’s firm and referred to in his affidavits above. In his affidavit filed 13 May 2016, Dudgeon refers to an inspection undertaken by him on 29 January 2016 along the entire length of the RoW. He says this:

73. [73]
    His final report is annexed to his affidavit (CD49). As he notes at 2.1 of his report, his field inspections focused on identification of key areas which should, in his opinion, have been rehabilitated. He refers to Sutherland’s Transect two (his Area 2, KP242); Transect 3 (Area 5, KP245); Transect 4 (KP242). In addition he undertook further investigations in Area 4 which, as I have noted, was not tested by Sutherland.

74. [74]
    Dudgeon’s conclusions and recommendations at p 18-19 of his report are in these terms:

“Our soil survey has also identified significant differences at Transect 3 which was highly modified and had severe limitations to plant growth due to compaction and placement of subsoil at shallow depth.  At our area, there was sodic and compacted fill containing rocks at shallow depth.  The majority of the RoW locations considered (five sites out of six or 83 per cent) have significant differences in soil horizons, structure and texture between the RoW and the undisturbed area.

It is clear from my inspection of Inala and Mulawa that rehabilitation was limited to “filling” in the subsidence along the pipeline with topsoil.  It did not address inversion, exposed subsoils, poor soil structure, modified soil profiles, compaction, or introduced fill and rock within the soil profile apparent elsewhere within the RoW. 

It is essential to the ongoing sustainability of pastures within the RoW that these matters be addressed.  Although a superficial rehabilitation of the kind that has occurred can look successful to the layperson in times of favourable conditions: inversion, poor structure, compaction and sodic soils placed high in the profile, cause physical and chemical barriers which prohibit plant roots from accessing available water and nutrients.  If there is lack of soil water due to drought and reduced rooting depth due to these barriers then pasture stress and plant mortality is likely. In wet seasons, waterlogging in the root zone can impact pasture growth. 

Despite recent rehabilitation work… there is evidence of the surface not being returned to its pre-disturbance condition that serves the pre-construction use; soil horizons that are inconsistent with those nearby; and the land not being reinstated to the pre-disturbance soil suitability class.”

75. [75]
    He then goes on to recommend a detailed site survey similar to that recorded in his first report, except he suggests that it be undertaken at a maximum scale of 1:10,000 as recommended by the guidelines for soil survey along linear features (Soil Science Australia, Queensland Branch, 2015). He recommends an independent survey by a consultant selected by the court.

76. [76]
    As a result of orders made on 18 May 2016, the experts met and prepared a joint expert report (CD57). The extent to which the works undertaken by Santos at the direction of Sutherland’s firm have addressed the issues of concern (particularly rehabilitation of poor soil structures and return of soil profiles to pre-construction levels), is the subject of dispute. In this regard it should be noted that the relevant condition in the environmental authority refers to “a condition that serves the preconstruction use”.

77. [77]
    By reference to Sutherland’s first report (file 5 November 2015), the experts agreed:

“13. The NS report acknowledged there were areas that had not yet been restored to a condition that served the land’s pre-construction use. It provided recommendations for the remediation and rehabilitation of the site.

14. Those recommendations included three options for the reinstatement and rehabilitation of the RoW depending on the degree of landform disturbance encountered; each included slashing the vegetation, emu-bob to remove large sticks and rocks (>100mm diameter), prepare with topsoil, fertiliser application, seeding, watering and further monitoring the pasture, re-establishment of the pasture establishment and repair as required.  Areas of major disturbance also were to include spraying with herbicides for weed control; soil pH testing to determine the selection of either lime or gypsum to improve soil structure. 

15. With regard to herbicides, NS limited the recommendation to the use of glyphosate or equivalent based on the knowledge that the applicant was concerned that any residual herbicides could jeopardise a future application to gain organic status on his property.”

78. [78]
    They also noted (under points of agreement):

“17. (Santos) initiated works on the site between 23 and 26 November 2016. These works include, emu-bobbing of visible timber of stones over approximately 100mm in diameter and removal of weeds within the RoW, prior to slashing and subsequent mapping areas of subsidence within the RoW and pH testing of soil. A progress report (from Santos) is attached as appendix 3. G&S and Aus Ecology Pty Ltd staff also mapped areas of exposed soil and subsidence over the same period and this mapping is attached as appendix 4.

18. Following these works, NS prepared a letter to (Santos) entitled “Recommendations for soil reinstatement and rehabilitation” dated 3 December 2015.  This letter provided further information, expanding upon the recommendations of the NS report and augmented by data provided by Aus Ecology Pty Ltd and G&S staff observations from the November site visit.  This is attached as appendix 5. 

19. A series of further works were initiated on site between 10 December 2015 and 10 January 2016.  The site was attended by a qualified agricultural scientist and hydrogeologist of GNS, Andrew McDonald.  The works included further spraying of weeds and subsidence repair, including application of topsoil as required; application, spreading and incorporation of gypsum; application of ammonium sulphate fertiliser; and seeding of repaired areas and any other areas lacking pasture growth. 

20. Topsoil was sourced on site from areas approved by the applicant under his or Mr Hotz’s direction.”

79. [79]
    Importantly, under the heading “Rehabilitation Principles”, both experts acknowledge:

“24.  No soil rehabilitation exercise will result in a replica of the undisturbed soil profile.  That said, with disturbance from an infrastructure project such as this, care can be taken to ensure topsoils (generally at 0.300mm depth) from the originating soil profile, remain at the soil surface;  and subsoils (generally at >600mm depth) are reinterred below the topsoil layer.” 

80. [80]
    Both experts also agreed as follows:

81. [81]
    One of the vexed issues that arises in their points of disagreement comes about because so much time has elapsed since the acknowledged mixing of soil profiles by actions as directed by Saipem. This includes the depositing of road material in the western end of the RoW in Mulawa, the pushing of high quality red earth soils from around KP243 towards KP242 in April 2013 and the deposit of rock on Mulawa in April 2013 between KP244 and KP245; all of which occurred without the knowledge or acquiescence of Santos. Santos certainly became aware of Swan’s concerns about these issues very soon after each occurred.

82. [82]
    Dudgeon’s point throughout, is that a much more extensive survey should be undertaken than that undertaken by him or Sutherland to determine what he predicts will be a much more extensive impact on soil structure, soil inversion and compaction of imported fill such as clay and rock.

83. [83]
    This does not sit well with the points of agreement in the joint expert report referred to above. It is also relevant to the constant complaint ventilated by Santos that it is for Swan to prove the commission of the offences and, as will be demonstrated later, the proposal by Dudgeon, mirrors the orders sought in the originating application at points 2 and 3 which Santos argues are incompetent.

84. [84]
    Although Sutherland observed correctly that he matched his test sites with those selected by Dudgeon, acknowledging that he had not tested in Area 4, a point of contention relating to compaction or repair of temporary tracks relates to Sutherland’s opinion that after his works were completed, undesirably, cattle were allowed on the RoW.

85. [85]
    Another issue of contention is Santos’ requirement, because of the need to maintain the integrity of a pipeline, that testing (by way of coring etc.) was not to be undertaken within five metres of the pipeline which prevents testing in that area of the RoW. Santos’ position is supported by the legal agreements between itself and Swan, and is consistent with the need to protect the integrity of the pipeline which is conveying liquefied gas.

86. [86]
    The experts also disagreed as to the proper way in which rehabilitation should be assessed, Sutherland preferring to rely on ground cover and Dudgeon regarding soil profiling as the most important test. Sutherland’s position seems to be more consistent with paragraph 35 of the JER under “points of agreement,” and “Rehabilitation measures”.

87. [87]
    Sutherland was criticised in cross-examination for not using chemical analysis to test for sodicity in the soil samples that he took in his original assessment. Dudgeon notes in his final report that six out of the nine samples sent for chemical analysis by his firm were found to contain sodic soils, with two containing strongly sodic soils. Sutherland used an onsite test known as the Emerson Crumb test to test soil dispersity which he regarded as adequate to test for sodicity. As I will later demonstrate by reference to the alleged impugned conditions, particularly condition DA11, it is not necessary for me to resolve these disputes between the experts.

88. [88]
    The experts agreed that the soil suitability mapping completed prior to construction by Saipem was inadequate, but both acknowledged that in such a major construction project, some disturbance of the soil profile was inevitable.

89. [89]
    In effect, Sutherland says that his rehabilitation plan is a work in progress, and will require at least two seasons to be implemented; in the sense of achieving pasture cover on the RoW that is equivalent to the undisturbed areas along its length. Dudgeon says that although the ground cover at his last inspection appeared satisfactory (in the areas the subject of close analysis), his viewing of the photos taken by Isaac Hotz on 12 May 2016 (CD54) suggests that the rehabilitation works had not been as successful as he initially thought.

90. [90]
    I agree with Sutherland that Dudgeon’s estimate that only 5 per cent of the RoW has been rehabilitated based on aerial photography (see 51, p 10, CD57) is misleading as the aerial photography (December 2015) pre-dated the 2016 work. In my view Dudgeon’s estimate in any event amounted to speculation.

91. [91]
    The evidence of Mr Hotz and Swan of the state of the RoW since Sutherland’s rehabilitation work does suggest that there are still a number of issues to address before the land on the RoW is appropriately rehabilitated to pre-construction use.

92. [92]
    Certainly, as the evidence of both experts was tested, it is clear that Sutherland regards ground cover, i.e. of appropriate pastures; as a fair indication of rehabilitation, whereas Dudgeon regards soil sodicity and soil chemistry as more important indicators. As I have noted earlier, in the end, the differences probably don’t matter much, and Sutherland’s view seems to be supported by the point of agreement in the JER referred to earlier.

93. [93]
    One of the difficulties I will address later arises, because the intense testing originally undertaken Dudgeon, was directed by Swan as being in areas of most concern to him; and Sutherland (apart from Area 4) has followed the same pattern. As Sutherland observed in his oral evidence, in determining the suitability of the land on the RoW for grazing purposes, he defers to Swan. This is more so where Swan has demonstrated a deep understanding of the soils on his farm, including those on the RoW and his concerns at actions taken by Saipem during the construction phase that were clearly contrary to good practice.

94. [94]
    One of the issues that arises in Sutherland’s last report, and in the joint report, is Sutherland’s opinion that cattle accessing the RoW has hindered rehabilitation because of compaction, particularly in wet weather, and as Mr Hotz says of reseeding undertaken by Sutherland of pasture grass during rehabilitation, “cattle will always go for the green shoots”. It is common ground that cattle did access parts of the RoW after rehabilitation. This is because there is inadequate fencing, to keep cattle out particularly along the southern boundary of the RoW.

95. [95]
    Sutherland fairly conceded in his oral evidence that if the rehabilitation of the RoW is to be effected in a timely way, cattle-proof fencing with access gates (to enable cattle to be moved across the RoW from paddock to paddock), should be constructed along the entire southern boundary of the RoW. The legal responsibility for the fencing post completion of the construction phase is discussed later.

96. [96]
    I have mentioned the affidavit of Isaac Hotz. He is employed by Swan. He holds a number of Diplomas and Certificates in agriculture, including beef, cattle production. He also has certificates in grass technologies.

97. [97]
    On 12 May 2016, he rode the complete length of the RoW and took a series of photographs. His affidavit primarily deals with grass cover on the RoW and types of grasses and weeds that have established.

98. [98]
    In his oral evidence he expanded upon his concession that since the remedial works cattle had been on the RoW. He explained that he has to rotate cattle through all the properties which necessarily requires crossing the RoW. I accept his evidence that this is necessarily a part of his duties as farm manager, and I also accept that he never deliberately grazed cattle on the RoW with the intention of disturbing rehabilitation works.

99. [99]
    I will refer later to the dispute about the fences. It seems to be common ground that the fences (e.g. Between Red Hill South and Red Hill North) which were constructed during the construction phase, have deteriorated and are not stock-proof. Consistently with Sutherland’s photographs, some of the photographs taken by Mr Hotz (e.g. 14, CD54) show evidence of cattle on the RoW but only in limited areas which I accept as necessary to maintain proper grazing practice. This photograph is the western end of Inala near KP242 where cattle will walk through to the back lagoon paddock. It shows the contrast between pasture rehabilitation on the RoW at that point and the desirable Biloela Buffle grass beyond the fence line along the northern end of the RoW. Mr Hotz’s evidence about grass types along the RoW was not really challenged. It suggests that, although in large parts of the RoW desirable pasture has re-established, this is not so in as some parts of the easement. In cross-examination he conceded (not surprisingly) that he had not read the Line List and did not know that as a matter of law, upon completion of the construction phase of the pipeline, ownership and therefore the duty to maintain fences, passed to land holder.

The evidence of Alison Hotz

100. [100]
     Her evidence is relevant to the steps taken by Santos to prevent/or remedy or rectify actions taken by Saipem that may constitute breaches of the EA. It is also relevant to discretionary issues.

101. [101]
     She did not move to Inala to live with Swan until July 2013. By then the RoW had been cleared and graded. She had however visited Inala prior to moving there permanently, and was aware of Swan’s many concerns. She attended meetings with Swan with Salter and other representatives of Saipem and Santos and she took contemporaneous notes.

102. [102]
     Although in cross-examination, Swan was contending on 14 June 2016 that the pipeline had not been completed, the evidence establishes that at the latest it was completed by 8 September 2014. This date is relevant, as it brings into play Condition D11 of the 2011 EA and condition AD11 of the 2015 EA which will be referred to later. It is not disputed that the whole of Inala and Mulawa (including the RoW) was classified as GQAL. Swan, in his oral evidence, seemed to be suggesting that his properties have potential for future agricultural purposes. However, for the purposes of these proceedings, it is not disputed that pre-construction use relates to the use of the land on the RoW for grazing cattle and as part of the use of the properties as a cattle stud. Ms Hotz’s affidavit (CD23) contains copies (25-120) of extensive correspondence and her notes relating to complaints made to Salter and/or Saipem representatives from April 2013 (when the clearing of the RoW was underway) to February 2015 i.e. some months prior to the commencement of these proceedings.

103. [103]
     As noted, no one from Saipem or Santos, apart from Mr Brier, gave evidence. At the time of completion, and at all relevant times prior, Greg Jones was the Project Manager for Santos. The correspondence attached to Ms Hotz’s affidavit (confirmed by Swan) establishes that on 23 July 2014 she and Swan met with Jones and Salter at a café in Moura. Her brother was also present.

104. [104]
     At [95] of his written submission, Mr Litster sets out (by reference to Ms Hotz’s notes 67-85) what he described as a “litany of matters” which he submits are relevant to conditions D11 and AD11 and other conditions of the EAs:

105. [105]
     Of this meeting, Ms Hotz’s evidence is to this effect:

“111. Early in the meeting, Greg Jones had acknowledged that the way in which issues (that had been raised by Steve from the start of the works) had been addressed was not adequate, using words to the effect of ‘not the level we really want,’ and there were ‘fundamental issues.’

112. Greg Jones said he was meeting Saipem the next day and that he would go in with the information he got from our meeting to hopefully resolve the issues then.  He said that there were things Santos could assist with, but otherwise Santos could only apply moral pressure on Saipem.  Greg said he was not trying to leave us happy, but trying to leave us content that they had dealt with Saipem for us.

113. At that time I did not know what the conditions of the Environmental Authority required, or that the Environmental Authority holders were responsible for the conditions being complied with and that it was not, as Greg Jones said, a matter for Santos to apply moral pressure to Saipem.

114. After raising all of the issues, Steve indicated Greg Jones needed to understand there was a lot more that could be covered in the meeting and Greg said he understood that behind each of the matters we had raised were a lot of activity.

115. We also discussed the fact that Saipem was not communicating with us, and that responses from Saipem when issues were raised by Steve were to the effect of “what are you going to do about it?”.

116. Steve said he did not want Saipem on the farm.

117. Greg Jones suggested we outline what we think can be rectified an [sic] priority for restoration and if not rectifiable suggested we have an independent assessment of compensation, Greg Jones said he would put temporary measures and issues in writing and that they would engage and pay for this to be done.  He acknowledged that the issues needed to be resolved.

118. Greg Jones said words to the effect that they would engage and pay for someone independent that we would get to agree we were happy with and I said we would be happy to do that.

119. Dean Salter then seemed to back away from that and suggested some issues could be resolved without getting to that level.  I said I still believed an independent person would be required where soil issues could not be rectified and suggested that would require a joint brief.

120. Dean Salter indicated that he would ‘like to deal with certain things as we go’ and then referred to restrictions on them but did not identify what they were.

121. Steve complained about the fact that written responses had been promised in the past and not delivered (and that he had been called a liar when he pressed for them).  He pointed out that he had never had these types of issues with other Pipelines that had been run through the farm.

122. Greg Jones said they would come back with a proposal as to how to resolve our lost time and ‘all this’ (by which I understood him to mean the issues we had raised) he said words to the effect that ‘some things will take a while to sort out but they would make an agreement to resolve them’.  He also used words that indicated that the path they would take would resolve all issues.”

106. [106]
     It is important to note that Ms Hotz’s first affidavit was filed on 26 August 2015 i.e. before Sutherland commenced his rehabilitation works as a result of the court order on 12 November 2015.

107. [107]
     Mr Jones wrote to Swan on 31 July 2014. Relevantly the letter is in these terms:

“Thank you for your time and the opportunity to meet with you both on Wednesday 23 July 2014.

Following on from that meeting the following are observations in relation to the issues which I believe we can pave a way forward to a satisfactory outcome.

(Santos) sympathises and understands the frustration you have endured and advises the following.

“In relation to the soil inversion issues, (Santos) understands that original soil samples were taken from the area prior to construction by an agronomist.  The agronomist would be able to determine the extent of the problem and therefore (Santos) will work with you to arrange for an agronomist and the required scope of work to undertake a detailed inspection of the disturbed areas of the Gas Transmission Pipeline following completion of the works within your property.  (Santos) will then address any issues that are identified as a result of this assessment.

(Santos) recognises that dust suppression will be an ongoing concern until vegetation is reasonable.

(Santos) is working in ways to address this issue through the Gas Transmission Pipeline.

You identified that the mulching of timber had occurred when the directions were clearly requested that the vegetation and logs be stacked across the disturbed area.  Regrettably, as this cannot be undone, (Santos) will consider any reasonable request from you on how this matter can be best dealt with.

In relation to fencing, (Santos) will work with Saipem to ensure contractor addresses and corrects all outstanding fence issues.  Insofar as the possible stock losses are concerned, can you please work with Land Agent Dean Salter so that (Santos) can receive from you your calculations on the loss of stock that you believe occurred?  Please then provide that to (Santos).

Insofar as the dam stabilisation is concerned, (Santos) will pay for the works to be undertaken in terms of the quotes you have received for the works, including your suitable management fee for supervising the works being undertaken to your satisfaction.  Please liaise with Dean Salter in relation to this.

In closing, (Santos) would also like to emphasise, that the contractual conditions with the successful tenderer for the Meridian Project will be adapted to ensure that the contractor complies with all general behaviours and housekeeping obligations.

Again thank you for your understanding and cooperation throughout the construction of the gas transmission pipeline.”

108. [108]
     The letter was signed by Mr Jones as project manager, Pipeline for Santos.

109. [109]
     Almost a year earlier Mr Jones had written to Swan at “Anala” (sic) in these terms:

“Thank you for your input and feed back to (Santos) via (Santos’) land agent Dean Salter in relation to issues raised as a result of construction activities of the (Santos) Gas Transmission Pipeline.

I understand that the temporary construction fencing issues have now been addressed.  However please continue to liaise with Dean if any issue arise.

I also understand your concerns in regarding the condition of the land as a result of ongoing activity and disturbance during wet weather.  Please be assured that (Santos) will make a full assessment in consultation with you upon rehabilitation of the disturbed area and will attend to rectifying any areas that do not respond to rehabilitation.”

110. [110]
     I accept that Santos were aware of many of the issues set out in paragraph 95 of Mr Litster’s submissions.  Clearly many of these concerns are historical in the sense that they have merged into the state of the RoW at the time of the hearing by particular reference to the evidence of the experts and the evidence of Swan and Hotz.

111. [111]
     The correspondence also establishes, I infer, that Swan at this stage was completely disenchanted with Saipem, and had adopted an attitude that any rectification work would be controlled by him at Santos’ expense. He also made it very clear that access to his property by Santos or Saipem would not be allowed unless on terms agreed by him. As will be demonstrated later, since the commencement of these proceedings, he has been obstructive and unreasonable in the face of attempts by Santos’ lawyers to address his concerns.

112. [112]
     As noted above, the first major remedial work undertaken by Santos occurred with the engagement of Sutherland following my order of 12 November 2015.

The Fencing Issue

113. [113]
     Mr Litster criticises Santos for not properly fencing the RoW to protect the rehabilitation works undertaken under Sutherland’s direction. He describes as “a simple, and obvious, land management measure”, to fence the RoW “to secure the areas to be remediated to facilitate successful remediation.”

114. [114]
     The starting point is the Line Lists for both properties. Clause 17 of the Inala deed provides:

115. [115]
     It is common ground that temporary fencing was constructed before the construction of the pipeline in accordance with these contractual obligations. It is common ground that pursuant to 17b, Santos through its agent, removed existing fences, and a dispute arose about the reinstatement of that fencing.

116. [116]
     It appears that by agreement Swan undertook at least 1.3 km of reinstatement fencing for which the Trust invoiced (and was paid by) Santos in 2014. When Swan was cross-examined about this issue he deferred to Ms Hotz on the financial aspect. He was still then maintaining (on 14 June 2016), as he had in his affidavit (see paragraph 103 of CD22) that the construction phase had not been properly completed, when it clearly had.

117. [117]
     Ms Hotz’ evidence about this invoice was confusing. At first she said it related to fencing on Inala, and then later corrected herself, and said it was on Mulawa, in the Blade Plough Paddock, and “not adjacent to the right of way”. She told Mr Litster, by reference to paragraph 7 of her second affidavit, where she states “the fencing on the RoW remains incomplete”, that she was referring to the temporary fencing and not the permanent fencing. As well as the invoice for the 1.3 km of fencing on Mulawa, Swan invoiced and was paid (on 30 October 2014) for fencing for Gas Line (see page 14 of Exhibit 11) and Fencing Right of Way (on 21 November 2014) – see page 19 of Exhibit 11; and a number of these invoices included significant sums paid to Ms Hotz for administration work (e.g. $12,250 on 30 October 2014 and $1,600 on 21 November 2014).

118. [118]
     I readily infer that the reason Swan was so adamant that completion of construction had not occurred was to avoid his obligations under clause 17(c) of the respective deeds. Santos’ position in relation to fencing during the rehabilitation processes initiated by Sutherland was therefore legally justified. I agree that as a matter of proper construction, the fencing referred to in clause 17 is both to the construction phase fencing (when Santos had responsibility for maintenance) and the fencing in the rehabilitation phase after completion of construction when responsibility for maintenance of the fencing transferred to Swan.

The lack of particulars

119. [119]
     I have referred earlier to what I said to Mr Litster on 17 June 2016 about what I described as a threshold question. In Santos’ outline of closing submissions (CD59) what I said is appropriately summarised as follows:

120. [120]
     The AOA (at a time when the Meridian Interconnector was not completed) pleads, by way of example, in relation to D11 of EA 2011:

The AOA goes on to allege contraventions of other conditions of the EAs by reference to particulars similarly pleaded.

121. [121]
     On 3 August 2016, as a response to my request which had previously been pressed repeatedly by Santos, Swan filed what is called an “Outline of Offences”. A letter was sent to Santos on 25 July 2016, in which Swan made it clear that the Outline of Offences would not identify the evidence relied upon, as that was “a matter for substantive submissions”. I agree with Mr Horton and Mr Favell that the document does little to fairly identify the offences alleged; rather it is very similar in its form and structure to the AOA and only refers to dates of incidents on four occasions: 31(a) April 2013 when high quality red soils were pushed down the hill around KP243 towards KP242; 31(h) October 2013, underbore material from the road deposited between the western boundary of lot 3 (Mulawa) and KP244; 31(e) prior to June 2013, rock deposited on Mulawa (lot 3) between KP244 and KP245, 40 (a repeat of 31(a); 44 (a replica of 31(e); 47 a replica of 31(h) and 51 (15.7.2014 – clay deposited in pipeline trench on Inala east and west of KP241. The outline does not specifically state whether the alleged breaches are historical or are continuing, and it does not refer to either s 430 or s 430 of the EPA.

122. [122]
     By the time of his oral submissions, Mr Litster seemed able to particularise dates e.g. in relation to D11, and the dumping of the road underbore material, he submitted that the commencement date was the completion date, and the offence was continuing. He submitted that it was not the dumping of the roadbore material that constituted the offence, it was the failure (continuing he submits) to remove it. He was unsure whether that constituted a s 430 or a s 431 offence but seemed to settle on s 430 (see T 6-87, line 36 to 46). As I have noted Santos’s case has always been that the orders sought in paragraphs 2 and 3 of the AOA are incompetent.

123. [123]
     Swan’s ultimate position is encapsulated in paragraphs 297 to 302 of Mr Litster’s trial submission:

“297. For the reasons that have been identified above (that will be supplemented orally), the court would be satisfied that there had been contraventions of conditions of the environmental authorities and that a proper exercise of the discretion warrants intervention by the court.

298. Plainly the orders to be made will be informed by findings made leading to a decision to invoke s 505, and for that reason should be framed in detail at that time.

299. Given Brier’s statement that no further capital works are presently planned, Swan does not press for an order restraining further work on the RoW, but reserves his right to apply should circumstances dictate that such relief is appropriate.

300. An order requiring the completion of fencing of the ROW to secure the reestablishment of pasture until self-sustaining will be required regardless of what other orders are made.

301. Given the existence of some very obvious aspects that require remedial works, including the dumping of road underbore and burying of rock on Mulawa, the translocation of red soils, the use of clay in the RoW, near surface compaction and the reinstatement of berms and temporary tracks, it would be appropriate to appoint an independent expert (at Santos’ cost) to determine the spatial extent of those contraventions and the measures that should be adopted to remedy those matters and to contemporaneously secure the establishment of the specified pasture within the ROW (e.g. surface treatment, organics etc.).

302. Orders should then be considered to secure compliance with those identified measures including a regime of independent supervision (all at Santos’ cost) together with controlled access.”

As can be noted 301 is subtly different from the terminology expressed in paragraph 2 of the prayer for relief in that it appears that Swan has made an attempt to meet the arguments brought against him by confining the expert’s task to determining “the spatial extent of those contraventions and the measures that should be adopted to remedy those matters”.

124. [124]
     When pressed to identify the basis on which he submitted that these orders as framed in the AOA were competent as a matter of law, ultimately (at T6-91, line 24) Mr Litster submitted that the court could (in what is a claim for injunctive relief), ultimately rely upon the catch-all in the prayer for relief in paragraph 4. Mr Litster said at transcript 6-91, line 30:

“The nature of the relief will be informed by what findings your Honour makes in the course of determining that an offence has been committed.  Your Honour may not consider certain of the matters amount to an offence.  In those circumstances the relief will have to be drafted to exclude those matters.  That’s the difficulty in my submission and it is not uncommon in those sorts of matters for the courts to determine whether or not there has been an offence and then work out what remedial orders should be made.”

125. [125]
     On page 6-92 of the transcript after Mr Litster (in response to my request for some authority for that proposition) referred to general enforcement proceedings, and without reference to a particular authority said that the enforcement orders “may be cast after the determination”. When I asked whether that could be done contrary to the pleadings he then referred to paragraph 4 of the prayer for relief.

126. [126]
     It is important also to note that during this exchange, with what appeared to be some reluctance, Mr Litster appeared to confirm that he was not asking the court to draw any adverse inference against Santos for its failure to call witnesses such as Dean Salter. His ultimate position was that the evidence in his client’s case is “as it is”.

127. [127]
     He did call up in support of his argument a decision of the Court of Appeal in New South Wales F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306.  In particular he relied upon some statements of Street CJ at page 310 and page 312 to 313.  Mr Litster took me to passages relating to the legislation under consideration in that case, namely the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979.  At 312 the Chief Justice observed (unremarkably) that these Acts place upon the Land and Environment Court “a wide ranging responsibility for the protection of the environment.  Commensurate with that wide ranging responsibility is a wide ranging jurisdiction designed to give to that court exclusive control to determine how, in the public interest and in the interests of the parties and other affected or interested persons, particular dispute situations should be resolved.”

128. [128]
     His Honour also observed at 313:

“Likewise it is apparent that the court enjoys a wide discretionary range within which to consider the formulation of orders or to remedy or restrain breaches of the planning legislation.  It by no means follows that the mere demonstration of a right that a party would be entitled to expect to have enforced by the ordinary civil courts will be afforded equivalent enforcement by the Land and Environment Court,”

And;

“The precise manner in which the court will frame its orders and the context of particular disputes is ultimately the discretionary province of the court to determine in the light of all of the factors falling within the purview of the dispute.”

129. [129]
     Although the case at first glance appears to have some similarities to the case in hand, that is not borne out by careful reading of the decision. The fundamental issue at hand in that case was whether the decision by the respondent to the appeal, the Electricity Commission of New South Wales, to resume an easement over the appellant’s land for the purposes of an electricity transmission line that (I infer), was to be constructed over a distance of 13.5 kilometres, was lawful. It was not a case such as this where having agreed and granted an easement, and the pipeline having been constructed, the land owner was then complaining about breaches of environmental authorities. The case says nothing about the need for an applicant, who is seeking injunctive relief pursuant to statutory powers to make declarations and orders, to carefully identify the case upon which it relies, particularly when it is alleging, as a mandated prerequisite to the exercise of discretion, the commission of offences.

130. [130]
     I have earlier referred to the prayer for relief and to the relevant provisions of s 505 of the EPA.

131. [131]
     It is conceded that order 1 now lacks utility but, ultimately, Swan seems to wish to reserve his rights in relation to that order.

132. [132]
     I agree that orders 2 and 3 impermissibly seek to have this court concede jurisdiction to a lay person (an expert) to identify offences and measures to remedy the contraventions, i.e. offences.

133. [133]
     Swan’s case as presented now in terms of his outline delivered 17 August, and Mr Litster’s oral submission on 18 August 2016, is that the evidence establishes very obvious contraventions that require remediation works (see paragraph 301 of his written outline above); and, as I have noted, the case now seems to have subtlety shifted from what is sought in 2 and 3 of the AOA, but to still seek the appointment of “an independent expert”, “to determine the spatial extent of those contraventions”.

134. [134]
     It appears Swan’s position now is that if I accept the argument of Santos, that orders 2 and 3 are beyond jurisdiction of the court, nevertheless, I can make similar orders (confined as submitted in 301 of Mr Litster’s trial submission) under the catch-all provisions in paragraph 4 of the prayer for relief.

135. [135]
     The relief sought (whether it be pursuant to orders 2 or 3, or 4) lacks sufficient certainty. It also calls for court supervision, which may be appropriate for some species of litigation but not in the circumstances here where on all the evidence before me, I am satisfied that Swan will only ever be satisfied if an independent expert is controlled by him, inevitably leading to difficulties (again) about access, and returns to the court to resolve disputes about the way in which the orders are to be implemented.

136. [136]
     Both parties acquiesced in the court not determining the strike-out application, and both parties have put on evidence. Although I accept that as a matter of principle, a no case submission can be made by a party that has gone into evidence: Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216, despite the legal difficulties in the prayer for relief; I intend to proceed to determine the application on its merits in case I am wrong in my conclusions set out above.

Has the applicant established any offences under ss 430 or 431?

137. [137]
     Despite the difficulties identified above in identifying the nature of the case against it, Santos has nevertheless done its best to address the alleged contraventions in its written trial submissions (CD59).

Construction of the EA conditions

138. [138]
     In dealing with what are essentially civil proceedings, with significant potential detriment to Santos e.g. the finding of criminal conduct albeit in a civil proceeding; it is essential that the Court construe those conditions said to be contravened in accordance with established principles of statutory construction.

139. [139]
     Environmental Authorities (EAs) are statutory instruments, pursuant to the Statutory Instruments Act 1992 (ss 6, 7(2)(c), 7(3)); and by s 14 and Sch 1 of that act, s 14A(1), s 14B(1) and s 35C of the Acts Interpretation Act 1954 applies so that:

1. (a)
   the interpretation is to be preferred that best achieves the purposes of the EA;

2. (b)
   regard may be had to extrinsic material, provided certain circumstances exist; and

3. (c)
   any heading to a provision of the EA forms part of that provision.

140. [140]
     Planning schemes are also statutory instruments and, in accordance with well- known principles, are to be construed purposefully, in a practical and common sense way, and broadly rather than pedantically or narrowly. In its written outline, Santos relies upon statements of principle that suggest (as indeed most of the authorities dealing with planning schemes suggest), that a practical common sense approach is appropriate to construction of statutory instruments “rather than by meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an act of Parliament…”: Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at [183].  Mr Litster makes no contrary submissions; indeed, he adopted my observation that principles relating to the Court construction of planning schemes apply in construing the environmental authorities in this case.

A detailed consideration of the alleged breaches

Condition D11 (2011 EA) and AD11 (2015 EA).

141. [141]
     For purposes of simplicity, I will quote the terms of AD11 only which is in similar terms to D11:

“(AD11) Upon completion of construction of the pipeline, on any land identified as being good quality agricultural land (GQAL), the holder of the environmental authority must:

1. (a)
   Remove temporary access tracks, unless otherwise agreed in writing with the affected land holder;
2. (b)
   Lightly rip disturbed areas, replace topsoil and return the surface to a land use condition that serves the pre-construction use; and
3. (c)
   Implement and maintain land management and erosion control measures.”

142. [142]
     As I have noted, it is conceded by Santos that the land is GQAL. It is submitted that as a matter of construction, the condition does not give a time by which the steps set out in (a) to (c) are to be implemented. It does in the sense that it refers to the mandatory requirement to do these things “upon completion”, but it does not, in the sense that it does not give a time by which the steps are to be completed. This can be contrasted with H4 (2011 EA) and AH4 (2015 EA) to which reference is made below. Much attention was given in the evidence and in Swan’s written outline to AD11(b). The use of the term “surface” is important, particularly in the context of an allegation of criminal conduct. Leaving aside the issues of subsidence, which on the evidence relate to the surface of the RoW over the pipeline trench, the evidence does suggest that Sutherland’s efforts after the 12 November order are in the process of returning the surface of the land to a condition that serves the pre-construction use of grazing.  “Implement and maintain”, suggests an ongoing responsibility, that Santos, particularly since the 12 November 2015 order, has shown itself willing to undertake at its own cost, as it must pursuant to the rehabilitation plan which is referred to below in relation to allegations of the contraventions of conditions AH3 and H3.

143. [143]
     The evidence establishes that as a result of Sutherland’s work, there was reasonable ground cover recovery along the ROW which had deteriorated to some extent by the time of the June 2016 hearing. Weather conditions may have contributed to this and there is the evidence that cattle were allowed to move across the rehabilitated area during the rehabilitation process.

144. [144]
     Sutherland’s opinion is that his measures (which Santos adopt) will take at least two seasons to fully take effect and to result in “the surface (of the land) use condition on the RoW” being returned to a condition that “serves the pre-construction use”.

145. [145]
     I agree with Santos that the test in this condition is not one of perfection, bearing in mind the inevitable concession made by the experts in their JER that no soil rehabilitation exercise will result in a replication of the undisturbed soil profiles, after such significant disturbance as was occasioned by the construction of the pipeline under the RoW.

146. [146]
     As to (a), it can be accepted that some “temporary access tracks” remain on the RoW. The difficulty then in concluding to the standard required that Santos therefore has committed an offence by not removing those tracks is demonstrated by reference to the Grant of Easement given to Santos in relation to each property. The Easement was granted for consideration of $64,900 in relation to Inala (Lot 12), and $84,700 in relation to Mulawa (Lot 3), and is perpetual.

147. [147]
     Clause 1(a) of the Schedule to the Deed of Option for Easement in relation to Inala dated 21 June 2011 permits Santos “full and free right… through the Easement Area…to…maintain, inspect, test…and/or repair” the pipeline; and 1(h) gives Santos “the right to build roads over the Easement Area to enable (it) to exercise any right available to it under the Easement”. There are similar provisions in the Mulawa Deed.

148. [148]
     In those circumstances, it could not possibly be said that by not removing temporary access roads, Santos has contravened a condition of its Environmental Authorities.

149. [149]
     I have referred above to the issue over fencing along the RoW. Perhaps as a demonstration of the confusion in Swan’s case; in his submissions alleging contravention of these conditions, Mr Litster seems to submit (at 102-110) that because (for what I have concluded were legally sound reasons), Santos did not secure the areas for rehabilitation after the 12 November order, by the construction of fences, this is evidence of contravention of these conditions. It is paradoxical, that if Swan’s evidence that the pipeline construction had not been completed was accepted (which it is not) these conditions would not have effect and no contravention could be proved.

Conditions H3 (2011 EA) and AH3 (2015 EA)

150. [150]
     Condition AH3 in the 2015 EA is in these terms:

“(AH3) the holder of this Environmental Authority must implement the Rehabilitation Plan”.

151. [151]
     Mr Litster deals with his client’s case on these conditions at 28-33 of his trial outline. The AOA (at 23) refers to these two conditions. The written submissions (at 179) alleges as well a breach of condition H3 of EA which commenced in October 2014. Indeed there is a 2014 Environmental Authority which commenced in October 2014, the 2011 EA having apparently expired at the same time.

152. [152]
     At no stage does Swan in his AOA allege a breach of any conditions of the 2014 EA. Given the conclusions I have reached it matters little, but it is again an example of a confused case to ask this court to infer (as Mr Litster does in footnote 162 on page 28 of his trial submissions) that there was at all material times, a condition similar to H3, and to conclude that Santos had contravened it and committed an offence.

153. [153]
     Swan alleges contraventions of H3 and AH3 by reference to what he alleges are failures by Santos to comply with various provisions of the Land Rehabilitation/ Reinstatement Management Plan dated 7.1.2013 (the Rehabilitation Plan).

154. [154]
     In circumstances in which this court is dealing with alleged criminal offences, Swan is confronted with insurmountable problems in establishing such offences because of the proper construction of the terms of the provisions in the Rehabilitation Plan that he says have been contravened.

155. [155]
     Firstly, the condition requires Santos to “implement” the plan. “Implement” means “put into effect”. The first section alleged to constitute some failure is 7.3.2:

156. [156]
     The very terminology of this section e.g. “the aim”, and indeed of the Plan itself, which is said to provide “a preliminary guide on where specific rehabilitation measures are expected to be applied”, and “the measures detailed in (the Plan) are a guide only”; suggests that a practical approach, rather than a pedantic approach to construing these provisions is called for.

157. [157]
     My conclusions earlier to the effect that since Santos have, by order of the 12 November 2015, undertaken the rehabilitation proposed by Sutherland; they have commenced to implement the Rehabilitation Plan, mitigate strongly against any breach which is not specified in any event as to time; and probably could not be because of the wording of the condition and the Plan itself.

158. [158]
     I prefer Sutherland’s evidence that the proper practical test for rehabilitation is to be measured in terms of ground cover and not by scientific testing of soil samples along the whole of the RoW for sodicity as suggested by Dudgeon; and that, in accordance with his opinion, is a work in progress that may require two seasons to effect.

159. [159]
     In relation to 7.4 of the plan which is to do with Santos’ commitments in relation to the Line Lists, on the evidence, I am unable to conclude that Santos has committed any breach of condition H3, as the matters complained of at (192) of Swan’s trial submission, and for the reasons given earlier, I am satisfied that Santos (once permitted to enter the properties after the 12 November 2015 order), has demonstrated good faith in engaging Sutherland and accepting all the recommendations, many of which are ongoing. It is simply not correct to say that Santos will not take any further action to implement the plan unless ordered to by the court as (a) it has the ongoing obligations of the Plan; and (b) subject to Swan’s consent, it seems committed to seeing through Sutherland’s recommendations to comply with its obligations to implement the Plan.

160. [160]
     Swan alleges various breaches of AH3 (and H3) by reference to various other sections of the Rehabilitation Plan. Mr Litster deals with these alleged breaches from 191-214 of his trial submission. As can be seen from those paragraphs, the factual basis for alleged breaches is frequently the same as for alleged breaches of other conditions of the EA’s. The Rehabilitation Plan is a comprehensive document and (I infer) is the Plan applying to all land owners affected by the pipeline with 7.4 containing reference to specific site rehabilitation actions by reference to relevant Line Lists.

161. [161]
     A copy of the Plan is annexed to Mr Manning’s affidavit filed 21 August 2015 (CD19) and contains 527 pages. Swan alleges breaches of the specific provisions of the Plan without having regard to the document as a whole.

162. [162]
     In relation to 7.4 (C191-192 of Mr Litster’s outline, and para 23 of the AOA) by way of example, which deals with issues such as rehabilitation of vegetation and disturbed soils; the commitments of Santos with respect to the Line List for Inala and Mulawa in relation to these issues, are to “be actioned within the relevant land tenures prior to transferring the commissioned areas to land holders”. The very wording of this provision, said by Swan to have not been complied with, therefore contravening AH3 and/or H3, demonstrates the difficulty confronting him in proving a breach; particularly in light of Santos’ commitment to follow through with the Sutherland recommendations over a number of seasons. The complexity of the Rehabilitation Plan also demonstrates why much more specificity was required by Swan in his allegations of commission of offences by Santos.

163. [163]
     The same general observations apply to those other sections of the Rehabilitation Plan referred to in Swan’s trial submission i.e. 8.1.1, 8.1.4, 8.2.1, 8.2.5, 8.3, 8.3.2, Attachment A, 5.4.3, 5.4.6 and 5.6. Not surprisingly, the Rehabilitation Plan when read as a whole focuses on goals and methods and not absolutes. By selecting individual sections, read in isolation from the whole, and then failing to properly particularise, Swan has misconstrued the Plan, and the nature of relief contemplated by s 505 of the EPA.  Indeed, the wording of AH2 strongly suggests that the focus is on strategies for determining rehabilitation goals, and methods to achieve those goals and, relevantly, in (c) “timeframes for commencing rehabilitation of significantly disturbed areas… not greater than three (3) months for the rehabilitation of buried pipelines and not greater than nine (9) months for any other disturbed areas…”.  (My emphasis). 

Conditions H4 and AH4

164. [164]
     AH4 is in these terms:

“Pipeline trenches must be backfilled immediately after pipeline laying and rehabilitated as soon as practicable but no longer than three (3) months after completion”. 

165. [165]
     The evidence relied upon by Swan is referred to above. Mr Litster argues that the condition must be construed as applying to the whole of the RoW, but on its terms it applies only to “pipeline trenches”.

166. [166]
     Given the agreed evidence of the experts (see [79] and [80]; particularly [26] from the JER referred to above), it can be seen how it would be wrong to adopt the strict and pedantic approach to construction favoured by Mr Litster. AH4 cannot be read in isolation from (for example) AH5 which is an indicator as to what “rehabilitated” means in AH4.

167. [167]
     As a discussion of the expert evidence above indicates, the soil horizons in areas surrounding the pipeline trench can vary naturally along the whole RoW, often within a few metres. When read purposefully, the condition does not require Santos to replicate soil horizons as they were prior to the pipeline. I am comfortably satisfied that the methods adopted by Sutherland appropriately satisfy these conditions. No breach has been proved.

Conditions AH5 and H5

168. [168]
     AH5 is in these terms:

“During backfilling of trenches, soils must be replaced so that soil horizons are consistent with the soil horizons of the immediately surrounding area.”

169. [169]
     As with AH4, this condition should be read as requiring achievement of the pre-construction use of the land, which is the overarching purpose which the EA’s seek to achieve in relation to individual land owners. Such a purposive approach again accords with the agreements of the experts recorded at [80] and [81] above. Once again, it is the undisputed and historical evidence of the interference with red soils on Inala in 2013, the placing of rock on Mulawa in April 2013, and the dumping of road underbore on Mulawa in October 2013 that is relied upon by Swan as establishing alleged ongoing breaches of these conditions. Consistent with the evidence of the experts, the same soil horizons could never be achieved after such significant disturbance. Once again, once Santos was given the chance to take action to achieve consistency through Sutherland’s work, it acted in good faith to progress those works.

170. [170]
     Paragraph 225 of Mr Litster’s trial submission seems to hint at a breach of this condition by the failure to pay “careful attention” to backfilling at the time that this was occurring, but this is not a clearly particularised or related to any particular section of the EPA.

Conditions H6 and HA6

171. [171]
     These conditions deal with backfilled and rehabilitated trenches. Again, Swan errs in construing the conditions in isolation and in a strict and pedantic manner. Both experts acknowledged that with such a significant infrastructure project, disturbance of land form, soil horizons and pre-construction vegetation was inevitable. Without actually particularising as such, paragraph 231 of Mr Litster’s trial submission seems to allege breaches prior to Sutherland’s work commencing. The list of offences (CD58) confines the alleged breach to failure to achieve a stable land form and no subsidence. Once again, Swan has misconstrued the condition. In CD58, breaches are also alleged of conditions H9 and AH9 which are set out at [63] of CD58. Although these conditions relate to “all significantly disturbed land” and not specifically to the pipeline trenches, nevertheless they deal with similar issues. Swan has abandoned any reliance on breaches of H9 and AH9. This seems to be a tacit acceptance of Santos’ argument that AH9 applies when the pipeline is decommissioned.

Conditions D39 (2011 EA) and AD39 (2015 EA)

172. [172]
     These conditions require Santos to “develop and implement a pest and weed control program....” Once again, Swan has found it difficult to particularise what offence and/or offences have been committed. There is no doubt that his evidence and that of Mr Hotz in particular and also the experts, is to the effect that the pipeline construction has led to weed issues along the RoW. Santos have developed a Plan. It is annexed to Mr Manning’s affidavit (CD19) and comprises 79 pages. I am satisfied that Sutherland’s work, which is ongoing, is implementing this Plan. There is no breach of these conditions.

173. [173]
     As a consequence of Sutherland’s work, eight cubic metres of weeds were removed in the 2015-2016 period, again demonstrating Santos’ good faith in complying with these conditions. An example of the pedantic approach adopted by Swan on this issue relates to the introduced weed species Parthenium. The evidence establishes that a Weed Survey of both properties in 2010 identified infestations, albeit small, on both properties of this particular weed species. Sutherland appropriately noted extensive areas of this weed and other weeds along the RoW in his initial report; but his recommendations and later implementation of those recommendations, in my opinion, clearly demonstrate compliance with these conditions. The Weed Management Plan imposes ongoing obligations on Santos which I am satisfied will be met if proper access is given by Swan.

Conditions C1 and AC1

174. [174]
     These conditions require Santos to “develop and implement a Waste Management Plan.” A plan has been developed and is annexed to Mr Manning’s affidavit (CD19) and contains 75 pages. Again, the approach of Swan ignores the ongoing nature of the obligation to “implement” such a plan, alleging that every example of waste left on the properties after completion comprises an offence. There was waste left on the land by Saipem and its contractors during the course of construction of the pipeline. This is not surprising given Mr Brier’s uncontested evidence that at any given time during that period some 200-300 subcontractors were working on Swan’s land. Much of that rubbish was gathered up and removed in the emu-bob conducted as a consequence of Sutherland’s recommendation.

175. [175]
     It can be accepted that there are still items of waste on the RoW, e.g. the remnants of blasting and some metal; and Santos has the ongoing responsibility of implementing the Waste Management Plan accordingly. Mr Litster seemed to be unenthusiastic about this aspect of his client’s case in his final oral argument, for good reason in my opinion, as it is based on an erroneous construction of the conditions as the foundation of general allegations of breaches of the Plan.

176. [176]
     It follows that in relation to the various conditions that Swan alleges have been breached, for the legal and evidentiary reasons set out above, none have been proved, and the application should be dismissed on that basis alone. Nonetheless, I am required to deal with the remaining issues in case I am found to be in error in this part of my reasons.

Section 431(4) of the EPA

177. [177]
     Mr Brier gave evidence for Santos, directed primarily at three areas:

1. (a)
   historical details concerning the pipeline project;

2. (b)
   discretionary matters; and

3. (c)
   section 431(4) considerations. 

178. [178]
     To some extent, his evidence relating to the issues the subject of Swan’s evidence has been overtaken by the involvement of Sutherland. His primary affidavit (CD29) was sworn prior to the filing of Sutherland’s first report. In relation to the issue of post-completion rehabilitation, he says this at para 45-46 of CD29:

“45.  The subsidence and insufficient vegetation on the applicant’s land are similar to what occurred on other parcels of land that the (pipeline) passes through. Since July 2015, (Santos’) contractors had been progressing along the (pipeline) and attending to subsidence, erosion, land stability and vegetation issues where they have arose (sic). The contractors are trying to get as much of the rehabilitation and rectification works done as possible prior to the wet season (during which undertaking the necessary works is not practical, economical or safe). Contractors have attended to and rehabilitated more than 60 per cent of properties that the (pipeline) passes through. A third party, Ausecology, is monitoring the works that are being undertaken.

46. In the absence of this proceeding, (Santos’) contractors would have been in a position to undertake rectification of any erosion and/or subsidence on the applicant’s land by mid-September 2015.  However, due to the current proceeding and the applicant’s stated wish that his land not be entered, (Santos’) contractors have proceeded to other properties along the (pipeline).  In the event that the applicant gave notice that he wished (Santos’) contractors to attend to the rectification of issues on his land, the necessary works can be undertaken relatively quickly (subject to the wet season).” 

179. [179]
     His affidavit filed 13 April 2016 (CD42), essentially confirms Santos’s commitment to carry out the works recommended by Sutherland.

180. [180]
     It is really not disputed that Saipem were responsible for the incidents which underpin most of the allegations made by Swan. Saipem was responsible for moving high quality red earth soil from the area in Inala around KP243 which was pushed downhill towards KP242 to an area with a completely different soil profile which was mixed with other soil and rock and used to backfill the excavation between KP242 and KP243. It was also responsible for depositing rock in Mulawa between KP244 and KP245 sometime prior to June 2013; and was also responsible for using rock and material excavated from under the Theodore-Barrallaba road in October 2013 for depositing on Mulawa between the western boundary and KP244. Saipem was also responsible for depositing clay in the pipeline trench in Inala both east and west of KP241 sometime prior to 15 July 2014.

181. [181]
     Mr Brier himself became aware of the red soil issue and the gravel and rock deposited on Mulawa almost immediately. His undisputed evidence was that Santos attempted to have Sapiem remove it when he became aware of its presence. In relation to the under-bore material, his evidence was that Santos became aware of that occurring approximately 2-3 weeks after the event at a time when the rock had been buried.

182. [182]
     Given the way in which Swan has conducted his case, it is not possible to say if an offence or offences were committed by Saipem in relation to these specific incidents, and I do not understand Mr Litster to suggest otherwise.

183. [183]
     If I had found that Saipem had committed offences, Santos argues that it can then rely on s 431(4) as “a defence”. Certainly, on the evidence placed before this court, there is no basis for finding that Santos had any prior knowledge of Saipem’s intention to do these things which were of such concern to Swan at the time.

184. [184]
     Mr Litster submits that s 431(4) is not available to Santos as a matter of law. His submission is that the “defence” is only available to a party when that party is prosecuted for an offence under s 431. I do not accept that argument. For the purposes of s 505(5), no “offence” exists if Santos proves (to the civil standard) all three matters referred to in ss 431(4)(a), (b) and (c). Mr Brier’s oral evidence was largely directed at the relationship between Santos and Saipem. His evidence (as accurately summarised at para 7 of Santos’ outline in relation to s 431(4)) is as follows:

“(a)  Saipem was engaged under an EPC contract – an engineering, procure and construct contract. In effect, Saipem was to design, engineer, procure, construct, rehabilitate and manage the building of the (pipeline);

2. (b)
   The (pipeline) passes through the land at 114 Landholders.  At various times in construction, there were up to 56 work fronts across the (pipeline).  At its peak, there were 2000-3000 subcontractors working along the (pipeline); 

3. (c)
   In the period leading up to April 2013, Mr Brier lead 20-30 meetings and briefings with Saipem, which were ‘specifically aimed at getting them to adhere to their compliance obligations, making sure they understood the regulatory framework in which they are operating and the consequences of non-compliance, both in a legal sense…but also from a social license to operate and reputational sense as well’; 

4. (d)
   Many of the meetings were with Saipem’s key management staff and personnel.  At times, external experts in areas like aquatic ecology, ecology and landform stability were brought in to assist; 

5. (e)
   The consistent attendees (from a Saipem perspective) were Giuseppe Tassinari, Alessio Testa and Daniel Rapidi; 

6. (f)
   He had personally warned Saipem representatives in at least five of six of the meetings of the importance of not importing material onto site; 

7. (g)
   There was a real focus on ensuring Saipem understood the obligations from the beginning because once construction started, methods of ensuring compliance were limited.” 

185. [185]
     Earlier reference was made to the meeting between Swan, Alison and her brother with Greg Jones on 23 July 2014 at a café in Moura. The invoices contained in Exhibit 11 (and explained in detail in para 15 of Mr Brier’s October 2015 affidavit), indicate a real willingness on the part of Santos to respond to concerns expressed by Swan about the actions of Saipem, and particularly the actions of most concern referred to above.

186. [186]
     From April-December 2014, Santos paid Swan for fencing, DNA testing of his cattle after a gate was left open, considerable work on the dam on Mulawa which had been seriously damaged as a result of actions by Saipem; and work on contour banks and berms, and provision of seeds. As noted earlier, many of these invoices included an administration fee and/or payments to Swan and/or Alison for their labour.

187. [187]
     At that meeting on 23 July 2014, Alison’s notes record in clear terms that Swan’s anger was directed towards Saipem and its representative. He apparently acknowledged at that time that Santos was endeavouring to respond appropriately by indicating to Jones that he was not happy to work with Saipem but happy to work with Santos.

188. [188]
     The response of Santos to the problems raised by Swan after the July meeting does show that it was trying to solve problems, even if it was too late to undo the actions of Saipem that had led to these problems.

189. [189]
     On the evidence before this court it should be accepted that Santos did what it reasonably could to ensure that Saipem complied with the regulatory framework underpinning the pipeline project. There is no evidence that Santos was aware that Saipem was acting in relation to the four matters referred to above prior to those actions having occurred. This seems to be acknowledged by Swan in his outline of offences.

The exercise of discretion

190. [190]
     In circumstances in which the applicant has not proved the commission of offences so as to enliven the discretion in s.505(5), it is still necessary to express my view, based on the evidence, on matters which in my opinion, would have been relevant to the discretionary power.

The access issue

191. [191]
     Santos’ position is that in 2015 Swan unreasonably denied access to its contractors to effect rehabilitation and address a lot of the issues raised in the OA, until forced to do so as consequence of the November 2015 court order. On 18 September 2015, Mr Manning wrote to Carter Newell (Santos’ solicitors) as a result of his client being told that “work crews” were moving along the pipeline “to conduct rehabilitation works”.

192. [192]
     By then Swan was disenchanted with Santos as well as Saipem. That letter sought to place conditions on any entry in accordance with Exhibit 10 which is Swan’s Position Statement prepared consequent upon an order of this court made on 11 June 2015. The statement provided very proscriptive conditions for entry and undertaking remedial works, including condition 12:

193. [193]
     Not surprisingly, Santos would not accept such a condition. It is common ground that in June 2015, Swan denied access to Ausecology, described in Exhibit 18 as a third party monitoring rehabilitation works undertaken by Santos’ contractor along the pipeline. By then Dudgeon, a principal of O2 Environment + Engineering had been notified as an expert on behalf of Swan.

194. [194]
     At the review on 12 November 2015, Swan argued strongly for a highly proscriptive order which I did not accept for reasons published that day. It was not until the order was made on that day that Santos had the ability to progress its obligation under the EAs and the Deeds relating to Swan’s land.

195. [195]
     Both experts inferentially acknowledged the need to implement rehabilitation programs sooner rather than later after such major disturbance, and this need was frustrated by Swan’s entrenched position. It is a factor that is relevant to the exercise of the discretion.

Mr Sutherland’s work

196. [196]
     For the reasons stated earlier, I am satisfied that Sutherland’s rehabilitation work conducted on behalf of Santos and at its cost has, to a significant extent, met the requirements of the relief sought in paragraphs 2 and 3 of Swan’s AOA. Santos accepts that the obligation is ongoing, but of course, absent any court order, Sutherland would have no further part to play unless Swan agrees.

197. [197]
     Santos’ actions since 30 October 2015 when it obtained Sutherland’s first report, has shown good faith and a willingness to comply with its legal obligations. As at the date of his evidence in June 2016, Sutherland was due to again revisit the properties to assess vegetation cover. If he is still involved in the future, and if better methods can be applied in particular situations, he said in evidence that he will recommend the adoption of those methods.

Other Issues

198. [198]
     The issue relating to the legal responsibility for maintaining the temporary fencing of the southern side of the RoW, which on the evidence is in a poor state, is also relevant to the exercise of the discretion.

199. [199]
     Santos submit that Exhibit 12, when considered in light of the evidence of Swan, also has relevance to discretionary matters.

200. [200]
     Exhibit 12 contains exchanges of correspondence and other documents relating to a 320 cubic metre stockpile of soil on Inala which came from the construction of the Meridian Interconnector. As I have noted, there was litigation in the Supreme Court between the parties over the Interconnector site and access to construct it which was resolved on a commercial basis.

201. [201]
     Although the AOA (amended at a time when construction of the Interconnector was underway) alleges potential breaches of AH9 from intermingling of soils excavated from the Interconnector site, from Mr Litster’s trial submission, I do not understand his client to be pressing for any conclusions that breaches of the 2015 EA occurred as a result of what occurred on that site.

202. [202]
     In his trial affidavit (CD22), Swan refers to this issue from para 22-136. He agreed that the stockpile he was talking about in his affidavit is the same soil referred to in the documents in Exhibit 12. At trial, he was insisting that he did not want the stockpile on his land and he wanted it removed. Swan was closely cross-examined about Exhibit 12 in light of what he had said in trial affidavit. I adopt as a summary of his evidence on this issue when read with the contents of Exhibit 12 what is written as at [133] of Santos’ closing submissions (CD59):

“a.  Santos wanted, on 11 June 2015, to remove the soil from Swan’s property;

b.  Swan (on 12 June 2015) advised that he was not willing to have the material removed, unless Santos paid $9.00 per cubic meter for it to be stored on his property (provided it was clean-fill);

c.  On 17 June 2015, Swan advised that any removal of soil from his land would be treated as conversion of his property and that he would take steps to protect his interests;

d.  On 17 June 2015, Swan advised that he had denied Ausecology (a contractor engaged by Santos to undertake rehabilitation works) access to his property.  Swan said that this was because legal proceedings were on foot; 

e.  On 17 June 2015, Santos again sought confirmation as to what Swan wanted done with the soil (which Santos had found was clean-fill);

f.  On 18 June 2015, Santos was told by Swan’s solicitors that ‘the excavated material is to remain on our client’s property and is to remain in the area of the Meridian Interconnect works’; 

g.  On or about 1 July 2015, the independent supervisor identified and approved a site for the removal of the stockpile because Santos could not leave it in the working area and still undertake construction works; 

h.  on or about 1 July 2015, Swan complained to the police about the removal of soil from his land.  Santos therefore instructed its contractor to not remove the soil; 

i.  On 1 July 2015, Swan’s solicitors advised Santos’ solicitor that ‘your client does not have a clear right to remove excavated material from our client’s property and your client is constrained to do those works within the area identified within the agreement reached and no other area.  In the event that your client considers the area is not sufficient that is a matter that your client ought to have addressed at the time of entering into the agreement that was reached’;

j.  On 2 July 2015, Santos confirmed its intention to store the soil offsite so as not to hinder the workspace.  Santos advised that it would return the soil as soon as possible; 

k.  On 2 July 2015, Swan’s solicitor advised that if Santos proceeded to remove the excavated material ‘we will refer the matter to the constabulary’;

l.  On 29 July 2015, Santos asked Swan to explain why he had contacted the police; 

m. On 3 September 2015, Santos advised that it would shortly be in a position to return the soil to Swan’s property.  Santos also asked Swan whether he would like the soil placed elsewhere (instead of the working area) or disposed of altogether; 

n.  On 11 September 2015, Santos (having received no response to its letter of 3 September 2015) advised that unless it received response from Swan by 5.00pm on 18 September 2015, the stockpile soil would be returned to its original stockpile location.  It later returned the soil.”

203. [203]
     I agree with Santos’ submission made at [134] that these events give considerable insight into how difficult Swan was to deal with at this stage. I agree with Santos that the dispute over the soil was unnecessary and a result only of Swan’s stubbornness and inability to work through matters constructively and simply.

204. [204]
     Swan’s attitude to this issue is consistent with his approach generally to issues such as access for rehabilitation purposes, particularly since commencing these proceedings. Given the problems he had had with Saipem historically, and the fact that by 11 June 2015 these proceedings were underway, his attitude is perhaps understandable, but entirely unhelpful to any reasonable resolution of a fairly straightforward problem. His attitude feeds into the issue of monies already received by Swan from Santos.

Monies paid by Santos to Swan Interests

205. [205]
     It is not in contest that as a result of the various agreements between Santos and Swan (see para 7 of Mr Brier’s affidavit CE29), Santos paid a total amount of $856,924.29 in relation to 16 invoices issued for and on behalf of Swan interests. This includes option fees, upfront compensation and fencing. It also includes an amount of $76,367.50 paid to Swan interests to enable Swan to repair the Mulawa dam on an invoice dated 21 November 2014. Many of these invoices include administration fees and hourly rates and amounts paid to Swan and/or Ms Hotz. The details of the invoices are in para 15 of Mr Brier’s affidavit referred to above.

206. [206]
     Swan argues that the compensation paid is of little or no relevance to the issue of discretion. In particular, he argues that the $462,981.20 received by him to settle the Interconnect litigation is irrelevant to these proceedings.

207. [207]
     The Originating Application (commenced by Santos) against Swan to give it access to the 3000 m² approximately, required on Inala to construct the Interconnector, and the Dead of Settlement of that litigation, is part of Swan’s case, (CD19, p 1258-1265).  The Inala Deed of Option for Easement – Upfront Compensation is annexed to Swan’s affidavit (CD22 at p 23).  Swan agreed in cross-examination, by reference to the total amount paid to him for the Inala easement, that a pro rata sum for the 3000 m² Interconnect site was approximately $700. 

208. [208]
     In my opinion, when one has regard to those documents and Swan’s evidence concerning this issue, this amount is a relevant factor in the exercise of the discretion. The sum paid included $187,350 for the easement (altered to include the Interconnect site) and $147,042 in “further compensation” being an extra amount not under any defined head. The agreement to settle includes an agreement by Santos to pay for an “independent professional expert” to supervise the works, with powers similar to those contained in cl. 12 of Exhibit 10. It is clear that such an expert was appointed and no evidence was called by Swan to suggest that Santos did not comply with any of the relevant binding legal documents or authorities to which it is and was a party relevant to the Interconnect site.

Conclusion

209. [209]
     For these reasons, the application is dismissed. I will hear the parties in relation to the issue of costs.