Clermont Quarries Pty Ltd v Isaac Regional Council - [2020] QPEC 18

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18

PARTIES:

CLERMONT QUARRIES PTY LTD (ACN 152 941 001)
(appellant)

v

ISAAC REGIONAL COUNCIL
(respondent)

and

ECL DALBY PTY LTD

(co-respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING

(co-respondent by election)

FILE NO/S:

423 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

22 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1, 2, 3, 4, 8, 9, 10, 21, 22 October 2019, with further written submissions received to 9 March 2020 and a further hearing on 8 May 2020

JUDGE:

Rackemann DCJ

ORDER:

1. The development application will be approved subject to conditions to be determined after hearing further from the parties.

2. The appeal will otherwise be dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – submitter appeal – application for a development permit for a material change of use for an extractive industry and environmentally relevant activities – where the site is listed on the Environmental Management Register pursuant to the Environmental Protection Act1994 (Qld) because of notifiable activities having been carried out – where the proposed material change of use and environmentally relevant activities involve the extraction, processing, testing and export of gravel from a heap pile at the site left over from a former gold mine – where there are elevated levels of arsenic and copper in the material – whether the material is contaminated – whether the proposal is likely to cause undue land contamination, human health, ecological and/or environmental impacts – whether adequate controls are available to appropriately safeguard against the risks associated with the inappropriate use of the material once it has been exported from the site – whether conditions of approval can be formulated to address those risks

PLANNING AND ENVIRONMENT – EXPERT WITNESSES – where experts remained in disagreement in many respects following the expert meeting and joint report process – where the Court was invited to make adverse findings about the credibility of some experts – whether one or some of the expert witnesses fell short of demonstrating the qualities of a dispassionate and objective expert witness

CASES:

Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7

GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342

Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21

Ward v Rockhampton Regional Council [2015] QPELR 252

LEGISLATION:

Environmental Protection Act 1994 (Qld) Part 3, Subdivision 3, ss 440ZD, 440ZF, 440ZG, Sch 3

Environmental Protection Regulation 2019 (Qld) s 65, Sch 10

Mineral Resources Act 1989 (Qld)

Planning Act 2016 (Qld) ss 5, 45, 59, 60, 65

Planning and Environment Court Act 2016 (Qld) ss 45, 46, 47

COUNSEL:

B Job QC and M Batty for the appellant

J Dillon for the respondent

D Gore QC and J Ware for the co-respondent

A Skoien for the co-respondent by election

SOLICITORS:

Connor O’Meara Solicitors for the appellant

King and Company Solicitors for the respondent

Thynne & Macartney Lawyers for the co-respondent

Corrs Chambers Westgarth for the co-respondent by election

Table of Contents

Introduction

The proposal

The decision framework

The issues – An unusual case

Risk

Credibility of some experts

Is the material contaminated?

NEPM – A Guide

Some matters of agreement

Human health

(i) Testing

(ii) Land use types - HILs

(iii) Bioavailability

(iv) Comparison with HILs

(v) Use of averages

(vi) The fines

(vii) Effect of controls

(viii) Conclusion on human health

Environment/ecology

(i) NEPM – EILs and ageing factor

(ii) Agriculture

(iii) Groundwater

(iv) Surface discharge – aquatic ecosystems

(v) Acidity

(vi) Conclusion on environment/ecology

‘Real world’ experience

(i) The road

(ii) The pit water

Control – conditions

Conclusion

Introduction

This submitter appeal is against the respondent’s approval of an application for a development permit for a material change of use for an extractive industry and environmentally relevant activities (16(2b) – extraction and 16(3b) – screening) in respect of land at Gregory Development Road, Frankfield (about 90km north west of Clermont). The co-respondent by election was a concurrence agency to whom the development application was referred in relation to matters within the jurisdiction of the Department of Transport and Main Roads (proximity to a State-controlled road) and the Department of Environment and Heritage Protection (the environmentally relevant activities). The co-respondent by election supports approval of the application subject to conditions. The appellant was the only adverse submitter with respect to the development application.

The proposal

The subject land is “Mazeppa Park”, a former gold mine which ceased operation some 25 years ago leaving behind approximately 4 million tonnes of gravel in a heap pile, together with mining infrastructure. The site is listed on the Environmental Management Register (EMR) because of notifiable activities having been carried out (mine waste and minerals processing). The ‘heap leaching’ mining process involved:

(a) excavation of rock from its original location on the subject land, thereby creating a large pit;

(b) crushing and placement of the extracted rock into a heap;

(c) irrigation of the heap, including the addition of cyanide, together with lime (to prevent the cyanide entering its gaseous state) to encourage the gold to leach out of the rock;

(d) collection of the leachate containing the gold in processing ponds;

(e) removal of the gold, and

(f) use of a drainage system to keep external water out, whilst directing internal water ultimately to the pit.

The proposed material change of use and environmentally relevant activities would involve the following:

(a) extraction of rock (gravel) from the heap;

(b) processing of the extracted material by screening, to produce hard gravel of an appropriate size;

(c) placement of that screened material into stockpiles;

(d) testing of stockpiles to ensure levels of particular elements do not exceed certain threshold levels;

(e) export of suitable material for certain limited uses, and

(f) discard of unsuitable material into the pit.

The material has value for uses which include as road base. Material from the heap has, in the past, been used to supply road base prior to the Council informing the co-respondent that a development approval was required.

The material is proposed to be distributed only:[1]
[1]Ex 24B.

(a) by vehicles under the control of the owner/operator; and

(b) for storage/use within the Isaac region local government area, but excluding:

(i) the towns of Clermont and Moranbah[2] (however a site is zoned or used);
[2]And, in the case of Moranbah, its environs as shown on a particular zoning map.

(ii) any area used for residential or rural residential purposes;

(iii) roads in, or directly adjacent to, any residential or rural residential subdivision;

(iv) as base for, or as course aggregate for erosion control in, public drainage infrastructure, or

(v) within, or within 20 m of the boundary of, a matter of State environmental significance[3] or an area of ecological significance[4]; and
[3]As defined under State policy.
[4]As defined under NEPM.

(c) for the purposes of use:

(i) for road or rail infrastructure by government (including government instrumentalities or government owned corporations) or a holder or beneficiary of a mining lease or other tenure under the Mineral Resources Act 1989;

(ii) at sites the subject of a mining lease under the Mineral Resources Act 1989, or

(iii) for building work or operational works on sites zoned and used for industrial purposes.

The proposed threshold levels for the stockpile tests set out in Table 20[5] of a proposed Environmental Management Plan (EMP) were as follows:
[5]Ex 3 pg 937.

Units Threshold

Acid & Metalliferous Drainage Testing

Paste pH None >5.0

NAPP None Negative

NAGpH None ≥4.5

Total S mg/kg Not directly relevant. Used to calculate NAPP.

Salinity and Sodicity Testing

EC (saturated) dS/m <10

CEC cmol(+)/kg <10

ESP % <6

Enriched Metal Testing (As and Cu only)

Total As mg/kg <500

Total Cu mg/kg <100

ASLP – As mg/L <50

ASLP – Cu mg/L <50

TCLP – As mg/L <100

TCLP – Cu mg/L <100

EDTA – As mg/kg <100

EDTA – Cu mg/kg <50

PBET – As % <50

PBET – Cu % Not correlated with animal models

Cyanide Testing

Cyanide mg/kg <500

A register is proposed to be kept, to record the details of all deliveries of material off-site. That is to be provided to the respondent on a regular basis and available for inspection at any time.

The decision framework

The development application was lodged in January 2015. The Planning Act (PA) and the Planning and Environment Court Act (PECA) commenced on 3 July 2017. The appeal was filed on 7 February 2019. As confirmed in Jakel Pty Ltd v Brisbane City Council,[6] the Court is to determine the appeal on the basis of the statutory assessment regime set out in the PA (rather than the Sustainable Planning Act 2009).
[6][2018] QPEC 21.

The appeal is by way of hearing anew. Pursuant to s 45 of the PECA, the co-respondent bears the onus of establishing that the appeal should be dismissed. The orders which the Court makes on the appeal are governed by s 47 of the PECA. The development application required impact assessment, which is carried out as required by ss 45(5)-(7) of the PA.[7] Section 60 of the PA confers a discretion in deciding the application. Where an application is approved subject to conditions, the conditions must:[8]

(i) be relevant to, but not be an unreasonable imposition on the development or the use of premises as a consequence of the development; or

(ii) be reasonably required in relation to the development or the use of premises as a consequence of the development.

[7]Pursuant to s 59(3) of the PA, subject to s 46(2) of the PECA.

[8]s 65(1) PA.

The issues – An unusual case

This is a somewhat unusual case. It does not involve issues concerning the impacts of on-site activities which often arise in cases of proposed extractive industries. Instead, the controversy is about the potential for the material, once it has been exported from the site, to cause environmental and land contamination, human health, ecological and/or environmental issues (including in relation to the control of the material, once it has left the site) elsewhere. The parties agreed[9] that resolution of those issues would be determinative.
[9]Ex 39, read with T7-2, 3.

This appeal is also unusual for other reasons. Since the implementation of this Court’s system of expert meetings and joint reports, the extent of disagreement amongst experts appointed in a given case, particularly from scientific fields of expertise, has typically significantly narrowed through that process, leaving the Court to determine a confined range of residual areas of disagreement. Further, disputes about testing regimes and methodology have become rare, since the experts can usually agree on such matters and carry out testing which satisfies them. This case is an exception. The experts, particularly those who participated in the joint environmental and land contamination report (ELCJR), remained in disagreement in almost all respects, including as to the adequacy of testing. Further, and quite exceptionally, the Court was ultimately invited to make adverse findings about the credibility of 3 of the experts who participated in the ELCJR.

Risk

The case involves a consideration of the risk, in particular to human health and/or the environment, potentially associated with a proposal. That is not unusual. Whilst the submissions for the appellant pose the question[10] “why take the risk?”, the Court has long resisted the attractions of avoiding responsibility for allowing a proposal which has been demonstrated to have some risk unless handled appropriately.[11] Consideration needs to be given to the nature and extent of the risk and to the ways and means by which it is proposed to be addressed or managed.[12] Whilst, in more recent times, the precautionary principle has received statutory recognition,[13] that principle (which the appellant did not invoke) does not call for a nervous approach, or one which is intolerant of any risk under any circumstances. Further, in addressing risk, it must be remembered that whilst the onus lies on the co-respondent to establish that the appeal should be dismissed, the standard of proof remains the civil standard.
[10]Para 257.
[11]GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342.
[12]Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7.
[13]See s 5(2)(a)(ii) of the PA.

Credibility of some experts

Attacks were made on the credibility of 3 of the 5 experts who participated in the ELCJR. No attacks were made on any of the 4 experts who contributed to the human health, ecological and environmental joint expert report (HHEEJR), including the two (Mr Stuckey and Mr Sutherland) who also contributed to the ELCJR.

Attacks were made on the credibility of both Mr Lee (an environmental scientist) and Dr Robertson (a geologist), who were retained by the appellant. It was said, in the submissions for the co-respondent, that the challenge was to the ‘credibility’ of their evidence in the broad sense of it not being worthy of acceptance, although the submissions went on to allege that each showed a lack of true independence and showed signs of being an advocate for their client’s cause.

It was submitted, for the respondent, that Mr Lee’s evidence was partisan and should be given little weight.[14] The submissions for the Chief Executive did not, in terms, challenge the credibility of Mr Lee or Dr Robertson, but referred to their unco-operative approach and to certain aspects of their evidence.
[14]Para 52.

There were some difficulties with both Mr Lee and Dr Robertson’s evidence. The first was that, in the joint report, they purported to give some joint opinions that were, in fact, opinions which were the province of one or the other. That is, they represented that they ascribed, as an expert, to opinions that were not theirs to express in circumstances where Dr Robertson was to deal with acid leachability and Mr Lee with contamination issues otherwise.[15] When this became apparent, the joint report was altered after the event, by colour coding, to identify which of the professed joint opinions should, in fact, be taken to be the opinions of one or the other or were, in fact, legitimate joint opinions.[16] Dr Robertson’s explanation was to the effect that, at the time, he did not fully understand the limited nature of his brief.[17] Mr Lee’s explanation was more perplexing, since he put it down to his enthusiasm to express a view.[18]
[15]Ex 3A.
[16]Ex 6B.
[17]T6-7.
[18]T5-63.

Mr Lee and Dr Robertson did not confine themselves to a dispassionate assessment of the current application, considered on its own merits within their fields of expertise. Instead under the heading ‘undesirable precedent’ in the ELCJR[19] they expressed the joint opinion that approval would set an “undesirable precedent” which might encourage some existing mine operators elsewhere to fail to provide for rehabilitation and closure of their sites. Further, they warned that use of the material for infrastructure for a certain specific mining project would justify significant criticism of environmental management in the State, especially having regard to the fact that the specified venture is already under close public scrutiny. Those arguments are more adversarial than evaluative in nature. They were not relied upon in submissions for the appellant.
[19]Ex 6B pg 27.

Mr Lee’s enthusiasm for expressing a view did not stop at putting his name to views in the ELCJR which, in fact, were properly those of Dr Robertson alone. He also saw fit to express a view about the necessity for the export of gravel from the stockpile to be authorised by another type of approval as well.[20] He went on further to express a negative view about the prospects of obtaining such an approval and what he saw as the legal and practical impossibility of ultimately achieving what the co-respondent proposes. Not content with that, he went on to recommend the return, to the stockpile, of material previously taken from it and the prosecution of those responsible. Those contentions are discussed later, but they are not what one would expect of an expert who is focused on the task of dispassionately and objectively expressing professional opinions about matters within his field of expertise relating to the issues in dispute in an appeal against the Council’s decision on a particular development application. Understandably, it was not relied on in the submissions on behalf of the appellant.
[20]Ex 6B pg 15, 16.

Mr Lee’s enthusiasm to express a view perhaps also underlay his contention that the proposal, if implemented, would not only have adverse environmental impacts but also cause serious economic problems for Central Queensland that would be difficult, if not impossible, to ever reverse.[21] Mr Lee is not an economist. Understandably, his fear of economic impact was not taken up in the appellant’s case.
[21]Ex 6B pg 21 lines 720-724.

Mr Lee took some extreme positions and sometimes expressed himself in unnecessarily strong terms. For example, as is discussed later, it was accepted by all of the experts involved in the HHEEJR, including a well-qualified expert engaged by the appellant, that a bioavailability value for arsenic of less than the default 70% assumed in the National Environmental Protection (Assessment of Site Contamination) Measure 1999 amended 2013 (NEPM) could be derived from the data obtained from tests of the on-site gravel material (which suggested a significantly lower percentage).[22] Mr Lee, on the other hand, swam against the tide, insisting that there should be no downward adjustment of the 70% at all, notwithstanding the data. He said that the approach would not only be unprecedented, undocumented and unproven but potentially dangerous as well. The submissions for the appellant did not invite the Court to accept his view.
[22]Although there was a debate about whether the adjusted figure should be on the basis of the average or the maximum from the dataset.

In dealing with evidence concerning water quality in the pit (discussed later) he not only adopted the position that no stormwater drainage from the stockpile may actually reach the pit[23] but, when cross-examined about that choice of words, colourfully said (underlining added):[24]

“Now I’m saying – I’m still saying the same thing. And I’m saying that – what did I say? Probably doesn’t reach the pit or definitely doesn’t reach the pit or it hasn’t got a snowball’s chance in hell of reaching the pit. Would that be - - -

[23]Ex 19 pg 5, T4-94-98.

[24]T5-66.

It’s your evidence - - -? --- - - - fairly clear?”

Whilst there was room for debate about the extent to which water from the stockpile reaches the pit, given, for example, the poorly maintained condition of the drainage system (discussed later), Mr Lee’s statement about there being not a “snowball’s chance in hell” was overly strong and an overreach.

In dealing with the potential for arsenic from the material to be present in runoff from a road, Mr Lee raised the somewhat dramatic prospect of arsenic making its way to the Great Barrier Reef.[25] That did not feature in his contribution to the ELCJR or in his trial report. It is, for the reasons given later, unlikely.
[25]T4-90.

Whilst Mr Lee was correct to observe that NEPM is not designed to be used for the purpose of assessing the export of material from one site to another, he was out of step with each of the experts who participated in the HHEEJR in being unprepared to acknowledge that it nevertheless provides useful guidance. Senior Counsel for the appellant expressly did not urge the Court to adopt Mr Lee’s position.

Mr Lee could not give an adequate explanation for his initial (but later retracted) assertion that certain values under NEPM are not considered appropriate for quarry materials. That, in itself however, would not lead me to make an adverse finding in relation to his credibility generally.

Although dismissing NEPM as irrelevant and testifying, in relation to the figures in Table 2 of Mr Stuckey’s report, that “to be honest, I haven’t even hardly looked at them”,[26] Mr Lee asserted, in the ELCJR,[27] that the material is considered to pose a risk to human health and safety if used in any of the land use scenarios (HIL A, HIL B, HIL C or HIL D) in NEPM. In his testimony however, he had to accept that the material met the criteria for at least one of the land use scenarios (HIL D) and appeared to shift ground by saying that his statement in the ELCJR should be understood as saying that it is not suitable for HIL D because, in his view, there is, in effect, a prohibition on the material being taken off site.[28] He said that the relevant criteria is that for HIL A[29] if the material was to go off-site, but did not otherwise meaningfully engage in a balanced risk assessment process. He seemed more intent on being critical.
[26]T4-107.
[27]Ex 6B pg 12 l 404.
[28]T4-106.
[29]T4-102.

Unlike Dr Wright (a human health and environmental toxicologist and risk assessor engaged by the appellant), Mr Lee was loath to make appropriate concessions under cross-examination. An example of his reluctance lies in the cross-examination of him in relation to his reliance on results of a single sediment sample taken from the base of the stockpile and his description of results as being ‘typical’ of the situation in the stockpile.

The results to which Mr Lee drew attention showed, amongst other things, an arsenic concentration of 3,100 mg/kg. When cross-examined about whether that was indeed ‘typical’ for the stockpile, or whether, by using a sample from that location he was ‘cherry picking’ data, Mr Lee responded by saying that it would be typical of the fine material. When he was challenged as to whether it was ‘typical’ even on that (altered) basis, he asserted that the figure was fairly close to that of 4,448 mg/kg which he recalled as “an average” figure for fines presented by Mr Short. When taken to the results of that testing, which revealed the 4,448 mg/kg to be the maximum of the 15 results presented[30] (each result being the average of 2 samples at the same location), rather than the average of all samples, Mr Lee again shifted ground by saying that the 3,100 mg/kg was “the same order of magnitude” as all of the results and “there’s some lower, there’s some higher. One higher … the 4448, by the way is an average of two others. I mean, I – you know. It’s similar”. In fact the 4,448 mg/kg is far and away the highest result, with the next highest result being only 1,707 mg/kg and other results then ranging down to just 150 mg/kg. The mean was 1,111 mg/kg. When I observed that the rest of the results were less than half the highest figure, Counsel for the respondent gave Mr Lee an opportunity to further revise the opinion. Mr Lee then gave the following floundering response in which, rather than making a clear concession or correction, he attempted to make a concession of sorts, that the result “doesn’t quite fit into the other range of data”, whilst holding to the contention that it is ‘typical’ of the fine material:[31]

“---I might have been a bit clumsy with the words there, your Honour. It’s typical of the fine material. I thought it doesn’t quite fit into the other range of data. It’s close to the higher – it’s close to a maximum.”

[30]Ex 3 pg 778.

[31]T5-44.

It is, as I have observed, rare for an expert’s credibility to be challenged in this Court. In my experience experts who give evidence in this Court generally show a commendable commitment to their professional objectivity, the proper role of an expert witness, and to the oath they give as witnesses. On this occasion however, I have, after considering Mr Lee’s evidence as a whole, reluctantly come to the conclusion that he fell short of demonstrating the qualities of a dispassionate and objective expert witness. I do not mean to imply that he consciously decided to take on the role of advocate, but for whatever reason, his performance did not always demonstrate the qualities to which I have referred. Whilst that assessment adversely affected the weight of his evidence, I nevertheless gave consideration to the content of what he had to say, to the extent it was relevant to the issues as litigated by the parties.

Dr Robertson’s evidence was not free of difficulty either. The difficulties with the ELCJR, including his participation in the ‘undesirable precedent’ section, have already been canvassed. Further, he gave a significant amount of testimony which went beyond the ELCJR or his individual report and he appeared inclined to take critical or negative positions. Having considered his evidence as a whole, I was not however, left with the same level of concern as with Mr Lee. Dr Robertson came across as a person who is very confident about his own expertise and opinions. He appeared keen to assert his experience, managing to work a reference to his 25 years of mining industry experience into his answers on no less than 5 separate occasions. He might struggle to accept different points of view, but I was left short of being prepared to find that he took on the role of a partisan or to otherwise make an adverse finding in relation to his credibility generally.

The appellant challenged the credibility of Mr Short (a soil scientist engaged by the co-respondent) and his evidence on the following bases:

(a) his endorsement, in his trial report, of condition 11 of the approval and the closure and rehabilitation plan referred to therein, as being “appropriate and achievable” notwithstanding that the document is described as preliminary and conceptual and, as he conceded in cross-examination, he:

(i) had no involvement in its preparation and did not know who did;

(ii) was unsure of where benches referred to therein would be located, or why there was reference to vegetation or what vegetation would be required under the plan;

(iii) was unsure of the proportion of material to be removed from the site in accordance with the plan (or the criteria for its removal) or the volume of material required to go back into the pit to fill the void as contemplated by the plan;

(b) his evidence that he was not aware of any natural water bodies in the area, in circumstances where one was demonstrated by Ex 53;

(c) his post joint report circulation of relevant material to other experts retained by the co-respondent, but not to Mr Lee and Dr Robertson;

(d) his initial reluctance to acknowledge that water in the pit contains copper concentrations in excess of guidelines.

Insofar as the closure and rehabilitation plan is concerned, Mr Short’s evidence about condition 11 needs to be read in context. He was, in that part of his report, responding to Mr Lee’s characteristically strong statement that “the stockpile area has no potential to be returned to rural production of any value”. In response he pointed to his experience in rehabilitating mine sites that have successfully returned to agricultural land uses. He was forthright in the answers he gave under cross-examination. His point was that he read the document at a conceptual level and saw no reason why the site could not be fully rehabilitated, but he acknowledged that he could not answer as to the ‘finite detail’.[32] This response, read in the context of the allegation of Mr Lee to which he was responding, does not give me concern as to his credibility.
[32]T3-33.

The post joint report material to which reference was made was that which was produced in the course of the cross-examination of Mr Sutherland (Ex 51). The material was proof of a sale of material to the Department of Transport and was relevant because, in the joint report, Mr Lee and Dr Robertson had questioned whether Mr Short’s roadside samples represented gravel from the site. The document was provided to Mr Sutherland, with a copy to Mr Stuckey, under cover of an email in which Mr Short expressed a hope that there would be another joint expert process. That would appear to be inconsistent with the notion that he was seeking to hide something from Mr Lee and Dr Robertson. When cross-examined about the matter,[33] Mr Short said that he did not keep Mr Lee and Dr Robertson in the loop because the conclave process had concluded, but he had hoped there would be another joint meeting “to enable us to talk about it again”. It would have been better had Mr Short provided a copy to Mr Lee and Dr Robertson, but the evidence concerning the circumstances in which he failed to do so does not lead me to doubt his credibility.
[33]T8-28.

The criticism of Mr Short’s supposed reluctance to acknowledge that the pit water contains a copper concentration in excess of guidelines is not, in my view, well founded. He simply could not recall the relevant test results and guideline values without being taken to the details which were in the report. The evidence in Ex 53 of referable wetland areas, notwithstanding that Mr Short was not aware of any natural water bodies in the area, does not cause me to make any adverse finding about the credibility of Mr Short or his evidence generally.

I reject the attack on the credibility of Mr Short and his evidence generally.

Is the material contaminated?

In the ELCJR, Mr Lee contended[34] that:
[34]Ex 6 pg 15, 16.

(i) the material from the site would be contaminated soil for which a disposal permit would also be required before it could lawfully be taken from the site;

(ii) such permits are only approved if the material is going to a licensed landfill for final interment or to sites already listed on the EMR;

(iii) it will never be legally or practically possible to remove the material from the site (other than to a licensed landfill of which there are none in Clermont);

(iv) no permit having been obtained in the past:

· illegally removed material should be recovered and returned to the stockpile, and

· the parties that removed it should be prosecuted.

As was submitted for the co-respondent, the gravel is crushed rock, rather than soil. As was also pointed out on behalf of the co-respondent, consistently with the evidence of Mr Stuckey[35] (a contaminated land auditor), contamination involves the addition of something which represents, or potentially represents, an adverse health or environmental impact. In this case, whilst cyanide was added during the gold mining, it is at levels that are of no real concern. Testing has revealed only trace amounts of cyanide in the material and leachate on site. For example, out of 15 samples taken in 2015, cyanide was undetectable in 6 samples and the remaining samples had a mean of only 5.9 mg/kg (ranging from 0.8 to 18 mg/kg).[36] The proposed testing regime is to include total cyanide,[37] to ensure that it is less than 500 mg/kg (being a third of that for the HIL for the relevant land use under NEPM). Senior Counsel for the appellant disavowed reliance upon any point about cyanide.[38]
[35]Ex 13 pg 39, T3-68.
[36]Ex 45 pg 8.
[37]Which can never be exceeded by free cyanide – Ex 45 pg 8.
[38]T10-26.

Mr Lee’s point about the need for another approval was not taken up in the submissions for the appellant. In particular, it was not submitted, on behalf of the appellant, that the proposal is a futility for the reasons advanced by Mr Lee, or at all.

The submissions for the appellant described the material as ‘contaminated’ and referred to the levels of arsenic and copper in it. There are elevated levels of arsenic and copper in the material, but they occur naturally. Further, the only material to be exported from the site is that which passes the testing regime that includes thresholds for arsenic and copper. That is intended to ensure that, so long as the material is used in accordance with the proposed restrictions, it will not cause environmental harm or cause a site to be listed on the EMR.[39]
[39]Ex 13 para 102(d).

The above does not mean, however, that the chemicals in the material are of no concern. The co-respondent itself acknowledges that the material would not be appropriate for use in some circumstances. What falls for consideration is the evidence about the nature of the material, the risks its export from the site might potentially pose and the adequacy of the proposed testing regime and controls on its distribution, in addressing such risks.

NEPM – A Guide

The four experts (Professor Ng, Mr Stuckey, Mr Sutherland and Dr Wright) who produced the HHEEJR agreed[40] that NEPM provides appropriate guidance, in this case, for the assessment of risk to human health and the environment.[41] Two of those four experts (Mr Stuckey and Mr Sutherland) also participated in the ELCJR. No similar agreement was reached in that report. Mr Lee, in particular, did not agree with NEPM being used in relation to the export of material from the subject site, in the absence of a risk assessment being carried out at each of the proposed destination sites.[42] In the absence of an individual study of each receptor site, he considers it impossible to quantify the risk.[43]
[40]Ex 7 para 17.
[41]They also saw the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (ANZG) as providing appropriate guidance.
[42]Ex 19 pg 3.
[43]T4-109.

NEPM provides guidance in the assessment of a site to determine the human health and ecological risks associated with the presence of site contamination and to inform any remediation or management plan. It does so by, amongst other things, providing a framework for the use of investigation and screening levels, including health investigation levels (HILs) and ecological investigation levels (EILs). That framework is based on a matrix of human health and ecological soil and groundwater investigation and screening levels and guidance for specific contaminants. The selection of the appropriate investigation and site-specific considerations is intended to be guided by development of a conceptual site model.

Insofar as the application of the investigation and screening levels is concerned, a ‘Tier 1’ assessment of site contamination involves comparing representative site data with generic investigation levels and/or screening levels to determine whether further assessment is required. Where the Tier 1 assessment shows exceedance of the levels indicative of likely adverse impact then a site-specific health and/or ecological risk assessment (Tier 2 or 3) should be carried out as appropriate.

Mr Lee is correct, in that NEPM is directed to a site which is contaminated, rather than to a consideration of whether material can be exported from one site to another. This case is not a contaminated land assessment. NEPM itself states[44] that investigation and screening levels should not be used to condone the discharge of waste up to those levels. That is not to say however, that the information contained therein is of no assistance where, as here, the suitability of a natural product (with elevated levels of some chemicals) for use elsewhere falls for consideration. That is particularly so in circumstances where the experts, or at least some of them,[45] have sought to carry out a risk assessment process by characterising the material, the purposes for which it is proposed to be used and the exposure pathways to the receptors. I accept the evidence of the other experts, including Dr Wright, who was directly involved in the development of the current NEPM,[46] and Professor Ng, who was part of the committee that guided and oversaw development of the HILs, including for arsenic,[47] to the effect that it can provide guidance.[48] Indeed Senior Counsel for the appellant, in the course of oral submissions, expressly did not go so far as to adopt Mr Lee’s position, but rather accepted that it is quite permissible for the document to be used as a guide.[49] That is consistent with the written outline in which “the Appellant accepts that the NEPM has a role to play in the assessment of the proposal”. I respectfully agree.
[44]Ex 5 pg 4 para 2.1.
[45]Dr Robertson did not refer to or rely on NEPM. Mr Lee’s approach is discussed elsewhere.
[46]T7-34.
[47]Ex 44 pg 3.
[48]See e.g. Wright T7-73.
[49]T9-49.

It was pointed out, on behalf of the appellant, that one of the limitations of using NEPM as a guide in circumstances such as the present, is that there is no conceptual site model for any of the sites which might receive the material. It was observed that conditions may vary on receptor sites in relevant respects. It was submitted that if, for example, the material is used at a site where the soil is acidic, there might be an exacerbation of the potential leachability of metals in the material. Mr Short acknowledged that risk ‘in theory’.[50] That evidence should however, be considered with the evidence of Mr Stuckey[51] who was asked a similar question about the material being exported to a site which already had a high degree of arsenic. As he explained, if the material is added to the material on site it will never cause the threshold to be exceeded either because the on-site material has a higher level (exceeding the threshold already), the average of which is brought down by the addition of material from the subject site, or the on-site material itself is even lower than the (compliant) imported material, in which case there is no existing issue and the threshold cannot be exceeded by addition of the imported material. The potential for metals to leach from material exported from the site is addressed later.
[50]T8-17.
[51]T4-15, 16.

Some matters of agreement

Areas of agreement in the HHEEJR include:[52]
[52]Ex 7 paras 16, 17, 19-21, 29.

1. It is appropriate to apply risk assessment methods to evaluate the human and environmental health issues and risks associated with the proposed transfer of material to other sites.

2. NEPM and the Australian and New Zealand Guidelines for Fresh and Marine Water Quality (ANZG) are the appropriate guidance documents.

3. The presence of hazard does not necessarily mean that there is a risk. There needs to be a receptor, clearly identified exposure pathways, a time period of exposure of an exposed population and a dose of contaminant at a level high enough to cause an adverse effect. Risk assessment is the process where the hazards are identified, analysed or evaluated for the potential risk associated with the hazard.

4. The testing regime and sampling rate of 1 sample per 250 m³ is appropriate.[53]

I accept each of those points of agreement.

[53]See also T7-45.

It has already been observed that Mr Lee did not agree that NEPM provided guidance in this case. He also took issue with the proposed sampling rate, suggesting that if one were to permit the export of material from the site, the sampling should be much more intense, at least until there was more statistical certainty.[54] Dr Robertson similarly wanted more frequent testing. That appears excessive in the circumstances. I prefer the opinions otherwise which, as was pointed out in the HHEEJR,[55] are consistent with a publication of EPA Victoria in relation to bulk volumes of greater than 5,000 m³. Given an average daily production rate of 1,000 m³, it is expected that there would be 4 samples taken for testing each day.[56]

Human health

[54]T5-39, 40. There was reference to a rate of 1 per 25 m³ although even he thought that “would probably be too intense here”, without specifying what he proposed.

[55]Ex 7 para 29.

[56]Ex 6B pg 11 ll 357, 358.

(i) Testing

Testing has revealed that the chemicals in the material which are of potential concern are arsenic and copper. The exposure of potential concern is chronic or long-term exposure, rather than acute or short-term exposure.[57] A test of a single sample collected from the site in 2012[58] yielded a total arsenic concentration of 400 mg/kg and 190 mg/kg of copper, with low concentrations of several other metals and a very low level of cyanide.
[57]T7-61.
[58]Ex 3 pp 217-219.

16 samples of gravel material were collected and analysed in 2015.[59] They had arsenic concentrations ranging from 53 to 1,000 mg/kg (with an average of 513.5 mg/kg). They had copper concentrations ranging from 21 to 1,500 mg/kg (with an average of 232.75 mg/kg). [60] Ten further samples were subject to acid-base accounting.[61]
[59]Ex 3 pg 422.
[60]Affected by 1 sample of 1500.
[61]Ex 3 pg 611.

In 2017 fifteen samples were tested for bioaccessibility (BAC) of the finer fractions for arsenic and copper.[62] The BAC for arsenic ranged from 4.7% to 49.1%, averaging approximately 23%, with the relative bioavailability (RBA) at approximately 24%.[63] The BAC for copper ranged from 12.7% to 94.8%, averaging approximately 66%. Total arsenic concentrations ranged from 100 to 1,730 mg/kg, averaging 495 mg/kg with total copper concentrations ranging from 22 to 294 mg/kg, averaging 97 mg/kg.[64]
[62]Ex 3 pg 735.
[63]Ex 7 pg 8 para 40.
[64]Ex 3 pg 730, the low point of the range was incorrectly identified as 108 mg/kg in Ex 6 para 5.1(a).

The proposed testing threshold for arsenic is <500 mg/kg and for copper is <100 mg/kg. The bioaccessibility of arsenic (from PBET testing) is to be less than 50%. The testing conducted on the gravel samples taken from the stockpile suggest that there will be some material capable of meeting those thresholds.

(ii) Land use types - HILs

It is appropriate to consider whether material which conforms with the proposed thresholds will pose a potential risk, in the event that the material is used as proposed. It is in this context that NEPM provides some guidance in relation to generic land use types.

The HILs for soil contaminants are contained in Table 1A(1) of NEPM and list health-based investigation levels for various chemicals by reference to the following generic land uses:

“HIL A – Residential with garden/accessible soil (home grown produce <10% fruit and vegetable intake (no poultry), also includes childcare centres, preschools and primary schools.

HIL B – Residential with minimal opportunities for soil access; includes dwellings with fully and permanently paved yard space such as high-rise buildings and apartments.

HIL C – Public open space such as parks, playgrounds, playing fields (e.g. ovals), secondary schools and footpaths. This does not include undeveloped public open space where the potential for exposure is lower and where a site-specific assessment may be more appropriate.

HIL D – Commercial/industrial, includes premises such as shops, offices, factories and industrial sites.”

The HILs for arsenic and copper are as follows:

Health-based investigation levels (mg/kg)

Chemical Residential A Residential B Recreational C Commercial/Industrial D

Arsenic 100 500 300 3,000

Copper 6,000 30,000 17,000 240,000
(iii) Bioavailability

NEPM provides that the HIL for arsenic is based on a bioavailability of 70% and that a site-specific bioavailability should be considered where appropriate. Bioavailability is the amount of a contaminant that is absorbed into the body following skin contact, ingestion or inhalation. Dr Wright acknowledged[65] that it is an accepted methodology to derive a site-specific HIL for arsenic on the basis of a site-specific bioaccessibility, where bioaccessibility is less than 70%. That is what Professor Ng did. The assessment incorporates bioaccessibility data as a surrogate measure of bioavailability of arsenic for the adjustment of the HILs.[66] Bioaccessibility is the fraction of a compound that is soluble in the gastrointestinal tract and so available for absorption. The sampling results led Professor Ng to calculate relative bioavailability (RBA) adjusted HILs, based on the average of the samples, as follows:
[65]Ex 7 para 74.
[66]Ex 11 pg 6 para 5.2.

Chemical Residential A Residential B Recreational C Commercial/Industrial D

Arsenic 400 1,000 800 7,000

Dr Wright adopted a more conservative approach of taking a figure of 50%, representing the upper end of sampled results to obtain the following adjusted figures:

Chemical Residential A Residential B Recreational C Commercial/Industrial D

Arsenic 200 800 500 5,000

Dr Wright’s view was that it is appropriate to adopt the upper end of the sampled results having regard to what she saw as the limited dataset and the fact that the stockpile will not be entirely mixed before it goes off-site, so that the higher figure might be applicable to the batch to which people may be exposed at a particular site. Dr Wright also referred to a note in NEPM which cautions against adjusting bioaccessibility between 70 and 100%, so as to preserve a buffer. As Professor Ng pointed out however, that is not the case here, and the proposed testing thresholds are well below the adjusted figures in any event.[67]
[67]Ex 44 pg 3.

Perhaps unsurprisingly, Mr Lee held a more extreme view, that bioavailability data (or, more accurately bioaccessibility data) should not be relied upon to extend the criteria used to determine the suitability of material for disposal off-site. He claimed that it was impossible to predict the environmental conditions of each receiving site that may affect the bioavailability of the contaminants. He used strong language, saying that use of bioavailability data in this case was unprecedented, undocumented, unproven and potentially dangerous.[68] It is difficult to see why, irrespective of the receptor site, no account should be taken of the data derived from tests of samples of the gravel which is to be exported and why that would not provide a better indication of bioavailability than the generic assumption of 70% in NEPM. His view was unsupported and stands in conflict with that of Professor Ng, an internationally recognised expert on arsenic and lead author of BAC guidance,[69] and Dr Wright. It is a view that was not urged upon me in the submissions for the appellant and it is one that I reject, in light of the opinions to the contrary.
[68]Ex 6 pg 17.
[69]Ex 44 pg 3.

The bioaccessibility testing involved the following:

(a) testing 15 samples from a depth of 3-4 metres in the heap pile;

(b) the drying and sieving of the samples to obtain 250 micron particles, as these are regarded as the size fraction most likely to stick to hands and could result in exposure via hand-to-mouth;

(c) exposing these particles to synthetic gastrointestinal fluid to mimic the human stomach;

(d) assessing the extracted arsenic and copper in the fluid against the total elemental concentration put into the fluid.

Professor Ng defended his use of the average, contending that Dr Wright’s approach goes against sound scientific principle that applies statistics in order to provide a more accurate estimation of the representative concentration of arsenic in the materials. He cited a USEP publication in support of the proposition that an estimate of average concentration is used because relevant toxicity criteria are based on lifetime average exposures and average concentration is most representative of the concentration contacted at a site over time.[70] He also considered the dataset to be adequate.
[70]Ex 11 pg 7.

Mr Stuckey saw the average in this case as statistically justifiable, based on normally distributed maximum, mean, standard deviation and median values of 49%, 23%, 14% and 19% respectively.[71] Mr Sutherland was of the view that use of the average was conservative, given its inclusion of ‘outliers’ in the dataset and the assessment of Australian mine wastes, where the mean arsenic bioavailability is between 1.6% and 8.9%.[72]
[71]Ex 7 para 80.
[72]Ex 7 para 87, 88.

The approach of Professor Ng would appear to be appropriate in estimating the representative bioavailability of arsenic in the material. Dr Wright’s main point however, is that a particular receiving site will only receive material from part of the heap and that part might not be representative of the balance of the material. Her approach of adopting the 50% figure is highly conservative given the results of testing, that some mixing is involved in the process (discussed later) and the large quantities (of ≥20,000 tonnes)[73] in which the product is expected to be supplied. On the other hand, the proposed testing threshold is <50%, so that product up to that limit will be able to be dispatched to a receptor site. Whilst I incline to the view that Dr Wright’s approach is overly conservative, ultimately nothing turns on which of the two is adopted.
[73]Ex 46 para 46.

(iv) Comparison with HILs

Even on the basis of Dr Wright’s more conservative approach, all of the tests of gravel from the stockpile reveal maximum and average concentrations of copper that are orders of magnitude below the level for HIL D and very greatly below that for HIL A, B and C as well. They also show maximum and average concentrations for arsenic well within HIL D. Further, the proposed threshold levels are:

(a) many times lower than the adjusted[74] investigation levels for arsenic for HIL D uses;

(b) within the adjusted arsenic levels for HIL B and HIL C, for which the material is not even proposed to be used,

(c) a great many times lower than the HILs for copper for all generic land use types.

[74]Irrespective of whether the adjusted figures are those calculated by Professor Ng or those calculated by Dr Wright.

As Professor Ng said,[75] this indicates that material from the stockpile, tested as meeting the proposed thresholds, would have minimal, if any, health implications when used at industrial sites, being one of the proposed uses for the materials. Further, as he pointed out,[76] use for road infrastructure would carry even lower risk, because the contact time of potential exposure is extremely limited and insignificant even compared with industrial sites. Dr Wright accepted[77] that a road (with proposed restrictions) is a satisfactory receiving site. Similar considerations would apply for rail infrastructure.
[75]Ex 7 para 42.
[76]Ex 7 para 43.
[77]T7-51.

(v) Use of averages

Dr Wright took issue with the use of average concentrations in order to characterise the material that will be distributed off-site. She referred to the limited number of samples tested, the proposal to sell the material in varying quantities and her view that there is no indication that the stockpile materials will be well mixed prior to sale. Dr Wright thought that the material sold to one client may contain arsenic at either the lower end or the upper end of the range of concentrations. She considered that the upper end, namely 1,730 mg/kg, would, in the circumstances, represent a reasonable worst case.[78]
[78]Ex 7 para 73.

There are a number of things to observe about that. Firstly, 42 samples have been taken over time.[79] Professor Ng considers that to be a very good number to get an estimate of the average exposure.[80] In support of that proposition he cited the United States Environmental Protection Agency document ‘Supplemental Guidance to RAGS (Risk Assessment Guidance for Superfund): Calculating the Concentration Term” (USEPA 1992). It recommends that a minimum of 10 samples be taken, with increasing certainty if up to 30 samples are taken.[81] That publication is referred to and adopted in a more recent Texas Government document which also refers to a minimum data set of 10 samples.[82]
[79]Ex 7 para 71.
[80]T5-9.
[81]Ex 34.
[82]Ex 35.

Dr Wright thought that the documents relied upon by Professor Ng went to whether there were a sufficient number of tests for statistical purposes. She pointed to the size of the heap, the fact that the samples did not extend beyond 4 m in depth and the variability of the results to suggest that “you’d want to have as many samples as – as practicable”.[83] Dr Wright’s testimony about the variability of the results should be viewed in the context of her statement in the HHEEJR[84] that the reported concentrations are “reasonably consistent for the gravel”. Obviously the more samples, the better the information base, but I accept that a not unreasonable extent of sampling has been done to date. It should be noted that further sampling and testing is proposed as part of the operation of the development.
[83]T7-57.
[84]Ex 7 para 72.

Secondly, the process involved in winning the material before it is exported from the site includes:[85]
[85]Ex 46 para 44.

(a) cutting sections of the material from the top of the heap pile so that they fall away down the face; this has the effect of mixing the material as it falls away from top to bottom;

(b) the material will then be screened and stockpiled for sale; the material will be loaded into the screening plant and then moved into stockpiles of 250 m² for testing, and

(c) following successful testing, the material in that stockpile will be loaded into trucks and sent onto clients.

The above will result in some mixing of the material,[86] albeit that the entirety of the heap is not mixed.

[86]Ex 46 para 46.

Thirdly, whilst the material will be placed into stockpiles of 250 m³, not each stockpile will be a discrete supply to a different site. Whilst the quantity of materials sold may vary, the nature of the uses for which the material is to be distributed are such that the minimum job size is likely to be no less than 20,000 tonnes.[87] To suggest that a single maximum sample result be adopted for the assessment in the circumstances described above is, in my view, overly conservative.
[87]Ex 46 para 46.

Fourthly, Dr Wright’s reasonable worst case of 1,730 mg/kg is still very comfortably within the HIL D level, both adjusted and unadjusted, and would appear not to be of concern, for human health, for the uses for which the material is proposed.

Fifthly, Dr Wright acknowledged that the debate about the adequacy of sampling and use of averages is unnecessary if effective controls on the use of the material can be implemented.[88] That is an issue discussed later.
[88]T7-56, 57.

Sixthly, and importantly, it is not proposed to permit all of the material in the stockpile to be exported. There is proposed to be a continuing testing regime. Only that which passes the testing regime will be permitted to be exported from the site. That which does not will be returned to the pit. It is this aspect of the proposal which the appellant’s case tended, at times, to overlook. Material which, upon testing, is revealed to have an arsenic concentration of 1,730 mg/kg will not be permitted to be exported from the site. Ultimately the question is not so much whether the export of the gravel in the stockpile would be attended with unacceptable risk, but whether the export of so much of the gravel that passes the testing regime would, subject to controls, be attended with such risk.

(vi) The fines

Dr Wright and Mr Lee raised a concern about the higher arsenic concentrations in the finer fractions of the material. In the 15 samples taken in 2017,[89] the arsenic concentration in the fine fractions varied from 150 mg/kg to 4,448 mg/kg, with an average of 1,111 mg/kg. Dr Wright regarded the finer fractions as of importance in relation to human health, because of their propensity to stick to the skin and be incidentally ingested or be present in dust which might be inhaled. She thought that more fines may be generated if the material was used on unsealed roads or if it was crushed.[90] Mr Lee raised similar concerns regarding compaction.
[89]Ex 3 pg 735, 778.
[90]Ex 7 para 72.

The position in relation to the fines was something of a moving feast during the hearing. Mr Stuckey,[91] Mr Sutherland[92] and Professor Ng[93] were initially of the understanding that the fines would be removed in the screening process. It emerged that was incorrect. The screening process will take out the larger rocks and, with them, some of the fines, but the smaller stones will pass through and will include some fines. The screening equipment has the capability of removing the fines, by washing, but the co-respondent regards it as commercially unviable to wash all fines from all material before it leaves the site.[94] If the material is to be supplied for the purposes of road base, then further fines may need to be added. The proposed conditions of approval would require those fines to be sourced from elsewhere,[95] with the intent that such material would not itself have elevated levels of arsenic or copper.[96]
[91]Ex 13 para 81.
[92]T4-54, 56.
[93]Ex 11 para 6.3, T5-30, 31.
[94]Ex 46 para 37.
[95]Ex 46 para 37, T4-56, 57.
[96]Something which Senior Counsel for the co-respondent observed could be incorporated into a condition of approval, T4-59.

That it is not proposed to remove all of the fines in the screening process removes an element of conservatism, but did not cause the experts retained by the co-respondent to alter their conclusions that the proposal is satisfactory. Further, as Mr Sutherland pointed out,[97] the fact that the machinery has the capability of removing fines (by washing) which, in the case of use of the product for road base, can be replaced and/or supplemented by off-site material, provides an additional mechanism which could be used in the event of failures to meet the thresholds.
[97]T4-60.

The submissions for the appellant sought to make something of Professor Ng’s statement[98] that his conclusions are unaltered if washing is not undertaken to remove the fines because “all of the testing that has been carried out on the material is representative of the entire stockpile, including fines. If the fines are removed, it would only be an added layer of comfort, but not necessary in my opinion.” It was submitted, in effect, that the Professor’s acceptance of the proposal is conditional on the co-respondent proving that its testing is truly representative of the entire stockpile. This, I consider, misses the point. Whilst Professor Ng could have expressed himself more clearly, the point I took him to be making is that the tests were carried out on the entirety of the sampled material, including the fine fraction, such that the fine fraction has been taken into account in the analysis.
[98]Ex 44 pg 4, 5.

It is difficult to see that there should be any real concern about the fines. In that regard:

(a) the fines are not representative of the material as a whole, which is composed of a fine fraction and a coarse fraction.[99] Risk assessment is carried out by reference to the whole <2 mm fraction, not just the fines.[100] Different sized fractions are not separated out, save to assess bioaccessibility.[101] The fines are accounted for in the calculations;[102]
[99]Ex 10 ll 403-404.
[100]Ex 11 para 5.7.
[101]Ex 13 para 80.
[102]Ex 13 para 105(b).

(b) even if, contrary to the appropriate approach referred to above, the concentrations of arsenic in the fines were compared with the HILs, the maximum concentration of arsenic found in the 15 samples from 2017 (4,448 mg/kg) still falls within Dr Wright’s adjusted HIL D level, which is the generic land use of relevance;

(c) the finer fraction in loose soil at the base of the heap is highly unlikely to be distributed off-site and is not to be added to the material;[103]

(d) there is little prospect of significant further fines being generated, by crushing, compaction or deterioration after the material leaves the site.[104] A petrographic analysis of the suitability of the material in 2017 indicates the material is “very hard”, “very strong”, “very durable”, “considered to be suitable for a source use as rip rap, road base, asphaltic and sealing aggregate”, and “physically suitable for rail ballast”.[105] A more recent analysis in 2019 is consistent with that.[106] Mr Short was of the opinion that the quarry material is well suited to its intended use as road base because it is highly resistant to breaking down.[107] Further, as Dr Wright agreed,[108] the further crushing of the material would not alter the concentration of arsenic within the material;

(e) there can be no substantial concern about the fine fraction being blown off-site (from, for example, an unsealed road) and ingested over a long period of time so as to cause concern.[109] Not only are there to be controls over where the product can be used, but, as Dr Wright accepted in the course of cross-examination,[110] direct inhalation would be “a very negligible issue” that “on its own is not something you’d worry about”. It may be noted that the material is well within the dust inhalation pathway specific arsenic Tier 1 human health criteria for all HILs derived by Mr Stuckey.[111] Dr Wright further conceded that even if the material were used for a road adjacent to a HIL A area (which is not proposed) and even if account is taken of the prospect of dust being blown onto an adjacent residence, depositing fines onto the roof (that are washed into a rainwater tank) and also deposited on fruit and vegetables in the garden, “it’s unlikely to be high enough to be of concern”.[112] Similarly, as Mr Sutherland pointed out[113] dust, by definition, must be fine and light and the total mass escaping to the environment would be low and undetectable in any single event and small as a cumulative impact over time. Professor Ng was similarly unconcerned.[114]

[103]Ex 46 para 47.

[104]Ex 10 pp 17, 18.

[105]Ex 6 p 115.

[106]Ex 22, document with the footer Q190905, pg 3.

[107]Ex 10 pg 18.

[108]T7-61. Perhaps unsurprisingly Mr Lee was unwilling to concede that (T5-45) but I prefer Dr Wright’s evidence.

[109]It is unlikely that anyone would ingest fines which stayed within or beside a road itself (T7-61).

[110]T7-60.

[111]Ex 13, Table 3.

[112]T7-60, 61.

[113]Ex 7 para 86.

[114]T5-23, 37.

(vii) Effect of controls

Dr Wright’s opinion that, in relation to human health, the stockpile material is not suitable for the proposed use was driven by her general concern in relation to exposing the community to arsenic and her specific concern that there could be no effective control on the end use of the material once sold, to ensure that the material is properly placed and managed over time. Accordingly, she adopted the criteria for HIL A land use, even though it is not intended to supply product for such use. In the course of cross-examination, Dr Wright fairly conceded however, that if the Court was satisfied that the material could be controlled and managed then her concerns will have been addressed.[115]
[115]T7-49.

(viii) Conclusion on human health

For the reasons which have been given, I am satisfied that, subject to the issue of the adequacy of control of the material, the proposal does not represent an unacceptable risk to human health and is unlikely to result in undue impact.

Environment/ecology

It has been noted that it was agreed, in the HHEEJR, that NEPM and ANZG provide appropriate guidance. Insofar as the environment is concerned, the former provides some guidance in particular for terrestrial ecosystems and the latter for aquatic ecosystems.

(i) NEPM – EILs and ageing factor

NEPM provides for EILs for various contaminants for the protection of terrestrial ecosystems. They seek to achieve protection levels for generic land use settings as follows:[116]
[116]Ex 5 pg 13 s 2.5.4.

· 99% for areas of ecological significance;

· 80% for urban residential areas and public open space,

· 60% for commercial and industrial land uses.

Attention focussed on the guidelines for soil quality for aged arsenic contamination which are as follows:

Land use As mg/kg

Areas of ecological significance 40

Urban residential/public open space 100

Commercial/industrial 160

The concentrations in the subject material exceed those levels.

Ageing is the process whereby the longer metals and other charged chemicals are absorbed to soil, the slower and smaller the desorption reaction.[117] The significance of the EIL being for ‘aged’ arsenic contamination, is that there is evidence that, over time, the toxicity and extractability of arsenic contamination decreases as the contaminant binds to the soil component.[118] One study, cited in NEPM, reported decreases ranging from 2- to 12-fold and concluded that ageing of arsenic should be taken into account during risk assessment. Another study found that ageing did not always occur. The EIL in NEPM expressly takes account of ageing in a ‘conservative manner’ by adopting a factor of 2. Dr Wright thought that should apply in this instance given the uncertainty in the studies and how they apply to this material and the soil types it would be placed in,[119] but Mr Stuckey considered that too conservative.
[117]Ex 13 para 58.
[118]Ex 5 para 4.7.1.
[119]T7-39.

NEPM does support taking account of ageing. The issue is to what extent there ought be an allowance for that in the context of the subject material. As Mr Stuckey pointed out, the arsenic (and for that matter copper too) in the material on the subject site is not like an arsenic contaminant freshly added to soil or added only a few years ago. It is a naturally occurring part of the material itself and so has been undergoing the ageing process for a very long period of time. Further, he also had regard to the EDTA leaching results.[120] He also considered that the arsenic was likely to be present in the less toxic (for terrestrial ecosystems) pentavalent state, although he conceded that is not yet established.[121] Mr Stuckey concluded that a more reasonable ageing factor to adopt for the material would be of the order of 10 to 12.[122] That is, I accept, a reasonable approach in the circumstances, noting that the co-respondent does not seek to distribute material based on an arsenic concentration up to the resulting adjusted level of 800 – 960 mg/kg for commercial/industrial land uses, but rather only to 500 mg/kg, which is closer to the level which would be produced if an ageing factor of 6 was used.[123] Accepting Mr Stuckey’s ageing factor, the 500 mg/kg threshold also complies with the adjusted level for urban residential/public open space of 500 –600 mg/kg.[124]
[120]Relevant to the fraction available to uptake by plants.
[121]T7-31, 32.
[122]T7-29.
[123]Ex 13 pg 26 Table 4.
[124]See Ex 13 Table 2.

The proposed threshold of 100 mg/kg is very comfortably within Mr Stuckey’s adjusted EILs for copper for not only commercial/industrial (460 – 530 mg/kg), but also for urban residential areas and public open space (310 – 360 mg/kg). It is not proposed to distribute the product for use in areas of ecological significance.

(ii) Agriculture

NEPM does not deal with agricultural areas. The material is not proposed to be distributed for agricultural use, although it may be used for road or rail infrastructure which traverses or abuts land used for those purposes or for sites the subject of a mining lease or on industrial sites adjacent to such land. The evidence of Professor Ng[125] establishes that:
[125]Ex 7 paras 45-58.

(i) aside from mining, agriculture is the major industry in the region, with the major terrestrial animals being livestock for human consumption;

(ii) the leachate concentration of arsenic (discussed later) is within guideline values for livestock drinking water and short-term (up to 20 yrs) irrigation of plants for human consumption;

(iii) the past and current use of phosphate in the agricultural practices and in animal excretion would offer significant reduction of toxicity;

(iv) arsenic does not accumulate in vegetables or edible plants to any significant level, with the exception of rice. The region is not a rice cultivation area;

(v) the prospect of livestock grazing on unsealed road base or sealed road is very remote, and

(vi) even in the case of fully vegetated heap leach pad and intensive grazing to simulate a worst case scenario, the health of animals is sustained and meat is safe for human consumption.

(iii) Groundwater

Insofar as potential groundwater effects are concerned, Dr Wright referred to generic soil quality guidelines to protect groundwater ecosystems from arsenic leaching set out in Table 33 of NEPM. The criteria are 4.6 mg/kg if no dilution is considered or 91 mg/kg if a 20-fold dilution is considered. Dr Wright said that a dilution factor of more than 20 could not be justified in the absence of information about the receptor sites. The proposal would not meet those limits.

Table 33 appears in section 4.6.2 of NEPM which expressly deals with fresh arsenic contamination. As Mr Stuckey pointed out,[126] this is not such a case. Rather the arsenic is naturally in the material and is appropriately considered as aged, rather than fresh, with consequent low leachability. Further, Professor Ng expects that leached elements, including arsenic, would bind to the clay layer of the soil profile and be immobilised.[127] The documents to which Mr Stuckey refers in the HHEEJR suggest that the concentrations in the material proposed for distribution will be well below the levels (1,600 mg/kg for arsenic and 4,000 mg/kg for copper) necessary to protect freshwater aquatic ecosystems associated with groundwater discharge, even on a 95% species protection basis.[128] I accept his evidence and therefore accept that the proposal is unlikely to have an unacceptable impact on aquatic ecosystems by impact on groundwater.
[126]Ex 7 para 83.
[127]Ex 7 para 46.
[128]Ex 7 para 83, Ex 13 paras 8, 61, 108, T6-62.

(iv) Surface discharge – aquatic ecosystems

Another issue is the potential for chemicals in the leachate from the material to impact on aquatic ecosystems via surface discharge, particularly runoff. In order to determine the likely chemical composition and concentration of leachate under normal environmental conditions such as rainfall, ASLP testing, using deionised water, was conducted on 10 samples taken in 2016 and 15 samples taken in 2017. TCLP testing was also undertaken and, predictably, yielded greater concentrations of the chemicals of concern. TCLP testing is designed to simulate relentless acid conditions associated with leaching through putrescible waste landfills.[129] The issue of acidity is discussed later. The ASLP test is the more appropriate of the two for use, in this case, as indicative of what might leach out of the material.
[129]Ex 3 pg 739.

Dr Robertson raised a concern that ASLP testing uses a higher dilution factor than has historically been used for mining wastes.[130] He referred to ESLP testing with which he has experience and which is not as dilute.[131] The authors of the HHEEJR however, took no issue with the use of ASLP testing. Dr Wright confirmed[132] that it is the test used by her and others with her qualifications for risk assessment. I was not persuaded that the subject material is such as to make ASLP testing inappropriate. I accept that it was the appropriate test to use.
[130]Ex 20 pg 5 para 4.1(a)(i).
[131]T6-22.
[132]T7-67.

The ASLP testing revealed that only a small proportion of the chemicals leached (2.1% for arsenic and 1.6% for copper).[133] As for concentrations, testing of the 2016 samples yielded an arsenic mean of 0.30 mg/L (ranging from 0.06 to 0.77 mg/L) and 0.035 mg/L (ranging from <0.01 to 0.09 mg/L) for copper.[134] The 2017 samples yielded similar results,[135] with a mean of 0.34 mg/L (ranging from 0.024 to 0.998 mg/L) for arsenic and 0.02 mg/L (ranging from <0.001 to 0.23 mg/L) for copper.[136]
[133]Ex 13 pg 27 Table 5.
[134]Ex 3 pp 624, 625.
[135]Ex 3 pp 741, 752-754; Ex 7 para 44.
[136]Ex 6B pg 34, Ex 3 pp 752-754.

Dr Wright and Mr Lee were of the view that the appropriate criteria, to which regard should be had in this regard, are the concentrations for achieving a 95% species level of protection as set out in ANZG.[137] That is the level of protection which is applicable to slightly to moderately disturbed systems. Dr Wright explained[138] that it is the default criteria under the guidelines and is adopted in many jurisdictions.
[137]Which is a 2018 online revision of the ANZECC guidelines.
[138]T7-39.

The main focus was on the criteria for arsenic, being the ‘contaminant’ of primary concern. The 95% species level of protection concentration is 0.024 mg/L for As III and 0.013 mg/L for As V. As the type of the arsenic in the subject material has not been determined with certainty, Dr Wright and Mr Lee reasonably focused on the lower of the concentrations, being 0.013 mg/L for As V. The level for copper is 0.0014 mg/L. The levels in the leachate are well above those levels.

Mr Sutherland thought that the 80% species level of protection concentration was relevant. That applies to highly disturbed systems. Mr Sutherland’s view was that the sites at which the material will be used (roads, railways, mines and industrial sites) will be highly disturbed. The guidelines provide some examples of highly disturbed ecosystems. They are:

“Some shipping ports and sections of harbours serving coastal cities, urban streams receiving road and stormwater runoff, or rural streams receiving runoff from intensive horticulture”.

It was said, by Mr Lee, that those examples are unlikely to apply to the situation to where the subject material would be relocated. They are however, just examples.

The primary difficulty with the proposition that an 80% criterion should be the focus of attention is that the question is not so much whether the land upon which road, for example, is being built with the subject material is highly disturbed, but whether the receiving waters, which support the relevant ecosystem, are highly disturbed. As Mr Stuckey said in his supplementary statement,[139] where the drainage pathway is not simply confined to a manmade structure, but extends (including beyond structures) to, for example, a natural watercourse adjacent to the site or road reserve, the relevant level of aquatic species protection is likely to be 95%. Because the precise destination of the subject material is unknown, the 95% level of protection is that to which consideration should be given. Further, whilst initially the co-respondent sought to make something of the fact that the mean arsenic concentration from the ASLP tests are within the 80% species protection level for As III (0.36 mg/L), the evidence does not establish that the material is of that kind.
[139]Ex 47.

Dr Wright again urged consideration of the maximum results, rather than just the mean, on the basis that the material sold to any one client may be more or less leachable than the mean.[140] For the reasons given earlier, I consider that to be overly conservative, although the point is not determinative in any event.
[140]Ex 7 para 75d.

Mr Lee pointed out[141] that the mean arsenic concentration from the most recent ASLP tests (0.34 mg/L) is 26 times higher than the 95% species protection level for As V (0.013 mg/L) and asserted that “therefore” there is a significant potential to contaminate stormwater and sensitive receiving waters that comprise freshwater ecosystems. That is too simplistic. It was rejected by Mr Stuckey.[142] It does not give due consideration to the issues of exposure pathways and the dose to which the receptor might potentially be exposed, being matters that Mr Lee accepted are relevant to risk assessment.[143] His approach was that those matters were relevant ‘in theory’ but, in practice, if contaminants exceed Tier 1 you get rid of them or cap them over with concrete.[144] In my view, an appropriately conservative response to the test results is to acknowledge how they compare with the 95% level of protection values and then to consider matters such as the exposure pathway and likely receptor dose in the course of the risk assessment.
[141]Ex 19 pg 4.
[142]T6-67.
[143]T4-99, 100.
[144]T4-100.

The guideline levels are, as Professor Ng explained,[145] set by reference to the receptor. In that respect there are at least two things to bear in mind in relation to the results of the ASLP testing.
[145]T5-11.

First, as Dr Robertson pointed out,[146] the test gives an indication of what will leach out, but not how fast it will do so. Although performed over less than a day, the test mimics leachability over a longer period.[147] Whilst no long-term leach testing has been conducted, as Mr Short pointed out[148] the fact that the material is still leaching small quantities of metals and metalloids after many years of weathering suggests that the chemicals would leach out over a long period of time, rather than all at once or quickly as Dr Robertson postulated could be possible.[149]
[146]T6-21, 22.
[147]T6-67.
[148]Ex 45 pp 9, 10.
[149]T6-21.

Secondly, as Mr Stuckey explained,[150] runoff will not occur unless the rainfall event is such as to more than fully saturate the material. In such rainfall events however, factors such as dilution, attenuation and dispersion come into play.
[150]T6-63, 64.

Whilst Mr Lee stated that the acceptability of the quality of the discharge must be assessed at the boundary of the site,[151] Dr Wright gave consideration to, but did not adopt, the 0.013 mg/L As V concentration as the criteria for the leachate. Rather, in formulating criteria for arsenic for use in circumstances where the off-site uses of the material cannot be controlled or managed, she adopted an ASLP concentration of 0.26 mg/L on the basis of it being 20 times the 0.013 mg/L concentration. She suggested using it as an alternative to the 91 mg/kg that she had derived from Table 33. The concentration she adopted is much closer to, although still less than, the mean concentration derived from the ASLP tests.
[151]T5-49.

Arsenic is not a chemical likely to stay in solution given an opportunity to bind with soil particles (in soil or sediment). It was common ground that it readily so binds.[152] When questioned about material used for roadmaking, Mr Lee accepted that arsenic will absorb into the soil very readily and stay in place and he added “I think if it’s going to move, it’ll move with the soil, with the sediment. It’s erosion”.[153] As Mr Sutherland said in relation to a proposition that material used as road base might leach arsenic into a table drain and, from there to the wider catchment, including the Great Barrier Reef, “I had a very significant problem with the hypothesis that the arsenic was going to go into the soil, climb out of it into the table drain, make it down the watercourse into the river and out to the Great Barrier Reef”.[154] Where arsenic binds to soil particles that could erode however, the issue becomes one of soil and sediment control (a matter commonly managed in development).
[152]Ng T5-26, Lee T5-50, 79, Sutherland T7-86.
[153]T5-50.
[154]T7-80.

Mr Sutherland pointed out that there will be a number of safeguards which apply, in any event, once the material is delivered off-site. There requirements that material not be placed in watercourses or places where it is going to erode into a receiving environment. Further, erosion and sediment control measures need to be implemented. Similarly, Mr Short referred to the statutory and organisational requirements for erosion and sediment management, both during construction and ongoing, likely to apply to projects of the kind to be supplied by the subject development.[155] Mr Stuckey likewise pointed out, that there will, in any event, be an obligation on the person or entity using the material to control erosion and sediment so that it does not escape,[156] although he conceded that proper controls are not invariably put in place in practice.[157] Mr Sutherland saw the additional conditions offered by the co-respondent, in relation to where the material could be placed, as worthwhile, but not all necessary, in the context of other controls.[158]
[155]Ex 45 pg 9.
[156]T7-12.
[157]T7-14.
[158]T7-87.

[249]There would appear to be the need to revisit the proposed draft condition (which permits notice at the time of delivery) to ensure that the agreement to purchase is on the stated basis.

· acknowledges the limited suitability of the material, and

· agrees to abide by restrictions as to its storage and use,

(iii) only to permit material to be transported off-site by vehicles under the control of the owner/operator of the development (which should be supported by an obligation to only transport the material to a location which is consistent with the restrictions).

Further, there are also to be controls over the range and identity of potential recipients. The material will not be distributed indiscriminately, in small quantities, to thousands of recipients through the community at large. Rather, the material is to be distributed within a limited area and for limited purposes, and, in the case of road or rail infrastructure, it may only be distributed to the following entities (including their agents, employees or contractors):

(i) the Commonwealth, State or local government (or any government instrumentality or government owned corporation); or

(ii) the holder or beneficiary of a mining lease or other tenure or approval under the Mineral Resources Act 1989.

The only other proposed purposes are for use otherwise on sites the subject of a mining lease under the Mineral Resources Act 1989 or by those carrying out building or operational works on sites zoned and used for industrial purposes.

In the circumstances it is reasonable to assume that the material will be distributed to fulfil supply orders in relation to a more limited number of significant projects. It has already been noted that the minimum job size is likely to be no less than 20,000 tonnes. Consequently, the range and number of entities with which the arrangements in relation to the restrictions will have to be put in place are likely to be more limited than might otherwise be the case. Further, it should not be assumed that those responsible for such projects, which include government projects, would be so lacking in professionalism and integrity as to knowingly misuse material in the face of the notice which is to be given or to fail to take steps to abide by the obligations that have been agreed.

The significance of a site being the subject of a mining lease or other tenure under the Mineral Resources Act 1989 is that it is highly likely to be on the EMR under the EPA. That is because sites are listed on the EMR if the administering authority of the EPA is satisfied that a notifiable activity is being carried out on land. A notifiable activity is defined in Schedule 3 of the EPA and includes a range of activities which are typically, if not always, carried out on land the subject of a mining lease. Such a site would be subject to the contaminated land regime, which, as Dr Wright confirmed, “is a good process for enforcing those sorts of controls”.[250]
[250]T7-50.

Whilst the conditions of approval may not bind the recipients, there are, as Mr Sutherland pointed out, other controls. It has already been observed that Dr Wright’s concerns in relation to potential impact on the environment focussed upon the material, with its arsenic, being placed within or directly next to an aquatic system or drain. The proposed restrictions address that, but as was pointed out for the co-respondent, some protection is, in any event, also provided by s 440ZG of the EPA which provides as follows:

“A person must not–

(a) unlawfully deposit a prescribed water contaminant–

(i) in waters; or

(ii) in a roadside gutter or stormwater drainage; or

(iii) at another place, and in a way, so that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into waters, a roadside gutter or stormwater drainage; or

Example of a place for subparagraph (iii)–

a building site where soil may be washed into an adjacent roadside gutter

(b) unlawfully release stormwater run-off into waters, a roadside gutter or stormwater drainage that results in the build-up of earth in waters, a roadside gutter or stormwater drainage.”

Prescribed water contaminants include (underlining added);

(a) earth (meaning sand, soil, silt or mud);

(b) a chemical, or chemical waste containing a chemical;

(c) ashes, clay, gravel, sediment, stones and similar organic or inorganic matter;

(d) a substance that has a pH outside the range 6.5 to 8.5;

(e) building and construction materials, including bitumen, brick, cement, concrete and plaster;

(f) building, construction and demolition waste, including bitumen, brick, concrete cuttings, plaster and waste water generated by building, construction or demolition.[251]

[251]EPA ss 440ZF, 440ZD, EP Regulation s 65, Sch 10.

The material would be a prescribed contaminant irrespective of its chemical composition and so could not be unlawfully deposited in places described in s 440ZG(a), including in waters or where it might reasonably be expected to move into waters or stormwater drainage. The usual requirements to contain erosion and sediment have been referred to earlier.

More generally, the EPA creates offences of environmental harm and nuisance[252] of which a recipient otherwise minded to misuse the material, notwithstanding having been put on notice as to its limited suitability and the results of its testing, should be mindful. The above leaves out of account obligations otherwise upon the recipient as a consequence of any approval applicable to its development.
[252]Subdivision 3 of Part 3.

Dr Wright spoke of her experience, in rural areas, of a manager or employee taking some material from an industrial site or a mine home or selling it to others.[253] There will, in this case, have been notice that the material is unsuitable for other purposes and an agreement about re-use. It is possible that individuals could, without authority, take some material from a stockpile in order to put it to their own use, but theft is not a scenario to which I am prepared to attach significant weight.
[253]T7-36, 37.

The combination of obligations on the operator to:

(a) give notice of the limited suitability of the material, the restrictions on its use (and why) and of its testing results;

(b) obtain acknowledgement and contractual obligations from the recipient, and

(c) control the means of delivery of the material to ensure its distribution consistent with the restrictions,

in circumstances where

(d) the range (and identity) of the recipients is relatively confined and fewer in number than would otherwise be the case;

(e) the recipients will be subject to contractual obligations, and

(f) there are relevant statutory controls and offence provisions

will, I am satisfied, provide a reasonable and adequate response to the risk of the material being put to an inappropriate use by the recipient.

Concerns were raised about the prospect of the material being later re-used, in an uncontrolled way, after its first use. The proposed conditions of approval address that by requiring the operator to give the recipient notice that the material is not to be re-used for another purpose and only to distribute the material to a recipient on a condition to that effect.

At a practical level, the narrow range of purposes for which the product is authorised to be used in the first instance and the expected minimum quantity means that the likelihood of re-use is low in any event. The supply of material would be likely to be in relation to sizeable permanent developments. It was acknowledged by Dr Wright that material used for a railway, for example, would not be expected to be later re-used.

A possible example of re-use that was postulated was a road which, over time, may deteriorate such that it, or a section of it, is dug up. One would expect that, in such circumstances, a road authority which obtained the material on the basis of its restricted suitability and unsuitability for re-use otherwise, would respect that.

It was also pointed out, for the co-respondent, that future excavation of the material and its re-use as fill may be assessable as such or on the basis that the excavation may require a development approval as a form of extractive industry. There was some debate about whether it would fall under the definition of ‘extractive industry’ under the current planning scheme. The better view is that it does, for the reasons advanced on behalf of the co-respondent, but it is unnecessary to pause on that because the position under the current planning scheme does not take the matter very far. It is the scheme in force at the time of the potential re-use which would be relevant. It is sufficient to note that there is, at the very least, the possibility that future re-use could itself be the subject of planning control, that would result in the question of the suitability of the material being dealt with in any event.

It is theoretically possible that the material could be:

(i) supplied to an entity that does not use it for a permanent development; and

(ii) later re-used or made available for re-use; and

(iii) despite the notice previously given about the suitability of the material and despite the material having been supplied on the agreed basis which limits its re-use, the material is nevertheless re-used for something else; and

(iv) that something else is not one of the specified uses for which the material is suitable; and

(v) that the product is not to be used for that other purpose or is otherwise regarded as unsuitable is not detected by reason of the prior notice by, and agreement with, the co-respondent, any application and approval process required for the site from which the material is to be excavated or the site to which it is to be deposited by way of re-use or by any enquiry as to its suitability by the person or entity proposing to re-use it or, if detected, is ignored.

That is however, in the circumstances, an unlikely scenario, the possibility of which is not something that I am prepared to give decisive weight.

It should be observed that re-use, in the unlikely event of the above scenario, would not necessarily lead to adverse impact. Using NEPM as a guide, it has already been observed that material which meets the testing thresholds (such that it was able to be exported from the subject site) will have chemical concentrations which are well within all HILs for copper and within the adjusted arsenic HILs for B, C and D land use types. Roads have extremely limited direct exposure and dust (fines) is unlikely to lead to a dose at levels of concern even in HIL A areas.[254] The exclusion of this material from HIL A areas was explained by Dr Wright on the basis of a cautious approach.[255] Re-use for a railway is unlikely to cause any greater impact. Insofar as terrestrial ecosystems are concerned, it has already been observed that material that meets the thresholds would be within Mr Stuckey’s adjusted EILs not just for commercial/industrial, but also for urban residential/public open space land uses. Insofar as aquatic ecosystems are concerned, groundwater is not of concern, even on a 95% species protection basis. Adverse impact by reason of surface flows (run off) depends upon dose at the receptor and an exposure pathway (as earlier discussed). That is not to say that a broader use of the material ought be permitted, but rather to recognise the consequence of the extent of justifiable conservatism in the proposed restrictions.
[254]T7-60.
[255]T7-72.

It was pointed out, for the appellant, that the proposed regime involves conditions that:

(i) are continuing conditions, rather than those that can be complied with once and for all;

(ii) seek to control the activities of persons or entities other than the operator of the development, and

(iii) seek to control activities beyond the site boundary.

Those are matters which call for scrutiny of the proposed conditions and how they are proposed to operate, in the relevant circumstances, to achieve the desired outcome.

Reference was made to the decision in Ward v Rockhampton Regional Council[256] where a proposed private airstrip was refused. One of the difficulties with that proposal lay in what would have been the difficulties in enforcing the operational controls which were proposed in order to reduce potential amenity impacts. Those included controls over:
[256][2015] QPELR 252.

(i) the number of flights, expressed as maxima, for certain days and otherwise for months, quarters or years,[257] and

(ii) designated flight paths.

As the reasons explain,[258] those are controls compliance with which the local residents (the likely complainants in relation to amenity impacts) would find difficult to monitor and establish. Whilst the subject situation shares the three features referred to, it does not have the same level of difficulty with potential enforcement that accompanied the proposal in Ward v Rockhampton Regional Council (supra).

[257]Para [123].

[258]Paras [139]-[141].

Whilst it is correct to observe that continuing conditions generally have greater potential for enforcement issues to arise, it is also true, as was observed in Ward v Rockhampton Regional Council,[259] that it is not unusual for approvals to be subject to conditions of that kind. The potential difficulty involved with having conditions directed to the use of the material off-site by third parties has been acknowledged, and discussed. For the reasons given, I am satisfied that the obligations placed upon the operator will, in the circumstances, deal with that risk.
[259]At [133].

The residual risk lies in the risk of a failure to achieve compliance with the conditions on an ongoing basis. That is a risk common to all continuing conditions. It can be exacerbated, in a given case, by onerous complexity or by another feature of the particular conditions or the context in which they operate. In this case the proposed conditions would require the operator to do a number of things, but there is no sufficient basis to conclude that any are impractical or would impose burdens which would generate a practical likelihood of non-compliance.

The respondent does not raise any concern in relation to enforcement. Further, it is proposed to impose obligations on the co-respondent which will facilitate enforcement. In that regard:

(i) the testing of each batch of material and the regular audits will be recorded and made available to the Council and the Department of Environment, so that there is an evidence trail in relation to any non-compliant material;

(ii) a register is to be maintained which records, amongst other things, the destination of all deliveries of material. That register is both to be available to the Council at all times and provided to it at regular intervals. This will create an evidence trail in relation to non-compliant delivery of materials;

(iii) there is to be an obligation to self-report non-compliance.

It has already been observed that the material is likely to be supplied in large quantities for significant sized projects. No doubt the appellant or commercial competitors will be able to acquaint themselves with the restrictions placed upon the permitted purposes for which the co-respondent’s material may be supplied and whether a project that is in the market for material may lawfully be supplied from the material at the subject site.

It was submitted, on behalf of the appellant, that the Court would not assume that the co-respondent will abide by conditions of approval and that the Court would be slow to accept that the use was appropriate subject to conditions in circumstances where:

(a) ECL and related companies have previously not complied with conditions of approval;[260]
[260]T8-37, l 20.

(b) both of the existing quarries operated by ECL commenced the use of the land without complying with conditions of approval;[261]

(c) the Eureka quarry operated for 4 years without being compliant with conditions of approval.[262] Compliance only occurred when action was taken by the Council;[263] and

(d) the non-compliance at the Eureka quarry related to “turning lanes” which Mr Dobson agreed relates to matters of “safety”.[264]

[261]T8-38, l 5-10.

[262]T8-38, l 30-35.

[263]T8-38, l 30-40.

[264]T8-38, l 40.

Further, in its earlier communications with Council, it was indicated on ECL’s behalf that:

“

· ECL Dalby does not rely upon the “appropriate usage of the material by others”.

· ECL Dalby does not “assume those procuring the material will have the professional skills to determine appropriate and inappropriate usage of the material pursuant to NEPM”.

· ECL does not agree that an “absence of reliable environmental controls” exists or then, it follows, that this “increases the potential for environmental harm as a result of the proposal”.”[265]

and

“It is unreasonable for Council to suggest that ECL Dalby should be responsible for ensuring the correct use of its quarry products by other entities”.[266]

[265]Ex 52, p 590, first 3 bullet points.

[266]Ex 52, p 592, first bullet point.

The quoted passages are from documents generated during the development approval process. Not all appear to be inconsistent with the co-respondent’s present position. For example, there is no assumption that the recipient will determine the appropriate usage of the material pursuant to NEPM. They will be given notice of the suitability of the material by the co-respondent. On the other hand, the co-respondent clearly now accepts that it should take reasonable steps to appropriately address the need for recipients to put the material to an appropriate use. When questioned about these passages, Mr Dobson said that he did not write the passages but that they did not still represent the position of the company. That the company has altered its view in this respect is unsurprising.

Mr Dobson was forthright in his admission of past breaches of conditions of approval. That is of some concern although none related to environmental controls or continuing conditions. In this case it is not proposed simply to rely on the co-respondent to be a good and responsible corporate citizen. As has been observed, measures are proposed to facilitate enforcement. In the circumstances I do not consider that reliance on conditions is inappropriate.

Conclusion

For the reasons given, I am satisfied that, subject to the imposition of appropriate conditions of approval, the material does not pose an unacceptable risk and is unlikely, once exported from the site, to cause undue human health, ecological/environmental or environmental and land contamination impacts. I am satisfied that the risk of the material being used inappropriately can, in the circumstances, be reasonably and appropriately addressed by the imposition of conditions. The conditions will differ from those imposed by the respondent and the EMP, to which the conditions refer, will also require amendment. Orders will, in due course, be made approving the development subject to conditions, the content of which will be determined after hearing further from the parties. I will, at that time, hear from the parties as to the appropriate minutes of order.[267]
[267]Including whether orders should be made under s 47(1)(b) or (c).

CITATION:	Clermont Quarries Pty Ltd v Isaac Regional Council [2020] QPEC 18
PARTIES:	CLERMONT QUARRIES PTY LTD (ACN 152 941 001) (appellant) v ISAAC REGIONAL COUNCIL (respondent) and ECL DALBY PTY LTD (co-respondent) and CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING (co-respondent by election)
FILE NO/S:	423 of 2019
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	22 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	1, 2, 3, 4, 8, 9, 10, 21, 22 October 2019, with further written submissions received to 9 March 2020 and a further hearing on 8 May 2020
JUDGE:	Rackemann DCJ
ORDER:	1. The development application will be approved subject to conditions to be determined after hearing further from the parties. 2. The appeal will otherwise be dismissed.
CATCHWORDS:	PLANNING AND ENVIRONMENT – APPEAL – submitter appeal – application for a development permit for a material change of use for an extractive industry and environmentally relevant activities – where the site is listed on the Environmental Management Register pursuant to the Environmental Protection Act1994 (Qld) because of notifiable activities having been carried out – where the proposed material change of use and environmentally relevant activities involve the extraction, processing, testing and export of gravel from a heap pile at the site left over from a former gold mine – where there are elevated levels of arsenic and copper in the material – whether the material is contaminated – whether the proposal is likely to cause undue land contamination, human health, ecological and/or environmental impacts – whether adequate controls are available to appropriately safeguard against the risks associated with the inappropriate use of the material once it has been exported from the site – whether conditions of approval can be formulated to address those risks PLANNING AND ENVIRONMENT – EXPERT WITNESSES – where experts remained in disagreement in many respects following the expert meeting and joint report process – where the Court was invited to make adverse findings about the credibility of some experts – whether one or some of the expert witnesses fell short of demonstrating the qualities of a dispassionate and objective expert witness
CASES:	Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7 GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QPLR 342 Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 Ward v Rockhampton Regional Council [2015] QPELR 252
LEGISLATION:	Environmental Protection Act 1994 (Qld) Part 3, Subdivision 3, ss 440ZD, 440ZF, 440ZG, Sch 3 Environmental Protection Regulation 2019 (Qld) s 65, Sch 10 Mineral Resources Act 1989 (Qld) Planning Act 2016 (Qld) ss 5, 45, 59, 60, 65 Planning and Environment Court Act 2016 (Qld) ss 45, 46, 47
COUNSEL:	B Job QC and M Batty for the appellant J Dillon for the respondent D Gore QC and J Ware for the co-respondent A Skoien for the co-respondent by election
SOLICITORS:	Connor O’Meara Solicitors for the appellant King and Company Solicitors for the respondent Thynne & Macartney Lawyers for the co-respondent Corrs Chambers Westgarth for the co-respondent by election

Units	Threshold
Acid & Metalliferous Drainage Testing
Paste pH	None	>5.0
NAPP	None	Negative
NAGpH	None	≥4.5
Total S	mg/kg	Not directly relevant. Used to calculate NAPP.
Salinity and Sodicity Testing
EC (saturated)	dS/m	<10
CEC	cmol(+)/kg	<10
ESP	%	<6
Enriched Metal Testing (As and Cu only)
Total As	mg/kg	<500
Total Cu	mg/kg	<100
ASLP – As	mg/L	<50
ASLP – Cu	mg/L	<50
TCLP – As	mg/L	<100
TCLP – Cu	mg/L	<100
EDTA – As	mg/kg	<100
EDTA – Cu	mg/kg	<50
PBET – As	%	<50
PBET – Cu	%	Not correlated with animal models
Cyanide Testing
Cyanide	mg/kg	<500

Health-based investigation levels (mg/kg)
Chemical	Residential A	Residential B	Recreational C	Commercial/Industrial D
Arsenic	100	500	300	3,000
Copper	6,000	30,000	17,000	240,000

Chemical	Residential A	Residential B	Recreational C	Commercial/Industrial D
Arsenic	400	1,000	800	7,000

Land use	As mg/kg
Areas of ecological significance	40
Urban residential/public open space	100
Commercial/industrial	160