Ironstone Community Action Group Inc v NSW Minister for Planning

[2011] NSWLEC 195

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195

Hearing dates:

9-13 May 2011, 18 May 2011, 27 June 2011, 1 July 2011

Decision date:

10 November 2011

Jurisdiction:

Class 1

Before:

Preston CJ

Decision:

1. The appeal is upheld.

2. Approval is granted under s 75J of the Environmental Planning and Assessment Act 1979 to the project application referred to in Schedule 1, and on the conditions referred to in Schedule 2 to 5, of the approval in Annexure A.

3. The exhibits may be returned.

Catchwords:

APPEAL: - objector appeal against Minister's decision to approve extension of open-cut coal mine - impact on threatened species and biodiversity - adequacy of biodiversity offset strategy - impact on water quality and water flow - impact on Giant Barred Frog in nearby river - health impacts from emission of fine particles (PM2.5) - noise impacts from mining operations and coal trains - dust emissions from coal trains - adequacy of avoidance and mitigation measures in relation to these impacts - amended and additional measures required - approval granted on conditions

Legislation Cited:

Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Planning and Assessment Act 1979 Pt 3A, s 75, Sch 6A
Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011
Land and Environment Court Act 1979 s 37(1)
National Parks and Wildlife Act 1974 s 69B
Threatened Species Conservation Act 1995

Cases Cited:

Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33
Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254
Hilltop Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185; (2009) 171 LGERA 247
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213

Category:

Principal judgment

Parties:

Ironstone Community Action Group Inc (Applicant)
NSW Minister for Planning
(First Respondent)
Duralie Coal Pty Ltd (Second Respondent)

Representation:

Mr A G Stafford (barrister) (Applicant)
Ms C C Spruce (barrister) (First Respondent)
Mr A E Galasso SC with Mr M S Henry (Second Respondent)
Environmental Defender's Office (Applicant)
Legal Services, Department of Planning (First Respondent)
Blake Dawson
(Second Respondent)

File Number(s):

10090 of 2011

Judgment

Nature of case and outcome

1. Duralie Coal Mine is an existing open cut coal mine about 10 kms north of Stroud.  Development consent for the mine was granted by the New South Wales Minister for Planning in August 1999.  The mine has been operating since 2003.

1. On 9 October 2008, the owner and operator of the mine, Duralie Coal Pty Limited, applied for, and was granted on 26 November 2010, under Part 3A of the Environmental Planning and Assessment Act 1979 (“EPA Act”), approval to extend the existing open pit in a northerly direction to recover additional coal; to increase annual production; to expand the approved irrigation area; to increase the number and total area of final voids; to rehabilitate the site; and to provide an offset area for biodiversity purposes (“the Duralie Extension Project”).

1. Ironstone Community Action Group (“ICAG”), a local community organisation, opposed the Duralie Extension Project and appealed under s 75L of the EPA Act against the determination of the Minister for Planning to grant approval.  The appeal involves a merits review of the Minister’s determination to grant approval to the Duralie Extension Project.  The Court determines, on all of the evidence before it, the preferable decision as to whether to refuse or to approve the project application and, if to approve, the conditions of approval.  The Court does not have jurisdiction to review on the merits the original decision of the Minister to grant development consent to the existing Duralie Coal Mine. The Court’s jurisdiction is limited to a merits review of the proposed extension to the existing coal mine only.  This limitation on jurisdiction of the Court is important because much of the opposition of the local community is to the operation of the existing coal mine; they want the existing coal mine to close.   However, the Court does not have jurisdiction to review the grant or the terms of the development consent for the existing coal mine or to order the closure of the existing coal mine.  The Court can only review the acceptability of the proposed Duralie Extension Project. 

1. Recognising the limitation on the Court’s jurisdiction on the appeal, ICAG identified four main reasons for the Court to refuse approval to the Duralie Extension Project:

(a)         there has been an inadequate assessment of the impact of the Duralie Extension Project on particular threatened species of fauna and flora and biodiversity generally and the proposed biodiversity offsets are inadequate to mitigate these impacts;

(b)         there has been an inadequate assessment of the water quality impacts;

(c)         there will be an unacceptable risk to the Giant Barred Frog, a threatened species; and

(d)         there will be unacceptable health impacts from small-sized particulate matter (PM_2.5) generated by the Duralie Extension Project.

1. Objectors from the local community raised additional reasons concerning the unacceptable impacts of noise from ongoing mine operations and from transportation of coal by rail to the Stratford Coal Mine and of dust from the transportation of coal by rail.

1. I have determined that approval should be granted to the Duralie Extension Project, subject to extensive conditions, which provide for greater and more certain conservation of threatened species and biological diversity in the area, protection of water quality, control of particulate emissions, mitigation of noise generated by the mine and noise and dust generated by the transportation of coal by train.  These conditions go further than those imposed by the Minister for Planning in his approval of 26 November 2010.  The conditions adopt a precautionary approach. They address the concerns raised of inadequacy of assessment by requiring more comprehensive, detailed and on-going assessment of impacts on threatened species, biodiversity, water quality and particulate emissions; set performance standards; require a stepwise approach to implementation, monitoring and adaptive management; and require greater transparency and accountability.  These safeguards will, with a higher degree of probability, deliver a stronger link and an appropriate balance, at the landscape level, between the orderly and economic use of the mineral resource, yielding economic and social benefits including export revenue and royalties and direct employment, and the protection and conservation of the area’s biodiversity and environment. 

1. I have been assisted in the hearing of the appeal by Acting Commissioner Smith, under s 37(1) of the Land and Environment Court Act 1979 (“the Court Act”).

The site and surrounding area

1. The Duralie Coal Mine is located about 10 kms north of Stroud and about 35 kms south of Gloucester.  The Bucketts Way, a regional road, is to the west and the North Coast railway line is to the east of the mine.  The site is in the Mammy Johnsons River catchment, and is bounded by the Buckleys Range to the east and Lawlers Range to the west.  The area surrounding the site has been extensively cleared for pastoral-based agriculture with limited areas used for intensive poultry farming.  There are remnants of native vegetation scattered throughout the area, including patches on the site, with the most significant areas of bushland being on the ridgelines to the east and west of the site. 

1. The Mammy Johnsons River flowing along the eastern boundary of the site receives tributary flows from creeks draining the site.  One of these tributaries is Coal Shaft Creek.  Another is an unnamed tributary to the north of the site.  Mammy Johnsons River in turn flows into the Karuah River.

The existing Duralie Coal Mine

1. The Duralie Coal Mine was granted development consent by the Minister for Planning in 1999, and started production in 2003.  The development consent (DA 168/99) was modified by the Minister for Planning on 28 October 2009.  The current development consent is due to expire in March 2012. 

1. Under the development consent, Duralie Coal is allowed to extract up to 1.8 million tonnes of run-of-mine (“ROM”) coal per year, operating 24 hours per day.  Currently, open pit mining is in the Weismantel coal seam.  ROM coal is loaded by excavator into haul trucks from the open pit and transported to the coal handling area (including a rotary breaker) at the main infrastructure area.  The bulk of the ROM coal is tipped directly into a 200 tonne dump hopper.  ROM coal is occasionally stored for short periods on the ROM pad for operational reasons.  Sized ROM coal from the rotary breaker is transferred by conveyor to the 2,250 tonne coal loadout bin for loading into train wagons. Oversized ROM coal reject material (eg overburden roof rock and floor rock) from the rotary breaker is periodically trucked to the waste rock emplacement for management as potentially acid forming overburden material (Environmental Assessment Duralie Extension Project, Exhibit M2, s 2.1.1). 

1. A dedicated train, with the coal laden wagons, transports ROM coal on the North Coast railway to the Stratford Coal Mine about 20 kms to the north of the Duralie Coal Mine for further processing.  At the Stratford Coal Mine, ROM coal is unloaded and processed in the Stratford Coal Mine, Coal Handling and Preparation Plant. Product coal from Stratford Coal Mine is then transported by rail to the Port of Newcastle for export and domestic customers (Environmental Assessment, s 2.1.2).

1. In summary, the Duralie Coal Mine comprises:

·   an open cut pit, which is gradually moving to the north;

·   a waste emplacement area, which is located to the south of the open cut pit;

·   an infrastructure area, which has direct access to the Bucketts Way, a regional road to the west of the mine;

·   a rail siding, which is located adjacent to the infrastructure area and joins the North Coast railway line to the south of the waste emplacement area; and

·   an extensive water management system, which includes several large dams and use of water through irrigation in designated irrigation areas (Director-General of Planning’s recommendation to the Minister for Planning in Exhibit M1, Volume 2, p 1257). 

1. The Duralie Coal Mine currently operates within mining lease (“ML”) 1427.

The Duralie Extension Project

1. The Duralie Extension Project involves extending the open cut mining operations at the Duralie Coal Mine within ML 1427 and into the area to the north within Mining Lease Application (“MLA”) 1.  It would extend the current operations by up to 10 years.  The Duralie Extension Project utilises the existing infrastructure of the Duralie Coal Mine, although there would need to be some modifications.  The main activities associated with the Duralie Extension Project are:

“● continued development of open pit mining operations to facilitate a ROM coal production rate of up to approximately 3 Mtpa including:

- extension of the existing approved open pit in the Weismantel Seam to the north-west (ie Weismantel Extension open pit) within ML 1427 and MLA 1; and

- open pit mining operations in the Clareval Seam (ie Clareval North West open pit) within ML 1427 and MLA 1;

● mining of approximately 114 Mbcm of additional waste rock and progressive back filling of the open pits;

● ROM coal rail transport movements increased to an annual average of four train movements per day and extension of rail transport hours (7.00am to 2.00am);

● continued beneficial use of excess water through irrigation (including development of new irrigation areas within ML 1427 and MLA 1);

● raising of the approved Auxiliary Dam No. 2 to provide significant additional on-site storage capacity to manage excess water on-site.

● progressive development of dewatering bores, pumps, dams, irrigational infrastructure and other water management equipment and structures;

● development of new haul roads and internal roads;

● upgrade of existing facilities and supporting infrastructure in line with increased ROM coal productions;

● continued development of soil stockpiles, laydown areas and gravel/borrow pits;

● establishment of a permanent Coal Shaft Creek alignment adjacent to the existing DCM [Duralie Coal Mine] mining area;

● employment of approximately 135 people for nine years;

●           ongoing monitoring and rehabilitation; and

● other associated minor infrastructure, plant, equipment and activities.”

(Environmental Assessment, s ES1.3, p ES-4).

1. The Duralie Extension Project will involve clearing an additional 207 hectares of native vegetation, comprising 87 ha of woodland/forest, 109 hectares of derived grasslands and 11 hectares of cropping land (Environmental Assessment, s ES3.4, p ES-9).  The disturbed areas will be progressively rehabilitated.  The Duralie Extension Project proposes an offset strategy, which involves conserving, originally, 444 ha of land to the east of the mine (comprising 214 ha of existing remnant vegetation and 230 ha of derived grasslands to be revegetated as woodlands) (Environmental Assessment, s ES3.4, p ES-9).  The offset area was subsequently enlarged to about 680 ha (comprising about 290 ha of existing remnant vegetation and 390 ha of derived grasslands to be revegetated as woodlands).

Statutory powers and controls

1. The Duralie Extension Project is classified as a major project under Part 3A of the EPA Act as it is development for the purpose of coal mining (s 75B of the EPA Act). The Minister’s approval is required to carry out the project (s 75D(1) of the EPA Act).

1. Duralie Coal applied under s 75E(1) for the approval of the Minister under Part 3A of the EPA Act (project application no 08_0203), and submitted on 27 January 2010 the Environmental Assessment required under s 75H(1) of the EPA Act. The Environmental Assessment was publicly exhibited from 8 February 2010 to 22 March 2010. Public submissions were received from the general public, the local community and environmental groups. The submissions raised concerns about the potential water, noise, air quality, blasting and biodiversity impacts of the Duralie Extension Project.

1. In November 2010, the Director-General gave a report on the Duralie Extension Project to the Minister under s 75I(1) of the EPA Act for the purposes of the Minister’s consideration of the project application for approval.  On 8 November 2010, the Director-General recommended the Minister consider the Director-General’s Environmental Assessment Report and approve the Duralie Extension Project, subject to conditions.

1. On 26 November 2010, pursuant to s 75J(1) of the EPA Act, the Minister accepted the Director-General’s recommendation and approved the carrying out of the Duralie Extension Project on conditions. Notice of the Minister’s determination was given to Duralie Coal and to objectors.

1. On 7 February 2011, one of the objectors, ICAG, appealed under s 75L(3) of the EPA Act against the determination of the Minister to give approval.

1. Appeals under s 75L are hearings de novo in which the Court has, in addition to any other functions and discretions the Court would otherwise have, all of the functions and discretions which the Minister had in determining the project application (s 39(2) and (3) of the Court Act).  The Court determines whether, on the merits based on the evidence before it, the preferable decision is to grant or to refuse approval to the carrying out of the project.

1. The Minister’s power to approve or refuse a project application under Part 3A of the EPA Act, and so the Court’s functions on an appeal under s 75L(3), is in s 75J of the EPA Act. The section provides so far as is relevant:

“(1)           If:

(a)           the proponent makes an application for the approval of the Minister under this Part to carry out a project, and

(b)           the Director-General has given his or her report on the project to the Minister,

the Minister may approve or disapprove of the carrying out of the project.

(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a)           the Director-General’s report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report,

…

(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.

(5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).”

1. Section 75R, referred to in s 75J(3), provides in part:

“(2) Part 3 and State environmental planning policies apply to:

(a)           the declaration of a project as a project to which this Part applies or as a critical infrastructure project, and

(b)           the carrying out of a project, but (in the case of a critical infrastructure project) only to the extent that the provisions of such a policy expressly provide that they apply to and in respect of the particular project.

(3) Environmental planning instruments (other than State environmental planning policies) do not apply to or in respect of an approved project.”

1. In this case, the effect of s 75R(2) and (3) is that the Great Lakes Local Environmental Plan 1996 (“Great Lakes LEP”), which would otherwise apply to the site, does not apply to or in respect of the Duralie Extension Project. The effect of s 75R(2) and (3) is also that State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (“Mining SEPP”), and in particular cl 12 of the Mining SEPP which specifies relevant matters for a consent authority to consider in determining a development application for consent for development for the purposes of mining, do not apply to the exercise of power under s 75J(1) of the EPA Act to approve the carrying out of the Duralie Extension Project. I so held in Rivers SOS Inc  v  Minister for Planning [2009] NSWLEC 213 at [76]–[112]. In so concluding I differed from the view reached by Biscoe J, with respect to the applicability of a different State environmental planning policy to the exercise of the power under s 75J(1), in Hilltop Residents Action Group Inc  v  Minister for Planning [2009] NSWLEC 185; (2009) 171 LGERA 247 at [65]–[67]. In Australians for Sustainable Development Inc  v  Minister for Planning [2011] NSWLEC 33 at [215], however, Biscoe J reconsidered his view in Hilltop in light of my different view in Rivers SOS and concluded that, in light of the terms of s 75R(2), State environmental planning policies do not apply at the approval stage (although he remained of the view that the Minister cannot grant approval to carry out an unlawful development): at [214]. I remain of the view that the Mining SEPP, and cl 12 of the Mining SEPP in particular, do not apply to the approval of a project application under Part 3A to carry out a project for the purposes of mining.

1. Nevertheless, the Minister, and hence the Court on appeal, may (but is not required to) take into account the provisions of the Mining SEPP and the Great Lakes LEP (s 75J(3) of the EPA Act).

1. ICAG submitted that the Court should, in the exercise of its discretion, take into account the relevant parts of cls 2, 12 and 14 of the Mining SEPP.  These are: 

“2 The aims of this Policy are, in recognition of the importance to New South Wales of mining, petroleum production and extractive industries:

(a)           to provide for the proper management and development of mineral, petroleum and extractive material resources for the purpose of promoting the social and economic welfare of the State, and

(b)           to facilitate the orderly and economic use and development of land containing mineral, petroleum and extractive material resources, and

(c)           to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources.

1. Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must:

(a)           consider:

1. the existing uses and approved uses of land in the vicinity of the development, and

2. whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and

3. any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and

(b)           evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a) (i) and (ii), and

(c)           evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii).

14(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following:

(a)           that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,

(b)           that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,

…”.

1. ICAG also submitted that the Court should take into account the aims of the Great Lakes LEP in cl 2 and the aims of the Rural 1 Zone of the Great Lakes LEP set out in cl 8.

1. I do not consider I should, in the exercise of the discretion under s 75J(3) of the EPA Act, take these provisions, in their terms, into account as relevant considerations. However, the matters raised in the provisions are topics that will be discussed in general and weighed in the balance in determining the project application.

1. Finally, I note that after the hearing concluded and judgment was reserved, Part 3A of the EPA Act was repealed by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 which commenced on 1 October 2011. Nevertheless, Part 3A continues to apply to the Duralie Extension Project because the project falls within the definition of “transitional Part 3A projects” in Schedule 6A of the EPA Act (see cl 2(1)(a) of Schedule 6A). Part 3A of the EPA continues to apply to transitional Part 3A projects (see cl 3(1) of Schedule 6A). Accordingly, the Court’s powers on this appeal under s 75L(3) remain the same, including under ss 75J and 75R, as if Part 3A had not been repealed.

The issues on appeal

1. ICAG identified four main issues:

·   Biodiversity:  there has been an inadequate assessment of the impacts of the Duralie Extension Project on particular threatened species and biodiversity in general and the proposed biodiversity offsets do not compensate for these impacts.

·   Water quality:  there has been an inadequate assessment of the Duralie Extension Project on water quality.

·   Giant Barred Frog:  the Giant Barred Frog, a listed threatened species, is at risk if water quality changes as a result of the Duralie Extension Project.

·   Health impacts from PM_2.5 particulate emissions: emissions of particulate matter of PM_2.5 size from the Duralie Extension Project pose a risk to human health.

1. The local community raised a number of other issues, but of relevance to the Duralie Extension Project are:

·   Noise:  there will be unacceptable noise impacts from mining operations for the Duralie Extension Project and from the additional transportation of coal by rail to the Stratford Coal Mine.

·   Dust:  there will be unacceptable dust impacts from the uncovered train wagons transporting coal to the Stratford Coal Mine.

1. I will deal with each issue.

The evidence on the appeal

1. ICAG provided expert evidence from Mr Brendan Ryan, ecologist; Dr Ian Wright, water quality specialist; Dr David Newell, herpetologist; and Dr Peters, respiratory health specialist.

1. ICAG also called evidence from 13 objectors who gave evidence at Gloucester Court House on 12 May 2011.  The objectors were:  Mr Tony Tersteeg (Johnsons Creek Conservation Committee); Ms Amanda Albury (resident and President of Rivers SOS); Ms Janet Jonas (resident of Wards River); Mr Bruce O’Connor (resident of Wards River); Ms Rachael Wallbank (resident and farmer on Karuah River); Ms Diana Stephenson (Indigenous representative); Mr Brian Eastoe (Stroud Branch of the NSW Farmers Association); Mr Garry Smith (resident of Gloucester); Mr Graeme Healy (Chairperson, Barrington-Gloucester-Stroud Preservation Alliance); Dr Steve Robinson (retired psychiatrist and resident, Gloucester); Mr Kevin Johnson (oyster farmer, Karuah); Mr Adrian Callaghan (resident, Karuah River); and Mr Ron McLachlan (Econetwork, Port Stephens).

1. The Minister did not call any expert evidence.

1. Duralie Coal called expert evidence from Dr David Goldney, ecologist; Dr Barry Noller, toxicologist; Dr Arthur White, herpetologist; Professor David McKenzie, respiratory health specialist; Dr Nigel Holmes, air quality specialist; Dr Frans Kalf, hydrologist; and Mr Lindsay Gilbert, water quality specialist. 

1. The Court conducted an on-site inspection of the Duralie Coal Mine, the area of the Duralie Extension Project, part of the proposed offset area and surrounding areas on 12 May 2011.

1. Extensive documents were tendered and have been considered including the project application, the Environmental Assessment and supporting studies and information, public and government submissions, departmental consideration of the project application including the Director-General’s Environmental Assessment Report to the Minister, the Minister’s approval of the Duralie Coal Mine, the Minister’s approval of the Stratford Coal Mine, amongst other documents.

Biodiversity issue

1. The resolution of the biodiversity issue involves three components:

1. What vegetation communities and habitat of threatened species of terrestrial fauna and flora will be cleared or otherwise impacted by the Duralie Extension Project?

1. What mitigation measures are proposed by the Duralie Extension Project?

1. Will the likely impacts of threatened species and biodiversity be adequately mitigated by the mitigation measures proposed?

Vegetation and habitats to be cleared

Vegetation communities to be cleared

1. The Duralie Coal Mine and Duralie Extension Project are located in a locality that has been extensively cleared for agriculture, leaving fragmented areas of remnant native vegetation of a diversity of age classes.  The Duralie Extension Project will disturb 207 ha of land, comprising 87 ha of remnant native vegetation communities, 109 ha of derived grasslands and 11 ha of cropping land.  The vegetation communities were classified and numbered as part of the Environmental Assessment.  The 87 ha of remnant native vegetation to be cleared involves:

·   61 ha of vegetation community 1:  Spotted Gum – Red Ironbark – Thick-leaved Mahogany Forest (having dominant species of Spotted Gum (Corymbia maculata), Red Ironbark (Eucalyptus fibrosa), Thick-leaved Mahogany (E. carnea) and Tallowwood (E. microcorys));

·   2 ha of vegetation community 2a:  Spotted Gum – Grey Ironbark – Thick-leaved Mahogany Forest (having dominant species of Spotted Gum (Corymbia maculata), Grey Ironbark (Eucalyptus siderophloia), Narrow-leaved Ironbark (E. crebra), Tallowwood (E. microcorys), Grey Gum (E. canaliculata) and Thick-leaved Mahogany (E. carnea));

·   20 ha of vegetation community 3:  Red Gum Grassy Woodland (having dominant species of Forest Red Gum (Eucalyptus tereticornis), Grey Box (E. moluccana) and Grey Ironbark (E. siderophloia));

·   3 ha of vegetation community 4:  Grey Gum – Red Gum – Apple Riparian Forest (having dominant species of Grey Gum (Eucalyptus canaliculata), Rough-barked Apple (Angophora floribunda), White Mahogany (E. acmenoides) and Forest Red Gum (E. tereticornis));

·   1 ha of vegetation community 7:  Stringybark – Paperbark Forest (having dominant species of White Mahogany (Eucalyptus acmenoides), Thick-leaved Mahogany (E. carnea) and Prickly-leaved Paperbark (Melaleuca nodosa)) (Environmental Assessment, Appendix E, s E4.1, p E-56 and see also Table E-6, p E-29).

1. None of the vegetation communities to be cleared fall within the descriptions of any of the listed endangered ecological communities under the Threatened Species Conservation Act 1995.

1. Dr Goldney contends that the patches of the vegetation communities to be cleared for the Duralie Extension Project are mostly regrowth woodland and forests.  These have lower conservation values than the forests that were present in the pre-European landscape. Dr Goldney’s assessment of the conservation values of the land to be cleared includes:

“4.1           The ecological status of the Project land has changed significantly since European settlement in the second half of the 19th C.  The land on the valley floor has historically been cleared of its pre-existing woodland and forests driven by timber getting and the creation of dairy farms that proved to be non-sustainable.  Farming is now mainly confined to grazing with limited cropping.  Historic clearing extended across much of the nearby ranges.  Small pockets of old growth persist in the valley floor and in the nearby ranges but not within the Project area.  Hence the patchy regrowth that is now extant across the catchment is predominantly regrowth interspersed with secondary grasslands and scattered individual trees.

4.2           Regrowth woodlands and forests are in forest formation, that is they are particularly dense, with tree densities up to 400-1000 per ha.  The age of this regrowth varies considerably from 10 to 50 years.  Regrowth timber within the Project area varies from 10–40 years with the majority around 20 years old.  Hence we have a patchy landscape with small to medium sized remnant patches interspersed with secondary grasslands and a scattered tree-scape.  The remnant patches tend to be habitat homogenous rather than heterogeneous which tends to favour a particular suite of vertebrate species that can exploit the habitat niches made available by this patchy succession and to exclude species that are unable to exploit the available habitats.

4.3           The regrowth that has occurred (plant succession) within the Project area is mainly due to the exclusion of grazing when the land was purchased by DCM.  The associated extant protected and threatened species that are woodland and forest dependent are mainly the result of relatively recent species incursions from adjoining landscapes rather than from pre-existing extant remnant populations.

4.4           Since the regrowth woodlands and forests are relatively young (ie typically less than 40 years old) they tend to have a lower number of hollows, lower number of stag trees (dead upright hollow timber) and lower abundance of forest-woodland floor mature logs with and without hollows, when compared with mature woodland and forest.  This in itself limits the number of hollow dependent species.  The widespread forest formations with limited log cover also significantly limits suitable habitat for many reptiles particularly away from woodland/forest edges.

4.5           The pre-European creek lines have also been significantly degraded and critical ecosystem thresholds have been exceeded.

4.6           All major ecosystem cycles (carbon, water and nutrients) have been significantly and adversely impacted at point and landscape scales, as has solar energy interception.

4.7           Under no circumstances can the Project area be considered a pristine quality conservation area, although it is not without conservation values that are described in the EA and is in the process of demonstrating significant self initiated recovery.  That is there is evidence that system resilience in this landscape still remains at a level where self recovery is possible in contrast for the need for restoration intervention.

4.8           The reality is that the Project area is a very degraded but self-recovering landscape, but nevertheless one with inherent conservation values, albeit significantly lower than were present in the pre-European landscape.

4.9           Furthermore the current recovering ecological system present within the Project area is widespread and well represented across the Mammy Johnsons River catchment.” (Goldney Report, Exhibit D4, paras 4.1–4.9)

1. Mr Ryan acknowledged the degraded nature of the area to be impacted by the Duralie Extension Project but contended that the remnant native vegetation had high conservation values.  Mr Ryan considered that the assessment of the quality of habitat and populations of threatened species in the Environmental Assessment was hampered by the lack of more comprehensive and targeted surveys in the project area and in the offset area (Ryan Report, Exhibit A2, paras 7–11).  Mr Ryan contended in oral evidence that classification of areas to be cleared as regrowth distorts the assessment of biodiversity values as it implies recent disturbance and consequently reduced habitat value.  Mr Ryan noted that the Environmental Assessment records that 611 hollows were identified in 184 trees in the study area.  Mr Ryan said that he had observed, during the Court inspection on 12 May 2011, a significant number of larger trees with hollows.  Mr Ryan contended the proposed extension to mining would remove habitat for a number of threatened species and could lead to local extinction of some threatened species, given the lack of information showing otherwise (Ryan Report, Exhibit A2, paras 1–2).  Mr Ryan also contended that the failure to undertake surveys of the biodiversity values of the land classified as derived grasslands to be disturbed by the Duralie Extension Project distorted the assessment of overall biodiversity values in the area to be impacted (Ryan oral evidence). 

Habitat of threatened fauna species observed on the site to be cleared

1. The particular concern expressed by Mr Ryan was that the vegetation communities to be cleared for the Duralie Extension Project comprised habitat of threatened species of fauna and flora. 

1. Dr Goldney and Mr Ryan agreed that the vegetation communities to be cleared in MLA 1 and ML 1427 have been recorded as providing habitat for five threatened species of birds (the Swift Parrot, Grey-crowned Babbler, Brown Treekeeper, Speckled Warbler and Varied Sittella) and one threatened species of marsupial (the Squirrel Glider).  Dr Goldney contends, based on his view that the area to be cleared is primarily regrowth, that the threatened species using remnant vegetation in the project area as habitat are mainly a result of relatively recent species incursions from the adjoining landscape rather than from pre-existing, extant remnant populations.

Swift Parrot

1. There has been one sighting of the Swift Parrot in 2008 in a remnant patch in the north of MLA 1 in vegetation community 1 (Spotted Gum – Red Ironbark – Thick-leaved Mahogany Forest).  This is the only sighting of the Swift Parrot in the Gloucester Valley.  This vegetation patch contains foraging habitat (winter feeding) but not breeding habitat for the Swift Parrot (it nests in Tasmania).  Foraging habitat is winter flowering eucalypts, with a preference for Red Ironbark.  Communities 1, 2a–2d, 3, 4 and 6 comprise foraging habitat for the Swift Parrot, containing various winter flowering eucalypts.  Of these vegetation communities, the area to be cleared in MLA 1 includes vegetation communities 1, 2a, 3 and 4.  However, the surrounding lands and the revised offset areas contain all of the vegetation communities 1, 2a–2d, 3, 4 and 6, and hence foraging habitat.  Dr Goldney expressed the view that other winter flowering eucalypts in these areas, such as Spotted Gum, although not necessarily preferred species, nevertheless could provide adequate foraging in winter.  Dr Goldney stated in oral evidence that the initial offset area contains a significantly larger area of foraging habitat than the area to be cleared in MLA 1.

1. Mr Ryan expressed the view that removal of 61 ha of vegetation community 1, being the vegetation community in which the single sighting of the Swift Parrot in the Gloucester Valley occurred, may represent a significant threat to the Swift Parrot as vegetation community 1 was not initially proposed to be included in the initial offset area.  After Mr Ryan expressed this opinion, the offset area was expanded to include, amongst other areas, a nearby patch of vegetation community 1 of approximately 63 ha, adjacent to ML 1427 and MLA 1, as well as expanded areas of vegetation communities 2a–2d (about 171 ha) and vegetation communities 3, 4 and 6 (about 31 ha in total).

1. It is also to be noted that the Duralie Extension Project required, and was granted, approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”). Conditions 12–15 of the approval under the EPBC Act require Duralie Coal to take action to ensure protection of the Swift Parrot. Specifically, Duralie Coal must permanently protect and secure 177 ha of Swift Parrot habitat in an offset area (Condition 12(b)). It must also prepare an “Offset Management Plan” to be approved by the Commonwealth Minister, which, among other things, provides a detailed description of the Swift Parrot habitat in the offset area; states management actions to protect and enhance that Swift Parrot habitat; sets out a monitoring plan including the undertaking of ecological surveys to assess the success of the management measures against identified milestones and objectives; sets performance measures and reporting requirements against identified objectives, including trigger levels for corrective actions, and actions to be taken to ensure performance measures and objectives are met; and requires reports to be submitted to the Commonwealth Department of Sustainability, Environment, Water, Population and Communities identifying the management actions undertaken, the outcomes of those actions and any need for improvement (Conditions 13 and 19). Duralie Coal must implement the approved offset management plan and any changes to it must be approved by the Commonwealth Minister (Condition 14). The offset area must be protected in perpetuity (Condition 15).

1. In these circumstances, the clearing of winter foraging habitat of the Swift Parrot for the Duralie Extension Project is unlikely to adversely impact the Swift Parrot.

Grey-crowned Babbler (Eastern subspecies)

1. There have been two sightings of the Grey-crowned Babbler in or near MLA 1, one in derived grassland and the other in the remnant patch of vegetation community 1.  Both locations will be cleared and mined for the Duralie Extension Project.  There are numerous sightings for the Grey-crowned Babbler through the Gloucester Valley and particularly around the township of Gloucester.

1. Dr Goldney and Mr Ryan agree that the Grey-crowned Babblers sighted in MLA 1 are a colony but disagree as to whether they are a population in their own right.  Mr Ryan states that the Grey-crowned Babblers recorded in the project area were the only known population in the locality and no others have been recorded locally (Ryan Report, Exhibit A2, paras 28 and 29).  This is incorrect. There have been widespread sightings of Grey-crowned Babblers throughout the Gloucester Valley. 

1. Dr Goldney’s opinion was that the colony is very likely part of a meta-population (a population within a larger population) and not a population in its own right.  The limited extent and nature of the existing habitat available within the project area supports the observation that there is likely to be only one colony present within the project area.  The widespread sightings throughout the Gloucester Valley support the observation of a meta-population.  I accept Dr Goldney’s findings that the Grey-crowned Babblers in MLA 1 are a colony within a meta-population in the Gloucester Valley. 

1. Dr Goldney was further of the view that the removal of the derived grasslands and regrowth open woodland/forest as part of the Duralie Extension Project would not necessarily cause the loss of this colony. Dr Goldney said that similar habitat to that proposed to be removed is widespread in the Gloucester Valley and is likely to be readily accessible to the colony if it is displaced by the Duralie Extension Project.  Dr Goldney concludes that the Grey-crowned Babbler is very unlikely to be adversely impacted by the Duralie Extension Project (Goldney Report, Exhibit D4, para 8.22). 

1. I accept Dr Goldney’s findings and conclusion as to the unlikely adverse impact of the Duralie Extension Project on the Grey-crowned Babbler.

Brown Treecreeper

1. A single pair of Brown Treecreepers were sighted on one occasion in the remnant patch of vegetation community 1 in MLA 1.  Both Dr Goldney and Mr Ryan (in oral evidence) agreed that these birds were likely to be vagrant or associated with dispersal phenomena.  Dr Goldney’s reasons for so concluding were:

“● The species is typically a communal species found in groups of eight to twelve birds;

● While it is predicted to occur in the Karuah Manning CMA subregion it had not previously been located within the sub region;

● The closest BioNet record is approximately 90 km west of the Project area;

● The species does not appear to be resident within the Project area nor has it been found breeding there.  Further the presence of a single pair is indicative that this is very unlikely to be a breeding pair;

● An important habitat component is appropriately sized fallen timber that is in short supply within the Project area;

● Further, much of the regrowth woodland forest habitat within the Project area is sub-optimal since tree densities are too high and ground feeding niche space too limited;

● Dispersal movements are a relatively common occurrence for this species; and

● The weight of evidence is that this species cannot maintain viable populations in remnants smaller than 200 ha (the largest remnant within the Project area is about 45 ha).”

(Goldney Report, Exhibit D4, para 8.21).

1. Dr Goldney’s opinion is that the sighting of the Brown Treecreeper was a one-off observation which does not present a viable population.  Dr Goldney’s conclusion is that a local population of the Brown Treecreeper is very unlikely to be adversely impacted by the Duralie Extension Project (were a resident of the population found to be present) (Goldney Report, Exhibit D4, para 8.21).

1. I do not accept Mr Ryan’s earlier expressed view in his written report that the loss of vegetation in which the only sighting of the Brown Treecreeper was recorded was “highly significant” (Ryan Report, Exhibit A2, para 27).  I instead accept Dr Goldney’s findings and conclusion as to the unlikely adverse impact of the Duralie Extension Project on the Brown Treecreeper.

Speckled Warbler

1. The Speckled Warbler has been spotted three times in the remnant patch of vegetation community in MLA 1 and once in ML 1427 at a location that has now been mined for the existing Duralie Coal Mine.  The remnant patch in MLA 1 will be cleared and mined for the Duralie Extension Project.  The Speckled Warbler has also been sighted in the footslopes of the Buckleys Range in an area now to be conserved as an offset and three other locations in the Gloucester Valley to the north of the project area.

1. Dr Goldney was also of the opinion that the Speckled Warblers in the project area and surrounds were part of a meta-population of species in the landscape and not a population in their own right.  The extent and nature of the remnant woodland/forest patches in the project area are sub-optimal for the species to breed and forage successfully. The species’ preferred habitat is grassy woodland and it builds its nests on or near the ground.  Only some of the regrowth open forest is suitable for foraging and breeding for the Speckled Warbler (Goldney Report, Exhibit D4, para 8.23).  Mr Ryan accepted, in oral evidence, that there was an abundance of habitat for the Speckled Warbler in the fragmented landscape surrounding the project area.  The widespread availability of similar habitat and the sightings throughout the Gloucester Valley support the observation of Dr Goldney of a meta-population of Speckled Warblers.

1. Dr Goldney also was of the opinion that the widespread availability of habitat similar to or the same as that proposed to be removed and its likely ready accessibility to any individuals displaced by the Duralie Extension Project means that the colony of Speckled Warblers should not be lost.  Dr Goldney considered that it is very unlikely that individuals displaced from the project area would be prevented from relocating into suitable nearby habitats due to all available niche spaces already being occupied by incumbent Speckled Warblers (Goldney Report, Exhibit D4, para 8.23).  Accordingly, Dr Goldney concluded that the Speckled Warbler is very unlikely to be adversely affected by the Duralie Extension Project. 

2. I accept Dr Goldney’s findings and conclusion as to the unlikely adverse impact of the Duralie Extension Project on the Speckled Warbler.

Varied Sittella

1. There has been one recorded sighting of the Varied Sittella, and Mr Ryan said in oral evidence that he observed 10–12 Varied Sittella individuals during his inspection of the site in April 2011 in the remnant patch of vegetation, in the north of MLA 1.  This patch is to be cleared and mined for the Duralie Extension Project.  The Varied Sittella has also been sighted to the east of ML 1427 near Mammy Johnsons River in a location which will be conserved as a biodiversity offset.  There has been one sighting in Buckleys Range and others throughout the Gloucester Valley. 

1. The Varied Sittella likes woodland and regrowth areas that are not too dense.  Dr Goldney and Mr Ryan agreed that there is habitat from the Varied Sittella in and surrounding the project area.

1. Dr Goldney and Mr Ryan agreed that there would be loss of habitat for the Varied Sittella by clearing for the Duralie Extension Project.  They express different views of the impact of such loss of habitat.  Dr Goldney expressed the view in oral evidence that the habitat available in the offset areas and surrounding areas offered opportunities for individuals to relocate if clearing was undertaken outside breeding time.  Mr Ryan contended in oral evidence that the remnant vegetation in MLA 1 is a high value habitat for Varied Sittella.  He questioned the ability of Varied Sittella to relocate from the area to be cleared to the offset area or surrounding areas. 

1. I find that the Duralie Extension Project will impact on the individuals of Varied Sittella observed in MLA 1 by clearing of their habitat.  The ability of the individuals to relocate to suitable alternative habitat depends on clearing being required to be undertaken outside of their breeding time.  The requirement to avoid clearing in the breeding season can be imposed as part of the Vegetation Clearing Plan, a sub-plan under the Biodiversity Management Plan (see Condition 43(d) of revised conditions of approval, Exhibit M8).  The revised offset strategy will also conserve and enhance significantly larger areas of suitable habitat for the Varied Sittella than the area to be cleared (see below).

Squirrel Glider

1. There have been four sightings of the Squirrel Glider in or near ML 1427 and MLA 1.  The location of the two southern most sightings have subsequently been mined by the existing Duralie Coal Mine.  A third sighting was to the west of ML 1427.  This is in an area now proposed to be conserved as an offset in the revised offset strategy.  The fourth sighting is in the same remnant patch of vegetation community 1 in the north of MLA 1.  This patch is to be cleared and mined for the Duralie Extension Project.  The Squirrel Glider has also been sighted in various other places throughout the Gloucester Valley, including one in Buckleys Range in an area to be conserved as an offset.

1. Dr Goldney’s opinion was that the habitat availability within the project area is patchy and suboptimal for the Squirrel Glider.  Dr Goldney stated that it is unlikely that the species is continuously distributed across the project area because of the significant habitat limitations.  There are significant restraints on population size for the species, the most important likely to be a lack of hollows in regenerating woodland and forest areas, together with a lack of dead standing stag trees, rather than a lack of landscape connectivity.   Dr Goldney stated that while the Duralie Extension Project would remove known habitat and potentially displace resident Squirrel Gliders, it is not likely to lead to a local population of this species being placed at risk of extinction.  Dr Goldney said that pre-clearance surveys will be implemented for the Duralie Extension Project, the procedures for which will be included in the Biodiversity Management Plan.  Any captured Squirrel Gliders will be relocated to nearby suitable sites.  Hence, Dr Goldney concluded that a viable population of the Squirrel Glider will not be at risk of extinction by the Duralie Extension Project (Goldney Report, Exhibit D4, para 8.19 and see p E-84 of Environmental Assessment).

1. I accept Dr Goldney’s findings and conclusions in preference to Mr Ryan’s interpretation, based on a desktop review of the data, that the proposal will remove a very large portion of the known habitat for the species locally and have a significant impact on the species in a local and possibly regional context.  Past and existing disturbances, by logging, agriculture, fire and now mining, have already made habitat for the Squirrel Glider in the Duralie Extension Project area patchy and suboptimal and caused the likely number of resident Squirrel Gliders in the area to be low.  Although forest/woodland habitat will be cleared in MLA 1 for the Duralie Extension Project, there will still be suitable habitat nearby, including another patch of vegetation community 1 to the west of ML 1427, which will be conserved in the revised offset area, into which potentially displaced Squirrel Gliders can move, as well as landscape connectivity with more removed areas of suitable habitat.  Because the species population is not optimal across the landscape, it is likely that displaced Squirrel Gliders would not be prevented from relocating into suitable habitats due to all available niches already being occupied by incumbent Squirrel Gliders.

Habitat of threatened species observed in locality to be cleared

1. In addition to the threatened species which had been recorded in the vegetation communities to be cleared for the Duralie Extension Project, six other threatened species of fauna (Koala, Brush-tailed Phascogale, Common Planigale, Spotted-tailed Quoll, Powerful Owl and Diamond Firetail) and one threatened species of flora (Melaleuca groveana) have been recorded in the vicinity of the Duralie Extension Project area.

Koala

1. The Koala was not observed in the project area during the targeted surveys for the Koala and the assessment of Koala habitat undertaken as part of the Environmental Assessment for the Duralie Extension Project.  Database searches indicate two sightings of Koalas to the west of ML 1427 but away from the areas proposed to be cleared, as well as at multiple locations throughout the wider geographical area of the Gloucester Valley.

1. Dr Goldney has adequately answered Mr Ryan’s concerns raised in his written statement as to the assessment of utilisation by the Koala of the locality (Ryan Report, Exhibit A2, para 25).  Dr Goldney noted that the Koala was not observed within the project area during the well planned sequence of surveys carried out in space and time, however, past and present traces of Koalas have been observed in the west of the project area.  Database searches reveal that the Koala has been recorded in multiple locations in the wider area.  Dr Goldney stated that the Koala is a particularly easy animal for an experienced surveyor to locate by spotlighting and observing traces such as fur, tree scratch marks and characteristic droppings.  These survey techniques were used in the assessment (Goldney Report, Exhibit D4, para 8.20).

1. The assessment of Koala habitat undertaken under State Environmental Planning Policy No. 44 – Koala Habitat Protection concluded that there were neither Koalas nor core Koala habitat within the Duralie Extension Project area.  On a very conservative estimate, 20 ha of potential habitat would be removed (Goldney Report, Exhibit D4, para 8.20 and p E-107 of Environmental Assessment).

1. Mr Ryan’s “interpretation”, without having undertaken field surveys or examining database records showing the widespread sightings of the Koalas in the Gloucester Valley, that the Duralie Extension Project will remove a large proportion of known habitat for the species locally and may effectively sever connectivity east and west of the mine, and that this may represent a significant impact on the species locally and possibly regionally (Ryan Report, Exhibit A2, para 26), is not supported by the evidence, and has been adequately answered by Dr Goldney’s response.

2. I instead accept the findings and conclusion of Dr Goldney as to the unlikely adverse impact of the Duralie Extension Project on the Koala.

Brush-tailed Phascogale

1. The Brush-tailed Phascogale was sighted in MLA 1 to the west of the area of major surface development for the Duralie Extension Project.  Three other sightings have been recorded in ML 1427 within what is now the open pit for the existing Duralie Coal Mine.  Three further sightings have been made in the Mammy Johnsons River Valley to the west and south of the Duralie Coal Mine.  There are numerous other sightings throughout the wider Gloucester Valley. 

1. Dr Goldney’s opinion was that the Brush-tailed Phascogale was present in low densities, based on the low trapping success and the low availability of known habitat for the species in the project area (because there is a paucity of hollows that can be used for nesting) (Goldney Report, Exhibit D4, para 8.18).

1. Dr Goldney has adequately answered Mr Ryan’s concern, expressed in his written report, as to the survey techniques used to determine the species’ presence, distribution and abundance (Ryan Report, Exhibit A2, para 20).  Dr Goldney stated that the trapping (using Elliott traps) was undertaken using randomly stratified sampling sites.  Dr Goldney noted that while Brush-tailed Phascogale can escape Elliott traps, when they do so it is usually obvious.  The fact that Brush-tailed Phascogale was successfully captured in Elliott traps indicates that the original estimate of the species being at low densities within the project area is likely correct (Goldney Report, Exhibit D4, para 8.18).

1. Dr Goldney’s opinion was that the Duralie Extension Project is unlikely to significantly affect the life cycle of the Brush-tailed Phascogale, known habitat, or connectivity between west and east habitats, since appropriate connectivity is available to the north and south and via the Mammy Johnsons River (Goldney Report, Exhibit D4, para 8.18 and p E-80 of Environmental Assessment). 

1. Dr Goldney’s evidence satisfactorily responds to Mr Ryan’s concerns as to the removal of habitat and severing of connectivity. I accept Dr Goldney’s findings and conclusion that it is unlikely that a large portion of known habitat for the Brush-tailed Phascogale will be removed or that connectivity between east and west habitats will be completely severed.

Common Planigale

1. The Common Planigale has not been observed in the area of MLA 1 or ML 1427 proposed for the Duralie Extension Project, notwithstanding suitable surveys.  The species was recorded once in 2003 by a pre-clearance survey of the footprint of the existing Duralie Coal Mine in ML 1427 but the area has since been mined.  There is no other record of a sighting in the Gloucester Valley. 

1. Dr Goldney has adequately answered Mr Ryan’s concern, expressed in his written report, as to the survey techniques employed to determine the presence, distribution and abundance of the Common Planigale (Ryan Report, Exhibit A2, para 17).  Dr Goldney explained that the techniques used included Elliott traps, hair tubes and analysis of fox scats for signs of native mammal prey, which techniques are suitable for detecting the Common Planigale.  There are also observations made during survey periods (Goldney Report, Exhibit D4, para 8.17).

1. Dr Goldney stated that little suitable habitat now exists across the project area and, where it does exist, it is in discontinuous patches unlikely to be able in themselves to support a viable population of the species.  Dr Goldney’s view was that the species is very unlikely to be present (Goldney Report, Exhibit D4, para 8.17).  Mr Ryan’s oral evidence, which was different to his interpretation based only on the data collected and discussed in the Environmental Assessment (Ryan Report, Exhibit A2, para 19), was that the Common Planigale is potentially locally extinct although he could not be sure. 

1. I accept Dr Goldney’s findings and conclusions and find that the Duralie Extension Project will not adversely impact the Common Planigale (if it is present on the site).

Spotted-tailed Quoll

1. There have been no sightings of the Spotted-tailed Quoll anywhere in MLA 1 or ML 1427, despite rigorously designed and implemented surveys for the species (Goldney Report, Exhibit D4, para 8.25).  Database searches reveal recorded sightings throughout the Gloucester Valley, including ones to the north, south and west of the project area.  Nevertheless, the evidence does not establish that the Duralie Extension Project will adversely affect any population of the Spotted-tailed Quoll in the landscape. 

Powerful Owl

1. The Powerful Owl was sighted twice in pre-clearance surveys in ML 1427 at locations now within the open pit of the existing Duralie Coal Mine.  The Powerful Owl has not been sighted again in more recent surveys of the project area.  It has been sighted further a field in the Gloucester Valley. 

1. Dr Goldney stated that the existing habitat within the project area is generally unsuitable for the Powerful Owl and thus it was not surprising that they were not located during fauna surveys (Goldney Report, Exhibit D4, para 8.24).  Within the vicinity of the project area, suitable habitat is mainly confined to the section of Coal Shaft Creek outside the project area and along Mammy Johnsons River.  Contrary to Mr Ryan’s belief (Ryan Report, Exhibit A2, para 34), this habitat will not be disturbed by the Duralie Extension Project (Goldney Report, Exhibit D4, para 8.24 and see p E-96 of Environmental Assessment).

2. On this evidence, the Duralie Extension Project is not likely to adversely impact the Powerful Owl. 

Diamond Firetail

1. The Diamond Firetail, a threatened species of bird, has been recorded in databases at three locations in the Gloucester Valley, the closest being within 5 kms to the north. Dr Goldney stated that, despite rigorously designed and implemented fauna surveys, the Diamond Firetail was not recorded in the project area (Goldney Report, Exhibit D4, para 8.25).  Mr Ryan stated that the Diamond Firetail is known to forage in derived and introduced grasslands and that the clearing of such grasslands for the Duralie Extension Project may represent significant foraging habitat for the Diamond Firetail locally.  He requested more detail on the surveys conducted for the species (Ryan Report, Exhibit A2, para 38).  However, Mr Ryan did not positively assert that the Diamond Firetail was present in the project area or would be affected by the Duralie Extension Project. 

1. I find that it is unlikely that the Duralie Extension Project will adversely affect the Diamond Firetail. 

Melaleuca groveana

1. There have been no recordings of the threatened species of the plant, Melaleuca groveana, in MLA 1 or ML 1427 or indeed anywhere in proximity to the project area.  The only two recorded observations are close in the very upper reaches of a tributary at Mill Creek, to the east of the Buckleys Range (the Duralie Extension Project area is to the west of Buckleys Range).

1. The evidence does not establish that the Duralie Extension Project will have an adverse affect on Melaleuca groveana (if it occurs at all in the project area).

Mitigation measures proposed

1. Duralie Coal proposes, and the Minister’s revised conditions of approval would require, various impact avoidance and mitigation measures in relation to threatened species and biodiversity.  These primarily are included in the biodiversity offset strategy.   However, there is also an overarching environmental management strategy (required by Condition 1 of Schedule 5 of the revised conditions of approval) as well as a rehabilitation management plan (required by Conditions 55–57 of Schedule 3 of the revised conditions of approval) and other measures to avoid or mitigate impacts on biodiversity in other management plans and programs, such as a water management plan (including irrigation management), noise management plan, and an air quality and greenhouse gas management plan (required by Conditions 7, 23, 28 and 29 of Schedule 3 of the revised conditions of approval).

1. The biodiversity offset strategy was originally proposed in Duralie Coal’s Environmental Assessment lodged with the project application.  However, during the course of the hearing, and in response to the evidence, the biodiversity offset strategy was enhanced in a number of ways, including: expanding the number and the extent of the offset areas; ensuring greater correlation of the vegetation communities to be conserved in the offset area with those proposed to be cleared for the Duralie Extension Project; including performance standards for the design, implementation and completion of the offset strategy; and including greater specificity in the conditions of approval.  These enhancements were reflected in the revised conditions of approval (Exhibit M8). 

1. The revised offset strategy involves provision of two types of offset areas:

(a)     existing areas of native vegetation to be enhanced through natural regeneration and management for conservation (enhancement areas); and

(b)     re-establishment of woodland/open woodland habitat and forest habitat in derived grasslands by selective planting and fencing to allow natural regeneration (revegetation areas).

1. Originally, 444 ha were proposed as an offset area, comprising 214 ha of enhancement areas and 230 ha of revegetation areas (Environmental Assessment, Table 4–23, p 4-60).  Under the revised offset strategy, 680 ha are proposed as an offset area, comprising 290 ha of enhancement areas and 390 ha of revegetated areas (Table SOC-1 in Appendix 9 Statement of Commitments to the revised conditions of approval, Exhibit M8).  These are intended to offset approximately 87 ha of native vegetation communities and 109 ha of derived grasslands to be cleared for the Duralie Extension Project.  The table below shows a comparison of the vegetation communities to be cleared compared with the offset areas to be provided.

Comparison of Vegetation Communities to be Cleared/Disturbed by Duralie Extension Project with Offset Areas

Vegetation Communities	Areas to be Cleared/Disturbed (ha)	Initial Vegetation Offset Area (ha)	Revised Vegetation Offset Area (ha)
Existing Remnant Vegetation 1.     Spotted Gum – Red Ironbark – Thick-leaved Mahogany	61	–	63 (Est)
2.     Spotted Gum – Grey Ironbark	2	167	171
3.     Red Gum Grassy Woodland	20	10	10
4.     Grey Gum – Red Gum – Apple Riparian Forest	3	2	2
5.     Cabbage Gum Floodplain Forest (EEC)	0	8	10
6.     Riparian Closed Forest (EEC)	0	14	19
7.     Stringybark – Paperbark Forest	1	4	4
8.     Dry Gully Rainforest	0	1	1
9.     Blue Gum Moist Forest	0	8	8
10.     Freshwater Wetlands (EEC)	0	0.2	2
Sub-Total	87	214.2	290
Derived Grasslands	120	230	390
TOTALS	207	444.2	680

1. The revised offset strategy can be seen to propose much closer correspondence between the vegetation communities to be cleared and those to be conserved and enhanced in the offset area.  Importantly, each of the native vegetation communities in which threatened species have been recorded are now included in the vegetation offsets to be provided.  Of importance, an area (estimated to be around 63 ha) of vegetation community 1 is proposed, located south of MLA 1 and west of ML 1427 (see the proposed offset area in Appendix 5 of the revised conditions of approval).  This vegetation community was not originally included in the offset strategy.  The revised offset strategy also includes additional areas of three endangered ecological communities (10 ha of vegetation community 5, Cabbage Gum Floodplain Forest; 19 ha of vegetation community 6, Riparian Closed Forest; and 2 ha of vegetation community 10, Freshwater Wetlands) (see Condition 40 of Schedule 3 of the revised conditions of approval).

1. The revised offset strategy also proposed changes to the shape, size and connectivity of the native vegetation communities to be included in the offset area.  One example is the additional areas of native forest communities in the northern part of the offset area in Buckleys Range, thus reducing the high boundary or edge to area ratio associated with the narrow finger of remnant vegetation in the northern part of the initial offset area.  Another example is the additional cleared lands proposed in the Mammy Johnsons River valley for revegetation, allowing better connectivity between existing native vegetation habitat to the east and the rehabilitation area and native vegetation to the west. 

1. The revised offset strategy also provides more specific criteria for the proposed revegetation of the derived grasslands.  Condition 33 of Schedule 3 of the revised conditions of approval establishes criteria to be achieved in implementing and completing the offset strategy.  The goal is to create 354 ha of revegetation woodland/open woodland habitat areas and 36 ha of forest habitat areas as a “self sustaining ecosystem”.  The methodology for determining a self-sustaining ecosystem is to be to the reasonable satisfaction of the Director-General of Planning.  The woodland/open woodland and forest revegetation areas are to provide habitat resources for the threatened species concerned by including specified flora species known to provide habitat resources for the threatened species (specified in Conditions 35–38 of Schedule 3).  The revised conditions of approval require Duralie Coal to ensure that the offset area (both the enhancement areas and the revegetation areas):

(a)         provide suitable habitat for all of the threatened fauna recorded in the surface development area for the Duralie Extension Project, namely the Swift Parrot, Brown Treecreeper, Speckled Warbler, Grey-crowned Babbler, Varied Sittella and Squirrel Glider; and

(b)         include habitat types required by these threatened species, namely woodland/open woodland, forest and riparian forest (Condition 34 of Schedule 3).

1. The proposed conditions of approval then specify particular habitat requirements for each of the threatened species:

“Swift Parrot / Brown Treecreeper / Grey-crowned Babbler

1. The Proponent shall ensure that the offset area:

(a)           provides appropriate habitat resources for the Swift Parrot, Brown Treecreeper and Grew-crowned Babbler;

(b)           contains a total of 174 ha of the following vegetation types:

·   Spotted Gum – Grey Ironbark forest dry open forest of the lower foothills of the Barrington Tops, North Coast;

·   Grey Box – Forest Red Gum – Grey Ironbark open forest of the hinterland ranges of the North Coast; and

·   Sydney Peppermint – Smooth-barked Apple shrubby open forest on coastal hills and plains of the southern North Coast and northern Sydney Basin; and

(c)            the revegetation areas within the offset area contains:

·   Winter flowering eucalypts (such as Spotted Gum [Corymbia maculata], Narrow-leaved Ironbark [Eucalyptus crebra], White Stringybark [Eucalyptus globoidea]) as habitat resources for the Swift Parrot.

·   Species typical of eucalypt woodlands and dry open forest with a grassy understorey, including stringybarks or other rough-barked Eucalypts as habitat resources for the Brown Treecreeper.

·   Species typical of open eucalypt woodlands (such as Spotted Gum [Corymbia maculata], Red Ironbark [Eucalyptus fibrosa], Grey Ironbark [Eucalyptus siderophloia] as habitat resources for the Grey-crowned Babbler; and

·   Appropriate understorey species (such as tussock grasses).

Speckled Warbler

1. The Proponent shall ensure that the offset area:

(a)            provides appropriate habitat resources for the Speckled Warbler;

(b)            contains a total of 126ha of Spotted Gum – Grey Ironbark forest dry open forest of the lower foothills of the Barrington Tops, North Coast; and

(c)            the revegetation areas within the offset area includes Eucalyptus species, tussock grasses and shrub species as habitat resources for the Speckled Warbler.

Varied Sittella

1. The Proponent shall ensure that the offset area:

(a)            provides appropriate habitat resources for the Varied Sittella;

(b)            contains a total of 172ha of the following vegetation types:

·   Grey Box – Forest Red Gum – Grey Ironbark open forest of the hinterland ranges of the North Coast; and

·   Spotted Gum – Grey Ironbark forest dry open forest of the lower foothills of the Barrington Tops, North Coast; and

(c)            the revegetation areas within the offset area includes species typical of eucalypt forests and woodlands, especially rough-barked species, smooth-barked gums and Acacia species as habitat resources for the Varied Sittella.

Squirrel Glider

1. The Proponent shall ensure that the offset area:

(a)            provides appropriate habitat resources for the Squirrel Glider;

(b)            contains a total of 128ha of the following vegetation types:

·   Spotted Gum – Grey Ironbark forest dry open forest of the lower foothills of the Barrington Tops, North Coast; and

·   Sydney Peppermint – Smooth-barked Apple shrubby open forest on coastal hills and plains of the southern North Coast and northern Sydney Basin.

(c)            the revegetation areas within the offset area includes species typical of woodland/forest (such as Spotted Gum [Corymbia maculata], Red Ironbark [Eucalyptus fibrosa], Grey Ironbark [Eucalyptus siderophloia]) as habitat resources for the Squirrel Glider.

39. Hollow bearing habitat features must be introduced into the areas of habitat resources and the revegetation areas identified in approval condition 38.

Note: For clarity, the total areas included in approval conditions 35 to 38 are not cumulative, whereby the area of habitat resources provided for one of the fauna species identified in approval condition 35 may be the same for all species mentioned in approval conditions 35 to 38.”

1. The original offset strategy proposed in the Environmental Assessment contemplated the preparation of a Biodiversity Management Plan.  The Biodiversity Management Plan was anticipated to detail measures:

“● encouraging native regeneration by providing appropriate fencing to exclude grazing from existing treed areas;

● selective revegetation in derived grasslands by appropriate plantings or seeding using local seed sources;

● managing weeds and pests;

● managing fire including mosaic burnings likely needed to optimise species diversity;

● creating signage of the proposed offset area;

● restricting vehicular and people access; and

● monitoring ongoing management performance, habitat quality and diversity, species diversity, landscape resilience and landscape function within the offset, by suitably qualified person(s).” (Environmental Assessment, Appendix E, p E-115).

1. The Environmental Assessment proposed that habitat features (such as large hollows and some suitable logs) would be salvaged during vegetation clearance activities and relocated to areas where habitat enhancement is required (such as in the proposed offset area).  Because two roads cross the offset area, the Environmental Assessment proposed the installation of canopy bridges to facilitate crossing by arboreal mammals where there is not existing substantial canopy connection (Environmental Assessment, Appendix E, p E-115).

1. Finally, the Environmental Assessment proposed that the offset area would be independently audited at intervals agreed with relevant authorities.  The audits would be conducted by suitably qualified persons to: assess compliance with the management plan; assess the performance of the offset area; review the adequacy of the management measures and monitoring program; and recommend actions or measures to improve the performance of the offset, management plan, or monitoring program (Environmental Assessment, Appendix E, p E-115).

1. By the conclusion of the hearing, there still was not a completed Biodiversity Management Plan.  However, the revised conditions of approval (agreed between the Minister and Duralie Coal) specify more explicit requirements for developing and implementing the Biodiversity Management Plan.  Condition 43 of Schedule 3 of the revised conditions of approval proposes:

“Biodiversity Management Plan

43. The Proponent shall prepare and implement a Biodiversity Management Plan for the project to the satisfaction of the director-General.  This plan must:

(a)           be prepared in consultation with OEH [Office of Environment and Heritage] by suitably qualified and experienced persons whose appointment has been approved by the Director-General;

(b)           be submitted to the Director-General for approval within 3 months of the date of determination in Land and Environment Court Proceedings No. 10090 of 2011;

(c)           describe how the implementation of the Offset Strategy would be integrated with the overall rehabilitation of the site (see below);

(d)           include:

·   implement the offset strategy and provide suitable habitat in the offset area for the threatened species that are recorded in the surface disturbance area; and

-   manage the remnant vegetation and habitat on the site (including in the offset area).

·   detailed completion criteria, as well as performance criteria for measuring the short, medium and long term success of the Offset Strategy;

·   a detailed description of the measures that would be implemented over the next 3 years to implement the Offset Strategy, including the procedures to be implemented for:

-   implementing revegetation and regeneration within the offset areas, including establishment of canopy, understorey and ground cover;

-   the introduction of hollow bearing habitat features;

-   controlling weeds and feral pests, including the engagement of appropriately qualified contractors;

-   managing grazing and agriculture, including provision to exclude livestock grazing from existing treed areas and Endangered Ecological Communities within offset lands;

-   controlling vehicular access to minimise the potential for vehicle strike of native fauna;

-   bushfire management; and

-   a program to monitor and report the effectiveness of these measures and the performance of the offset strategy, with summary reporting to be carried out annually and comprehensive reporting every three years following the independent environmental audit (see condition 8 of Schedule 5).

·   a description of the measures that would be implemented over the next 3 years to manage the remnant vegetation and habitat on site, including the procedures to be implemented for:

-   protecting vegetation and soil outside the disturbance areas;

-   rehabilitating creeks and drainage lines on the site (both inside and outside the disturbance areas), to ensure no net loss of stream length and aquatic habitat;

-   managing salinity;

-   undertaking pre-clearance surveys;

-   managing impacts on fauna;

-   landscaping the site, and particularly the land adjoining public roads, to minimise visual and lighting impacts;

-   collecting and propagating seed;

-   salvaging and reusing material from the site for habitat enhancement;

-   controlling weeds and feral pests, including the engagement of appropriately qualified contractors;

-   controlling vehicular access to minimise the potential for vehicle strike of native fauna; and

-   bushfire management;

·   a Vegetation Clearing Plan (VCP) that must include the following:

-   Clear delineation of disturbance areas and restriction of clearing to the minimum area necessary to undertake the approved activities.

-   A methodology for recording the approximate size and number of hollow bearing trees to be removed and their replacement with the same number of nesting boxes of appropriate sizing within similar vegetation within the Project site or offset lands.

-   A methodology for the management of hollow bearing trees during vegetation clearing to minimize impacts on hollow dependent fauna which may be present.

-   provision for a suitably trained or qualified person to the satisfaction of the Director-General to be present during the felling of identified hollow bearing trees to provide assistance with the care of any injured fauna.

-   provision for the checking of any animals found and recording of the species, number, condition (age class, pregnant or lactating females etc) and for details to be provided to the National Parks and Wildlife Service and DoP [Department of Planning] within 3 months of the clearing event.

-   provision for the annual inspection of the nesting boxes for the life of the mine.  An inspection report shall be prepared and include a review of the condition and use of the nesting boxes.

·   a description of the contingency measures that would be implemented to improve the performance of the offset strategy and the detailed performance criteria that are not being met in any given year; and

·   details of who would be responsible for monitoring, reviewing, and implementing the plan.”

1. The revised offset strategy, and the revised conditions of approval, propose a number of measures to secure the long-term conservation of biodiversity.  One is the positive duty to implement the offsets in Conditions 33–40 and 43 of Schedule 3 of the revised conditions of approval.  A second is the negative obligation not to cause any harm to any native flora or fauna in the offset area.  Condition 41 of Schedule 3 of the revised conditions of approval provides:

“The Proponent must:

(a) not destroy, damage, remove or harm any native flora or fauna in the offset area; or

(b) not carry out in the offset area or the vicinity of the offset area any activity that may cause, or is likely to result in, or will or might threaten the viability of, native flora or fauna in the offset area, or threaten the success of the offset strategy; and

“(a) be prepared in consultation with OEH [Office of Environment and Heritage], and submitted to the Director-General for approval within 3 months of the date of determination in Land and Environment Court proceedings no 10090 of 2011, unless otherwise agreed by the Director-General;

(b) describe the measures that would be implemented to ensure compliance with Conditions 17-22 of Schedule 3 of this approval, including the proposed real-time air quality  management system; and

(c) include an air quality monitoring program, that:

·   uses a combination of real-time monitors, high volume samplers and dust deposition gauges to evaluate the performance of the project; and

·   includes a protocol for determining exceedences with the relevant conditions of this approval.”

1. ICAG submitted that, in addition to all of these measures for avoidance and mitigation of particulate matter and dust emissions, the conditions should fix further criteria for particulate matter with a diameter less than 2.5 micrometers (PM_2.5) (ICAG’s proposed Conditions 19A and 19B) and require a study of the PM_2.5 emissions and the human health risk they pose (ICAG’s proposed Condition 18A).

1. In my view, the evidence does not establish a sufficiently likely risk to human health from the levels of PM_2.5 emissions likely to be generated by the Duralie Extension Project.  Dr McKenzie, a respiratory physician, concluded that “[a]t the projected levels [of particulate emissions] in the air quality assessment there is unlikely to be any significant effect on mortality, lung development or rates of asthma” (McKenzie Report, Exhibit D7, para 21, p 18).  Dr Holmes, an atmospheric physicist, concluded that, “it would seem unlikely that there will be any adverse health effects experienced by people living near the mine” (Holmes Report, Exhibit D6, para 2.25).  In the Joint Experts’ Report on Air Issues (Exhibit A10) Dr McKenzie described the potential risk to the health of persons residing in the locality to be “acceptably small”, while Dr Holmes stated that as the particulate emissions will be within the health and nuisance based ambient air quality goals set by the State of NSW, they “should be taken to be acceptable” (p 5). 

1. Professor Peters, called by ICAG, gave evidence about the general concerns of increasing atmospheric pollution with PM_2.5 on human health.  He said that the potential health harm of PM_2.5 is related to the toxicity component of PM_2.5 (they can contain toxic hydrocarbons and elemental carbon) and the fact that PM_2.5 can act as vehicles for allergens (Peters Report, Exhibit A11, pp 1–2).  Professor Peters did not express an opinion on the likely specific impacts of the Duralie Extension Project, only stating that, if there were to be increases in background PM_2.5 related to mine expansion, there is a quite reasonable concern that such increases “would set the community at even greater risks from episodic high exposures such as during bushfires or during adverse climatic or environmental conditions” (Peters Report, Exhibit A11, p 4).  In the Joint Experts’ Report on Air Issues, Professor Peters opined that: “If there is a deterioration in air quality there is a potential for harm and this will depend on the susceptibility of the individual” (Exhibit A10, p 5).

1. I consider that the extensive, air quality avoidance and mitigation measures that will be required by the conditions of approval, and which I have summarised above, will satisfactorily address particulate matter and dust emissions from the Duralie Extension Project.  Although these conditions of approval do not specifically address particulate matter of PM_2.5 size, nevertheless, because the measures address all particulate matter and dust emissions, and set criteria for particulate matter with a diameter less than 10 micrometers (PM₁₀), they necessarily include PM_2.5 and will avoid and mitigate PM_2.5 emissions and their adverse impacts, including on human health.  I accept the evidence of Dr McKenzie and Dr Holmes that the potential risk to the health of persons in the locality from PM_2.5 emissions from the Duralie Extension Project is acceptably small. 

Noise

1. The local residents raised concerns about the level of noise generated by the Duralie Extension Project and by the trains used to transport coal from the Duralie Coal Mine to the Stratford Coal Mine.

Noise of operations generally

1. The Duralie Extension Project will extend the open cut operations to the north and west of the current Duralie Coal Mine and will increase the noise from operations.  The Director-General’s Environmental Assessment Report assessed the impacts of noise from operations of the Duralie Extension Project and the mitigation measures proposed in the following terms:

“The EA [Duralie Coal’s Environmental Assessment] includes a Noise Impact and Blasting Assessment undertaken by Heggies Australia in accordance with the applicable guidelines, including the NSW Industrial Noise Policy (INP), the Environmental Criteria for Road Traffic Noise (ECRTN) and the Interim Guidelines for the Assessment of Noise from Rail Infrastructure Projects (see Appendix C of the EA which is appended at Appendix E).

At the request of both the Department and DECCCW, this assessment was updated during the exhibition period to provide revised operational noise predictions based upon the implementation of the following noise mitigation measures:

·    replacing some of the older plant with quieter plant;

·    attenuating the remaining older plant;

·    constructing noise bunds at various locations; and

·    restricting the noisier operations to between 7am and 10pm.

A copy of the revised operational noise predictions is provided at Appendix H.

Furthermore, Duralie Coal purchased several properties in close proximity of the mine to further reduce the impacts of the project on private residences.

Even with the implementation of these measures, however, the project is likely to cause exceedences of the applicable noise criteria at up to 20 privately-owned properties (see Table 2 and Figure 3) at some stage of the project.  Most of these exceedences would be to the north of the proposed expansion, and would largely be due to the proximity of these properties to the proposed mining operations.

Table 2:  Summary of Operational Noise Impacts

Noise Exceedence	Management generally at this level of exceedence	No. of affected private properties (all years)
Marginally-affected Residences (1-2dB exceedence)	Noise mitigation, if possible	9
Moderately-affected Residences (3-5dB exceedence)	Noise mitigation, including noise mitigation at residence	3
Significantly-affected Residences (>5dB exceedence)	Acquisition upon request	5
Significantly-affected Vacant Land1 (>5dB exceedence)	Acquisition upon request	3
Total Properties Exceeding Noise Criteria	20

¹Where more than 25% of a property is affected

Both DECCW and the Department are satisfied that there is limited scope to further reduce the predicted impacts of the project other than using a real-time noise management system to minimise noise impacts during adverse weather conditions, and installing additional noise mitigation measures at the more-affected residences.

While the Department considers the residual noise impacts to be justified when the social and economic benefits of the project are taken into consideration, it has recommended conditions requiring Duralie Coal to:

·   acquire the significantly-affected properties upon request;

·   implement additional mitigation measures (such as double-glazing) at the residences where moderate to significant noise impacts are likely to occur;

·   comply with contemporary noise criteria;

·   implement best practice noise mitigation on site, including a real-time management system, to minimise the noise impacts of the project;

·   prepare and implement a detailed Noise Management Plan for the project; and

·   monitor and publicly report on the environmental performance of the project.” (Director-General’s Environmental Assessment pp 15–16 in Exhibit M1, Vol 2, pp 1287–1288).

1. The revised conditions of approval tendered at the hearing (Exhibit M8) reflect these recommendations (Conditions 1, 2, 3, 4, 6 and 7 of Schedule 3 and Condition 1(b), 2(b), 3 and 4 of Schedule 5 and the Operational Noise Management and Mitigation Measures in the statement of commitments in Appendix 9, required to be implemented by Condition 2(b) of Schedule 2). 

1. The structure of the revised conditions of approval concerning noise impacts from operations is to require Duralie Coal to:

·   prepare and implement an Environmental Management Strategy (Condition 1 of Schedule 5) and a Noise Management Plan (Condition 7 of Schedule 3 and Condition 2 of Schedule 5);

·   operate according to specified operational conditions (Condition 6 of Schedule 3 and Condition 2(b) of Schedule 2 and the operational noise management and mitigation measures in the statement of commitments in Appendix 9) and specified noise criteria (Conditions 2, 3 and 4 of Schedule 3);

·   monitor and report on compliance (Conditions 7(c) of Schedule 3 and Conditions 1(f), 2(d) and (g) of Schedule 5);

·   revise the strategies and plans in light of the monitoring data to improve environmental performance (Condition 2(h), 3, 4, 7 and 8 of Schedule 5); and

·   provide for the taking of further action if noise criteria are not met, including acquisition upon request of noise affected properties (Conditions 1, 3 and 4 of Schedule 3 and Conditions 1–6 of Schedule 4).

1. The scheme for dealing with the impacts of operational noise on adjoining land is to divide the noise affected properties into four categories, with the measures required to be taken varying depending upon the category. 

1. Firstly, the worst affected properties are identified in Table 1 in Condition 1 of Schedule 3 of the revised conditions of approval.  For these properties, there are no mitigation measures which can reduce the noise impacts to a satisfactory level.  Duralie Coal will, therefore, be required to acquire these properties on written request of the owners. 

1. Secondly, the next most affected properties are identified in Table 2 in Condition 2 of Schedule 3 of the revised conditions of approval.  These include 12 identified properties as well as the properties within the catch-all phrase of “all other privately owned land”.  Condition 2 of Schedule 3 fixes performance standards for these properties.  Duralie Coal will be required to ensure that the noise generated by the project does not exceed the noise criteria specified in Table 2 either at any residence on privately owned properties or on 25 per cent of any privately owned land, unless there is written agreement with the relevant landowner to exceed these criteria. 

1. Thirdly, notwithstanding this obligation to comply with the noise criteria in Condition 2 of Schedule 3, provision is made for owner-initiated acquisition of noise affected properties in the event that Duralie Coal is unable to comply with the noise criteria in Condition 2.  Condition 3 of Schedule 3 provides that if the noise generated by the project exceeds the noise acquisition criteria specified in Table 3 (which criteria are generally higher than the noise criteria specified in Table 2) either at any residence on privately owned land or on more than 25 per cent of any privately owned land, Duralie Coal must acquire the land on the written request of the landowner affected.

1. Fourthly, specific provision is made for implementation of additional noise mitigation measures at residences on properties identified in Condition 4 of Schedule 3.  These include the properties listed in Table 1, three properties listed in Table 2 and any privately owned land where subsequent noise monitoring shows the noise generated by the project is greater than a specified noise criteria. (This condition also now identifies properties affected by rail noise dealt with below). Duralie Coal will be required, on written request of the owner of any residence on land identified, to implement additional noise mitigation measures (such as double glazing, insulation and/or air conditioning), in accordance with the procedure in Condition 4.

1. I consider these measures, cumulatively, to deal with the impacts of operational noise are as satisfactory as is reasonably practicable.  There is a limit to the steps that can be taken to mitigate the noise from the operation of this open cut mine in this location with the proximity of surrounding properties.

Noise generated by trains

1. The increase in the production rate as a result of the Duralie Extension Project will increase the number of coal train movements from the Duralie Coal Mine to the Stratford Coal Mine from approximately 950 to 1,125 per annum.  Duralie Coal had sought also an extension of the rail operating hours at night from 10.00pm to 2.00am (the starting time would remain at 7.00am).  The Director-General’s Environmental Assessment Report concluded that Duralie Coal had not demonstrated that it had exhausted all other options to reduce the number of train trips for the project and did not support an extension of the rail operating hours at this stage.  Nevertheless, the Director-General’s Environmental Assessment Report accepted that it might be necessary to extend the rail operating hours at some stage in the future.  The Director-General’s Environmental Assessment Report therefore recommended that the conditions of approval restrict train operations to between 7.00am and 10.00pm unless Duralie Coal can demonstrate, to the satisfaction of the Director-General of Planning, that there are insufficient train paths for the project during those hours (p 17 in Exhibit M1, Vol 2, p 1289).

1. The revised conditions of approval tendered at the hearing (Exhibit M8) reflect these recommendations.  The mitigation measures required by the revised conditions of approval are as follows:

·   No more than 5 laden trains are to leave the site each day and no more than 4 trains are to leave the site each day, when averaged over a 12 month period (Condition 7 of Schedule 2).

·   Trains may only operate between 7.00am and 10.00pm unless otherwise approved by the Director-General in accordance with Condition 8 of Schedule 2 (Condition 8 of Schedule 2).

·   Duralie Coal must keep accurate records of the date and time of each train movement to and from the site and make these publicly available on its website at the end of each calendar year (Condition 48 of Schedule 3).

·   By the end of December 2011, or as otherwise agreed by the Director-General, Duralie Coal is required to replace the existing trains approved to operate on the NSW rail network in accordance with the noise limits in the Australian Rail Track Corporation’s Environment Protection Licence No 3142 (Condition 5 of Schedule 3). There are currently no noise limits that apply to the existing trains.

·   Duralie Coal has committed to replace the existing trains with GL class locomotives (or equivalent) that are quieter than the existing trains from year 2 of the project (or sooner, subject to contractual arrangements) (see Duralie Coal Mine ROM Coal Rail Transport Noise commitment in the statement of commitments, Appendix 9, required to be implemented by Condition 2(b) of Schedule 2). The current level of noise generated by the existing trains will reduce when this occurs.

·   Upon receiving a written request from the owner of any residence on certain specified land in the village of Wards River or along the route of the North Coast railway between the Stratford and Duralie Coal Mines where the maximum passby rail traffic noise from the Stratford mining complex (which is defined to be the Stratford and Bowens Road North mines, considered collectively) exceeds 85dBA, Duralie Coal is required to implement additional noise mitigation measures (such as double glazing, insulation, and/or air conditioning) at the residence (Conditions 4(d) and (e) of Schedule 3 of the development consent (DA No 23-98/99) for the Stratford Coal Mine granted on 5 February 1999 as modified on 26 November 2010, Exhibit D13).

·   Duralie Coal is required to implement best practice noise management, including all reasonable and feasible noise mitigation measures to minimise the operational, low frequency and rail noise generated by the project, and regularly assess the real-time noise monitoring and meteorological forecasting data and relocate, modify, and/or stop operations on-site to ensure compliance with the relevant conditions of the approval, to the satisfaction of the Director-General (Condition 6 of Schedule 3).

·   Duralie Coal is required to prepare and implement a Noise Management Plan for the project, in consultation with the Office of Environment and Heritage, to the satisfaction of the Director-General of Planning (Condition 7 of Schedule 3).

·   The effectiveness of the Noise Management Plan is to be reviewed and audited (in accordance with the requirements in Conditions 3 and 8 of Schedule 5) and, following this, revised to incorporate any recommended measures to improve the environmental performance of the project (Condition 4 of Schedule 5).

·   Duralie Coal must comply with any reasonable requirements of the Director-General of Planning arising from the Department’s assessment of any reports, strategies, plans, programs, reviews, audits or correspondence submitted in accordance with the approval and the implementation of any actions or measures contained in these documents (Condition 4 of Schedule 2).

1. With two exceptions, I consider these measures to deal with the impacts of noise generated by trains to be satisfactory.  The first exception is that I do not consider that Condition 8 of Schedule 2 should empower the Director-General of Planning to extend the hours of operation of the trains arriving at and leaving the Duralie Coal Mine.  As the Director-General’s Environmental Assessment Report stated, Duralie Coal has not yet made out a case justifying extending the existing hours of operation of the trains, and thereby imposing additional burdens on residences affected by noise generated by coal train movements.  The conditions of approval fixing the hours of operation of the trains to 7.00am to 10.00pm should therefore remain as they are at present.  If Duralie Coal wishes to apply to extend the approved hours of operation of the trains, it can make application under the EPA Act to modify the approval in the future. Such modification application will need to justify any extension of the hours, including addressing the matters in the Minister’s proposed Condition 8(a) and (b) of Schedule 2.  The modification application would be considered on its merits at that time.  However, there should be no predetermination or indication of likely approval or indication of the likely terms of any approval (including what the extended hours might be or the number of years in which extended hours of operation would operate) in the current approval.  Accordingly, Condition 8 of Schedule 2 of the revised conditions of approval should only contain the first sentence limiting the hours of train operation to between 7.00am and 10.00pm.

1. The second exception concerns the terms of the condition of approval for the Stratford Coal Mine requiring the taking of additional noise mitigation measures at residences affected by passby rail traffic noise (Condition 4(d) and (e) of Schedule 3 of the development consent for the Stratford Coal Mine).  The condition applies only to residences on land specified in the condition.  Only five residences in the village of Wards River are specified (on the land listed as R8–R12 in the figure in Appendix 3 to the development consent (see Condition 4(d)).  The catch-all category in Condition 4(c) is limited by the causal requirement that the passby rail traffic noise which exceeds the maximum noise criteria of 85 dBA be “from the Stratford mining complex”.  The Stratford mining complex is defined to be “the Stratford and Bowen Road North mines, considered collectively.”  The inclusion of this causal requirement raises doubt that the condition would apply to require Stratford Coal Pty Ltd (a different company to Duralie Coal which is the proponent of the Duralie Extension Project) to implement additional noise mitigation measures at residences affected by passby rail traffic noise caused by trains transporting coal from the Duralie Coal Mine.  As submitted by the Minister for Planning at the hearing, I consider that a requirement to implement additional noise mitigation measures at residences affected by passby rail traffic noise should be included in the conditions of approval for the Duralie Extension Project.  This can be achieved by amending Condition 4 of Schedule 3 of the revised conditions of approval to mirror Condition 4(d) and the relevant part of 4(e) dealing with passby rail traffic noise, but removing the causal requirement for such noise to be from the Stratford mining complex, of the Stratford Coal Mine development consent.

Dust generated from trains

1. The local residents who live in proximity to the railway also raise concern as to the dust emissions from the uncovered laden train wagons transporting the ROM coal from the Duralie Coal Mine to the Stratford Coal Mine.  Under the current development consent for the existing Duralie Coal Mine and under the Minister’s approval for the Duralie Extension Project, there are no conditions regulating dust from the coal trains.  Apparently, Duralie Coal’s practice has been to water the trains upon departure from Duralie to prevent or minimise dust being emitted during transportation to Stratford (see Environmental Assessment; Appendix D, section D2.3, p D-6).  However, according to the local residents’ evidence, this practice has not been effective in suppressing dust and dust from the coal trains continues to impact upon the residences in proximity to the railway.

1. At the conclusion of the hearing, the Minister proposed and Duralie Coal did not oppose, a new condition addressing the issue of dust emissions from laden coal trains.  Condition 21A:

“21A Within 3 months of the date of determination in the Land and Environment Court Proceedings No. 10090 of 2011, the Proponent shall submit a study of the dust emissions from the laden trains associated with the Project to the Director-General. This study must:

(a)           be carried out by a suitably qualified and experienced expert whose appointment has been endorsed by the Director-General;

(b)           include consultation with the OEH [Office of Environment and Heritage], the Department and the residents in close proximity to the railway line;

(c)           assess the scale, nature and significance of the dust emissions of the laden trains;

(d)           identify any reasonable and feasible mitigation measures that could be implemented to reduce the dust emissions from these trains;

(e)           recommend the implementation of any specific measures; and

(f)           be accompanied by the Proponent’s response to any recommendations in the study.

If, following review of the study, the Director-General directs the Proponent to implement additional mitigation measures to reduce the dust emissions of the laden trains associated with the Project, then the Proponent shall implement these measures to the satisfaction of the Director-General, and within one month of such direction, update the Air Quality & Greenhouse Gas Management Plan for the Project to include a detailed program for the implementation of these measures.”

1. I consider this new condition to be an appropriate mechanism to address the issue of dust emissions from coal trains.  However, I wish to add two comments.

1. First, one of the mitigation measures that needs to be evaluated in the study of the dust emissions from the laden trains required by the condition is the covering of the laden train wagons.  If the coal from the Duralie Coal Mine were to be transported from Duralie to Stratford by road, the laden trucks would be required, by relevant road rules, to be covered, thereby preventing dust emissions impacting residences in proximity to the road.  It seems anomalous that the laden train wagons which serve the same purpose as trucks in transporting ROM coal from Duralie to Stratford, and which equally can generate dust emissions impacting the same residences in proximity to the railway, are not required to be covered. 

1. Secondly, for the avoidance of doubt, a requirement for monitoring of any additional mitigation measures directed to be implemented by the Director-General should be included in the updated Air Quality and Greenhouse Gas Management Plan.  This will then trigger other conditions of approval dealing with review of the monitoring data and performance, independent environmental audit, revisions of the management plan as well as access to information on the monitoring results.

Conclusion and orders

1. For these reasons, I consider that approval should be granted to the Duralie Extension Project, subject to conditions amended as I have indicated through the judgment. In order to grant approval on these modified conditions, it is necessary for the Court to uphold the appeal. This is necessary notwithstanding that the appeal is a third party objector appeal by ICAG against the decision of the Minister for Planning to grant approval. As I noted in another third party objector appeal against a Part 3A approval, Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 at [5]–[6], in order to approve a project that is different in material respects, and on different conditions from those originally approved by the Minister, it is necessary for the Court to uphold the appeal.

1. Accordingly, I make the following orders:

1. The appeal is upheld.

1. Approval is granted under s 75J of the Environmental Planning and Assessment Act 1979 to the project application referred to in Schedule 1, and on the conditions referred to in Schedule 2 to 5, of the approval in Annexure A.

1. The exhibits may be returned.

Decision last updated: 14 November 2011