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

LAND COURT OF QUEENSLAND

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

PARTIES:
New Acland Coal Pty Ltd

(applicant)

v

Frank Ashman, Lynn Ashman, John Cook, Patricia Cook, Hazel Green, Paul Mason, Janet Schick, John Schick, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck
(MRA level 1 objectors)

and

Glenn Norman Beutel, Darling Downs Environmental Council Inc., Angela Mason, Geralyn Patricia McCarron, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, Steven Ward, Noel Wieck
(MRA level 2 objectors)

and

Frank Ashman, Lynn Ashman, Russell Byron, Clean Air Queensland, Christopher Cleary, Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Carolyn Lunt, John Millane, Frances Scarano, Jane Scholefield, Max Scholefield, Loretta Smith, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck
(EPA level 1 objectors)

and

Glenn Norman Beutel, Pamela Aileen Harrison, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, John Standley, Steven Ward, Noel Wieck
(EPA level 2 objectors)

and

Angela Mason
(EPA s 186(d) party)

and

Department of Environment and Science
(EPA statutory party)

FILE NOs: EPA495-15
MRA496-15
MRA497-15

DIVISION: General Division

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

DELIVERED ON: 7 November 2018

DELIVERED AT: Brisbane

HEARD ON: 2 – 4 October 2018, written submissions closed 19 October 2018

HEARD AT: Brisbane

PRESIDENT: FY Kingham

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

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

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

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

Environmental Protection Act 1994 s 107, s 110, s 117, s 185, s 191(1)(f), s 215(1), s 215(2)(n), s 226, s 235
Environmental Protection Regulation 2008 s 51
Environmental Protection (Noise) Policy 2008 s 5, s 6, s 7
Mineral Resources Act 1989 s 269(4)
State Development and Public Works Organisation Act s 54B, s 47C, s 54B(3)

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99, cited
Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, cited
Deuchar v Gas Light and Coke Co [1924] 1 Ch 422, cited
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) LGRA 238, cited
Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72, cited
Knight v FP Special Assets Ltd (1992) 174 CLR 178, cited
McBain v Clifton Shire Council [1995] QCA 513, cited
New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, considered
New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, considered
New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, considered
Oshlack v Richmond River Council (1998) 193 CLR 72, cited
R v Gough; Ex parte Australasian Meat Industry Employees Union (1965) 114 CLR 392, cited
Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473, cited
Taralga Landscape Guardians Inc v Minister for Planning RES Southern Cross Pty Ltd (2007) 161 LGERA 1, cited
Tickner v Chapman (1995) 57 FCR 451, cited

APPEARANCES:
D Gore QC and B Job QC (instructed by Clayton Utz) for the applicant
Dr C McGrath of Counsel (instructed by Environmental Defenders Office) for Oakey Coal Action Alliance Inc.
K Barlow QC (instructed by the Department of Environment and Science) for the statutory party
P King for Darling Downs Environment Council Inc.

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

Background

Acland is a small town north of Oakey, on the Darling Downs, 160 km west of Brisbane. Since 2001, New Acland Coal Pty Ltd has operated an open cut coal mine called the New Acland Coal Mine. Stage 1 of the mine commenced in 2001. Stage 2 of the mine was approved in 2006. Stage 2 is very close to Acland, which no longer functions as a town. One of the objectors and his tenants are the only residents. If stage 3 is approved, what remains of the township will be surrounded by the mine.

This case deals with Stage 3, which involves applications for two new mining tenures and amendments to the existing environmental authority (EA).

The Stage 3 applications have run a tortuous path that is well-documented elsewhere. Suffice it to say that the proposal to expand the mine, now known as Stage 3, was declared a significant project under the State Development and Public Works Organisation Act 1971 in 2007. The scope of the Stage 3 Project was significantly revised in 2012 and was refined in 2014. It was then assessed by the Coordinator-General (CG), who issued his Evaluation Report on the Environmental Impact Statements for Stage 3 in December 2014. The CG’s report included conditions for the EA (stated conditions). The statutory party (now DES but then known as DEHP) issued a draft EA on 28 August 2015.

There were 27 objectors to the applications for two mining leases (MLAs) under the Mineral Resources Act 1989. There were 35 objectors to the draft EA issued by DEHP under the Environmental Protection Act 1994. Twenty of them objected to both the MLAs and the draft EA. Amongst the objectors were two organisations: the Oakey Coal Action Alliance and the Darling Downs Environment Council. Most of the objectors are landholders who live in the vicinity of the mine. Some trace their family connection in this area back to 1848.

The mining lease applications (MLAs), the draft EA, and the objections to them, were referred to the Court for an objections hearing for the Court to make recommendations to the Minister for Natural Resources and Mines (as the department then was) in relation to the MLAs, and to the Chief Executive of DEHP, in relation to the draft EA.

Member Smith conducted the objections hearing and made his recommendations on 31 May 2017. That decision was judicially reviewed early in 2018. Justice Bowskill set aside his Honour’s recommendations and remitted the applications and objections to the Court for further hearing, on a limited basis. Justice Bowskill ordered a different Member conduct the remitted hearing, bound by most of Smith M’s findings and conclusions.

I conducted the remitted hearing on the evidence before Smith M. The parties raised issues about: the jurisdiction of the Court; the scope of the remitted hearing; what findings and conclusions bind me; what the noise conditions should be; whether NAC mining an area (known as West Pit) under the existing EA is lawful or relevant to the hearing; and whether the applications should be refused on public interest and other grounds.

In these reasons, I often refer to the objectors collectively. On the whole, the objectors had shared concerns, even if they made different arguments about them, or made those arguments in different ways. Further, those objectors who represented themselves agreed, in large part, with the submissions made by OCAA, which was legally represented in the hearing.

I mean no disrespect to any objector by not referring to them directly. Their individual submissions, both written and oral, assisted me to understand how past activities affected them, and their concerns about future operations. Their contributions to the hearing ensured I never lost sight of the fact that the recommendations I make have real consequences, for real people. I have taken each of their submissions into account in making my recommendations.[1]
[1]To the extent that those submissions did not raise issues beyond the Court’s jurisdiction, or introduce evidence that was not before Smith M.

Ultimately, I have made conditional recommendations to grant the MLAs and to approve the application to amend the EA. The recommendations are conditional, in the sense that they do not have effect unless certain things take place. I will hear from the parties about a reasonable time to allow for that to happen. If the condition is not fulfilled, I recommend the applications are refused.

My reasons explain how I arrived at those recommendations. I have addressed the issues raised by the parties by considering these questions:

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

2. What should be the noise conditions for Stage 3?

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

4. What recommendations should I make?

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

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

Does the Court have jurisdiction to conduct the remitted hearing?

OCAA argued the Court could not continue with the remitted hearing and should refer the draft EA back to DES to consult with the CG to remove conditions dealing with groundwater.[2]
[2] Outline of Submissions for the Rehearing on behalf of the Oakey Coal Action Alliance Inc filed 8 August 2018, [69]-[74].

Justice Bowskill determined the Court could not consider the key issue of groundwater in the objections hearing of NAC’s applications. OCAA relied on her Honour’s reasoning that this was beyond the Court’s jurisdiction because impacts on groundwater quantity will be the subject of NAC’s application for a licence under the Water Act 2000.[3]
[3] New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [226]-[236]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [40].

The logical consequence of that reasoning, OCAA submitted, is that the CG cannot fix and DES cannot approve a draft EA that includes conditions dealing with groundwater quantity: i.e. depletion of ground water available for other uses. As the draft EA referred to the Court includes such conditions, the referral is not valid.

I reject that submission for a number of reasons.

Firstly, DES invokes the Court’s jurisdiction by referring a draft EA to the Court for an objections hearing.[4] What is required is a valid referral. It is possible to sever invalid conditions without vitiating the authority to which they attach.[5] OCAA appeared to accept that when it said the referrals were ultra vires to the extent they imposed conditions relating to groundwater monitoring.[6]
[4] Environmental Protection Act 1994, s 185.
[5] Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72; McBain v Clifton Shire Council [1995] QCA 513.
[6]Outline of Submissions for the Rehearing on behalf of the Oakey Coal Action Alliance Inc filed 8 August 2018, [69].

Secondly, this argument was not before Bowskill J. Nor was it a ground of objection or otherwise raised in the hearing before Smith M.

Thirdly, the Court must read Bowskill J’s reasons in context. Her Honour decided the particular factual subject matter of the key issue of groundwater is beyond the Court’s jurisdiction.[7] That was groundwater depletion.[8] Her Honour drew a distinction between groundwater quantity and groundwater quality.[9] She confirmed the Court could consider Schedule D of the draft EA, which includes the groundwater conditions.[10]
[7]        New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [4], [226]-[239].
[8]        New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [14], [16], [84]-[86], [1337], [1436]-[1799].
[9]        New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [189]-[243]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [40].
[10]       New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [40]; Affidavit of Mark Geritz filed 5 June 2018, 168-169.

Accordingly, it does not follow from her Honour’s reasoning that the Court has no jurisdiction to proceed with the remitted hearing, because the draft EA contains conditions dealing with ground water. That would be directly contrary to the orders she made and what she said during the hearing.

The same reasoning applies to another submission by OCAA, which it is convenient to deal with here. Although this was not a challenge to the Court’s jurisdiction to conduct the remitted hearing, it affects what issues the Court can consider.

OCAA argued the Court cannot consider the wider economic benefits of the mine, including employment growth, because the mine cannot proceed without first securing a water licence. I also reject that argument.

The water licence is another approval NAC will require for some, but not all, of the activities the mining leases and amended environmental authority would approve, if granted.

Further, Bowskill J referred, without demur, to Smith M’s findings about the economic benefits of the mine. The Court is bound by his findings and conclusions on that topic.[11] I am satisfied the Court can consider the wider economic benefits of the mine in the remitted hearing.
[11]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [4]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [36].

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

Justice Bowskill remitted the applications and objections to the Court for further hearing on a very limited basis.[12] The Court is not bound by any of Smith M’s findings or conclusions regarding groundwater and, to the extent they are connected, inter-generational equity, because the depletion of groundwater is beyond the jurisdiction of the Court in this hearing.
[12]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [377]-[380]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [27]-[40].

Nor is the Court bound by Smith M’s conclusions about noise. Otherwise, his Honour’s findings and conclusions bind me in conducting the remitted hearing and making my recommendations.

In making those orders, her Honour’s intention was to avoid unnecessary re-litigation, or re-examination of issues,[13] because:[14]

“It would be entirely inimical to the interests of justice to permit the parties to avoid the binding effect of the findings and conclusions already reached by the Land Court, after a full hearing, which are not tainted in any way by the outcome of this judicial review proceeding.”
[13]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [379]; New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [34].
[14]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [37].

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

My exercise of discretion is necessarily constrained by those of Smith M’s findings and conclusions that bind me. However, the parties perceived the practical effect of that constraint on how I would exercise the Court’s function on the remitted hearing quite differently.

NAC submitted there is no scope for recommending refusal on any issue except noise. It said that I should conclude the noise limits set by the CG are acceptable, despite Smith M’s finding that lower noise limits were appropriate. In any case, even if I do not accept the CG’s noise limits are acceptable, it would be unreasonable to recommend refusal on that ground alone. Member Smith made no other binding finding or conclusion that favoured a recommendation to refuse the applications.

Although it did not directly address the question, it was implicit in the submissions for DES that my reasoning about noise is central to the recommendation. It said I am bound by the finding that lower noise limits are appropriate but may, in making my recommendations, consider NAC’s arguments about noise. I must decide whether, on balance, to recommend the grant or refusal of the applications.

OCAA argued there was little scope for the Court to form a favourable conclusion on noise on the draft EA conditions, given Smith M’s findings. The objectors generally argued the CG’s conditions were neither appropriate nor acceptable and I should recommend refusal if those conditions are to apply.

Further, OCAA and other objectors submitted my consideration is more wide-ranging that forming a conclusion about the noise limits. Member Smith decided to recommend refusal on limited grounds. Only one of those is now before the Court. However, I must look at all of his Honour’s binding findings and conclusions afresh. He made other findings that the Court could weigh in the balance in making a recommendation on the applications.

The difference between the parties, to some extent, reflects different views about the balancing exercise in weighing the various factors the Court must consider in making its recommendation. NAC’s submission about the two-stage balancing exercise has implications for mining objection hearings generally.

NAC submitted the effect of Bowskill J’s reasoning is that the Court must engage in a balancing exercise at two levels. First, in the context of the individual key issues and secondly in the context of the ultimate recommendation.[15]
[15]Applicant’s Reply filed 17 September 2018, [49].

To consider a matter requires an active intellectual process. The Member hearing the matter must bring their mind to bear[16] upon the salient facts that give shape and substance to the matter[17] and the arguments or opinions in relation to that matter. The Court may need to make findings of fact relevant to the matter where they are in contest. It must engage with the arguments made about the matter.
[16]Tickner v Chapman (1995) 57 FCR 451, 495.
[17]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99, [44]-[45].

However, that does not necessarily require the Court to undertake a balancing exercise, separately, in relation to each key issue. The same can be said of the statutory criteria the Court must consider.

The danger in adopting a two-stage approach in a mining objection hearing is that it may distract the Court from fulfilling its statutory function. In exercising its discretion, the Court is not making a series of decisions on each key issue, leading to an ultimate decision. The key issues arise from the objections. They are unlikely to, and in this case they do not, address all the statutory criteria the Court must consider. To conclude whether to recommend refusal or approval on each key issue risks undermining a proper consideration of how all the relevant factors weigh in the balance.[18]
[18]Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473.

Further, the Court must make its decision, on a consideration of all the statutory criteria, including the matters raised by way of objection. That is where the weighing up or balancing exercise must be undertaken. That calls for a holistic consideration of all the relevant factors.

The passage that NAC relies upon in advocating a two-stage process is in a section of Bowskill J’s judgment about how the Court should have applied the principle of intergenerational equity.[19] That specific context is important. The principle of intergenerational equity is one of the principles of ecologically sustainable development. Her Honour accepted the Court should not view any one of the principles of ecologically sustainable development in isolation, with one given overriding weight.[20] Justice Bowskill concluded Smith M had not considered any other principle and had proceeded on the basis that a breach of the principle of intergenerational equity warranted refusal. Her Honour found that was not the correct approach.[21]
[19]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [265].
[20]Ibid [267].
[21]Ibid [272]-[275].

Her Honour identified the particular reason the Court must engage in a balancing exercise when applying the principles of ecologically sustainable development. However, it does not follow that she concluded the Court must engage in some sort of balancing exercise, individually, on every key issue. That is not what she said.

Further, when discussing the issue of noise, her Honour’s reasons suggest the contrary. She said Smith M’s reasoning does not demonstrate weighing up (or balancing) considerations leading to a view that, in the exercise of the discretionary power reposed in him, it was appropriate to recommend refusal.[22]
[22]Ibid [333].

Justice Bowskill then discussed the options that were open to Smith M and observed that:[23]

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

[23]Ibid [336].

Justice Bowskill said the Court must weigh up (that is balance) the various considerations that each statute requires it to take into account in order to arrive at its recommendation. She referred to authorities that establish that no one consideration and no combination of considerations is necessarily determinative of the result.[24] Terms such as take into account and consider leave it to the Court to decide what, if any, weight it should give to each of the matters specified.[25]
[24]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [271].
[25]Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, [46].

Nevertheless, while I agree with OCAA’s submission that I must exercise the whole of the discretions in s 269 MRA and s 190 EPA, I am necessarily constrained in how I may proceed. Member Smith’s conclusions, as well as his factual findings, bind me. His Honour expressly excluded recommending refusal on many key issues, even in the face of factual findings that were adverse to NAC.

For example, he said he would not recommend refusal on the key issues of economics (at [1056]), agricultural economics (at [1082]), climate change (at [1094]), mental health (at [1265]), community and social environment (at [1417]) and other objections (at [1750]). He also said he would not recommend refusal on the statutory criteria of past performance (s 269(4)(g) at [1793], [1824]).

I will not engage in a two-stage balancing exercise, but my discretion is not at large. I will consider the issue of noise and all his Honour’s binding findings and conclusions and, weighing them in the balance with any further findings I make in this hearing, decide what recommendations to make.

What are the binding findings and conclusions?

I am grateful for the parties’ assistance in the rather onerous task of identifying which passages of Smith M’s very lengthy judgment contain binding findings and conclusions. OCAA provided a marked up version of his Honour’s judgment, which has been my base reference. It is not surprising that there were some disagreements between the parties about what binds me. However, it is only in relation to noise that this has real consequence.

To the extent that I need to resolve disagreements about findings and conclusions, I have done so at the relevant point of my reasons, and, in doing so, I have applied the following principles, which do not appear to be controversial:

(a) I am not bound by Smith M’s legal reasoning.

(b) Findings are findings of fact.

(c) Conclusions are the decisions on the key issues and on the application of the statutory criteria to the facts.

(d) The following types of statements are not findings or conclusions:

(i) uncontroversial background information;

(ii) extracts from the evidence (although Smith M may have reproduced them to support or explain a finding);

(iii) references to the evidence led or the findings made in a different case;

(iv) comments about a witness, their credit or their demeanour (although Smith M may have made the comments to support or explain a finding);

(v) general observations and commentary.

What should be the noise conditions for Stage 3?

NAC argued the CG’s stated conditions are acceptable, consistent with the statutory requirements, impose stricter limits than now apply, and are more closely monitored and easily enforced than the existing EA.

DES did not advocate for particular noise conditions. It observed NAC’s arguments were relevant in deciding what recommendations to make, but submitted I could not recommend different noise limits to those set by the CG. Further, it said NAC’s proposal to alter the definition of noise sensitive places is inconsistent with the CG’s conditions, as are some other amendments proposed by NAC.

OCAA and the other objectors argued I should recommend refusal of the applications because of the noise impacts, amongst other things, particularly the loss of good quality agricultural land. If, however, I decide not to recommend refusal, I must give effect to Smith M’s findings about the appropriate noise limits, which would make a real difference to their quality of life. Further, there should be continuous real-time monitoring with publicly available data, to hold NAC to account.

Before starting on this issue, I must observe that NAC made many of the arguments put to me in this remitted hearing to Justice Bowskill in the judicial review hearing.[26] Justice Bowskill found there was no error of law in his Honour’s interpretation or application of the Environmental Protection (Noise) Policy 2008 or that he had failed to take into account something he was required to.[27] I am bound by Smith M’s finding as to the appropriate noise limit and I cannot revisit that. Nevertheless, as DES submitted, I can consider those arguments in deciding what recommendations to make on the applications. That is, they may affect the weight I give to the finding in the balancing exercise.
[26]Applicant’s Outline of Argument before Bowskill J, [262].
[27]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [305].

There is an issue about noise I will mention now, relating to the mining of an area known as West Pit. I have addressed that later in these reasons.

I will consider those various arguments by addressing the following questions:

·     What statements did Smith M make about noise that are binding findings?
·     What are the arguments about the noise limits?
·     Should the noise limits apply to all noise sensitive places?
·     How should the noise impacts of the mine be monitored, reported, and enforced?

What statements by Member Smith about noise are binding findings?

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

I consider the following findings by Smith M about noise are binding findings:[28]
[28]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [721]-[809].

“[3]       As regards noise, I have found noise levels should be set at 35 dB for evening and night time…
[721]      …in my view the objectors who have made noise complaints have not been well served in the past by either NAC or the statutory party. My independent, considered view on what I have before me is consistent with the evidence given by the objectors that they have actually been treated very poorly by both NAC and the statutory party.
[722]      …:
“The historical performance of NAC in responding to and investigating noise complaints prior to the TARP (an installation of the ‘real time’ Sentinex monitor) was not satisfactory.”
…
[724]      …NAC’s recent historical performance in monitoring noise levels and implementing noise mitigation since the implementation of the TARP has improved significantly for the Acland sensitive receptors, being those residents who reside in homes in proximity to the Stage 1 and Stage 2 operations. That statement is completely consistent with my understanding of their joint positon expressed in paragraph 466 of exhibit 406.
…
[727]      Having considered all of the evidence, and despite the objections of NAC and the Statutory Party, I broadly and generally accept the evidence of the objectors as regards their experiences with respect to noise from Stages 1 and 2 without taking the time to specifically consider each and every circumstance. In short, I accept the preconditions that cause Mr Elkin’s confidence in NAC’s past performance in relation to noise to be shaken.
…
[737]      Despite the limited amount of time at each sensitive receptor, it was, in my view, telling evidence that there were elevated noise levels at Mr Beutel’s residence on both occasions. These noise levels were relatively consistent even with the number of hours between the first stop at Mr Beutel’s residence and the last stop at his residence.
[738]      …the elevated levels were measured at a time when NAC should have been actively undertaking its TARP process and therefore actively preventing excess noise.
[739]      The technical evidence given by both noise experts, limited as it was, was certainly consistent with the evidence of noise impacts at his residence as provided to the Court by Mr Beutel. To remove any doubt, I accept Mr Beutel’s evidence in this regard.
[740]      …noise impacts of the mining operations on sensitive receptors is wind and atmospheric dependent.
[741]      The wind was essentially blowing from the mining operations towards Mr Beutel’s residence. There was, effectively, no mine noise to the north of the mining operations or, to put it another way, upwind of the mining operations. Those sensitive receptors include Mrs Harrison’s former residence; Mason’s farm; Dr Plant’s residence and Mr and Mrs Plant’s residence.
[742]      When I consider the evidence from 1 September 2016 in light of all of the evidence of excessive noise given by lay witnesses at the hearing, I am left in no doubt that, had a further inspection and concurrent evidence been taken at sensitive receptors on an evening and night when the wind was blowing in the opposite direction, the results would have been that the noise readings at Mr Beutel’s residence would have been significantly lower, whilst the readings at those sensitive receptors to the north would have been somewhat or even significantly higher.
[743]      This demonstrates what I can only call the folly of the regime under the current EA. Without real time monitoring and recording of noise levels at least at sensitive receptors located at Mr Beutels’s residence; a sensitive receptors in the north and sensitive receptors to the east and west, the noise levels actually experienced by the sensitive receptors are so variable and wind and environment dependent as to make monitoring of noise levels some days or weeks after a complaint, with perhaps significantly different atmospheric and wind directions, of no benefit or utility.
…
[764]     …Prior to Stage 1 and Stage 2, Acland was a quiet rural area at which the revised Stage 3 is proposed to operate. Of course, if the revised Stage 3 does not gain approval, at the conclusion of mining operations under of Stages 1 and 2, Acland will return to being a quiet rural environment.
…
[773]      …the appropriate noise level for evening and night operations should be set at 35 dB for each and not at 42 dB and 37 dB ...
…
[775]      …the specific noise that the mining activity itself should be allowed to make at a maximum is 35 dB in the evening in night in accordance with s 10, and that, when total noise is taken into account for the purposes of schedule 1, the appropriate schedule 1 levels are 42dB and 37 dB…
…
[776]      In my view it is entirely appropriate that the EPP noise s 10 levels should apply in this matter…
…
[793]      …since 2014 NAC has been using an unvalidated Quattro monitor.
[794]     …it is not relevant that the Quattro unit is not validated.[29]
…
[796]      …data obtained from the unvalidated equipment is, or has been, it would seem, used by NAC in response to any noise complaints that it has received in the last few years as a result of Stage 1 and Stage 2 operations.
…
[798]      I accept Mr Elkin’s evidence that the new directional Quattro monitor is used in the Hunter Valley in New South Wales. I also accept that it is a matter of the Quattro monitor being validated by the appropriate process, not that it is unfit to ever be validated.
…
[802]      … NAC has already in a sense begun its revised Stage 3 mining activities by mining the proposed Manning Vale East Pit (West Pit) albeit under the existing ML.
…
[809]      …The provision of this data[30] online in real time will take out the adversarial complaints based process which has not worked and ensure NAC are directly accountable to EHP for its noise emissions. As with air quality, no doubt NAC will have online information explaining noise data and clarify its noise emissions in its monthly publically available environmental reporting, see CG (condition 3) and EHP (A14). It is vital for community relations and wellbeing that local residents can access real time noise monitoring data. I am confident local residents would not be upset or confused by the raw data. In fact the provision of this data may help local residents become more aware of what level of noise is acceptable.”

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

[30]Real time noise monitoring data.

It is evident that much of what Smith M said about this key issue is not binding in this hearing. That does not mean the rest of his reasons on the issue of noise are irrelevant.

I will have particular regard to the evidence his Honour specifically mentioned to support his findings. Member Smith had the benefit that I have not had of hearing the witnesses give their evidence and hearing oral submissions that provide context for the lengthy and detailed written submissions made by the parties. I consider I can have regard to his legal reasoning where that was not found to be wrong, and, also, his conclusions except the ones overturned. Respectfully, I will give due weight to his Honour’s reasoning on issues I must still resolve, where that reasoning is either clearly stated or a matter of necessary inference from a non-binding statement or reference to the evidence.

By way of example, Smith M (at [717]) reproduced the section of the joint expert report of Mr Elkin (called by NAC) and Mr Savery (called by OCAA) that recorded their areas of agreement. Although he did not say so, I infer that he has accepted that evidence and found those matters were established to his satisfaction.

What are the arguments about the noise limits?

Because Smith M’s finding about the appropriate noise limits for Stage 3 are binding, I cannot revisit the question of what limits are the appropriate limits for the mine. As DES submitted, the arguments made by NAC are relevant to how I weigh that and other findings in the balance when deciding what recommendations to make.[31]
[31]Statutory Party’s Submissions filed 7 September 2018, [24].

I should also indicate here how I will deal with the issue of NAC’s past performance regarding noise under the existing EA. That was the subject of a great deal of evidence, and his Honour made a number of important findings about that. Those findings bind me.

Member Smith broadly and generally accepted the objectors’ evidence about their experiences of noise from the mine.[32] He refrained from making any findings about NAC’s compliance with the existing EA.[33] No party asked me to take a different approach and I have not. Member Smith said the question for Stage 3 is whether the limits set for noise in the draft EA were sufficient to protect and safeguard human health.[34] Putting to one side the dispute about what noise limits should apply, Smith M said he was confident NAC would comply with the set limits or be subject to immediate enforcement action because of the draft EA conditions and the further conditions about monitoring and reporting.[35] His Honour’s findings as to the appropriate noise limit must be considered in that wider context.
[32]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [727].
[33]Ibid [571].
[34]Ibid [1187].
[35]Ibid [1199].

I must consider any regulatory requirement imposed on DES under a regulation made or an EPP approved under the EPA.[36] That means, in relation to the key issue of noise, I must consider ch 4 pt 2 of the Environmental Protection Regulation and the EPP.[37] DES (or the DEHP as it then was) conducted an environmental objective assessment[38] of the draft EA. I must have regard to that but need not undertake the assessment myself.[39]
[36]EPA, s 191(1)(f); New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [287].
[37]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [288].
[38]EPA, s 51.
[39]New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, [293].

The purpose of the EPP Noise is to achieve the object of the EPA in relation to the acoustic environment.[40] The EPP furthers that purpose by identifying environmental values to be enhanced or protected and specifying Acoustic Quality Objectives to achieve that.[41] One environmental value is the qualities of the acoustic environment that are conducive to human health and wellbeing. Many of the concerns expressed by objectors relate to those qualities, which include the amenity of the community and a suitable acoustic environment in which individuals can sleep, study or learn, be involved in recreation, relax, and engage in conversation.[42] Schedule 1 to the EPP contains AQOs prescribed for enhancing or protecting those environmental values. In the circumstance of this mine, the relevant AQO is for noise inside a dwelling.
[40]Environmental Protection (Noise) Policy 2008, s 5.
[41]Ibid s 6.
[42]Ibid s 7.

Mr Elkin and Mr Savery prepared a number of reports, provided a joint expert report and were tested under cross-examination at the hearing. Although they did not agree on the noise limits, and used quite different methods to arrive at them, they agreed on a great deal. Particularly, they agreed:[43]
[43]Joint Report of Noise Experts filed 22 February 2016, 74-75.

1. achievement of the noise limits will be difficult at any of the near sensitive receptors depending on meteorological conditions and will require considerable attention to noise monitoring and continuous ongoing adaptive noise management;

2. prior to the Trigger Action Response Plan (TARP), NAC’s performance in response to noise complaints was not satisfactory;

3. under the TARP and with monitoring noise and implementing noise mitigation, NAC’s performance had improved significantly and further improvements can be made; and

4. some refinements should be made to NAC’s real-time monitoring system.

There were some disagreements about modelling at the original hearing and, to a more limited extent, at the remitted hearing. OCAA raised this in the context of arguments about NAC’s ability to comply with noise limits, whatever they are. I do not consider it necessary to resolve the debate about modelling methodology in this hearing. The expert evidence is clear that NAC must continue with and improve their adaptive management of noise. I note that the strategic modelling methodology that Mr Savery recommended is reflected in the proposed conditions.[44] I will return to consider how that fits with the monitoring and reporting conditions later in the reasons.
[44]T 47-18, line 7 to 47-20, line 31; T 47-31 lines 39 to 44.

The real focus of the parties’ submissions in the remitted hearing was on the different noise limits recommended by the experts.

Mr Elkin said the limits stated by the CG are appropriate. They are derived from the indoor dwelling AQO in the EPP Noise. They are 35 dBA for daytime (7am to 7pm) and evening (7pm to 10pm) and 30 dBA for the night (10pm to 7am). Because they are indoor levels, and noise is monitored outside the dwelling, the limits must be adjusted.

The experts agreed a 7 dBA façade reduction is appropriate. It is a conservative reduction and assumes the worst affected façade.[45] Bedrooms located on the side or rear facades would experience greater attenuation of between 3 to 5 dBA and 10 dBA. Contrary to the submissions made by some of the objectors, that does not assume closed windows. It assumes partially closed or open windows. If the windows are closed, the reduction would be at least 20 dBA.[46]Applying a 7 dBA façade reduction results in limits of 42 dBA for daytime and evening and 37 dBA for night.
[45]Joint Report of Noise Experts dated 22 February 2016, [190]-[191].
[46]T 40-20 line 34 to 40-21 line 7.

The limits Smith M found were appropriate are based on Mr Savery’s recommendation: 42 dBA for daytime and 35 dBA for evening and night. That is a 5dBA reduction for the evening and a 2 dBA reduction at night from the CG’s conditions.

As I read Mr Savery’s evidence, his starting point was that this area was otherwise a very quiet environment and he thought lower limits would better protect the health, wellbeing, and amenity of the mine’s neighbours.

The experts agreed the area has very low background noise levels without the mine.[47] They did not agree, though, on whether the AQO levels were adequate. Mr Savery thought not, because, he said, they are based on World Health Organisation and enHealth Reports that focus on urban environments. Mr Elkin did not agree with that. He said they were applicable to all environments.[48] The EPP Noise does not draw the distinction that Mr Savery did.
[47]Joint Report of Noise Experts dated 22 February 2016, [57].
[48]Ibid [76].

There are some features of Mr Savery’s reasoning that concern me, some of which Smith M referred to. Mr Savery arrived at his levels by applying what he described as the minus 5 dBA adjustment for very rural environments.[49]
[49]Further Statement of Evidence: Acoustic and Vibration Assessment and Engineering dated 24 March 2016, [10].

Firstly, in making that adjustment he relied on the Model Mining Conditions Guidelines (MMCG). It uses background noise levels as the reference point for setting noise limits. Mr Savery adopted deemed minimum background noise levels of 30 dBA in the evening and night and 35 dBA in the daytime in his analysis. This was an artificial exercise, but much about the assessment and adjustment of noise has an element of artificiality and subjectivity.

Mr Savery said the MMCG (and the Planning for Noise Control Guideline (PNCG)) provide the best protection of health, wellbeing and amenity of all sensitive receptors.[50] Member Smith rejected his reliance on MMCG and noted the PNCG has been overtaken by the EPP Noise.[51]
[50]Joint Report of Noise Experts dated 22 February 2016, [118].
[51]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [761]-[762].

Further, I note Mr Savery agreed with Mr Elkin that noise limits based upon PCNG or MMCG are not practical nor feasible for the Stage 3 project, given the proposed mining activities, the prevailing meteorological conditions near Acland, and the relatively close locations of the sensitive receptors.[52]
[52]Joint Report of Noise Experts dated 22 February 2016, [460].

Secondly, Mr Savery relied on the background creep provision of the EPP Noise to support his minus 5 dBA adjustment. Background creep is the progressive increase of background levels as more activities contribute to the acoustic environment. Section 10(2)(b) provides that, to the extent that it is reasonable to do so, variable noise from an activity must not be greater than 5 dBA greater than the existing acoustic environment.

It seems to me that Mr Elkin’s approach to the noise limits was orthodox. Background creep is a useful measure for noise limits set by reference to the existing background level. The CG’s limits are not that type. They apply to the total noise level recorded regardless of the background levels. Under the CG’s conditions, NAC’s obligation is to ensure noise from its activities do not cause the total noise to exceed those limits.

NAC submitted that Mr Elkin said the CG’s conditions are “anti-creep“. But that misunderstands his evidence. He said that they were anti-creep if you take the existing background levels as the starting point.[53] The acoustic environment for this area has significantly changed from a very quiet rural area to one affected by noise from a continuous mining operation. That is a relevant factor in deciding what limits should apply.
[53]T40-20 lines 1-6.

NAC submitted the difference between the limits is the difference between what is preferred or desirable and what is acceptable. The objectors strongly disagreed. They said the difference was between acceptable and unacceptable noise.

Member Smith’s primary concern about noise was its impact on the health and wellbeing of the mine’s neighbours. He returned to noise when considering the key issue of health. He referred to expert evidence that the range of health impacts from noise from a mine that operates 24 hours a day includes:^[54]
[54]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1155].

1. sleep deprivation, which has been linked to numerous adverse health outcomes;

2. hearing damage or loss; and

3. learning difficulties in children.

Member Smith did not find that noise from the mine had caused those impacts. His Honour expressed his concern about the health impacts of the noise levels set in the draft EA and found the limit of 35 dBA is sufficient to protect human health and wellbeing.[55] That is not the same thing as a finding that the CG’s limits would cause those impacts.
[55]Ibid [1196].

It seems to me that Member Smith considered lower limits were more protective of health, but he did not make a positive finding that the CG’s limits put health at risk.

Here, I must observe there was evidence from Mr Savery, as well as Mr Elkin, that the AQO levels used as the reference point for the CG’s conditions, are protective of health. Mr Savery agreed that, as long as progressive or background creep does not exceed the AQO objectives, health and wellbeing are protected.[56] It is not clear what Smith M made of that evidence.
[56]T 47-75, line 37 to 47-76, line 7.

Further, it is not clear what Member Smith made of the evidence of Dr McKenzie, the expert engaged by NAC to give expert evidence on health issues. Member Smith said he preferred the evidence of Dr McKenzie over the evidence of Dr Jeremijenko, the expert called by Dr Plant.[57] However, when addressing noise and health, Smith M did not advert to the specific evidence summarised below.
[57]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1134].

Dr McKenzie said noise at levels below 45 dBA has not been shown to produce adverse health effects or significant sleep disturbance.[58] The predicted noise levels in the EIS for sensitive receptors are unlikely to disturb sleep significantly and are well below the levels that cause hearing damage or learning difficulties in children.[59] The noise conditions in the draft EA are quite stringent and he did not consider there would be any health impacts as a result of the noise.[60]
[58]Statement of Evidence to the Land Court by Dr David McKenzie dated 1 March 2016, [12.1].
[59]Joint Expert Report: Health Impacts of the Proposed Stage 3 Mine dated 29 January 2016, 20-21.
[60]T 57-10, lines 11 to 15.

Further, I take note of the DEHP’s assessment of the CG’s noise limits. The CG intended his stated conditions would implement all the requirements of the EPP Noise.[61] The DES undertook an environmental objective assessment[62] of the conditions and found in favour of the applications. There is nothing in the EOA to suggest the CG wrongly applied the EPP Noise in arriving at his stated conditions or that the CG’s limits put the residents’ health and wellbeing at risk.
[61]Coordinator-General’s Evaluation Report on the Environmental Impact Statement dated December 2014, [5.2].
[62]DEHP Environmental Authority Assessment Report dated 19 October 2015.

Taking all of that into account, I accept the CG’s limits are acceptable, at least in most circumstances.

However, there are features of this mine that put the limits into sharp relief. This mine is in a closely settled rural area, with low background noise levels (absent the mine), and with neighbours very close to the mining operations. The mine operates 24-hours a day, 7-days a week and NAC has a history of poor response to noise complaints.

There is a range of factors that affect the subjective experience of noise. One important factor is the meaning and history associated with the noise. This is called non-acoustical factors, psycho-acoustics or psycho-social acoustics.[63] This factor is pertinent when considering the wellbeing of the neighbours of a mine that is operating continuously, and which has a poor track record on noise. Member Smith did not expressly refer to this factor in his reasons, but it is clear he had the objector’s experience of noise from the mine at the forefront of his mind. He referred to NAC’s poor response to complaints repeatedly in his reasons.
[63]Joint Report of Noise Experts dated 22 February 2016, [47].

Justice Bowskill observed that his Honour’s finding about the appropriate noise limits was based on his assessment of the lay witnesses.[64] Member Smith found NAC had exceeded its conditions from time to time,[65] and at Mrs Mason’s premises, that has occurred frequently.[66] Mr Elkin noted noise at Acland exceeded the night time noise limits on 131 nights since January 2015.[67] Member Smith also accepted evidence from some of the objectors about significant sleep disturbance.[68]
[64]Affidavit of Mark Geritz filed 5 June 2018, 166-167.
[65]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1792].
[66]Ibid [1194].
[67]Ex 939; Ex 1114, 30.
[68]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1183], [1185].

Member Smith accepted the evening limits should be the same as for the night. Typically, in the evenings, in our homes, we eat our evening meal, our children do their homework, we relax from the day’s activities and we prepare for our next day’s work. That is not always a peaceful time. NAC referred to evidence from Mr Savery to that effect. He agreed that, in a typical household during the evening period, the indoor domestic noise levels could be 35, 40 or higher. But that concession was qualified and his evidence about should be read in context. This is what Mr Savery said:[69]
[69]T 47-56, lines 12 to 28.

“Let’s take a typical evening scenario of, say, 7 o’clock. The ABC News is crackling in the background and dinner’s being cooked. So far, reasonably realistic? - Probably.
The motor fan on the range hood or in the oven spinning around. Yes? -
Possibly. Yep.
Fridge might be humming and the general clatter of kitchen noise, utensils, washing up, whatever. It’s probably safe to assume that there might be an odd bit of 20 conversation going on in the household? -
Yes.
What sort of noise levels inside the house are we talking about in that scenario? -
Well, it’s going to vary, depending on the activity that’s – that’s taking place. But it – it could well be in – in and above the level range that we’re talking 25 about in the 35, 40, 45, those – or even higher – on an instantaneous basis.
I was using a typical house, not my house?
Sure.”

The distinction between instantaneous noise and constant noise is an important one in interpreting Mr Savery’s evidence about that topic.

It is true the AQO makes no distinction between daytime and evening. However, the evening period extends until 10pm. In a rural environment, people tend to go to bed earlier and rise earlier to start work on their farms. Their night may well start before the evening period specified for an AQO ends.

I accept that the CG’s conditions involve a substantial improvement on the existing EA conditions.[70] Further, the CG’s limits are stricter than the AQO levels,^[71] because noise is averaged over a 15 minute rather than a one hour interval, as Schedule 1 contemplates.
[70] T 40-15, lines 30 to 33; T 42-58, lines 17 to 37; T 47-14, lines 28 to 31.
[71] T 40-15, lines 30 to 33; T 47-13, lines 43 to 45.

NAC submitted the experts agreed the improvement between existing mining noise and noise that complies with the CG’s conditions will be somewhere between perceptible and half as loud.[72] However, the difference the experts noted compared noise that exceeded the existing EA limits and noise that complies with the CG’s conditions.
[72]Outline of Submissions on behalf of the Applicant for the Remitted Hearing filed 17 July 2018, [30]; T 47-15, lines 1 to 8; T 47-13, lines 43 to 45; T 47-14, lines 28 to 31, 40 to 41, 44 to 47; T 47-15, lines 7 to 8.

Mr Elkin said the difference in the night time limit between 40dBA (existing) and 37dBA (draft EA) is not a vast change.[73] The difference between 40dBA and 35dBA, as Smith M found to be appropriate for both evening and night, is clearly perceptible.[74]
[73]T 41-17, lines 26 to 47.
[74]Joint Report of Noise Experts dated 22 February 2016, [46]; T 42-59, lines 16 to 23.

Member Smith was entitled to draw upon the evidence given by Mr Savery in finding lower noise limits were appropriate in the particular circumstances of this mine, operating as it does, in this particular closely settled rural environment. There is nothing in the EPP Noise to prevent DES imposing lower noise limits than those consistent the AQO in Schedule 1. Although NAC has made some valid arguments, I consider the lower limits are more conducive to the wellbeing of a community which has been adversely affected by noise for many years.

Should the conditions apply to all noise sensitive places?

NAC proposed amendments to the CG’s conditions to allow it to agree with the owner of a noise sensitive place about alternative mitigation measures (F11). There are two elements to the proposal.

One element is the definition of noise sensitive place, which excludes any that are within the boundary of the mining lease, owned or leased by NAC or subject to agreement with the owner for provision of alternative measures to mitigate noise impacts. That would affect condition F1. DES says this is inconsistent with the CG’s condition. It would also affect monitoring locations for compliance purposes.

The second element is a mechanism for an owner to request alternative measures. That is proposed condition F11. If the owner and NAC cannot agree on what measures should be implemented or how, the Chief Executive or President of the Institute of Engineers will make a binding decision.

DES say that is not inconsistent with the CG’s conditions, but may be inconsistent with the function of the EA. OCAA says it should be amended to preserve the owner’s right to seek other remedies.

There is evidence of an accepted industry practice to offer alternative mitigation measures.[75] I can see the sense in having some mechanism to enable this to occur. What concerns me is how the conditions interact. It is reasonable to allow an owner to reach an agreement about noise with NAC, provided their health, or that of an occupier of the dwelling, is not put at risk.
[75]T 40-56, lines 1 to 4; T 47-50, lines 39 to 46.

I recommend the proposed conditions are amended so as to:

(a) allow owners to agree to alternative measures, but only if those measures are expected to result in compliant noise levels, generally; and

(b) exempt places that meet those requirements from compliance monitoring.

To the extent that these changes are inconsistent with the CG’s conditions, that is something that can be addressed under the recommendations I have made.

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

The parties agree on many aspects of the regime for monitoring, managing and reporting against the revised noise conditions. Other than the limits themselves, the other noise conditions will commence when the amended EA does, if approved. I address the staging of the noise limits in the section of my reasons dealing with mining the West Pit.

The mechanism in the existing EA is unsuitable for a noisy activity operating continuously in a closely settled rural environment. Member Smith found the complaints based compliance system was adversarial and ineffective. The objectors’ frustration with NAC and DES is understandable. I have already referred to some of the evidence and some of Smith M’s findings about past noise.

The draft EA contains the monitoring conditions stated by the CG. DES provided me with a table (marked H for identification) which represents various versions of the proposed noise conditions which are more extensive than the CG’s conditions. The first column is titled the Land Court conditions. The table also refers to amendments proposed by NAC or OCAA, and contains brief editorial comments by DES, including about inconsistency with the CG’s conditions.

Because Smith M recommended refusal of the applications, he did not include a set of recommended amendments or reformulated conditions. He did, however, express his view on a set of noise conditions proposed by NAC in its submissions to Smith M at the original hearing.[76] That is the basis of the entries attributed to the Land Court in document H. In fairness, their source is NAC and they include revisions based on Smith M’s reasons.
[76]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [800]-[806].

NAC’s proposed conditions are more comprehensive than those stated by the CG. As I read them and the CG’s report, they are also consistent with the CG’s intention. Their genesis is in NAC’s proposal in the EIS and AEIS that it use a real-time noise monitoring and adaptive management system. NAC tested this under the TARP to see if an adaptive management program will reduce noise. This system uses real-time noise monitoring data, analysed frequently, to enable it to predict noise levels at sensitive receptors, isolate noise sources and, if necessary, adjust operations by shutting down plant, moving equipment or suspending operations to achieve compliance.

The noise experts considered the TARP and suggested improvements, which NAC adopted in its proposed conditions.[77] The experts agreed the system had improved NAC’s performance and further improvements could be made.[78] Mr Savery agreed that, with the benefit of monitoring, and with proper management, attenuation, and adaptive measures, NAC could comply with the noise limits in the draft EA.[79]
[77]Joint Report of Noise Experts dated 22 February 2016, [350]-[352].
[78]Ibid [467].
[79]T 47-13, lines 5 to 10, 28 to 41.

Member Smith made the following observations about NAC’s proposed conditions:

1. Delete Table F1a, delete the reference to that table in F1, and delete F2 (this relates to staging the revised noise conditions until stage 3 commences, an issue that I will address when considering the mining of West Pit);[80]
[80]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [801]-[804].

2. Delete the note that would otherwise allow exceedances 15 times per night;[81]
[81]Ibid [805].

3. F5 check consistency with CG conditions;[82]

4. F9 delete and replace with a condition requiring NAC to post online publically available real time noise monitoring data from all its monitors;[83]

5. Table F3 change monthly monitoring to continuous monitoring.[84]

[82]Ibid [806].

[83]Ibid [810].

[84]Ibid [812].

He also observed the proposed amendment of Figure 1 may be inconsistent with the CG conditions.[85] Again, I will deal with that aspect of noise conditions when considering the mining of West Pit.
[85]Ibid [816].

Otherwise, Smith M supported the amendments proposed by NAC.

Taking NAC’s proposed conditions, as revised in accordance with Smith M’s observations, the contest that has arisen in this hearing is about two amendments proposed by NAC.

Firstly, NAC proposes a note is added to F8, the condition formulated by NAC to implement the real time performance monitoring system. The note would have the effect that this monitoring would be used for performance management rather than monitoring for compliance with Table F1b – Noise limits (operations).

Secondly, NAC proposed, as it did at the original hearing, that compliance noise monitoring at the noise sensitive places would be monthly. Member Smith had preferred continuous monitoring, as proposed by OCAA.

DES submitted the first proposal is inconsistent with F5 as it attempts to limit its use. It also submitted the second proposal is inconsistent with Table F1b, which imposes noise limits that relate to all days and times.

I do not accept either submission. The CG’s stated conditions were far less comprehensive and prescriptive than the conditions proposed by NAC either at the original hearing or during the remitted hearing before me. F5, as stated by the CG, did not deal with real time performance monitoring. Table F1a states conditions that always apply, but does not require continuous compliance monitoring. Nor did any other of the CG’s conditions. What the CG’s conditions did do was state the noise limits that apply and require NAC to monitor and report against specified criteria. It did not specify where, how or how often monitoring was to occur. Specifying monthly monitoring does not mean NAC is excused from complying with noise limits at all times.

Condition F8 and Table F3 should not be read in isolation. They form part of a comprehensive monitoring, management, and reporting regime. They provide for compliance monitoring (F5 and Table F3), performance monitoring (F8), mine management that is responsive to monitoring (F3), public, on-line and real time access to noise monitoring data (F9), and a comprehensive Noise and Vibration Management Plan (F10).

NAC referred to the evidence given by the noise experts about monitoring, in particular to the evidence of Mr Savery.[86] Mr Savery drew a distinction between performance monitoring and compliance monitoring. The purpose of performance monitoring is to obtain information from generic directions that will assist NAC to know what they can operate within the noise limits at all times of the day. That is why the monitoring is done at locations at Acland and to the east, north, and west of the mine (F8). NAC must achieve compliance, on the other hand, at every sensitive receptor. Mr Savery said he would undertake compliance monitoring using attended measurements. That is not consistent with continuous compliance monitoring.
[86]Applicant’s Supplementary Reply filed 19 October 2018, [94]-[101].

Mr Savery said:[87]

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

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

Member Smith briefly observed that continuous monitoring “fits in nicely with the requirement to have noise monitoring data posted online in real time and publicly available”.[88] His Honour did not refer to the evidence, or the distinction drawn by the experts between compliance and performance monitoring, or that the monitoring was being conducted at different locations under F5 (which referenced Table F3 and the sensitive receptors) and F8, which specified fewer, and possibly different locations for generic monitoring.
[88]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [812].

Member Smith’s cursory treatment of this issue can be explained by the fact his Honour had resolved to recommend refusal because of his view about the noise limits. He only addressed them for the sake of completeness.[89]
[89]Ibid [800].

Respectfully, I am persuaded by the evidence from the experts, and will not rely on this passage of his Honour’s reasons, which does not bind me. I am satisfied that Table F3 as proposed by NAC is not inconsistent with the CG’s conditions and gives effect to the recommendations made by the experts.

That deals with one of NAC’s proposed amendments. The other is the note to F8 about the use made of the data. NAC’s concern, no doubt, arises from OCAA’s submission that free on-line access to real time monitoring data would provide people living around the mine with the practical ability to enforce noise (and dust) conditions. However, OCAA accepts the raw monitoring data requires expert interpretation and may need correction if used for compliance purposes.[90] That approach is reasonable and sensible.
[90]OCAA Further Submissions on NAC’s Tables 1 and 2 filed 12 October 2018, [11].

The Noise and Vibration Management Plan (F10) must include:

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

This is a very clear acknowledgement that real-time noise monitoring is to improve performance and to support NAC in using proactive and reactive mitigation measures to ensure compliance. The note to F8 proposed by NAC is consistent with that and with the expert evidence before the Court.

NAC proposed two further amendments in response to concerns raised by objectors. Firstly, NAC adopted Dr Plant’s suggestion that the NAC must submit its Noise Monitoring Program to DES within 3 months of the EA commencing, and must implement it within 3 months of it being approved.[91]
[91]Applicant’s Supplementary Reply filed 19 October 2018, [89].

Secondly, NAC proposed an addition to F10 based on a recommendation by Mr Savery in the joint noise report. This would result in an independent acoustic consultant reviewing the monthly noise report format, after 12 months of reporting, to ensure information presented from the noise monitoring is clear, open and unambiguous.[92]
[92]Applicant’s Supplementary Reply filed 19 October 2018, [115].

Both those conditions should be included in the EA. Further, the EA should include conditions F3 – F11, as drafted in document F, with the revisions referred to in this section of my reasons.

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

OCAA and a number of objectors raised concerns about NAC’s mining of an area on ML50216 referred to as the West Pit. NAC say it is lawful to mine West Pit under the existing EA. It said the revised noise conditions will apply to West Pit when mining commences on MLA50232. NAC sought an amendment to Figure 1 to the draft EA, to update the configuration of West Pit. DES took no position on the West Pit.

OCAA and the other objectors say the existing EA does not authorise NAC to mine West Pit. That area was not assessed for Stage 2, but had been assessed for Stage 3. The Stage 3 conditions should apply immediately, if the draft EA is amended.

Those arguments raise the following questions:

·     Is it unlawful for NAC to mine West Pit under the existing EA?
·     Should the revised noise conditions for Stage 3 apply to mining of West Pit when the EA commences?
·     Should I recommend that Figure 1 of the draft EA is updated?

What is the West Pit?

Before addressing those questions, I will provide some context about the West Pit. The West Pit is an active mine pit on ML50216, being mined under the conditions of the existing EA. The West Pit is in an area to the north of the boundary between ML50216 and MLA50232, one of the tenures applied for in Stage 3. It is close to the township of Acland and to its only residents, who include Mr Beutel, one of the objectors to the Stage 3 applications.

NAC started mining West Pit during the original hearing before Smith M, without first giving either the parties or the Court notice that it intended to do so. The existing EA[93] does not define the mine pits. Some conditions name other pits, but there is no reference to the West Pit in the EA.
[93]Ex 15.

NAC had not previously identified that area as part of Stage 2. The 2006 EIS for Stage 2 described the key elements to include extending mining into the Southern and Central Pits.

NAC first identified the area of West Pit when it described Stage 3 of the mine. In the EIS for Stage 3, the AEIS for Stage 3 and the CG’s Evaluation Report on Stage 3, the area of West Pit formed as part a Stage 3 pit. Except for one critical figure in the CG’s report (Figure 1 to stated condition A2), the West Pit area was always represented as part of the Manning Vale East Pit and as part of Stage 3. The area is not separately named as West Pit in any of those documents.

The CG’s evaluation report includes this statement: “Figure 2.1 shows the location of the project.”[94]
[94]Coordinator-General’s Evaluation Report on the Environmental Impact Statement dated December 2014, 1.

That figure shows a pit called the Manning Vale East Pit shaded in green and extending across two mining leases: the existing ML for Stage 2 (ML50216) and the ML applied for in Stage 3 (MLA50232). The legend for the figure describes the green coloured areas as Stage 3 Pit Areas. The parties accepted the area shaded green for the Manning Vale East Pit on ML50216 is in the vicinity of what is now called West Pit.

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

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

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

Condition A2 and Figure 1 appear in identical terms in the draft EA.[95] That is to be expected, because the draft EA must include the stated conditions.[96]
[95]Ex 9.
[96]EPA, s 205(2); State Development and Public Works Organisation Act 1971, s 47C.

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

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

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

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

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

The original hearing

Member Smith concluded Stage 3 had commenced with the mining of West Pit.[98] A sensible reading of his Honour’s reasons is that he recognised that NAC had earlier identified the area mined as West Pit as part of Stage 3, although it had later undertaken it as part of Stage 2. Member Smith decided the revised air quality and noise limits should apply to West Pit as soon as the amended EA, if approved, commences. I am bound by his findings about the former. That is, the EA should provide that the revised air quality conditions apply as soon as the EA commences.
[98]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [683]-[685].

When discussing NAC’s approach to community engagement, Smith M said NAC’s actions in opening up West Pit without telling its neighbours was a classic example of it falling back on its legal entitlements rather than community engagement and goodwill.[99] That suggests he accepted NAC was legally entitled to mine West Pit.
[99]Ibid [391].

That is hardly surprising, since it was not in issue. Mr Boyd, on behalf of NAC[100] gave evidence that NAC did not need further approval to mine West Pit. In its submissions at the original hearing, OCAA adopted the same stance.[101]
[100]T 64-8, line 38 to 64-11, line 20.
[101]Closing Submissions on behalf of the Oakey Coal Action Alliance Inc filed 13 September 2016, [1648]-[1649], [1786], [1809].

The scope of the remitted hearing

OCAA concedes its position on West Pit has now changed. Although there was some inconsistency in its submissions, ultimately, OCAA did not seek a ruling that NAC is contravening the EPA. However, OCAA submitted the Court should not accept NAC’s assertion that mining West Pit is lawful.[102]
[102]OCAA Submissions on Jurisdiction to Consider Existing Mining Operations filed 3 October 2018, [86].

NAC submitted its mining of West Pit is lawful,[103] but its primary position was that the Court did not have to and could not determine that question in this hearing.[104]
[103]Applicant ’s Supplementary Reply filed 19 October 2018, [22]-[56].
[104]Ibid [3]-[21].

NAC raised a number of arguments. I was persuaded by the first: this is an issue that lies outside the scope of the remitted hearing. Justice Bowskill framed orders that would prevent “re-litigation of issues, including issues not the subject of the review proceeding”.[105] The issues of fact and law were joined between the parties and defined by the course of the original hearing.[106] The lawfulness of NAC mining West Pit was not in issue.
[105]New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, [29].
[106]Ibid [32] (citing Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518).

Even if I am wrong about that, and I am not constrained by Bowskill J’s orders, I would not determine this point on the remitted hearing. Whilst I have had lengthy submissions from both NAC and OCAA on the point, I have heard no evidence about the salient facts.

Further, I have not been assisted by any submissions by DES, which has statutory responsibility for the matter. It made no submissions about whether mining West Pit under the existing EA is lawful, nor did it make any argument about the Court’s jurisdiction to consider the question.[107]
[107]Statutory Party’s Supplementary Submissions filed 12 October 2018, [17].

In concluding Stage 3 should proceed on economic grounds,[195] Smith M accepted the mine will deliver significant benefits. He referred to the royalties, albeit reduced, the cost benefit analysis of Dr Fahrer, the direct and indirect employment, and the revenue to Aurizon and QR.
[195]New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, [1050]-[1056].

Mrs Plant and Mrs Harrison spoke about the polarisation of views about the mine and the division within the community and within families. Member Smith expressed the hope that, once mining ceases, the division in the community will effectively dissipate.[196] Although he said that in the context of making different recommendations to the ones I have made, the same holds true regardless of the fate of the applications.
[196]Ibid [1391].

What is particularly important, if Stage 3 proceeds, is that there is an effective system for monitoring and responding to the adverse impacts on residents and to improve communication and relations between the mine and the residents. Member Smith made many observations about the need for NAC to improve its relations with its neighbours. There is evidence that NAC has taken steps in the right direction. Its conduct in opening West Pit without prior warning was a step in the wrong direction. Relations with the community is relevant to what is sometimes referred to as a social licence to operate.

The proposed conditions relating to air quality and noise as well as those dealing with complaint management, should mitigate impacts and build confidence that the mine takes its neighbours’ concerns seriously.[197]
[197]Ibid [624], [625], [641], [650], [673], [686], [687], [697], [699], [701], [703], [705], [710], [1417], [1424]-[1427]; and the conditions recommended in these reasons relating to noise.

All of the objectors were concerned about the noise from the mine. I have dealt with the arguments about noise extensively in these reasons. The noise conditions proposed by NAC, as revised in my reasons, provide for a very different regime for the monitoring, reporting and enforcement of noise conditions than apply to the mine now. However, as Member Smith concluded in the original hearing, there are two further changes that are necessary to address the objectors’ legitimate concerns about noise, to protect their wellbeing, and to ensure the EA is appropriately conditioned to manage and mitigate noise from the mine.

The first is the noise limits. Member Smith made a binding finding that lower noise limits were appropriate. While I accept the CG’s noise limits are usually appropriate, there are special features of this mine, operating continuously in a closely settled and otherwise very quiet rural area. The neighbours’ negative experience with noise, particularly under Stage 2 of the mine, and the inadequate response to their complaints in the past, is likely to affect their subjective experience of the noise from Stage 3.

The second issue is the staging of the revised noise limits. Member Smith made a binding finding that Stage 3 has commenced. Whether or not the existing EA authorises mining in West Pit, once the amended EA commences it will apply to all tenures. NAC identified, assessed, and applied for approvals for amendments to an EA to authorise the activities for Stage 3, a project that included the West Pit area. The CG drew no distinction in his evaluation report between the West Pit area and the Manning Vale East Pit as a whole. The CG’s stated noise conditions adopted a Figure that, for the first time, identified the West Pit area as a Stage 2 disturbance. At that time, NAC still conceived of the area as part of Stage 3. It did not make its decision to mine West Pit under the existing EA until more than a year later. Against that background, the effect of staging the noise conditions as they apply to West Pit seems anomalous. It could well be a mistake. NAC has not explained its genesis. There is nothing in the CG’s report to explain it. NAC has not made a case for deferring the commencement of the revised noise limits until the overburden is removed on ML50232.

If I could, I would recommend DES make those two amendments to the draft EA and then grant it, but I cannot do that. The amended conditions would be inconsistent with the CG’s stated conditions. Therefore, I must, as Bowskill J observed, consider what recommendations to make given Member Smith’s findings and mine about the appropriate conditions to regulate noise.

In deciding what recommendation to make I have to weigh that in the balance with the many positive conclusions that bind me. Taking into account all Member Smith’s binding findings, there is a very strong case for the applications to be granted. He identified them when considering whether the public right and interest will be prejudiced (s 269(4)(k)). Particularly, Member Smith referred to the economic benefits of the project. Although some objectors questioned whether this means economics trumps the environment, Smith M made many findings about the conditions that would mitigate or manage environmental impacts and recommended improvements to them where he thought that was needed.

Nevertheless, what noise limits apply and when they commence have real consequences for the people directly affected by the noise. The principle of intra-generational equity has some application here. Intra-generational equity involves considerations of equity within the present generation.[198] It can be considered in relation to the disproportionate use of resources, but here it relates to the neighbours bearing a disproportionate burden of the adverse impacts in order for this generation to access the resources.
[198]Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors [2015] QLC 48, [38].

In a case involving an open cut coal mine in NSW, the Land and Environment Court considered the noise and social impact of the mine on local villagers. The Court noted:[199]

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

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

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

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

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

He also noted:[201]

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

[201]Ibid [1387].

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

Can the Court make a conditional recommendation?

NAC submitted I should recommend the grant of the MLs and EA subject to the noise limits stated by the CG. If, however, I conclude I should refuse the applications unless the EA imposes the lower noise limits Smith M found to be the appropriate, NAC submitted I can and should make a conditional recommendation. The condition being that the recommendation would only take effect upon the CG stating a condition for the EA that imposed those lower noise limits.

OCAA urged the Court to recommend the applications be refused. However, it accepted the Court has the power to make a conditional recommendation.

DES did not agree. However, it appears to have misinterpreted NAC’s submissions.

In its first submissions, DES said NAC suggested the Court “may recommend approval on condition that the amendments to the EA not take effect unless and until the CG alters his conditions to accept the noise level conditions that the court considers to be appropriate.”[202] It then explained why such a condition would be inconsistent with a CG condition and, therefore, contrary to s 190(2) and s 205.
[202]Statutory Party’s Submissions filed 7 September 2018, [26].

In its supplementary submissions it maintained the Court could not impose such a condition of the EA, nor could it recommend when an approved EA could take effect.[203]
[203]Statutory Party’s Supplementary Submissions filed 12 October 2018, [14]-[15].

As I understand the parties’ submissions, they did not advocate either course. Rather, they adopted an option identified by Justice Bowskill in her reasons of 2 May 2018:[204]

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

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

Clearly, what her Honour contemplated was a conditional recommendation, in the sense that the recommendation has no effect until the condition is fulfilled.

I accept her Honour’s observations are obiter and do not bind the Court. However, she made them after hearing from the parties, including DES, and after considering the provisions referred to by DES.

Her Honour was well acquainted with the relevant provisions, having examined them closely.[205] After she identified the possibility of the Court making a conditional recommendation, she considered how applications are processed by the relevant decision-makers after the Land Court has made its objections decision. She also referred to the power of the CG, whether on application or on his own initiative, to state a different condition for the project. Having canvassed those provisions, she concluded:[206]

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

[205]Ibid [326]-[330].

[206]Ibid [338].

NAC argued Justice Bowskill’s reasoning was well-grounded in legal principle. As a general proposition, it is inappropriate to read a provision that grants powers to a court by making conditions or imposing limitations not found in the words used.[207] The necessity for the court to exercise the power judicially favours the most liberal construction.[208]
[207]Oshlack v Richmond River Council (1998) 193 CLR 72, 81.
[208]Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205.

A statutory power to do something carries with it the power to do whatever may be fairly regarded as incidental to, or consequential upon, the power.[209] This is not a question of absolute necessity on the one hand, and mere inconvenience on the other. The test is whether it is reasonably incidental to carrying out a statutory object.[210]
[209]R v Gough; Ex parte Australasian Meat Industry Employees Union (1965) 114 CLR 392, 422.
[210] Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd
(1989) LGRA 238; Deuchar v Gas Light and Coke Co [1924] 1 Ch 422, 435.

DES misapprehended the course of action identified by Justice Bowskill and it did not address any of the authorities to which NAC referred.

Justice Bowskill accepted it was entirely reasonable and appropriate to allow an applicant to apply for and the CG to consider amending the stated conditions for an EA. The CG did not have the same evidence from expert witnesses as Smith M did. Further, he did not have the benefit of observing those expert witnesses being tested under cross-examination. The legislation establishes a continuing cooperative approach by decision-makers which would allow them to have regard to fresh evidence or to evidence they have already considered being looked at in a different context.

I am satisfied that making a conditional recommendation is reasonably incidental to the Court’s power to make recommendations about the applications.

If I am wrong about that, I would have adjourned the objections hearing to allow NAC to apply for, and the CG to consider, amendments to his stated conditions to impose the lower noise limits that Smith M found to be appropriate, and, to apply those noise limits to all mining activities once the EA commences.

Conclusion

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

FY KINGHAM
PRESIDENT OF THE LAND COURT

Appendix A

1. Orders relating to the application to amend EPML00335713

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

(a) The applicant applies to the Coordinator-General to amend the stated conditions that are conditions F1 & F2 of the draft amended environmental authority (EPML00335713):

(i)to impose the following noise limits

Noise level DB(A) measured as All days

7am – 6pm 6pm – 10pm 10pm – 7am

LAeq, 42 35 35

Adj, 15 min

LAmax - - 50

LAmax rail spur - - 56

LAeq(24hr) rail spur - - 50
and
(ii)to apply those noise limits to noise from mining activities on all tenures subject to the environmental authority when the environmental authority, as amended, takes effect; and

(b) The Coordinator-General amends those stated conditions; and

(c) The administering authority incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority.

1.2Subject to the condition stated in paragraph 1.1, I recommend the Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, approve the application to amend EPML00335713 on the conditions stated in the draft environmental authority, subject to such additions and amendments as are necessary to give effect to these reasons and the reasons of this Court given on 31 May 2017.
1.3If the condition in paragraph 1.1 is not fulfilled by 31 May 2019, or if before that date, the Coordinator-General decides not to amend those stated conditions, I recommend the Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, refuse the application to amend EPML00335713.

2. Orders relating to the application for mining lease ML50232

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

(a) The applicant applies to the Coordinator-General to amend the stated conditions that are conditions F1 & F2 of the draft amended environmental authority (EPML00335713):

(i)to impose the following noise limits

Noise level DB(A) measured as All days

7am – 6pm 6pm – 10pm 10pm – 7am

LAeq, 42 35 35

Adj, 15 min

LAmax - - 50

LAmax rail spur - - 56

LAeq(24hr) rail spur - - 50
and
(ii)to apply for mining on all tenures subject to the environmental authority when the environmental authority, as amended, takes effect; and

(b) The Coordinator-General amends those stated conditions; and

(c) The administering authority incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority.

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

(a) That the term of the lease is 25 years; and

(b) The holder will:

(i) Further investigate the location of the Wells children’s graves using an archaeologist familiar with this identification process;

(ii) if any burial is located, the form, depth and nature of any burial must be recorded and kept as an archival document as a record of such burial practices; and

(iii) comply with any legal requirements and have regard to policies and guidelines relating to removal of human remains.

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

3. Orders relating to the application for mining lease ML700002

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

(a) The applicant applies to the Coordinator-General to amend the stated conditions that are conditions F1 & F2 of the draft amended environmental authority (EPML00335713):

(i)to impose the following noise limits

Noise level DB(A) measured as All days

7am – 6pm 6pm – 10pm 10pm – 7am

LAeq, 42 35 35

Adj, 15 min

LAmax - - 50

LAmax rail spur - - 56

LAeq(24hr) rail spur - - 50
and
(ii)to apply for mining on all tenures subject to the environmental authority when the environmental authority, as amended, takes effect; and

(b) The Coordinator-General amends those stated conditions; and

(c) The administering authority incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority.

3.2Subject to the condition stated in paragraph 3.1, I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that ML700002 is granted, subject to the condition that the term of the lease is 25 years.
3.3If the condition in paragraph 3.1 is not fulfilled by 31 May 2019, or if before that date, the Coordinator-General decides not to amend those stated conditions, I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that the application for ML700002 is refused.

4. Procedural Orders

4.1By 4pm on 28 February 2019, the statutory party must file in the Land Court Registry and provide to all active parties a draft amended environmental authority that incorporates any additional conditions or amendments necessary to give effect to these reasons and those of the court made on 31 May 2017.
4.2Any application for costs of the original hearing before Member Smith or of this remitted hearing is adjourned to a date to be fixed, on the party applying and giving seven days’ notice to the Court and every other party.

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

(a) The honourable Minister for Natural Resources, Mines and Energy; and

(b) The honourable Minister for State Development, Manufacturing, Infrastructure and Planning.

CITATION:	New Acland Coal Pty Ltd v Ashman & Ors (No 7) [2018] QLC 41*
PARTIES:	New Acland Coal Pty Ltd (applicant)
v
Frank Ashman, Lynn Ashman, John Cook, Patricia Cook, Hazel Green, Paul Mason, Janet Schick, John Schick, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck (MRA level 1 objectors)
and
Glenn Norman Beutel, Darling Downs Environmental Council Inc., Angela Mason, Geralyn Patricia McCarron, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, Steven Ward, Noel Wieck (MRA level 2 objectors)
and
Frank Ashman, Lynn Ashman, Russell Byron, Clean Air Queensland, Christopher Cleary, Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Carolyn Lunt, John Millane, Frances Scarano, Jane Scholefield, Max Scholefield, Loretta Smith, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Wieck, Simon Wieck (EPA level 1 objectors)
and
Glenn Norman Beutel, Pamela Aileen Harrison, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, John Standley, Steven Ward, Noel Wieck (EPA level 2 objectors)
and
Angela Mason (EPA s 186(d) party)
and
Department of Environment and Science (EPA statutory party)
FILE NOs:	EPA495-15 MRA496-15 MRA497-15
DIVISION:	General Division
PROCEEDING:	Remitted hearing of applications for, and objections to, mining leases and related environmental authority
DELIVERED ON:	7 November 2018
DELIVERED AT:	Brisbane
HEARD ON:	2 – 4 October 2018, written submissions closed 19 October 2018
HEARD AT:	Brisbane
PRESIDENT:	FY Kingham
ORDER:	I make the orders and recommendations set out in Appendix A to these reasons.
CATCHWORDS:	ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority – objections to applications – where mining objections hearing resulted in recommendations to refuse applications – where that decision set aside for errors of law on judicial review – where applications and objections remitted to the Court constituted by a different Member to conduct a further mining objection hearing on limited issues – whether the court has jurisdiction to conduct the remitted hearing – whether the Court’s function in conducting a mining objections hearing under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 requires it to undertake a two-stage balancing exercise on all issues – where the exercise of discretion by the Member conducting the remitted hearing was constrained by findings and conclusions of the Member who conducted the first hearing – where there were disputes about what statements from the first decision were binding on the Member conducting the remitted hearing ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority – objections relating to noise further considered – whether noise limits in the draft environmental authority are adequate to regulate the noise impacts of the mine – whether an area being mined on an existing mining lease under the existing environmental authority was part of the application to amend the environmental authority – whether revised noise conditions should apply to that area when the amended environmental authority commences (if granted) ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – Queensland – applications for mining leases and to amend environmental authority objections – where court found the conditions of the draft environmental authority did not adequately regulate the noise impacts of the mine – where it found some conditions should be imposed that are inconsistent with conditions stated by the Coordinator-General under the State Development and Public Works Organisation Act 1971 – whether the court has power to make recommendations that are conditional on the changes to the conditions stated by the Coordinator-General – where the court found it has that power – where the court made conditional recommendations that the applications are granted and, in the alternative, recommended the applications are refused Environmental Protection Act 1994 s 107, s 110, s 117, s 185, s 191(1)(f), s 215(1), s 215(2)(n), s 226, s 235 Environmental Protection Regulation 2008 s 51 Environmental Protection (Noise) Policy 2008 s 5, s 6, s 7 Mineral Resources Act 1989 s 269(4) State Development and Public Works Organisation Act s 54B, s 47C, s 54B(3) Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99, cited Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242, cited Deuchar v Gas Light and Coke Co [1924] 1 Ch 422, cited Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1989) LGRA 238, cited Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72, cited Knight v FP Special Assets Ltd (1992) 174 CLR 178, cited McBain v Clifton Shire Council [1995] QCA 513, cited New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No 4) [2017] QLC 24, considered New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, considered New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119, considered Oshlack v Richmond River Council (1998) 193 CLR 72, cited R v Gough; Ex parte Australasian Meat Industry Employees Union (1965) 114 CLR 392, cited Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473, cited Taralga Landscape Guardians Inc v Minister for Planning RES Southern Cross Pty Ltd (2007) 161 LGERA 1, cited Tickner v Chapman (1995) 57 FCR 451, cited
APPEARANCES:	D Gore QC and B Job QC (instructed by Clayton Utz) for the applicant Dr C McGrath of Counsel (instructed by Environmental Defenders Office) for Oakey Coal Action Alliance Inc. K Barlow QC (instructed by the Department of Environment and Science) for the statutory party P King for Darling Downs Environment Council Inc. Dr T Plant, Dr S Ward, S Plant, M Plant, Dr J Standley, N Wieck, A Mason, A Harrison, G Beutel, Dr G McCarron, respondents in person

Noise level DB(A) measured as	All days
Noise level DB(A) measured as	7am – 6pm	6pm – 10pm	10pm – 7am
LAeq,	42	35	35
Adj, 15 min
LAmax	-	-	50
LAmax rail spur	-	-	56
LAeq(24hr) rail spur	-	-	50