New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4)
[2017] QLC 24
•31 May 2017
LAND COURT OF QUEENSLAND
CITATION:
New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage
Protection (No. 4) [2017] QLC 24* 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)
| * | Pursuant to the Land Court Rules 2000, rule 21 (Power to correct mistakes), this recommendation was amended on 14 June 2017 to rectify a clerical error whereby Angela Mason was omitted as a MRA level 2 objector on the cover page. |
and
Angela Mason
(EPA s 186(d) party)
and
Chief Executive, Department of Environment and
Heritage Protection
(EPA statutory party)
FILE NO/s:
EPA495-15 MRA496-15
MRA497-15 DIVISION: General division PROCEEDING: Applications for mining leases and objections thereto, objections to environmental authority DELIVERED ON: 31 May 2017 DELIVERED AT: Brisbane HEARD ON:
7, 8, 9, 16, 17, 18, 21, 22, 23, 24, 29, 30, 31 March 2016 1 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 April 2016; 9, 10, 11, 12, 13, 16, 17, 18, 19, 23, 24, 25, 26, 27 30, 31 May 2016; 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29, 30 June 2016 and 1, 5, 6, 7, 8, 11, 12, 13, 14, 15, 25, 26, 27, 28, 29 July 2016; 1, 2, 4, 5, 8, 9, 11, 12 August 2016; 1 September 2016; 5, 6, 7 October 2016; 1 December 2016; 12 January 2017; 2 February 2017; 3, 4, 5, 10, 11, 20 April
2017 HEARD AT: Brisbane
AclandOakey MEMBER: PA Smith ORDER/S:
1.
I recommend to the Honourable the Minister responsible for the MRA that MLA 50232 be rejected.
2.
In light of Order 1, I recommend to the Honourable the Minister responsible for the MRA that MLA 700002 be rejected.
3. I recommend to the administering authority responsible for the EPA that Draft EA Number
EPML 00335713 be refused.4. I direct the Registrar of the Land Court provide a copy of these reasons and access to the Land Court e- trial site to the Honourable the Minister administering the Mineral Resources Act 1989 and to the administering authority under the Environmental Protection Act 1994.
5. I will hear from the parties as to costs.
CATCHWORDS:
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS –
where there are objections to the grant of the mining leases being applied for – where there are objections to the draft environmental authority – where the Court hears the objections together – where the Court makes
recommendations to the Minister for the MRA and administering authority for the EPA concerning the mining leases and the draft environmental authority
ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS –
Mineral Resources Act 1989 and Environmental Protection Act 1994 – where there are different and competing objects – where Land Court must endeavour to construe provisions
of both Acts to come to a decision ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS –
where determination of significant project by Coordinator- General – whether conditions recommended by the Court are inconsistent with the conditions imposed or stated by the
Coordinator-GeneralENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS –
whether intergenerational equity principles apply ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS –
where multiple objections considered including groundwater, surface water, noise, air quality, physical health, mental health, climate change, economics, community engagement, biodiversity and many others
EVIDENCE – GENERAL PRINCIPLES – expert evidence
– where conflict in expert evidence evaluatedENVIRONMENT – where complex and extensive ground water evidence with respect to a mining project considered
and evaluatedMONEY – where the economic viability, financial capacity, and economic impact of a mining project considered and evaluated – where agricultural economics considered and evaluated Mineral Resources Act 1989, s 245, s 252, s 260, s 265, s
268, s 269, s 307, s 334ZP, s 839Environmental Protection Act 1994, s 47, s 126, s 160, s 161, s 176, s 18, s 182, s 185, s 186, s 188, s 189, s 190, s 191, s 200, s 203, s 205, s 215, s 227, s 228, s 748
State Development and Public Works Organisation Act 1971, s 34D, s 44, s 45, s 46, s 47B, s 47C, s 54A, s 54B, s
54ELand Court Act 2000, s 34 Water Act 2000, s 1250A, 1250U, 1250D, 877, 878 Water Reform and Other Legislation Amendment Act 2014 Environmental Protection (Underground Water
Management) and Other Legislation Amendment Act 2016Water Legislation Amendment Act 2016 National Environment Protection Council (Queensland) Act
1994Vegetation Management Act 1999 Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) Regional Planning Interests Act 2014 (Qld) Transport Infrastructure Act 1994 (Qld) Sustainable Planning Regulation 2009 Adani Mining Pty Ltd v LSCC & Ors [2015] QLC 48
Armstrong v Brown [2004] 2 Qd R 345
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015]
QSC 107Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242 Coast and Country Association of Queensland Inc v Smith & Anor; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection & Ors
[2015] QSC 260 Coast and Country Association of Queensland Inc v Smith & Ors [2017] HCATrans 074
Donovan v Struber & Ors (2011) 32 QLCR 226
Gray v The Minister for Planning & Ors [2006] NSWLEC
720Hancock Coal Pty Ltd v Kelley & Ors and Department of Environment and Heritage Protection (No. 4) [2014] QLC
12
Holland v Jones (1917) 23 CLR 149Minister for Immigration and Multicultural Affairs v QAAH of 2004 [2006] HCA 53
New Acland Coal Pty Ltd v Ashman & Ors (No.3) [2017]
QLC 1New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage
Protection (No. 2) [2016] QLC 30 Taralga Landscape Guardians Inc v Minister for Planning RES Southern Cross Pty Ltd (2007) 161 LGERA Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-Op Ltd & Ors (2012) 33 QLCR 79 APPEARANCES: Mr P Ambrose QC and Mr B Job of Counsel instructed by
Clayton Utz for the applicant
Mr SC Holt QC and Mr Quirk of Counsel instructed by the
Environmental Defenders Office for the Oakey Coal Action
Alliance IncMs O’Connor of Counsel for the statutory party Mr P King, agent for the Darling Downs Environmental
Council Inc
Dr T Plant self-representing
Dr S Ward self-representing
Mr S Plant self-representing
Mrs M Plant self-representing
Dr J Standley self-representing
Mr N Wieck self-representing
Mrs A Mason self-representing
Ms A Harrison self-representing
Mr G Beutel self-representing
Dr G McCarron self-representing
| Contents | Paragraph |
| Summary | ........................................................................................................................................ [1] |
| Opening | ........................................................................................................................................ [19] |
| Overview | ...................................................................................................................................... [40] |
The Objections ...................................................................................................................................... [80]
Level 1 and Level 2 Objectors ................................................................................................................ [81]
| Chronology | .................................................................................................................................. [89] |
The Hearing ................................................................................................................................. [92]
| Urgency | ...................................................................................................................................... [114] |
The Relevant Legislation ........................................................................................................... [131]
Inconsistency with CG Conditions ............................................................................................ [173]
Onus of Proof ............................................................................................................................. [192]
Analysis of Witnesses ................................................................................................................ [202]
Bruce Denney ...................................................................................................................................... [212]
Denis Janetzki ...................................................................................................................................... [232]
Leone Janetzki ..................................................................................................................................... [242]
Tracy Tully ........................................................................................................................................... [251]
Nigel de Veth ....................................................................................................................................... [265]
David Cooper ....................................................................................................................................... [271]
Graham Cooke ..................................................................................................................................... [281]
Tracey Tierney ..................................................................................................................................... [299]
Shane Charles ...................................................................................................................................... [308]
Patrick Wells ........................................................................................................................................ [330]
Donald Ballon ...................................................................................................................................... [342]
Michael Hartin ..................................................................................................................................... [354]
David Vonhoff ...................................................................................................................................... [361]
Simon Wieck ........................................................................................................................................ [377]
Andrew Boyd ....................................................................................................................................... [385]
John Cook ............................................................................................................................................ [393]
Frank Ashman ...................................................................................................................................... [404]
Desley Spies ......................................................................................................................................... [410]
Edward McKeiver ................................................................................................................................ [416]
Max Scholefield ................................................................................................................................... [423]
Steven Ward ........................................................................................................................................ [431]
Geralyn McCarron ............................................................................................................................... [440]
Noel Wieck .......................................................................................................................................... [449]
Grant Wieck ......................................................................................................................................... [463]
Glenn Beutel ........................................................................................................................................ [469]
Ian Whan ............................................................................................................................................. [476]
Angela Mason ...................................................................................................................................... [479]
Sharyn Munro ...................................................................................................................................... [489]
Dr John Standley .................................................................................................................................. [495]
Dr Tanya Plant ..................................................................................................................................... [500]
Aileen Harrison .................................................................................................................................... [512]
Merilyn Plant ....................................................................................................................................... [526]
Sid Plant ............................................................................................................................................... [534]
Brett Hassall ........................................................................................................................................ [540]
Mark Copland ...................................................................................................................................... [548]
Peter Faulkner ..................................................................................................................................... [555]
Christopher Loveday ........................................................................................................................... [561]
Thomas Sheppard ................................................................................................................................ [573]
Key Issue – Air Quality and Dust .............................................................................................. [576]
Key Issue – Noise ...................................................................................................................... [713]
Key Issue – Lighting .................................................................................................................. [817]
Key Issue – Visual Amenity ...................................................................................................... [830]
Key Issue – Traffic, Transport and Roads ................................................................................. [845]
Key Issue – Economics .............................................................................................................. [871]
Key Issue – Agricultural Economics ....................................................................................... [1057]
Key Issue – Climate Change .................................................................................................... [1084]
Key Issue – Biodiversity / Flora and Fauna ............................................................................. [1095]
Key Issue – Health ................................................................................................................... [1132]
Physical Health .................................................................................................................................. [1132]
Mental Health ................................................................................................................................... [1209]
Key Issue – Land Values ......................................................................................................... [1266]
Key Issue – Livestock and Rehabilitation ............................................................................... [1276]
Key Issue – Land Use and Soils .............................................................................................. [1286]
Key Issue – Intergenerational Equity ....................................................................................... [1303]
Key Issue – Community and Social Environment ................................................................... [1345]
Key Issue – Heritage Values/Cultural Heritage ....................................................................... [1428]
Key Issue – Groundwater......................................................................................................... [1436]
Key Issue – Surface Water ....................................................................................................... [1683]
Key Issue – Other Objections .................................................................................................. [1730]
Section 269(4) MRA Criteria .................................................................................................. [1772]
MRA s 269(4) Considerations for MLA 50232 ....................................................................... [1776]
MRA s 269(4) Considerations for MLA 700002 ..................................................................... [1809]
EPA Section 191 Considerations for the draft EA number EPML 00335713 ......................... [1836]
Outstanding Rulings ................................................................................................................ [1840]
| Determination | .......................................................................................................................... [1858] |
| Epilogue | ................................................................................................................................... [1862] |
ORDERS: ................................................................................................................................. [1879]
Appendix A – Glossary ......................................................................................................................
Appendix B – Summaries of the Submissions ...................................................................................
Appendix C – Chronology .................................................................................................................
Summary
Given the length of this decision I have decided to provide a short summary of what I have
to say. This summary of course is only incidental to and should not be used if inconsistent
with my reasoning set out in the body of my decision. I will give a short analysis of my
core findings with respect to the key issues.
For air quality and dust I am satisfied that, provided amendments are made to the draft EA
(particularly for online real time monitoring), air quality and dust issues can be
appropriately managed.
As regards noise, I have found noise levels should be set at 35 dB for evening and night
time, consistent with then President MacDonald’s finding in Xstrata. My findings are
inconsistent with CG stated conditions so the only option for me is to recommend refusal
of the draft EA.
Regarding lighting, the issues that come from light spill are adequately dealt with.
For visual amenity, all proposals put in place to lessen the visual impact of the mining
operations are appropriate.
As regards traffic, transport and roads the disruption to traffic caused by revised Stage 3
would be minor and are considered acceptable.
Economics is a complex subject which takes up many pages of this decision. The final
analysis however is that the mine is likely to provide a significant economic benefit to the
locale region, the state and the nation.
The issue of agricultural economics is likewise complex. The underlying feature though of
course, is that a land holder is entitled, within the confines of the law, to do what he/she
likes on their land. I am concerned as to the impact on groundwater of neighbouring
properties but, on an economic level alone, the revised Stage 3 project is of greater value
than agricultural pursuits, even over the long term.
The climate change evidence in this matter is identical to that in the Hancock case.
Accordingly, there are no concerns regarding climate change caused by revised Stage 3.
The evidence shows that if revised Stage 3 does not proceed the coal will be obtained from elsewhere and that such coal will most likely be of a lower quality thereby increasing
global emissions.
Regarding biodiversity/flora and fauna, the draft EA is appropriately conditioned to meet
all aspects of concern.
All aspects of concerns regarding mental and physical health are able to be satisfied
provided that additional conditions as recommended by this Court are made.
The expert evidence reveals no evidence of a fall in land values attributable to NAC’s
operations.
The livestock and rehabilitation issues, together with land use and soils, are appropriately
managed under NAC’s proposals.
The principles of intergenerational equity are breached in at least one regard by the
proposed revised Stage 3, with the potential for groundwater impacts to adversely affect
landholders in the vicinity of the mine for hundreds of years to come. This breach is
sufficient to warrant rejection of the MLAs and draft EA applications.
The community and social environment of Acland has been fractured by those for and
against revised Stage 3 and that fracturing will continue in the short term irrespective of
whether revised Stage 3 is approved or not.
As regarding groundwater, a huge amount of evidence was before the Court. In key areas
NAC’s own experts agreed with major shortcomings of the current model. I was also
highly concerned regarding the modelling of faulting and other aspects of the groundwater
studies undertaken to date. These issues have not been answered by the 2016 IESC Advice
for reasons including the unfortunate fact that the IESC did not have the advantage of the
material before the Court on groundwater. Groundwater considerations are such that the
revised Stage 3 project should not proceed given the risks to the surrounding landholders
and the poor state of the current model.
All surface water concerns have been addressed by further conditions proposed by NAC.
Other objections have been dealt with in the body of my decision. None of those objections
have been made out by the objectors.
Opening
If I were to reduce this matter to its simplest terms, one may wonder how it can be that the
NAC revised Stage 3 project has been subject to so much controversy, let alone almost 100
hearing days before this Court, almost 2,000 exhibits containing many tens of thousands of
pages of material, and well in excess of 2,000 pages of submissions.
Stage 1 of the NAC mine began with the grant of ML 50170 in September 2001, and NAC
has been mining at the mine continuously since. The first expansion of the project
occurred with the grant of ML 50216 in December 2006. This expansion was known as
Stage 2. Seeking to expand its mining operations into Stage 3, NAC lodged MLA 50232 in
May 2007. That same year, the CG declared Stage 3 a significant project pursuant to s 26
of the SDPWOA.
Following public consultation, the Queensland Government announced in March 2012 that
it would not support the Stage 3 expansion project. In November 2012, NAC lodged a
revised, smaller, Stage 3 expansion project
NAC has the infrastructure to conduct the Stage 3 mining operations, which are to be
supplemented by a rail spur to the mine site from Jondaryan to remove the impacts of
transporting coal to Jondaryan via large haul trucks. The great majority of the coal mined
by NAC at New Acland is moved by rail to the Port of Brisbane from where it is exported
overseas.
A subsidiary of the New Hope Group which owns NAC also owns the coal handling
facility at the Port of Brisbane, thus enhancing the viability of the project from the New
Hope Group’s perspective. Further, New Hope subsidiary, APC, own the bulk of the land
situated within the borders of Stages 1, 2 and 3 of the New Acland mine. The bulk of these
tenures are historic in nature, dating from the 19th century, and contain provisions which,
unlike the vast majority of tenures in Queensland, provide that royalties for minerals mined
on the tenures are payable to the landholder and not to the State of Queensland. That,
accordingly, is another significant factor as to why NAC is obviously keen to continue its
coal mining operations at New Acland.
In short, there is a significant mining operation, by a large publicly listed Australian owned
mining company, which has been operating for over 15 years and proposes to continue
operations for more than a decade into the future by way of a further expansion.
To use a card playing analogy, it would seem to be a ‘lay down misere’ that the Stage 3
expansion should proceed. This position is only strengthened when one takes into account
that the Stage 3 project has both the approval of the State Coordinator-General, as well as
that of the Commonwealth Minister for the Environment.
What, you may ask, could possibly justify almost 100 days of hearings before the Land
Court relating to Stage 3?
The above synopsis is in many ways a paraphrase of the position put by NAC. However,
there is another side to the coin.
To read the submissions of the objectors in this case, one could be forgiven for thinking
that I was dealing with an entirely different case to the circumstances set out above.
The objectors’ submissions paint a picture of a mine out of place in the Acland rural
agricultural setting. They speak of generation after generation of farmers undertaking
agricultural, dairying and grazing activities on lush land with plentiful supplies of rain and
groundwater. They talk of the town of Acland with pride, revelling in its winning of Tidy
Town’s awards, including being the first state-wide winner of the award in 1989, and
reflect on the area’s strong ties with war veterans, recognised through the war memorial
located in Acland.
They speak with sad voices at the loss of the vast majority of the town of Acland through
the actions of NAC by purchasing, then removing almost all of Acland’s homes and
buildings, and complain that the Stage 1 and Stage 2 operations of New Acland have made
life a misery for those who live in close proximity to the mine because of what they say to
be excesses in dust, noise, vibrations, lighting spill etcetera emanating from the mine. They
fear for the future of their groundwater bore supplies.
The objectors complain that their complaints about the mine have been virtually ignored by
the mine and government regulators. They say, collectively, that enough is enough, and
that Stage 3 should not proceed.
I then look at the position of one objector, Mr Beutel, who is one of the last remaining
residents of Acland. He has refused to sell his properties in Acland to NAC, which include
his generational family home as well as a rental home. During the course of the lengthy
hearing, a number of references were made to the Australian classic comedy film “The
Castle”, likening the position portrayed in that film to that of Mr Beutel. A little person
trying to protect his property from a corporate giant. In many ways the truth of Mr Beutel’s
positon is far in excess of the fiction of “The Castle”.
Nearly every aspect of the Stage 3 expansion is contested. NAC leads evidence to show
that it is a good corporate citizen playing an important role in the local community. The
objectors lead evidence alleging that NAC is the opposite of that.
NAC says that the Stage 3 operation will be of lasting benefit to the community by way of
continuation and expansion of employment and regional economic benefit. The objectors
say that principles of intergenerational equity should apply, and that the short term benefits
brought by Stage 3 are far outweighed by the damage not only to the land impacted by the
mine but those lands surrounding the mine for hundreds and even thousands of years to
come.
The above is, in very simple terms, a brief overview of this matter.
A number of other observations should be made. This hearing has been the longest in the
over 120 year history of the Land Court. The amount of material before the Court can only
be described as immense. To consider every element of every aspect of this matter in detail
would result in a decision running into many thousands of pages. That is clearly an
impractical and intolerable proposition. Although this decision will of necessity be very
lengthy, it will not run into many thousands of pages, for to do so would be of little utility
to those tasked with the job of reading this decision and making their own decisions in light
of my recommendations.
I can only say this: I am the only person who has physically been present for every moment
of every piece of evidence throughout this entire hearing. I have taken into account all of
the evidence that has been placed before me. I have considered all of the submissions. I
have done my best to assess all of the evidence provided to the Court by the myriad of
witnesses, both lay and expert.
What is to be found in the many pages that follow are my conclusions on key aspects of the
evidence in this case. No doubt, many will be able to say that there are huge parts of
evidence that I have not specifically referred to. That must necessarily be the case, but that
should not be taken as meaning that I have not fully taken into account all such evidence. I
have done my best to extract the core elements that I consider are necessary to consider in
order to understand the nature of the recommendations that I make under the MRA and the
EPA, and to assist, I hope, the ultimate decisions of the decision makers under the MRA
and EPA in determining the future of Stage 3 of New Acland.
Appended to the end of this decision is a glossary setting out various terms/acronym’s and
providing definitions thereof. These terms/acronym’s are used throughout this decision
and were consistently used by virtually all parties throughout the hearing. They appear
extensively throughout the exhibits; the transcript; and the submissions. The glossary is
Appendix A and is to be read as part of this decision.
Overview
These matters first came within the jurisdiction of the Land Court on 14 October 2015 with
the referral to the Land Court of MRA objections to the grant of MLA 50232 and MLA
700002. Together with, an EPA referral of objections to the Land Court. Relating to an
application by NAC to amend its EA number EPML 00335713. This referral became Land
Court file number EPA 495-15.
All referrals related to NAC’s New Acland Mine Stage 3.
As is apparent from my opening comments, the history of the New Acland Mine well
precedes October 2015. To properly understand the referrals, it is necessary to set out in
this overview some of the history of Acland in general and the NAC New Acland Mine in
particular.
In preparing this overview, I have primarily relied upon the documents contained within
the referrals made to the Land Court, which comprise of Exhibits 1 to 355, together with
the submissions made by NAC and OCAA.
The New Acland Mine is located very near what remains of the town of Acland, which
itself is situated close to the town of Oakey, approximately midway between Toowoomba
and Dalby on the Darling Downs.
The area of and around the mine has been home to Indigenous Australians since time
immemorial. In about the 1840’s, the first European settlement occurred with the opening
up of what became known as Rosalie Plains Station. Agricultural activities including
cropping, dairying and beef cattle grazing have been undertaken in the area since that time.
A number of objectors can trace their family roots back to 1848, whilst others, although
unable to trace their ancestry back to this land for almost 170 years like some, nevertheless
can easily establish third, fourth and fifth generation connection to the land in this vicinity.
The town of Acland came into existence in 1913 following the construction of the branch
railway from Oakey to Cooyar. Also in 1913 coal mining commenced in Acland. The coal
was primarily used as a source of fuel for the railway locomotives.
The Acland No. 2 Colliery began producing coal in 1929 and closed in 1984. The Acland
No. 2 Colliery was primarily involved in underground mining, and the Acland No. 2
Colliery is now included on the Queensland Heritage Register.
There is dispute between the parties as to whether Acland was a dying town at the
beginning of the twenty-first century (the view put by NAC), or whether it was in fact
increasing at this time period (the view expressed by the objectors in general and the
objector Mr Beutel in particular).
There is certainly evidence which shows that in 1978 there were 44 residences in Acland,
and that this figure had risen to 57 residences by the year 2000.
NAC’s involvement in the Acland area commenced on 23 December 1999 when it
purchased MDL 244 from Shell Coal (Acland) Pty Ltd.
Subsequently, NAC made application for MLA 50170 on 2 November 2000. This
application was subject to 15 objections. Notably some of the objectors from 2000 are also
objectors to the current matters before this Court.
On 28 March 2001 the objectors applied in the Land and Resources Tribunal for disclosure
of documents by NAC. The application was dismissed with costs by Koppenol P. A
settlement agreement was subsequently entered into between some, if not all of the
objectors, and NAC. The settlement agreements included clauses by which NAC waved its
rights to costs arising pursuant to the orders of Koppenol P of 28 March 2001 and those objectors withdrawing their objection to the grant of MLA 50170. Subsequently, all 15
objections were withdrawn and on 24 May 2001 the Land and Resources Tribunal
recommended that MLA 50170 be granted. ML 50170 was subsequently granted on 6
September 2001 for a term of 21 years commencing 1 October 2001. Mining subsequently
commenced in 2002 at the rate of 2.5 million tonnes per annum. This operation became
known as Stage 1.
NAC subsequently sought to expand its New Acland mining operations, and applied for
MLA 50216, which proceeded through the approval process without objection. ML 50216
was subsequently granted for a term of 20 years on 7 December 2006 and commenced on 1
January 2007. This became known as Stage 2. Production at the New Acland Mine
increased from 2.5 million tonnes per annum to 4 million tonnes per annum.
Notably for the purposes of urgency which will be examined later in these reasons, the
Stage 2 EIS described the Stage 2 expansion project as giving a mine life of coal
production until approximately 2021.
Some months after the commencement of ML 50216 (Stage 2), NAC began the approvals
process for the initial Stage 3 expansion. The initial Stage 3 was declared a significant
project[1] pursuant to the SDPWOA. MLA 50232, seeking a mining lease for a term of 40
[1] Since 2012 known as a coordinated project.
years over 5,069ha, was applied for by NAC on 27 May 2007.
An EIS for the initial Stage 3 expansion was released for public consultation between 14
November 2009 and 3 February 2010.
In March 2012, the then Premier rejected the initial Stage 3 expansion. The then Premier
was stated as saying that it “was ‘inappropriate’ to expand the mine in the State’s southern
food bowl”.
In the second half of 2012, NAC took its first official steps for the revised Stage 3
expansion. Key aspects of the revised Stage 3 application included a reduction of the area
of MLA 50232 to 3,668ha and a reduction in mine capacity from 10 million tonnes per
annum to 7.5 million tonnes per annum. Other significant changes included the exclusion
of the Acland town area from MLA 50232, which included the removal of Tom Doherty
Park, the Acland War Memorial and the Acland No. 2 Colliery from the revised Stage 3 expansion area. It was also proposed that the TLF be relocated from Jondaryan to within
MLA 50232 and that the hauling of coal be replaced by a rail spur. Additionally, there was
to be no diversion of Lagoon Creek; no mining in the Sabine area; a reduction in the
number of the out-of-pit dumps from 4 to 2; the re-profiling of final voids into depressed
land forms; and ensuring mining operations remained at least 10km from Oakey instead of
the 7km proposed in the initial Stage 3 expansion.
In January 2014 NAC submitted a new EIS for the revised Stage 3 expansion to the
Coordinator-General. The new EIS was released for public consultation between 18
January 2014 and 3 March 2014.
Between June and September 2014, in light of the public consultation, NAC submitted an
AEIS to the Coordinator-General.
Formal amendment to MLA 50232 occurred on 25 June 2014 when NAC officially
abandoned part of the area covered by MLA 50232 pursuant to s 307 of the MRA. This
action reduced the area applied for under MLA 50232 to 3,668ha.
The abandonment took effect on 30 June 2014.
The EIS and the AEIS were put out for further public comment between 1 September 2014
and 29 September 2014.
On 19 December 2014 the Coordinator-General issued a report relating to the EIS and the
AEIS. The Coordinator-General approved the revised Stage 3 expansion, with conditions
imposed on the project pursuant to s 54B of the SDPWOA together with stated conditions
to the draft EA pursuant 47C of the SDPWOA, and also recommended conditions pursuant
to s 52 of the SDPWOA in relation to approvals under the EPBCA, the TIA and the Water
Act.
MLA 700002 was formally applied for by NAC on 16 January 2015. MLA 700002 is to
facilitate the construction of the rail spur referred to earlier.
Subsequently, on 13 April 2015, NAC lodged, pursuant to the EPA, the EA amendment
application. The purpose of the EA amendment application was to amend NAC’s existing
EA for the New Acland Mine to include the revised Stage 3 area as contained within MLA
50232 and MLA 700002.
The public notification of the EA amendment application ended on 2 July 2015. There
were 1,421 submissions received by EHP, of which it considered 965 to be ‘properly
made’.
At the same time as public notification of the EA amendment application, NAC was
required to publicly notify the right of objection to MLA 50232 and MLA 700002 pursuant
to the MRA 27 objections were subsequently lodged under the MRA.
EHP assessed the revised Stage 3 expansion as a major amendment to an EA pursuant to
Ch 5 of the EPA and issued a draft EA on 28 August 2015. Submitters under the EPA were
then given an opportunity to make objections under the EPA to the draft EA. There were
35 objections lodged to the draft EA. One person who intended lodging an objection was
unable to do so, for reasons explained to the Court. This person, Angela Mason, who did
lodge MRA objections, was subsequently added as a party to the draft EA objections
hearing pursuant to s 186(d) of the EPA.
The next relevant steps were the referrals of the objections under the MRA and the EPA to
the Land Court as set out at the commencement of this overview.
There remains just one further aspect to deal with in this overview, and that is the issue
referred to by OCAA at part 1.3.2 of their submissions as “Removal of Acland”.
As can be seen by the history set out above, the initial Stage 3 expansion proposed in 2007
mining of all of the land in which the town of Acland is located. However, under the
revised Stage 3 expansion, Acland is excluded from the MLA area, and public road access
to Acland is retained. Looked at in that simple detail, one could be forgiven for thinking
that Acland will remain should revised Stage 3 proceed. In real terms, however, that is not
the case. Acland as a town has, effectively, ceased to exist.
No doubt acting on the assumption that its initial Stage 3 expansion would be approved,
and, of course, to simplify land tenure ownership over the land initially applied for under
MLA 50232, NAC commenced in 2007 an active policy to not only purchase as much of
the property comprised in Acland as possible, but, after purchase, to remove the great bulk
of buildings situated on the land purchased in Acland. So successful was NAC in its
purchasing of properties that today only a few buildings remain at Acland, such as two
homes owned by Mr Beutel; a hall owned by NAC; the Acland No.2 Colliery, the War Memorial and Park, and school buildings. Evidence was provided at the hearing that, after
initial opposition to NAC’s attempts to purchase properties, after a few were purchased the
great majority then ‘fell like a house of cards’.
The fact that Acland as a town in effect no longer exists cannot be dismissed, in my view,
as a simple sideline to the matters in dispute. There is no doubt that there is quite a level of
angst between NAC and the objectors, and in my view that angst on the part of the
objectors has been significantly contributed to by the actions of NAC in causing Acland to
functionally no longer exist.
I must also stress one important fact at this point. None of the actions of NAC in
purchasing property at Acland, and in removing the buildings, have been shown in
evidence before me to be in any way illegal. Indeed, on a different scale, local communities
within cities are regularly purchased by developers for large scale redevelopment, with
homes and, therewith, the character of a local community removed, to be replaced by large
shopping centres or the like.
The legality of the operations of NAC as regards the removal of Acland are not the reason
why I refer to Acland in this overview. It is more the timing of NAC’s actions, and the way
in which such actions are viewed by at least some members of the Acland rural
community, including objectors before this Court, and how those objectors have then
proceeded in their interactions between themselves and NAC, that are relevant to
consideration.
Throughout this decision I make numerous reference to, and quote, evidence provided to
the court. Where those quoted passages include footnotes, the footnotes have been omitted.
I now turn to consider in more detail the objections before this Court pursuant to the MRA
and the EPA.
The Objections
As at the dates of the referrals of the MRA and the EPA objections to the Court, there were
27 MRA objections and 35 EPA objections. It should be noted that 20 of these objections
were by parties who made both MRA and EPA objections. There were three withdrawals
of objections prior to the hearing, resulting in the final number of objectors being 27 MRA
Objectors and 32 EPA objectors, with 20 objectors having both MRA and EPA objections.
Level 1 and Level 2 Objectors
Prior to the commencement of the hearing all objectors had confirmed their level of
participation in the matter in accordance with Land Court Practice Direction 3 of 2015.
Level 1 represents a lower level of involvement and level 2 a higher level of involvement.
The levels of participation as nominated by objectors is tabulated below:
Level 1 Level 2 Frank Ashman (MRA/EPA) Glenn Beutel (MRA/EPA) Lynn Ashman (MRA/EPA) Darling Downs Environment Council Inc (MRA only)
Christopher Cleary (EPA only) Pamela Aileen Harrison (EPA only) Naomi Cleary (EPA only) Angela Mason (MRA only/ EPA Party to Proceedings) John Cook (MRA/EPA) Dr Geralyn McCarron (MRA only) Patricia Cook (MRA/EPA)
Oakey Coal Action Alliance Inc (MRA/EPA) Hazel Green (MRA only) Merilyn Plant (MRA/EPA) Paul Mason (MRA only) Sid Plant (MRA/EPA) Janet Schick (MRA only) Dr Tanya Plant (MRA/EPA) John Schick (MRA only) Dr Steven Ward (MRA/EPA) Jane Scholefield (MRA/EPA) Noel Wieck (MRA/EPA) Max Scholefield (MRA/EPA) Dr John Standley (EPA only) Desley Spies (MRA/EPA) Kevin Spies (MRA/EPA) Cheryl Vonhoff (MRA/EPA) David Vonhoff (MRA/EPA)
Fay Wieck (MRA/EPA) Grant Wieck (MRA/EPA) Simon Wieck (MRA/EPA) Russel Byron (EPA only) Clean Air Queensland (EPA only) Paul Evans (EPA only) Karen Lavin (EPA only) John Millane (EPA only) Frances Scarano (EPA only) Loretta Smith (EPA only) Carolyn Lunt (EPA only)
It should be noted that there were deficiencies with the referral relating to Dr Geralyn
McCarron’s objections which were discovered upon hearing of objections by NAC to
certain parts of cross examination by Dr McCarron. Not all of Dr McCarron’s objections
were received in full at the time of referral but this situation was rectified during the
hearing.
There are 12 level 2 objectors and 27 level 1 objectors. Level 2 objectors fully participated
in the court process. Level 1 objectors limited their involvement to relying upon their
objections which have been considered by me as part of this decision.
Grounds of Objection
It is a difficult task to even set out the objections under both the MRA and EPA in this
matter. In order to consider all of the grounds of objection, it is necessary to
comprehensively refer to Exhibits 135 to 355. Obviously, were all of those Exhibits to be reproduced in this decision, the length of the decision would become absurd. In light of the
myriad of objections, many of which overlapped, the court prepared two documents
summarising the objections down to various issues. One document related to the MRA
objections to MLA 50232 and MLA 700002, and the other related to objections to EA
number EPML00335713. Both documents were ultimately agreed to by parties at the
hearing.
The document relating to the MRA objections to MLA 50232 and MLA 700002is as
follows:
“MRA OBJECTIONS – MLA 50232 and MLA 700002
LEVEL 1 OBJECTORS and LEVEL 2 OBJECTORS*
1. Ground water depletion – Underground water via bores for nearby farmers will be depleted or disappear – make good agreements of no value as at the miners discretion or if they cease mining operations – land without water is useless –
ground water assessments already conducted are inadequate
Frank and Lynn Ashman, John and Patricia Cook, Hazel Green, John and Janet Schick, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, Simon Wieck, Noel Wieck* and Fay Wieck, Paul Mason and Angela Mason*, Oakey Coal Action Alliance Inc.* (OCAA), Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Darling Downs Environment Council Inc* (DDEC)
2. Noise – Undue and unmonitored machine and equipment noise
Frank and Lynn Ashman, John and Patricia Cook, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Noel Wieck* and Fay Wieck, Paul Mason and Angela Mason*, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC*, Glenn Norman Beutel*
3. Air quality – The nature and operation of the open cut mine creates dust which is transient causing respiratory issues – diesel fumes – toxic fumes from blasting – air quality modelling has been inadequate
Frank and Lynn Ashman, John and Patricia Cook, Hazel Green, John and Janet Schick, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Noel Wieck* and Fay Wieck, Paul Mason and Angela Mason*, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Geralyn McCarron*, DDEC*, Glenn Norman Beutel*
4. Visual amenity – Night operations will emit undue irritating light
Frank and Lynn Ashman, Max and Jane Scholefield, DDEC*
5. Soil destruction – Open cut mining destroys the profile and biochemistry of
soils forever
Frank and Lynn Ashman, Steven Ward*
6. Social disruption – This mine has already caused dissention and unrest in the
community with little economic return. Further destruction and isolation of
Acland –purchase of park in Acland not for public benefit
Frank and Lynn Ashman, John and Janet Schick, Kevin and Desley Spies, Steve Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, Glenn Norman Beutel*, OCAA*
7. Undesired, non-viable product – The demand for steaming (thermal) and coking (metallurgical) coal is diminishing and falling out of favour – concern
about lack of royalties
Frank and Lynn Ashman, Tanya Plant*, Sid Plant*, OCAA*
8. Reduction in land values – Many local residents involved in agriculture rely on
the value of their land to ensure long term sustainability.
Frank and Lynn Ashman, Tanya Plant*, Sid Plant*
9. Further mining intent – New Hope has expressed an intent to proceed with further mining projects in this area – this approval if granted will be a
precedent for further mining approvals in this area
Frank and Lynn Ashman, Tanya Plant*, Sid Plant*
10. Surface area - The land and surface area of the land are not an appropriate size
and shape for the mining activities proposed – no need to come so close to
Acland
John and Patricia Cook, OCAA*, Tanya Plant*, Sid Plant*, DDEC*, Glenn
Norman Beutel*11. Not an appropriate use of the land - Destruction of prime agricultural land/strategic cropping land. Rehabilitation will only result in second grade
grazing land – not sound land use management – 1,466 ha of ML 50232 will be
disturbed by coal mining, 1,361 ha of this is strategic cropping land
John and Patricia Cook, Hazel Green, John and Janet Schick, Max and Jane Scholefield, Kevin and Desley Spies, David and Cheryl Vonhoff, Grant Wieck, Simon Wieck, Noel Wieck* and Fay Wieck, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC*, Glenn Norman Beutel*
12. Soil erosion
John and Patricia Cook, Fay Wieck
13. Terms of the leases sought are not appropriate – 40 years is unacceptable in a
highly settled area
Frank and Lynn Ashman,John and Patricia Cook,John and Janet Schick,
Kevin and Desley Spies, Kevin and Desley Spies, David and Cheryl
Vonhoff, Simon Wieck, OCAA*, Tanya Plant*, Sid Plant*, Merilyn
Plant*,DDEC*14. Past performance of the applicant has been unsatisfactory – Long history of dust
and noise exceedances in their operations do not engender confidence they will
operate to a higher standard of excellence in future mining operationsJohn and Patricia Cook, Hazel Green, Kevin and Desley Spies, David and Cheryl Vonhoff, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC* Glenn Norman Beutel*
15. Significant environmental impacts – Vulnerable fauna such as the koala and
flora such as grass species will be obliterated. Contaminated run off from the
mine feeds Lagoon Creek. Weeds in the area are flourishing without controlJohn and Patricia Cook, Hazel Green, Kevin and Desley Spies, David and Cheryl Vonhoff, Simon Wieck, Noel Wieck* and Fay Wieck, OCAA*, Steven Ward*, Tanya Plant*, Sid Plant*, Merilyn Plant*, DDEC*, Glen Norman Beutel*
16. Health – The health of those residing and working in the area with be adversely
affected by the dust, noise and toxic fumes from blasting. Breeding livestock
will also be adversely affectedJohn and Patricia Cook, Hazel Green, John and Janet Schick, Merilyn
Plant*, Geralyn McCarron*, OCAA*17. Does not have the necessary financial and technical capabilities to run the mine
– price of coal is falling means less profits and the company won’t be able to
meet its obligations to its employees, community and rehabilitation into the future. Expertise to restore open cut mining land to agricultural land does not exist.
Hazel Green, OCAA*, Tanya Plant*, Sid Plant*, DDEC*, OCAA*
18. Economic benefits of the mine have been overstated – Other companies within
short distance of the mine employ more people. Why risk an activity that may
destroy agricultural land when other industries don’t have this risk? Agricultural
industry provides jobs long term – mining only short term in boom times.
John and Janet Schick, Kevin and Desley Spies, David and Cheryl Vonhoff,
Tanya Plant*, Sid Plant*, Glenn Norman Beutel*19. Climate change
David and Cheryl Vonhoff, Steven Ward*, Tanya Plant* Sid Plant*
Merliyn Plant*20. Surface water – Notification of flood water by miner two days after the event is
unacceptable. Flooding and pollution concerns with surface water run off
Noel Wieck* and Fay Wieck, Tanya Plant*, Sid Plant*, DDEC*
21. Environmental monitoring – Monitoring of outcomes for dust, noise and flood water discharge by miner is unacceptable – this should be done by DEHP.
Noel Wieck* and Fay Wieck, Merilyn Plant*, OCAA*
22. Road closures – permanent closure of the sealed road running north, east-west through Acland is unacceptable – adverse effect on school bus run
Noel Wieck* and Fay Wieck, Steven Ward*, Tanya Plant*, Sid Plant*,
Merilyn Plant*, Glenn Norman Beutel*23. Traffic – Road safety concerns and damage to local roads
Paul Mason and Angela Mason*, Tanya Plant*, Sid Plant*
24. Proximity – All properties within the boundary of MDL244 will be affected.
93% of properties in this area have already been purchased by New Acland
Pastoral – request a condition that all properties in this area be purchased if the
mine is approved
Paul Mason and Angela Mason*
25. Unacceptable risk there will not be an acceptable level of development and utilisation of the mineral resources within the area applied for
OCAA*, DDEC*
26. Economic and social matters – adverse effect on a. agricultural enterprises, b.
loss of jobs servicing agricultural enterprises, c. inconsistency with expansion of rural tourism, d. decrease in local property values, e. expense to authorities of upgrades and maintenance to public infrastructure. Economic return to Queensland significantly limited by royalty regime within the proposed lease areas. Project high risk of not being economically viable due to high cost of production, low coal prices and uncertainty over domestic and international energy policies. Adverse environmental and social impacts with little benefit for the State
Oakey Coal Action Alliance Inc.*, DDEC*
27. Disadvantage may result to the rights of applicants or holders of other
exploration permits or mineral development licenses
Tanya Plant*, Sid Plant*
28. Procedural matters not addressed by miner – No approval been obtained from
Commonwealth Government (EPBC Act) or pursuant to the Regional Planning
Act re strategic cropping landTanya Plant*, Sid Plant*
29. Relocation of telephone and electricity networks is detrimental to the
community
Tanya Plant*, Sid Plant*
30. The proposed mine and its related activities will cause significant stress to
landowners re negotiating “make good agreements” and liaising with the
company regarding noise and dust emissions etc
Tanya Plant*, Sid Plant*
31. The proposed project may adversely impact on other people’s rights including
their rights to build houses or other developments on their landholdings
Tanya Plant*, Sid Plant*
32. The proposed project is in conflict with local government policies and planning
laws such as the Toowoomba Regional Council’s policies, Planning Scheme eg.
it does not provide sufficient separation for other users as required by the
planning scheme eg Extractive Industry CodeTanya Plant*, Sid Plant*
33. The proposed project will place additional capacity on a rail network that is
already constrained
Tanya Plant*, Sid Plant*
34. Concerns raised in my EIS submissions are part of my objections
Tanya Plant*, Sid Plant*, Merilyn Plant*, Glen Norman Beutel*
35. Adverse effect on Mr Beutell’s tenants and difficulty of attracting new tenants
should existing tenants leave because of the new project
Glenn Norman Beutel*
36. Vibrations from blasting
Glenn Norman Beutel*
The document relating to the EPA objections to EA number EPML00335713 is as follows:
“EPA OBJECTIONS – EA number EPML00335713
LEVEL 1 OBJECTORS and LEVEL 2 OBJECTORS*
1. Not an ecologically sustainable development that will protect Queensland’s
environment in -breach of ss 3 and 5 EP Act objects of the Act
Christopher and Naomi Cleary, Oakey Coal Action Alliance Inc (OCAA)*,
Aileen Harrison*, Sid Plant*, Steven Ward*, Tanya Plant*2. Breach of the precautionary principle - part of the standard criteria for this decision
Christopher and Naomi Cleary, OCAA*, Aileen Harrison*, Glenn Norman
Beutel*, Sid Plant*, Steven Ward*, Tanya Plant*3. Contrary to the intergenerational equity principle - part of the standard criteria for this decision
Christopher and Naomi Cleary, OCAA*, Noel Wieck* and Fay Wieck, Sid
Plant*, Steven Ward*, Tanya Plant*4. Contrary to the conservation of biological diversity and ecological integrity - part of the standard criteria for this decision
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya
Plant*5. Will cause serious environmental harm and adversely affect the environment
Christopher and Naomi Cleary, John Millane, Frances Scarano, OCAA*,
Sid Plant*, Steven Ward*, Tanya Plant*6. Contrary to the public interest
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya
Plant*7. Contrary to environmental protection policies on noise, air and water
Christopher and Naomi Cleary, OCAA*, Sid Plant*, Steven Ward*, Tanya
Plant*8. Contrary to relevant Commonwealth and State government plans, standards,
Summary of Objector Dr McCarron’s Position
Dr McCarron puts her case this way:
“
209. NAC’s accusation that I was “scaremongering” was a shabby, derogatory
and unsubstantiated attempt to undermine me in my support of the mine neighbours. I object to such an attack on my professional standing and I ask the court to make an adverse finding against NAC.
210. In every decision regarding resource development there is a balance between the benefits, which may be very obvious, and the cost that must ultimately be paid. With regard to the NAC mine, from its inception through to its proposed stage 3 expansion, the cost to health and to the well being of the mine neighbours has been actively denied by the company.
211. Although I was not permitted to ask questions on many issues in this case, these issues should also be seen from the aspect of health. The impact of this mine on groundwater is fundamental to the concerns of all the objectors, as is contamination of water and destruction of some of the best agricultural land in Queensland. The fundamentals of public health are
clean air, clean water, and safe nutritious food. Our country’s future
health depends on access to safe water and our ability as a nation to feed ourselves. If we do not protect our water resources and our food producing land, our future as a nation is not bright.
212. While accepting a balance in most situations in life, one sometimes comes to an impasse, a factor that is an absolute deal breaker. Whatever the benefits of mining for 12 years might or might not be, the fact that as a consequence of this activity, for centuries to come our most precious resource, clean water, will drain into contaminated pits is surely such a deal breaker.
213. Throughout the history of this mine the impacts on the health of the community around the mine have been simply ignored by NAC and successive governments. It has been a nonissue. This is despite the fact that there is no dispute regarding the impact on health of living in a polluted environment. PM10 (including PM2.5) are particulates of human health concern from the project, and are emitted through the extractive processes, overburden losses, coal handling and processing and dust and exhaust fumes generated from machinery and haulage. NAC, as evidenced by their reports to the National Pollutant inventory, are the stand out single biggest polluter of PM2.5 in the Toowoomba region.
214. On this brownfield site the sensitive receptors have been complaining
about the noise, dust, physical and mental stress resultant from NAC’s
activities for many years. Reported health impacts included, but were not limited to, coughing, burning throat and chest, difficulty breathing, wheezing, headaches, dizziness, collapse, burning eyes, nasal congestion, nose bleeds, nausea, lack of sleep, fatigue, depression, grief, pain, anguish
and despair. NAC’s failure to appropriately assess the past and possibly
future health impacts is critically significant in view of the fact that there
is such a high level of agreement amongst the health experts.215. The adverse health effects of particulate matter are well documented, including increased respiratory symptoms, decreased lung function, worsening of asthma, irregular heartbeat and premature death in people with heart or lung disease. The magnitude and type of harm incurred, relates not just to the concentration of the air pollutant, but also to the vulnerability of the person exposed, children, the elderly, pregnant women and those with preexisting conditions are more at risk. Impacts relate to both short and long term exposure, and the 35 now rapidly evolving body of international research literature suggests possible links to neurodevelopment and cognitive function as well as chronic diseases such as diabetes.
216. Most importantly there is no evidence of a safe level of exposure to particulate air pollution or a threshold below which no adverse effects occur.
217. The health harms of specific air pollutants such as diesel fumes, NOx, SOx, H2S and heavy metals emitted from this mine are well recognized.
218. Air pollution itself is recognized to be carcinogenic.
219. Just as political decisions lagged behind awareness of the health harms of asbestos and passive smoking, political decisions have disregarded the known health harms of pollution from this mine.
220. The adverse health impacts of noise and sleep deprivation are equally well known and have been studiously disregarded by the mine and regulators.
221. Adverse impacts on mental health from an enduring multifaceted project such as the NAC mine on a rural community should have been entirely predictable, and would have been had a health impact assessment been done, these adverse impacts on mental health were evidenced throughout the complaints databases and public submissions.
222. For a decade and a half the complaints based process failed to provide health protection to the mine neighbours. The lack of proactive, or even appropriate reactive monitoring of air pollution and noise by the regulators, despite hundreds of recorded complaints and hundreds more unrecorded complaints is of real concern.
223. The fact that DEHP are today unaccountable for decisions they took with regard to nonenforcement, with the premise being that a determination of compliance or non-compliance was a matter of discretion for individual officers is of real concern. Equally of concern is DEHP witness Mr
Loveday’s response to a question regarding Mrs Mason’s lived
experiences, that he makes decisions based on legislation not based on
emotion, when Mrs Mason’s lived experiences were based not on emotion
but on the dust and noise that DEHP had failed to regulate.
224. The models predicting levels of air and noise pollutants for the stage 3 project are so seriously flawed using assumptions that are unsupportable that they are valueless as determinants of health protection.
225. Instead of absolute enforceable limits of air and noise pollution based on best protection of human health, the mine proposes an adaptive management regime based on what they consider reasonable and feasible.
Considering that their so called “commitments” are entirely missing from
the draft EA, the prospect of the future for the mine neighbours is more of
the same, with no consideration of the impact on their health.226. Health impacts have been wilfully ignored throughout the history of this mine and during the EIS and AEIS process for the proposed state 3. In itself, that is enough reason why this mine should not to go ahead. When, in addition, one considers the purported benefits of the mine, which are by nature temporary, and the enduring risks to groundwater and productive agricultural land there is no absolutely no doubt stage 3 should be
refused.”
Summary of Statutory Party’s Position
The Statutory Party summarised its position this way:
“1. These proceedings concern the Applicant’s proposal to expand the operations at its New Acland mine. The New Acland mine is an open cut coal mine situated approximately 160 km west of Brisbane, 35km north-west of Toowoomba, and 14km north-west of the town of Oakey. Mining operations commenced at the New Acland mine in 2002.
2. At present, the New Acland mine operates pursuant to two mining leases – ML 50170 and ML 50216. ML 50170 was granted on 6 September 2001 while ML 50216 was granted on 7 December 2006. In these proceedings, the initial mining undertaken pursuant to ML 50170 has been referred to as Stage 1 while the mining undertaken pursuant to ML 50216 has been referred to as Stage 2. The proposed expansion of mining (which is the subject of these proceedings) has been referred to as Stage 3. In these
submissions, the Applicant’s proposal will be referred to as the ‘Applicant’s Stage 3 Project’. 3.
In addition to the mining leases, the New Acland mine has historically operated pursuant to environmental authorities that have been granted in relation to the mining activities to be conducted under ML 50170 and ML 50216. At present, the New Acland mine operates pursuant to an environmental authority (being EMPL00335713) granted on 14 July 2015. That authority imposes conditions for both Stage 1 and Stage 2 activities.
4. The Applicant has filed three applications that are presently before this Court – MLA 700002, authority (EA Amendment Application). The MLAs are the subject of proceedings MRA 496-15 and MRA 497-15 (MLA Proceedings) while the EA Amendment Application is the subject of proceeding EPA 495-15 (EPA Proceedings). The Statutory Party, as the statutory entity responsible for issuing environmental authorities, is a party to the EPA Proceedings.
5.
Both the MLAs and the EA Amendment Application are contentious. Insofar as the EA Amendment Application is concerned, the Statutory Party received 1,421 submissions with 965 of those considered to be properly made, within the meaning of that term as defined in the Environmental Protection Act 1994 (Qld) (EP Act). After making a decision to approve the EA Amendment Application, the Statutory Party issued a draft environmental authority (Draft EA) and gave notice of its decision and the Draft EA to submitters. In response, the Statutory Party received 27 objection notices from 35 submitters requesting that their submission be taken as an objection. Each of those objectors are Respondents in proceeding EPA 495-15 with a further respondent, being Ms Angela Mason, added as party to the proceeding by this Court pursuant to section 186 of the EP Act.
6. The Applicant’s position in relation to the EA Amendment Application is that this Court ought to recommend that it be approved and that an environmental authority be issued on the conditions set out in the Draft EA with the amendments proposed in its closing submissions.
7. The Respondents’ primary position in relation to the EA Amendment Application is that this Court ought to recommend that it be refused. Alternately, the Respondents contend that the conditions imposed in the Draft EA are inadequate and that this Court ought to recommend the imposition of more stringent conditions of approval.
8.
For the reasons below, the Statutory Party contends that the process adopted by the Statutory Party in considering the EA Amendment Application was thorough, in compliance with the requirements imposed by the EP Act and that it resulted in a Draft EA that included conditions appropriate to manage any
environmental harm associated with the Applicant’s Stage 3 Project. To the extent these proceedings have adduced evidence that suggest amendments should be made to the Draft EA, the Statutory Party accepts that amendments may be needed to address ambiguities and to address any evidence ultimately accepted by this Court as to the conditions necessary to manage or mitigate against the risk of environmental harm.
Appendix C – Chronology
Date Description 23 December 1999 MDL 244 transferred from Shell Coal (Acland) Pty Ltd to the Applicant. 2 November 2000 Application for ML 50170 lodged by the Applicant. 18 December 2000 12 objections to ML 50170 received from Mr George Houen on behalf of: 1. D & A Ballon;
2. J & L Bell;
3. B & M Hassall;
4. D & S Kajewski;
5. T & V Kennedy;
6. M, J, P & L Kuhl;
7. A Lebsanft;
8. B Mason;
9. P, J & A Mason;
10. S, M & T Plant;
11. J & M Sloane; and12. F & A Brimblecombe.
6 February 2001 Directions Hearing. 16 February 2001 Directions Hearing. 13 to 15 March 2001 Mediation between the Applicant and individual objectors. 19 March 2001 Application for disclosure filed and served by Mr Houen. 20 March 2001 Directions Hearing and hearing of Application for disclosure. 28 March 2001 The Application for disclosure was dismissed by Koppenol P and costs
awarded against Respondents.24 May 2001 Land and Resources Tribunal recommendation that ML 50170 be granted
with no additional mining lease conditions and with a minor change required
to the EMOS relating to Aboriginal cultural heritage.6 September 2001 ML 50170 granted for a term of 21 years. 1 October 2001 ML 50170 commenced. 1 February 2005 Application for ML 50216 lodged by the Applicant. 2 November 2006 Land and Resources Tribunal recommendation that ML 50216 be granted.
There were no objections to the mining lease application.7 December 2006 ML 50216 granted for a term of 20 years. 1 January 2007 ML 50216 commenced. 23 April 2007 The Initial Expansion Project was referred to the Federal Environment
Minister under the EPBCA.24 April 2007 The Applicant referred the Initial Expansion Project to the CG for a
| Date | Description |
| declaration that the proposal was a significant project under the SDPWOA. | |
| 18 May 2007 | The Initial Expansion Project was declared a significant project pursuant to section 26 of the SDPWOA. |
| 24 May 2007 | The Initial Expansion Project was declared to be a controlled action under the EPBCA, to be assessed by an EIS under the SDPWOA pursuant to the bilateral agreement. |
| 25 May 2007 | Applicant lodged MLA 50232 with the Mining Registrar. |
| 24 October 2007 | The TOR for the EIS were finalised. |
| November 2009 | The Applicant submitted the First EIS, which at that time still involved the staged expansion for the mine up to a capacity of 10 million tonnes per annum, and which was expected to extend coal production at the mine until approximately 2042. |
| 14 November 2009 - | The First EIS was released for public consultation. |
| 3 February 2010 | |
| 23 August 2012 | The Certificate of Application for MLA 50232 was endorsed and issued by the Chief Executive of DNRM. |
| 26 October 2012 | The Applicant submitted a request to the Federal Environment Minister that the referral under the EPBCA be varied to incorporate the variations referred to in the body of these submissions for the Revised Expansion Project. |
| 9 November 2012 | The Federal Environment Minister accepted the variation to the referral for the Revised Expansion Project. |
| 22 March 2013 | Following a decision by the CG that the EIS process for the Revised Expansion Project recommence at the draft TOR stage, the new TOR for the Revised Expansion Project were issued. |
| January 2014 | The Applicant submitted the New EIS for the Revised Expansion Project to the CG. |
| 18 January 2014 - 3 | The New EIS was released for public consultation. |
| March 2014 | |
| June to August 2014 | In response to a request from the CG for further information and in response to particular issues raised in submissions received in relation to the New EIS, the Applicant submitted the AEIS. |
| 25 June 2014 | In order to implement the commitments made in relation to the Revised Expansion Project including to increase the distance between the Revised Expansion Project and the township of Oakey, remove the Sabine mining area from the mining lease and reduce the overall surface area, the Applicant abandoned part of the area covered by MLA 50232 pursuant to section 307 of the MR Act. |
| 27 June 2014 | DNRM acknowledged receipt of the partial abandonment application made by the Applicant. |
| Date | Description |
| 30 June 2014 | The abandonment took effect pursuant to section 307(2) of the MR Act. |
| 28 August 2014 | The CG confirmed the AEIS adequate for public review. |
| 1 September 2014 - | The CG invited further public comment on both the EIS and the AEIS. |
| 29 September 2014 | |
| October - December | The CG requested that the Applicant provide further information to clarify |
| 2014 | certain matters raised in the AEIS and the submissions to the AEIS. |
| 11 December 2014 | A consolidated response to the further information was provided to the CG. |
| 19 December 2014 | The CG issued the CG's Report, being his final report on the New EIS and AEIS. The CG approved the Revised Expansion Project, with conditions imposed on the Revised Expansion Project pursuant to section 54B of the SDPWOA, stated conditions to the draft EA pursuant to section 47C of the SDPWOA, and recommended conditions made pursuant to section 52 of the SDPWOA in relation to approvals under the EPBCA, the TIA and the Water Act. |
| 16 January 2015 | The Applicant lodged the application for MLA 700002, being the MLA for the private rail spur. |
| 13 April 2015 | The Applicant lodged the current EA Amendment Application. |
| 5 May 2015 | The Certificate of Application for MLA 700002 was endorsed and issued by the Chief Executive. |
| 5 May 2015 | The Certificates of Public Notice for MLA 50232 and MLA 700002 were issued by the Chief Executive. |
| 13 May 2015 | The Applicant published the combined public notice for MLAs 50232 and 700002 and the EA Amendment Application in the Toowoomba Chronicle and the Oakey Champion newspapers. |
| 27 May 2015 | The Applicant received a request for further information from EHP to assist it in making its decision on the EA Amendment Application. |
| 15 June 2015 | The Applicant provided its response to EHP's information request. |
| 28 August 2015 | EHP issued the Draft EA. |
| Written notice of that decision and the Draft EA was provided to the Applicant and those who made submissions on the EA Amendment Application. | |
| 14 October 2015 | Referral of MLA 50232 and 700002 to the Land Court for Objections Hearing. |
| 19 October 2015 | Referral of EA Amendment Application to the Land Court for Objections Hearing. |
| 4 November 2015 | Directions Hearing. |
| 9 November 2015 | Directions Hearing. |
Date Description 17 December 2015 Directions Hearing. 8 February 2016 Directions Hearing. 2 March 2016 Directions Hearing. 7 March 2016 Opening Submissions. 8 - 9 March 2016 Site Inspection. 16 March 2016 Commencement of evidence. 12 August 2016 Conclusion of evidence. 1 September 2016 2nd site inspection 30 September 2016 Final written submissions 5 - 7 October 2016 Closing Submissions 1 December 2016 Directions Hearing 14 December 2016 IESC issued 2016 Advice 19 December 2016 Application to reopen hearing re IESC 2016 Advice 12 January 2017 Directions Hearing 18 January 2017 Federal Minister issued EPBC approval for revised Stage 3 2 February 2017 Land Court decision to allow reopening with respect to IESC 2016 Advice 3-5, 10-11 and 20 Reopening-evidence re 2016 IESC Advice April 2017 19 May 2017 Final written submissions regarding IESC 2016 Advice 31 May 2017 Recommendation of Land Court * Pursuant to the Land Court Rules 2000, rule 21 (Power to correct mistakes), this recommendation was amended on 14 June
2017 to rectify a clerical error whereby Angela Mason was omitted as a MRA level 2 objector on the cover page.5 to 30 and Dr McKenzie’s evidence from T 57-24 onwards .
adoption of Dr Taylor’s additional monitoring locations.
onwards.
Environment and Heritage Protection (No. 2) [2016] QLC 30.
6
0
15