Nothdurft & Anor v QGC Pty Limited & Ors

LAND COURT OF QUEENSLAND

CITATION: Nothdurft & Anor v QGC Pty Limited & Ors [2017] QLC
41
PARTIES: Allan James Nothdurft
and
Narelle Angela Nothdurft
(applicants)
v
QGC Pty Limited
and
BG International Limited
and
Australia Pacific LNG Pty Limited
and
CNOOC Coal Seam Gas Company Pty Ltd
and
Tokyo Gas QCLNG Pty Ltd
(respondents)
FILE NO/s: PGP114-16
DIVISION: General division
PROCEEDING: Application to review compensation
DELIVERED ON: 18 August 2017
DELIVERED AT: Brisbane
HEARD ON: 22, 23, 24 May 2017
Final submissions 30 June 2017
HEARD AT: Brisbane
PRESIDENT: FY Kingham

ORDER/S:

QGC Pty Limited, BG International Limited, Australia Pacific LNG Pty Limited, CNOOC Coal Seam Gas Company Pty Ltd and Tokyo Gas QCLNG Pty Ltd must pay Mr Allan James Nothdurft & Mrs Narelle Angela Nothdurft an additional $60,500 by way of
compensation.
CATCHWORDS: ENVIRONMENT AND RESOURCES –

COMPENSATION – REVIEW – where the applicants sought to review compensation – meaning of material change in circumstances – whether alleged changes in circumstances are proved – whether proved changes in circumstances are material – where cessation of access to
untreated CSG water found not to be a material change in
circumstances because of access to treated CSG water –
where irregular but ongoing minor exceedances of the night
time noise limit was found to be a material change in
circumstances
ENVIRONMENT AND RESOURCES –
COMPENSATION – REVIEW – scope of review – where
applicant submitted the review should determine
compensation afresh on the changed circumstances – where
the respondent submitted the review is limited to
compensation for the compensatable effects of the material
change in circumstances – where the review was conducted
on the basis submitted for by the respondent
Acts Interpretation Act 1954 s 4, s 14A(1), s 20(2)
Land Court Act s 24
Mineral Resources Act 1989 s 283B(1)(b)
Petroleum and Gas (Production and Safety) Act 2004
s 3(1)(h), s 120, s 532(1), s 532(2), s 532(4), s 536C, s
537C(1)
Allianz Australia Insurance Limited v Mashaghati [2017]
QCA 127, considered
Commissioner of Succession Duties (SA) v Executor Trustee
and Agency Co of South Australia Ltd (1947) 74 CLR 358,
applied
Devon CC v Allens Caravans (Estates) Ltd (1962) 14 P&CR
440, followed
East Barnet Urban DC v British Transport Commn [1962] 2
QB 484, followed
ERO Georgetown Gold Operations Pty Ltd v Henry (2015)
212 LGERA 342, followed
Marshall v Director General Department of Transport
(2001) 5 CLR 603, applied
Minister for Immigration, Local Government and Ethnic
Affairs v Dela Cruz (1992) 34 FCR 348, followed
Rogers v Whitaker (1992) 175 CLR 479, followed
APPEARANCES: G Houen agent, Land Holder Services Pty Ltd, for the
applicant
DG Clothier QC, and SB Hooper of counsel, instructed by
Corrs Chambers Westgarth, for the respondent

Mr & Mrs Nothdurft have an agreement with the respondents (QGC) about
compensation for the effects of QGC’s coal seam activities on their property,
Bellara. They want the Court to review the agreed compensation. The Court can
do so if there has been a material change in circumstances. Mr & Mrs Nothdurft
say a number of circumstances have changed materially. Although QGC does not
accept Mr & Mrs Nothdurft’s allegations about changed circumstances, it did not
seriously contest there had been some changes. It did challenge the materiality of
any changed circumstances and, if any were found to exist, the scope of the
review.
Mr & Mrs Nothdurft say the Court must assess compensation afresh on the
changed circumstances. If that assessment exceeds the original compensation,
QGC must pay the difference. QGC disagrees. It argues the Court can only review
the original compensation to the extent it is affected by the change. That is a more
confined exercise, looking only at what has changed and how the change affects
Mr & Mrs Nothdurft.
Those arguments raise the following legal and factual issues:

 When and to what extent can the Court review agreed compensation?

(a)

What is the meaning of the phrase a material change in circumstances?

(b)

Assuming there is a material change, what is the scope of the review?

 Has there been a material change in circumstances?
 Can or should the Court amend the compensation agreed by the parties?

Before addressing those questions, the following matters are agreed and provide
context for the reasons that follow.

Background

Mr & Mrs Nothdurft own, live and work on Bellara, a 348.9ha property 27km
south of Chinchilla. They use the land for cropping, running beef cattle and
conducting a manure spreading business called Western Downs Spreading and
Contracting.
QGC’s activities on Bellara are part of a coal seam gas project known as QCLNG
Project. That project entails gas extraction from coal seams in the Surat Basin. The
gas is piped to local compression and processing facilities and then transported by
an underground pipeline network to Curtis Island near Gladstone. There, the gas is
turned into liquefied natural gas for export markets.
QGC’s activities on Bellara are regulated under two petroleum leases and an
environmental authority.[1] The EA was issued on 17 October 2014 and covers the
[1] PL 179 & PL 229 issued pursuant to Petroleum and Gas (Production and Safety) Act 2004 s 120; EPPG00878413 issued pursuant to the Environmental Protection Act 1994.
QCNLG Project as a whole, not just activities on Bellara under the two PLs.
Presumably, this replaced an earlier EA. There appeared to be no contest about
any change in EA conditions and I have made this decision on that understanding.
There are seven coal seam gas wells on Bellara. They are connected by
underground gathering lines which transport gas to trunklines which convey the
gas to a field compression facility. There are two Field Compression Stations in
the vicinity of Bellara: the Argyle FCS, about 3.61km north of the Nothdurfts’
home; and the Kenya FCS, about 6.612km to the south.
After compression, the gas is transported by pipeline to the Kenya Central
Processing Plant, about 5.662km south of the home, where it is further compressed
for transportation.
Water extracted from the wells is transported through a similar system of
gathering lines and trunk lines to storage ponds and, ultimately, the Kenya Water
Treatment Plant, 5.797km south of the home.
Within a 2.5km radius of the Nothdurft’s home, there are 36 wells and 17 high
point vents. There are also three permanent locations for flaring; a process which
allows the rapid release of gas from the Project infrastructure to manage pressure
or for safety reasons.
The parties have entered into two compensation agreements for the compensatable
effects of the activities authorised by the PLs on Bellara. The first agreement was
made on 15 February 2005. It was superseded by the second, made on 10 April 2006. All infrastructure on Bellara was constructed under one or other of those
agreements.
Mr & Mrs Nothdurft seek the following orders under the Petroleum and Gas
(Production and Safety) Act 2004:
1. An order pursuant to s 537C for:

(a)

Compensation to recognise the actual impacts to date and future impacts of the CSG activities; and
(b) Recovery of the applicants’ costs of addressing and investigating the
exceedance and attempting to resolve related disputes with the
respondent, plus costs of the application.

2. An order pursuant to s 537DC for appropriate conditions to ensure the respondent operates within authorised emission limits in the future.

Section 537DC applies to conditions of the compensation agreement, not of a PL
or, indeed, an EA. Mr Houen, the lay agent for Mr & Mrs Nothurft, did not
propose any particular conditions, other than payment of money by way of
compensation and costs. It is not necessary to consider s 537DC further.
Section 537C was in Chapter 5 Part 5 of the Petroleum and Gas (Production and
Safety) Act 2004 when the application was filed on 17 March 2016. That Part has
since been repealed and replaced by apparently equivalent provisions in another
Act.[2] The parties agree the application should be determined on the law as it stood
[2] Mineral and Energy Resource (Common Provisions) Act 2014 part 7: the counterpart to s 537C of the Petroleum and Gas (Production and Safety) Act 2004 appears to be s 101.
when the application was made. That is the proper course to take in the absence of
any contrary intention.[3]
[3] Acts Interpretation Act 1954 ss 4 and 20(2); Mineral and Energy Resources (Common Provisions)
Before turning to the issues, I note Mr Nothdurft appeared to raise an issue which
is beyond the scope of this application. In a statement attached to his affidavit he
said a Mr Robson, on behalf of QGC, made some statements during discussions
leading up to the parties entering into each compensation agreement. He said he
believed these statements. For the second compensation agreement, he said: we felt
we had no alternative but to agree.[4]
[4] Statement of Mr Nothdurft, filed on 30 March 2017.
This could be regarded as a challenge to the validity of enforceability of the
agreement. However, Mr Nothdurft did not apply to set aside the compensation
agreement and I did not hear argument about whether the Court could grant such relief. This decision, therefore, deals only with the application pursuant to s 536C
and does not deal with any other right of action that may be open to Mr & Mrs
Nothdurft.

When and to what extent can the Court review agreed compensation?

This is the first time this Court has been asked to review compensation for
activities authorised by a PL.
Section 537C confers the review function on the Court:
537C Land Court review of compensation

(1) This section applies if—

(a) the compensation liability or future compensation liability of a petroleum authority holder to an eligible claimant has been agreed to under a conduct and compensation agreement or decided by the Land Court (the original compensation); and
(b) there has been a material change in circumstances (the change) since the agreement or decision.
(2) The eligible claimant or the holder may apply to the Land Court
for it to review the original compensation.
(3) In carrying out the review, the Land Court may review the original compensation only to the extent it is affected by the change.
(4) If the Land Court considers the original compensation is not affected by the change, it must not carry out or continue with the review.
(5) The Land Court may, after carrying out the review, decide to confirm the original compensation or amend it in a way the court considers appropriate.
(6) If the decision is to amend the compensation, the original compensation as amended under the decision is, for this Act, taken to be the original compensation.

The dispute between the parties raises two questions about the interpretation of
that section:

(a)

What is the meaning of the phrase a material change in circumstances? ; and

(b)

Assuming there is a material change, what is the scope of the review?

What is the meaning of the phrase a “material change in circumstances”?

The requirement of materiality is frequently used by the law as a threshold
constraint or qualification. Sometimes materiality is used to invoke an obligation,
such as to disclose information. On other occasions it is used, as here, to confer a
right or benefit.
Materiality can only be assessed by reference to the thing to which it must be
material. Commonly, a fact, information or a circumstance will be assessed for its
materiality to a decision or approval.
An example of materiality to a decision is the information a patient must have in
deciding whether to give consent to a medical procedure. In defining the scope of
a medical practitioner’s duty of disclosure to their patient, the High Court
considered a risk was material if a reasonable person in the patient’s position
would be likely to attach significance to the risk in deciding whether to give
consent to the recommended procedure.[5]
[5] Rogers v Whitaker (1992) 175 CLR 479; at [631].
An example of materiality to an approval is the requirement to provide
information on an application for permanent residency. The Full Federal Court
determined a statement provided with an application will be false and misleading
in a material particular if the statement may affect the relevant decision.[6]
[6] Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 52.
Although s 537C has not been previously considered by the Court, a similar
provision in the Mineral Resources Act 1989, has been.[7] It employs the same
[7] Section 283B(1)(b).
threshold requirement of a material change in circumstances as a pre-condition to
reviewing compensation. In interpreting that provision, the Land Appeal Court
said:[8]
[8] ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 212 LGERA 342 at [44].
“It is enough to note that the condition is satisfied when there is a material
difference between the circumstances for the mining lease when the compensation was originally agreed or determined, and the circumstances for the mining lease at the date when the change is said to have occurred,
the change relating to circumstances relevant to the agreement about or
determination of compensation.” (emphasis added)
Under the PGPS Act[9] the tenure holder is liable to compensate the landowner for
[9] Petroleum and Gas (Production and Safety) Act 2004 s 532(1).
any compensatable effect[10] the landowner suffers that is caused by the authorised
[10] Ibid s 532(4).
activities. Adopting the same reasoning in interpreting s 537C, the change in
circumstance must be material to the agreement about or determination of
compensation for, any compensatable effect suffered by the landowner as a result
of the authorised activities.
That does not necessarily require a material change to the activities which are
authorised under the PLs. There could be a material change to the compensatable
effect of the authorised activities. For example, an increase in scale or intensity, a
change to the way the activity is conducted, or an unanticipated (or unauthorised)
impact of the activity might result in a material change to the compensatable effect
of the activity.
The focus on effect rather than activity means not every change in circumstance
that might be relevant to compensation will require review of the original
compensation. The requirement of materiality qualifies the degree of relevance.
Something is material if it is of significance or importance.[11] It must be of moment
[11]           4. often foll. by to important, essential, relevant: at the material time” Australian Oxford Dictionary
or of significance, not merely trivial or inconsequential.[12] If reliance is placed on a
[12]           Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 52.
change in amenity, the impacts must be more than minimal.[13]
[13]           Devon CC v Allens Caravans (Estates) Ltd (1962) 14 P&CR 440 at 441; East Barnet Urban DC v British Transport Commn [1962] 2 QB 484 at 490.
In determining whether there has been a material change in circumstances, then,
the Court must be satisfied of two things. Firstly, that the circumstances have
changed. Secondly, that the change is material. In this case, it must be material to
the agreement about compensation.

If there is a material change in circumstances, what is the scope of the review?

The second issue of interpretation relates to the Court’s function if it finds there
has been a material change in circumstances. That is governed by s 537C:

(3)

In carrying out the review, the Land Court may review the original compensation only to the extent it is affected by the change.

Original compensation is the compensation liability agreed to under a conduct and
compensation agreement or decided by the Court.[14] Compensation liability is the
[14] Petroleum and Gas (Production and Safety) Act 2004 s 537C(1).
liability of the petroleum authority holder to the landowner for the compensatable
effects[15] suffered by the landowner and caused by the authorised activities.[16]
[15] Defined in Petroleum and Gas (Production and Safety) Act 2004 s 532(4).
[16] Ibid ss 532(1) and (2).
Mr & Mrs Nothdurft seek a review of compensation to recognise the actual
impacts to date and future impacts of the CSG activities. During the hearing, their
agent, Mr Houen, submitted the Court would have to determine compensation
afresh on the changed circumstances. In his written submissions, he explained this
further. He submitted no method of review is mandated by the relevant
provision.[17] As the original compensation did not distinguish between different
[17] Mr Houen referred to s 101(3) which appears to be a reference to the equivalent provision of the Mineral and Energy Resource (Common Provisions) Act 2014, although the parties had agreed the review should be conducted pursuant to s 537C of the PGPSA. Nothing turns on this because the language used in the two sections is the same on this point.
heads of compensation, he submitted the Court should ascertain the “global”
compensation payable as if no agreement had been entered into and deduct the
original compensation to determine the value attributed to the change. If the
original compensation exceeds the Court’s determination, no change is made. If
the Court’s determination exceeds the original compensation, QGC must pay the
difference.[18]
[18] Applicants’ submissions filed 16 June 2017, at paras 75 to 82.
Mr Houen said that is consistent with the decision of the Land Appeal Court in
ERO Georgetown Gold Operations Pty Ltd v Henry.[19] He relied on a passage of
[19] ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4 at [44]; see applicants’
that judgment, part of which is set out above (at [25]). The quoted passage does
not support Mr Houen’s submission. The appeal in that case was against the
Member’s finding there had been a material change in circumstances, not about
the scope of the review. The passage Mr Houen relied upon explains how to assess
whether there has been a material change in circumstances. It did not address the
Member’s assessment of compensation. The Land Appeal Court did not need to
consider how the review should be undertaken.

[34]     Unless a contrary legislative intent is clear, statutes which provide for
compensation are ordinarily interpreted liberally.[20] They should not be construed
as subject to limitations or qualifications which are not found in the terms of the
statute.[21] In interpreting s 536C, the Court must prefer the interpretation that will
best achieve the purpose of the Act.[22] The purpose identified for the PGPS Act that
is most directly applicable to this matter is the purpose to facilitate and regulate
the carrying out of responsible petroleum activities… in a way that…appropriately
compensates owners or occupiers of land.[23]
[20]           Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd
[21]           Marshall v Director General Department of Transport (2001) 5 CLR 603 at 623.

[22] Petroleum and Gas (Production and Safety) Act 2004 s 14A(1).
[23] Ibid s 3(1)(h).

Section 537C imposes an express limitation on the Court’s function: to the extent
it is affected by the change. The limitation must serve some purpose. It must be
read with the purpose of appropriately compensating a landowner in mind.
However, Mr Houen’s submission gives it no meaning at all.
Section 537C, read as a whole, indicates the review is not an opportunity to
consider compensation afresh. It does not invite consideration of the
appropriateness of the original compensation, on the circumstances as they then
existed. On a fair reading of the entire section, the scope of the review is confined
by the compensatable effects of the material change. The limiting phrase used in s
537C(3) is reinforced by the further restriction imposed by s 537C(4). It prevents
the Court from carrying out or continuing with the review if it considers the
original compensation is not affected by the change.
I interpret s 537C(3) as meaning the Court is limited to considering whether
additional compensation should be awarded for the compensatable effects suffered
by the landholder which are caused by the material change in circumstances. That
requires the Court to identify the compensatable effects of the material change and
consider whether they justify compensation not already provided for.
That is consistent with the approach adopted by Member Smith in Henry v ERO
Georgetown Gold Operations.[24] As far as I have been able to determine, that is the
only case in which the Court reviewed compensation, albeit for a mining lease
under s 283B of the MRA. That provision does not include the same explicit
limitation as appears in s 537C of the PGPS Act. Nevertheless, Member PA Smith
determined what additional compensation had to be paid for the material change
in circumstances. His judgment does not contain any reasoning about the scope of
the review. Apparently there was no dispute about that. The valuer called by each
party conducted their assessments in the same way. They each identified an
amount of additional compensation for the effect of the landowner of the change in
circumstance. That makes sense.
[24] Henry v ERO Georgetown Gold Operations [2015] QLC 15.
Accordingly, if the Court finds there has been a material change in circumstances
it must identify the compensatable effect of that change and determine whether it
warrants additional compensation.

Has there been a material change in circumstances?

Mr & Mrs Nothdurft raised a number of circumstances which they claim to have
materially changed since the conduct and compensation agreement was reached.
At the beginning of the hearing, because of some preliminary argument about the
admissibility of some affidavit evidence filed by Mr & Mrs Nothdurft, Mr Houen
was asked to clarify what they said were the circumstances giving rise to a
material change in circumstances. Mr Houen’s response is an exhibit.[25] It
confirmed Mr & Mrs Nothdurft abandoned reliance on radiation emissions as a
circumstance.
[25] Ex 13.
However, in his written submissions, Mr Houen recast an important issue relating
to health impacts. That is addressed later in these reasons. In considering whether
there has been a material change in circumstances, then, I have adopted the
circumstances Mr Houen used in his submissions:[26]
[26] Applicants’ submissions filed 16 June 2017, at para 83.

 Non-compliance with noise limits
 Discontinuance of untreated CSG water supply
 Gases emitted
 Incorrect well locations
 Owners’ time and resources responding
 Dust - contamination of rainwater tanks
 Perceived health risks in living in or around this gasfield
 Need to relocate place of residence and relocate Western Downs Spreading and
Contracting office and depot

Non-compliance with noise limits

Mr & Mrs Nothdurft contend noise levels at their home are frequently and
substantially in breach of conditions of the EA. As a result, they say Bellara is no
longer suitable for residential use or for some aspects of their business. QGC
accepts there have been some noise exceedances, but deny they are as frequent or
substantial as Mr & Mrs Nothdurft allege. They also dispute the allegation that
noise renders the property unsuitable for residential or business use.

The noise conditions

Since at least 26 July 2011, the EA has contained noise conditions currently
numbered E7 to E10. Condition E7 prescribes noise limits depending on the time
of day and whether the noise is short, medium or long term. Condition E8 provides
for adjustments to the noise limits for noise that is tonal or impulsive. Condition
E9 allows QGC to enter into an Alternative Arrangements Agreement with
affected persons, such as Mr & Mrs Nothdurft, in which case the limits imposed
by E7 will not apply. Condition 10 imposes an additional limit for low frequency
noise. It applies regardless of the other conditions, including, it seems, E9. The
conditions are set out below:

Noise is commonly defined as unwanted sound that disrupts normal human
activities or diminishes the quality of the human environment. It is usually not
constant and can vary considerably over time. For this reason, noise levels are
expressed in terms of maximum noise levels, averages, and statistical measures
such as percentiles. Transient environmental noise sources, such as passing aircraft
or motor vehicles, produce noise which is usually of short duration. Stationary
sources such as urban freeways, transmission lines, transformers and substations,
and some commercial and industrial facilities can emit noise over a longer
period.[27]
[27] Department of Environment and Heritage Protection Noise Measurement Manual version 4.
A noise assessment involves examining the nature and characteristic of a noise. It
also considers the contributions of various noise sources. Contributions to noise
levels, other than the activity regulated, include ambient noise generated by a
mixture of natural sources, such as weather, insects and birds, and manmade
sources such as traffic and other business or industrial operations.[28]
[28] Ex 8-M at para 13.
An investigating officer responding to a noise complaint must gather basic
information relating to the complaint and noise source. This includes, but is not
limited to the following factors:[29]
[29] Department of Environment and Heritage Protection Noise Measurement Manual version 4, at p 9.

 the type of noise;
 the time the noise happens;
 a subjective assessment of the source noise (i.e. is the noise audible within
the complainant’s backyard and/or house; is the noise at a level that would
preclude sleep or prevent the complainant from enjoying the confines of
their own home; or impact upon the complainant’s ability to watch
television etc.);
 the duration of the noise;
 the frequency of the noise (both the tone/pitch and how often it occurs); and
 notes of any other noise that can be heard (i.e. extraneous noises and any
observation as to their relations in sound level (e.g. traffic noise is much
louder than the noise under investigation, or the noise under investigation
can be heard clearly over other noises etc.)).

The pertinent limits in this case relate to the night time noise levels and low
frequency noise at the Nothdurft home as a result of QGC’s activities. This
requires consideration of total sound and whether any exceedance can be attributed
to QGC’s activities.
There are two measures for noise between 10pm and 6am and both are “A”
weighted limits. An “A” weighting seeks to approximate the response of the
human ear.[30]
[30] Ex 8-M at para 19.
The first limit is LAeq,adj,15min. That is the measure of the constant sound level over a
15 minute period, adjusted if necessary for tonality and impulsiveness. The
constant sound level is the equivalent of the total sound energy to the time-varying
sound level measured over the same time period.[31]
[31] Ex 8-M at paras 26-27.
Adjustments for tonality or impulsiveness must be made in accordance with
condition E8. Tonality is when a sound produces a definite pitch sensation for a
listener. Examples of tonal sound include insects and whining or whistling
sounds.[32] Impulsive noise includes unwanted, almost instantaneous sharp sounds
such as clicks and pops. Examples are gunfire and explosions.[33]
[32] Ex 8-M at para 36.
[33] Ex 8-M at para 24.
The second limit is Max LpA,15 mins. That measures the highest noise level during a
15 minute period.[34]
[34] Ex 8-M at para 30.
The low frequency noise limit is not conditional on time of day or night. It
contains a number of criteria for measurement. Low frequency noise occurs in the
10Hz to 200Hz frequency range. Natural sources of low frequency noise are wind,
the sea and thunder. It is considered more annoying indoors, more audible at night
and may have a throbbing or rumbly characteristic.[35]
[35] Ex 8-M at para 29.

Mr Nothdurft’s evidence about noise

Mr Nothdurft alleged frequent exceedances of noise limits based on his own
measurements of noise. He said he had become experienced in noise
measurement.[36] He produced various complaint forms which refer to noise
measurements he had taken with what he described as a level 2 sound level
meter.[37] He also produced several video clips of his noise measurements in
action.[38]
[36]           Ex 1-C at para 12.2.
[37]           Ex 1-C20 is an example.
[38]           Ex 1-C at para 12.2.
For the purposes of assessing compliance with noise requirements, the Department
of Environment and Heritage Protection requires noise levels to be measured in
accordance with its Noise Measurement Manual and with the Australian Standard
AS1055 Acoustics – Description and measurement of environmental noise.[39]
[39] Department of Environment and Heritage Protection Noise Measurement Manual version 4, at p 23.
The discussion of the conditions and the process of assessing noise demonstrates,
although it could hardly be disputed, that noise measurement requires specialised
knowledge. Mr Nothdurft is neither trained nor qualified in measuring or assessing
noise.
Although DEHP accepted Mr Nothdurft’s readings as a basis for his complaints, it
did not accept them as evidence the noise conditions were exceeded, for
enforcement purposes.[40] At the hearing, QGC called evidence from Ms Gillian
Adams, a scientist with specialist training whose expertise and independence was
unchallenged. DEHP accepts her as an independent suitably qualified person to
audit QGC’s compliance with EA conditions.[41]
[40] Ex 9-P2 at p 5.
[41] That is a requirement of an Environmental Protection Order issued to QGC by DEHP on 26 September 2016 (and revised on 8 November that year).
Ms Adams watched Mr Nothdurft’s videos and considered them indicative at best
and not in accordance with applicable noise measurement practices and
methodologies. She said it takes skill and professional experience to undertake the
detailed analysis required to remove extraneous noise such as insects and to
determine the noise contribution of particular sources, in this case QGC’s plant.
She raised questions about the calibration, including field calibration, of the meter used by Mr Nothdurft. She questioned whether a wind sock was used to limit
extraneous wind noise on the microphone. She concluded Mr Nothdurft’s videos
are not reliable evidence of the issues and of nil assistance in confirming QGC’s
plant noise impacts.[42]
[42] Ex 8-M at paras 112-116.
There is evidence that contradicts complaints made by Mr Nothdurft based on his
own readings. For example, some of QGC’s noise monitoring coincided with dates
on which Mr Nothdurft reported to DEHP that noise exceeded the EA limits. On
26 August 2015 and 27 October 2016, QGC provided DEHP with tables of its
measurements on the dates complaints were made. QGC’s results and analysis
were contrary to Mr Nothdurft’s assertions.[43] In their correspondence with DEHP,
QGC raised possible explanations for the difference between Mr Nothdurft’s
readings and their analysis. These included the issues raised by Ms Adams. Mr
Nothdurft acknowledged insect noise could be heard in one of the recordings. He
also acknowledged he has no expertise to identify which particular noise sources
contribute to overall noise levels.[44]
[43] Ex 7-I28 at pp 1499-1503; 1628-1633.
[44] T 1-87, lines 29-32; Ex 1-C at para 14.1.
Further, DEHP investigated a complaint made by Mr Nothdurft on 26 August
2016 and, having regard to QGC’s monitoring, concluded there was no evidence
of non-compliance with the EA limits.[45]
[45] Ex 7-I27 at p 1616.
Mr Nothdurft was not able to meet the challenges made to the reliability of his
readings. Mr & Mrs Nothdurft called no expert evidence to substantiate his
evidence. In the circumstances I place no weight on his evidence about noise
measurements. I will, of course, consider his evidence about how the noise
intruded or disturbed him and his family.

QGC monitoring

QGC undertook noise monitoring over numerous periods from August 2014 to
April 2017. It did both attended and unattended noise monitoring. Attended noise
monitoring has its obvious meaning. Unattended noise monitoring occurs over a period and involves audio recording and data collected from a noise logging
machine and weather station.[46]
[46] Ex 3-I at para 72.
QGC has provided reports of its monitoring dating back to July 2015. The reports
certify compliance with noise measurement standards.[47] QGC also provided
source data for its monitoring over periods since 28 August 2014. [48]
[47] Ex 5 at pp 642, 646, 704, 750, 799; Ex 7 at p 1606, Ex 10-R2 at p 1916.
[48] Ex 3-I at para 72c; Ex4-I17; Ex 8-L at para 8(f); Ex8-L3.
Mr Houen submitted the measured noise does not represent the noise to be
expected for normal operations or peak output operations, because the reports do
not reveal the operational status of wells and infrastructure during the monitoring.
In response to that argument, QGC provided comprehensive information about the
historic and operational status of relevant infrastructure.
Mr Houen does not appear to have analysed that data. Yet he invited serious
inferences about QGC’s conduct and Ms Adams’ professionalism. He submitted
Ms Adams’ action in disregarding the noise and compliance implications of
operational status data for wells within the Residence buffer raises an issue
regarding her Instructions.[49] This suggests that QGC had manipulated both its
monitoring and Ms Adams’ evidence and that Ms Adams was unprofessional in
disregarding relevant information. He laid no foundation for the attack on either.
QGC’s closing submissions include a detailed analysis of the information.[50] Mr
Houen did not respond to that at all.
[49] Applicants’ submissions filed 16 June 2017, at para 58.
[50] Respondent’s closing submissions filed 16 June 2017, at paras 179-205.
Mr Houen is a lay advocate and is not subject to the ethical standards which apply
to legal professionals. Nevertheless, he is a paid agent for a party to proceedings
and the Court expects honesty and candour from all representatives. It also expects
that representatives will not maintain allegations about a party’s conduct or an
expert witness’s independence and professionalism, without some basis for doing
so.
QGC also answered other criticisms made about Ms Adams’ reports, which Mr
Houen has not responded to. In the absence of any alternative analysis, I accept
QGC’s analysis and submissions about the operating conditions and the
circumstances in which Ms Adams undertook her investigations.
I find QGC did not make any significant alterations to the operation of the
infrastructure on or near the property during periods of noise monitoring compared
with other time periods. I accept Ms Adams’ evidence about compliance with
noise conditions for the periods she investigated and reported on.
This brings me to another submission by Mr Houen which is an example of, at
best, poor analysis of the evidence and, at worst, an attempt to misrepresent it to
the Court. Mr Houen submitted 16 of the 23 noise monitoring reports before the
Court identified exceedances of the night time noise limit.[51] Regrettably, his
analysis is inaccurate in some respects and is misleading overall. Numerous
reports overlap, so that more than one report deals with the same period of
monitoring. Mr Houen’s use of reports, rather than instances of exceedances,
creates a false impression.
[51] Applicants’ submissions filed 16 June 2017, at para 21.
His submissions about the noise monitoring evidence suggest he did not give due
consideration to it. That is surprising. Noise impacts are critical to Mr & Mrs
Nothdurft’s case that they must relocate their home and aspects of their business.
In the circumstances, I have placed no reliance on Mr Houen’s assertions about the
effect of the evidence about compliance with noise limits.

DEHP enforcement action

DEHP issued two Penalty Infringement Notices fining QGC $11,385 on each
occasion for contravention of a noise condition. Both were issued on 4 February
2016: one for an infringement on 9 April 2015; the other for infringement between
27 and 28 June 2015.[52]
[52] Ex 9-P2 at pp 47-48.
In addition to those exceedances, there is evidence of noise exceedances in other
periods in 2015 (8 to 23 April and 11 June to 6 July) and 2016 (12-13 July and 6
October to 6 November).[53] Again, without reproducing the detail, I accept QGC’s
submissions about the results of their monitoring which is helpfully summarised in
a detailed table referenced back to the original source of the information.[54] QGC’s
close analysis of the reports and its correspondence with DEHP demonstrates the
difficulty in analysing monitoring data, particularly in adjusting results for ambient
conditions and attributing noise to particular sources.
[53] This evidence is further explored at [89] of these reasons.
[54] Respondent’s closing submissions filed 16 June 2017, at para 152.
The evidence does not establish that exceedances were frequent and substantially
in breach of the EA. Nevertheless, it does show there was a basis for Mr & Mrs
Nothdurft’ complains about night time noise in 2015 and 2016.
The evidence also establishes QGC took this issue seriously.
On 7 January 2016, DEHP approved a Transitional Environmental Program in
response to QGC’s proposal to bring its activities into compliance at the Nothdurft
home.[55] The TEP detailed modifications of HPUs and separators at 17 well sites
and two HPVs.[56] It required QGC to implement interim noise abatement measures
if directed. QGC was also required to monitor compliance with condition E7 and
report on its activities and monitoring results every two months. On 22 August
2016, QGC submitted to DEHP a final report pursuant to the TEP.[57] On 26
September 2016, DEHP notified QGC that it considered that QGC had satisfied all
of the requirements pertaining to the TEP based on the completion of the program
on 20 September 2016.[58]
[55]           Ex 7-I28 at pp 1530-1541.
[56]           These are summarised in the Respondent’s closing submissions filed 16 June 2017, at para 156.
[57]           Ex 7-I28 at pp 1598-1615.
[58]           Ex 7-I28 at p 1622.

On the same day, DEHP issued an Environmental Protection Order to QGC,[59]
which it revised on 8 November 2016.[60] This required ongoing monitoring,
reporting and independent auditing of noise measurements at the Nothdurft home.
Ms Adams was engaged to undertake this work for QGC and gave evidence about
her findings at the hearing.
[59] Ex 7- I28 at pp 1623-1627.
[60] Ex 7-I28 at pp 1657-1663.
I reject Mr Houen’s submission that QGC has not shown that the actual incidence
of non-compliance has reduced.[61] The evidence is to the contrary.
[61] Applicants’ submissions filed 16 June 2017, at para 28a.
Ms Adams conducted both attended and unattended monitoring in November and
December 2016. She conducted site visits to familiarise herself with the QGC
noise generating activities. She also undertook a detailed analysis of the non-
attended measurement data to identify and determine the QGC plant noise
contribution at the Nothdruft home. She assessed that plant noise contribution
against the relevant EA conditions.
Ms Adams’ key findings, which I accept, are set out below:[62]
[62] Ex 8M.

“a.

The Kenya Central Processing Plant is the dominant plant noise source from the QGC operations in the vicinity of the Nothdurft residence.

b.

The overall component CPP noise levels ranged from 23 to 30 dBA at the Nothdurft residence.

c.

The CPP noise levels at the Nothdurft residence were shown to comply with the daytime and evening criteria of 40 and 35 dBA respectively, as detailed in the Environmental Authority.

d.

With respect to the night period between 10pm and 6 am as detailed in the EA:

i. The EA nominates a night time limit of 28 dBA LAeq,adj,
15min

ii.

During four periods of attended monitoring at the property during night time hours I identified one period (ie between 10:00 am and 2:30 am on 25/11/16) where the QGC CPP plant noise exceeded 28 dBA. The QGC CPP was clearly audible and identifiable based on direction of the sound and was measured using a hand held sound level meter at 30.0 dBA.

iii.

The exceedance period referred to above was 8 minutes and therefore is not strictly comparable to the 28 dBA 15 minute criteria in the EA. However in my opinion the CPP plant noise is likely to exceed the criterion for periods of more than 15 minutes under some conditions.

iv.

Conditions which would provide the opportunity for the CPP noise to exceed the 28 dBA 15 minute criterion at the Nothdurft residence include low background noise, calm or low wind speeds, the house being located downwind of CPP under light wind or temperature inversion conditions.

v.

Although I believe the LAeq,adj, 15 min 28 dBA criterion may be exceeded, in the absence of significant long term data (both noise and meteorological data) I cannot provide further commence on the severity, frequency or duration of the potential exceedance.

vi.

In addition to attended monitoring I undertook unattended noise monitoring for a period of seven days ( ie the period of 30/11/16 to 7/12/16).

vii.

From the assessment of the week long logging data I identified on the night of 3/12/16 and the early morning hours of the 4/12/16 a plant noise contribution was analysed as 27 to 28 dBA. Although these levels are seemingly compliant with the 28 dBA criterion there was a clearly measured tonal component to the noise at the 90Hz which is not characteristic of the CPP noise measurements undertaken by myself to date. Due to the tonal nature of the plant noise a 5dBA tonal correction is required under the EA (Condition E8), where it can be identified as QGC plant, providing a noise contribution of 32 to 33 dBA. This would exceed the 28 dBA criterion. However as discussed in this report I cannot say that the plant noise is attributable to the QGC CPP due to the unusual 90 Hz tonal component. I reserve my right to review my conclusions or provide a supplementary report after further investigation and upon receipt of further information from QGC.

viii.

The assessment of my measurements provided no instances of QGC plant noise related exceedances of the EA Condition E10 60 dBC criterion.

ix.

In my opinion I do not believe the overall site cannot be used for residential purpose.

x.

I believe a house structure could attenuate the measured noise levels to comply with the EA, EPP (Noise) policy and World Health Organisation internal levels. However, without undertaking internal measurements in the Nothdurft residence I cannot confirm if the existing timber residential structure would provide for the
nominated internal noise levels to be met.”

As to low frequency noise, Ms Adams concluded there was no evidence of non-
compliance with condition 10 of the EA. Although she had not been inside the
home, she referred to a DEHP measurement taken internally on 12 July 2016
which was compliant.[63] They recorded results well below the indoor level
recommended by the World Health Organisation.[64] Ms Adams concluded the
Nothdurft home is suitable for human habitation.[65]
[63]           Ex 10-Q at para 21.
[64]           Ex 10-Q at paras 24 and 41.
[65]           Ex 10-Q at para 43.
There was no substantial challenge to Ms Adams’ evidence despite the evidence
that during periods of noise monitoring earlier this year,[66] potential non-
compliance occurred for one night in January and one night in March.[67]
[66] 11-18 January, 22-28 February and 1-9 March 2017.
[67] Respondent’s closing submissions filed 16 June 2017, at para 178.

Can QGC comply now and in the future?

Mr & Mrs Nothdurft allege that QGC cannot comply with noise conditions under
normal operations and that, in the future, there will be further noise exceedances.
To the extent that argument is based on the operational status of QGC’s plant, I
have already addressed that topic.
Mr Houen relied on QGC’s attempt to negotiate an Alternative Arrangement
Agreement with Mr & Mrs Nothdurft as evidence it cannot comply with noise
limits in the future.[68]
[68] Ex 7-I28 at p 1540.
The EA allows such arrangements to be negotiated. QGC proposed to resolve
noise impacts on the Nothdurft home by modifying the home itself to attenuate the
noise. Mr & Mrs Nothdurft rejected that option, as they were entitled to do. I draw
no adverse inference about them because of that.
Likewise, I draw no inference about QGC’s ability to meet its noise conditions
because it made that proposal. It is hardly surprising QGC would seek the simplest
and cheapest method of dealing with the issue. The alternative was to make further
modifications to its plant or operations. That is what QGC has done and continues
to do.
In 2014, QGC modified the hydraulic pressure units on well sites near Bellara.[69]
Under the TEP in 2016, QGC installed a modified design for HPUs and modified
the whistling separators at some well sites.[70] It also installed silencers at some
HPVs.[71] DEHP accepted this work satisfied the TEP requirements of the TEP.[72]
This year, QGC committed to installing a 230m long and 15m high noise barrier
for the Kenya CPP, using shipping containers. Ms Adams identified the Kenya
CPP as the dominant plant noise source from QGC’s activities near the
Nothdurfts’ home. The target date for completion is 16 October 2017.[73]
[69]           Ex 5 at p 1050; ex 7 at pp 1490 and 1516.
[70]           Ex 7-I28 at p 1602; 32mm chamfered restriction orifcers were installed at 141 wellsites in the
[71]           Ex 7-I28 p 1603; there was installation of the HPV silencers at HPV 003, 005, 005-1 and 005-2.
[72]           Ex 7-I28 at p 1622; statement of agreed facts and issues filed on 22 May 2017, at para 24.
[73]           Ex 10-R at paras 8-9; ex 10-R3; ex 10-BB.
I accept the unchallenged evidence from Ms Tan, for QGC, that it will not restart
wells or carry out any other activity in the proximity of Bellara unless first satisfied by noise testing and modelling that the EA limits will not be exceeded.[74]
QGC’s record of engagement with DEHP about noise provides the Court with
some confidence about that. I also observe that the EPO is still in effect and DEHP
can be expected to remain vigilant about this issue. QGC is required to conduct 11
months of monitoring this year with the report due in October 2017.[75]
[74] Ex 3-I at para 78.
[75] T 3-13, lines 40-45.

Conclusions about noise

In conclusion, the evidence establishes the Nothdurft family had an ongoing
concern about noise at their home at night. Disturbance by an uninvited activity on
the family’s property, particularly where the disturbance occurs during the night in
their home, would be a significant consideration in determining compensation.
The parties have conducted the case on the assumption that the original
compensation assumed the noise conditions would be met.
Since 2014, QGC has monitored noise over several periods. Many of Mr
Nothdurft’s complaints are contrary to QGC’s records. I have placed no weight on
Mr Nothdurft’s recordings which are unreliable for various reasons and record
total noise, not necessarily the noise from QGC’s activities. QGC has undertaken
various steps to reduce noise impacts at night. I accept it is now able to and is
complying with its noise conditions in nearly all respects.
I do not accept noise exceedances were frequent or substantially above the EA
conditions. Nevertheless, over a period of some three years, there is evidence of
the following exceedances:

(a)

The evidence suggests there were exceedances in 2015 during the months of April,[76] June and July.[77] The April report indicates that out of a total of 104 night time monitoring hours, exceedance[78] occurred seven times.[79] The June/July report demonstrates 11 days of exceedance[80] over a 26 day monitoring period.81 On 23 June QGC took subsequent steps to shut in a number of wellsites resulting in a clear reduction in noise levels.[82]

(b)

In 2016 there were exceedances[83] in July,[84] October and November.[85] On 1-2 July 2016, noise levels of between 29 and 31 dB(A) were recorded between midnight and 6am. On the evening of 2-3 July 2016, noise levels exceeded 28 dB(A) and ranged up to 31 dB(A) between 10:45pm and 11:15pm. On 12 July, there was an exceedance of between 4 dB(A) to 7 dB(A) beyond the 28 dB(A) limit. In October and November there were 4, 15 minute periods of exceedance recorded.[86] Each of these exceedances were between 1 and 2 dB(A) over the noise limit.

(c)

The 2017 monitoring indicated there was an exceedance on 27 April 2017.[87] During this exceedance component noise levels from Kenya CPP were estimated to range between 29-31 dB(A) Leq,15min,adj. This was mainly due to downwind conditions enhancing noise from the CPP.
[76]           Occurred on 8-23 April 2015.
[77]           Occurred on 11 June – 6 July 2015.
[78]           Exceedance of the 28dB (A) Leq,15 min,adj EA noise limit.
[79]           Ex 5-I24 p 645-702.
[80]           Exceedance noise levels ranged between 29 and 31 dB(A).
[82]           Ex 5-I24 p 804.
[83]           Each exceedance was between 1 and 2 dB(A) over the noise limit.
[84]           Occurred on 12-13 July 2016.
[85]           Occurred on 6 October – 6 November 2016.
[86]           Out of a total of 1024 15 minute periods.
[87]           Occurred between 1:45am and 5:15 am.

There has not been continuous monitoring at the Nothdurft home. It is reasonable
to infer that these were not the only occasions on which the family experienced
unauthorised noise as a result of QGC’s activities. I find Mr & Mrs Nothdurft
experienced noise from QGC’s activities in excess of authorised limits in their
home at night on an irregular but ongoing basis from early 2015. This is an
increase in amenity impacts which amounts to a material change in circumstances.
However, noise impacts do not currently render Bellara uninhabitable. There is no
evidence Mr & Mrs Nothdurft must relocate any part of their business because of
noise. I am not persuaded the experience of noise will worsen in the future. Later
in the reasons I will consider whether the material change in the amenity impacts,
which is largely in the past, should result in an amendment to the original
compensation.

Discontinuance of untreated CSG water supply

Mr & Mrs Nothdurft allege a material change in circumstances arising from the
cessation of access to untreated CSG water. Under the Compensation Agreement,
QGC gave Mr & Mrs Nothdurft access to untreated CSG water stored on or piped
across their property. It is common ground that Mr and Mrs Nothdurft’s access to
untreated CSG water ceased in 2010 as a result of regulatory changes which included a CSG Water Management Policy 2010 issued by the Queensland
Government.[88]
[88] This was replaced by a 2012 version of the policy which is Ex 1-C9.
Mr & Mrs Nothdurft’s rights under the Compensation Agreement were not
unconditional. The water could be used only for stock purposes. Further, Mr
Nothdurft accepted QGC made no representation or warranty about water quality,
accepted it was his responsibility to ensure it could be used for stock purposes and
discharged and indemnified QGC in relation to his use of the water.[89]
[89] Ex 1-C2 at cl 16; Ex 1-C2 at p 9.
The prospect of unlimited access to untreated CSG water, if it was or could be
made suitable for stock use, would have significance or importance to a
landholder’s decision about what compensation should be paid, particularly for a
property which is a dry land property.[90]
[90] A property that is dependent on rainfall.
It is clear that access to water has changed since the Compensation Agreement was
entered into.
However that change cannot be considered in isolation from other significant
developments. Since December 2011, Mr & Mrs Nothdurft have had access to an
annual allocation of 100 ML of treated CSG water, under a take or pay agreement
with SunWater Limited, which operates the Chinchilla Beneficial Use Scheme.
Under that scheme, QGC uses its Kenya Water Treatment Plant to treat water
drawn from wells on Bellara and other properties in the vicinity. SunWater pipes
the treated water to the Chinchilla Weir for town supply and irrigation. The
pipeline traverses Bellara and other properties. The Nothdurft’s agreement with
SunWater is compensation for the pipeline easement.[91]
[91] CSG Water Supply Agreement between Mr & Mrs Nothdurft and SunWater dated 23 December 2011.
QGC argue that either the change is not material or that it should not result in
amended compensation, because Mr & Mrs Nothdurft now have access to treated
CSG water which is of better quality and can be used for irrigation as well as stock
watering.
I accept the change in access to water is material because it has significance to a
dry land property. Whether that should lead to any amendment of the original
compensation is addressed later in these reasons.

Gases emitted

QGC’s EA prohibits it from causing an environmental nuisance at a sensitive
place (which includes a home) by releasing any airborne contaminant.[92] In his
statement, Mr Nothdurft said fugitive gases are released from high point vents
(HPVs) and other gasfield installations and this constitutes an environmental
nuisance. The expert evidence does not support this assertion.
[92] Ex 11-AA, condition E1.
Responding to a complaint by Mr Nothdurft about constant venting from one of
the HPVs, Senior Inspector Ali Jarrahi (an officer with the Department of Natural
Resources and Mines) inspected the HPV on 12 February 2016. He concluded
there was no safety risk. He tested the area around and adjacent to the HPV with a
GMI Gas Surveyor 500 to identify any imminent safety risk of
explosive/flammable gasses (Methane). The monitor detected 74% methane in the
air immediately above the HPV outlet but not in the surrounding area. Because
methane has a light molecular weight relative to air, methane gas is buoyant,
travels upward and disperses rapidly. He also used a GMI PS200 personal gas
monitor to test for methane, hydrogen sulphide and carbon monoxide. That
monitor did not detect the presence of any of those gases in the surrounding area.[93]
[93] Ex 1-C16.
In further response to Mr & Mrs Nothdurft’s concerns about ambient air quality,[94]
DNRM investigated and prepared a report called the Argyle Air Monitoring
Report dated 16 September 2016.[95] Ambient air monitoring and coal seam gas
HPV sampling was undertaken at the Argyle gasfield and compared with the
results of monitoring at various semi-rural and urban locations. Those tests
occurred in stages between May and August 2016. Some testing involved HPVs
close to Mr & Mrs Nothdurft’s home.[96]
[94]           T 1-67 lines, 14 to 18 and 43 to 44.
[95]           Ex 7-I31 at pp 1750-1751.
[96]           The testing locations included ARG_HPV003; ARG_HPV004N and ARG_HPV005.
Sampling results showed all components analysed from ambient air samples were
below the minimum detection limit. Components n-octane and n-decane were
detected above the ambient air guidelines in the HPV samples. However, they are
samples taken direct from the emission source and it is expected that chemical
components will be identified there. These samples were reported to provide
context for the reader as it is expected that ambient air samples will contain lower
concentrations than those present in the source.[97]
[97] Ex 7-I31 at p 1751.
Despite these reports, which were not challenged, Mr Houen relied on Mr
Nothdurft’s lay evidence about gas emissions. I accept that Mr Nothdurft gave
evidence about what he perceived but his evidence did not prove to be reliable. For
example, he said there were about 10 large gas flares within a 2.5km radius of
their home.[98] The agreed statement of facts, however, records the parties’
agreement there are only three permanent locations within a 10km radius. Further,
there was no challenge to Ms Tan’s evidence that flares burn only rarely at these
locations and that temporary flares on gathering lines occur infrequently
(approximately once a year) and last no more than a week.[99] Mr Nothdurft also
said there are four HPVs located 80m to the southwest and another one 120m to
the northeast of their home.[100] In fact they are much further away, as is
demonstrated by an aerial photograph which shows both the home and the HPVs
that Mr Nothdurft referred to.[101]
[98]           Ex 1-C at para 15.1.
[99]           Ex 3-I at para 64.
[100]         Ex 1-C at para 15.3.
[101]         Ex 4-I18.
Mr Nothdurft said he had tested fugitive gas emissions at the property at 80%
methane. He said others (not identified) assisted with testing (no details of what,
when or where) using appropriate equipment (not identified).[102] I place no reliance
on that evidence.
[102] Ex 1-C at para 15.4.
Mr Nothdurft also said the extent of the nuisance was being investigated through
independent testing.[103] Two rounds of sampling were undertaken for Mr & Mrs
Nothdurft by Gary Hall, an employee of Air Noise Environment: between 20 April and 19 May 2016 and between 19 May and 8 June 2016.[104] During a review in
November 2016, Mr Houen informed the Court the testing did not establish any
exceedance for fugitive gases.[105]
[103]         Ex 1-C at para 22.1(d).
[104]         Ex 11-V, Statutory Declaration of Gary Hall.
[105]         Ex 11-W; T 1-19, lines 14 to 18.
In his written submissions, though, Mr Houen submitted the fact that the
monitoring (conducted by their expert) did not find evidence of gas concentrations
does not necessarily mean they do not exist.[106] If that is intended to infer there is a
problem with ambient air quality at the Nothdurft’s home, that submission should
be rejected. This is not a case of absence of evidence, as Mr Houen’s submission
suggests. There is unchallenged expert evidence before the Court that is contrary
to Mr Nothdurft’s assertion.
[106] Applicants’ reply submissions filed 30 June 2017, at para 25.

Mr Houen also relied on an extract from the National Pollutant Inventory
Website[107] which reports annual emissions of various substances from the Kenya
CPP. The extract relates to 2015/2016 and Mr Houen particularly noted the data
on formaldehyde.
[107] Ex 27.
He submitted a hypothetical prudent purchaser would:[108]
“be influenced by knowledge that the Property is a short distance from, and
at times downwind of, a source where high volumes of various harmful gases, including as at the latest report 80,000kg/year of formaldehyde, are
emitted. As a result of these matters, the value of the Applicants’ land is
[108] Applicants’ reply submissions filed 30 June 2017, at para 27.
less than it otherwise would be if the gases were not present”.
There are a number of difficulties with that submission. Firstly, these are largely
airpoint readings: that is they are taken at the source of the emission. Certainly the
reading for formaldehyde is. The expert evidence addressed ambient conditions in
the vicinity of HPVs, including some close to the Nothdurft home.
Secondly, the impact of emissions on market value is only relevant if Mr & Mrs
Nothdurft establish a material change in circumstances arising from those
emissions. There is no evidence QGC is causing an environmental nuisance at the
Nothdurft home, rather the evidence is to the contrary. Mr & Mrs Nothdurft have
not established there has been a material change in circumstances arising from gas
emissions.

Incorrect well locations

There are seven wells on Bellara. One, Argyle 12, was constructed under the first
compensation agreement. QGC undertook to locate it at least 600m from Mr &
Mrs Nothdurft’s home. Although Mr Nothdurft said it is 470m109 from the edge of
the house yard, he accepted that it is 604m110 from the house itself. In any case, it
seems the claim about Argyle 12 is no longer maintained as Mr Houen only made
submissions about the location of the six wells constructed under the second
compensation agreement.[111]
[111] Applicants’ submissions filed 16 June 2017, at para 83d.
The location for those wells was agreed between Mr Robson, for QGC, and Mr
Nothdurft during a walk over of the property in 2005. Mr Nothdurft said the
locations were chosen with the aim of minimising disturbance to land use,
cropping and grazing activities. White pegs were placed at the agreed locations.[112]
Mr Robson carried a hand held GPS and recorded the co-ordinate points for each
peg.[113]
[112] Ex 1-C at para 7.2.
[113] Ex 1-C at para 7.1; Ex 1-C4.
In his submissions, Mr Houen maintained that three wells, called Argyle 18, 27
and 21 are not in the agreed locations. Another well, Argyle 22 (formerly called
Argyle 136) was moved by agreement reached between Mr Rickson, for QGC, and
Mr Nothdurft. For that change, QGC paid Mr & Mrs Nothdurft an additional
$4,000.[114] Mr Houen submitted a further $4,000 should be paid for each of the
other three wells.
[114] T 1-63, lines 35 to 40.
QGC provided a map which illustrated the actual location of the wells (marked
with a red dot) and Mr Robson’s GPS coordinates for the wells (marked with a
yellow dot).[115] That map was not challenged during the hearing. It is reasonable to
infer from it that there was a problem with Mr Robson’s GPS co-ordinates. How
that occurred is not important. The map shows all six wells are in fact located at a
different point to the place indicated by Mr Robson’s GPS co-ordinates. For two
of the wells, Mr Robson’s co-ordinates place them south of Bellara’s southern
boundary.[116] It is improbable Mr Nothdurft would have agreed to peg locations off
his own property. During evidence, he said he did not.[117]
[115]         Ex 4-I14.
[116]         Argyle 19 (formerly 135) and Argyle 20 (formerly 138).
[117]         T 1-64, lines 18 to 19.
Even accepting the three wells were constructed at different locations to those
agreed, Mr & Mrs Nothdurft must establish the different locations represent a
material change in circumstance. Mr Houen submitted the effect was to disturb
improved pasture land rather than undeveloped scrub land.[118] It is not clear what
evidence he relied on in making that submission. The aerial image on which the
actual and proposed well locations were mapped shows that for all three wells the
actual locations are within what appears to be undeveloped scrub land.
[118] Applicants’ submissions filed 16 June 2017, at para 83d.
The only specific evidence of impact arising from a different location for any of
the three wells relates to Argyle 27 (formerly Argyle 129). Mr Nothdurft said
QGC breached an undertaking Mr Robson gave to stay away from an eagle’s nest
tree. He said the nest was abandoned by about 2015 and attributed that at least
partly to disturbance because of that well.[119] Assuming Mr Nothdurft’s belief
about that is well founded, it is not clear how that can constitute a material change
in circumstances. Compensation is paid for the compensatable effects of QGC’s
activities. No link was drawn between disturbance of the nest and the
compensatable effects of QGC’s activities on Mr & Mrs Nothdurft.
[119] Ex 1-C at paras 7.3, 7.7 and 7.8.
In conclusion on this issue, I am not satisfied that any of the three wells
complained of are located differently than actually agreed between Mr Robson and
Mr Nothdurft. Even if I am wrong about that, Mr & Mrs Nothdurft have not shown
that any change in location amounts to a material change in circumstances.

Owners’ time and resources responding

Mr Nothdurft says there has been an excessive, ongoing draw on his time and
resources devoted to dealing with disputes. Mr Nothdurft’s statement links this
directly to concerns about noise.[120] The evidence before the Court shows that both
parties have spent considerable time and other resources in dealing with that issue.
I have already found that there has been a material change in circumstances in relation to noise. Any amendment of the original compensation flowing from that
finding will also take into account the consequential impacts of having to devote
time to raising and responding to noise in excess of authorised limits.

Dust – contamination of rainwater tanks

[120] Ex 1-C at paras 18.1 to 19.3.

This issue relates to dust from vehicle movements on Noel Robinson Road, a
mainly gravel road which runs north/south adjacent to the western boundary of
Bellara, in close proximity to the home.[121] The road provides access to an
industrial quarry/camp known as Ostwald’s Quarry. The entrance to Ostwald’s
Quarry is 650m to the south of the home, where Noel Robinson Road intersects
with the Kogan Condamine Road. Aside from the Kogan Condamine Road, Noel
Robinson Road does not provide access to any other public road.
[121] Ex MH-1 and Ex MH-2 to the affidavit of Malcolm Barry Hellmuth, sworn 18 November 2016.
Noel Robinson Road also provides access to several rural properties, including
Bellara, and including rural properties on which QCLNG Project infrastructure is
located. It is no longer an access road for either the Kenya CPP or Kenya FCS.[122]
[122] Ex 8-J at para 16; T 1-69, line 5.
Mr & Mrs Nothdurft allege the Respondents’ operations have contaminated their
rainwater tank as a result of:

(a) severe dust created by QGC-related traffic travelling along Noel Robinson Road, which has collected on the Applicants' roof and
deposited into the Applicants’ rainwater tanks; and

(b) the road dust containing harmful heavy metals as a result of QGC using CSG water for dust suppression purposes.

It is clear that if dust was a problem in the past, it no longer is. QGC accepts that
about 20 vehicles a day pass the Nothdurft home on this road, although it estimates
that only 60% relates to traffic from QGC or their contractors.[123] Mr Nothdurft
said dust settled down when construction ended in about 2012.[124] That is also
when QGC funded the upgrade to bitumen seal 300m of road near the entrance to
Bellara.[125]
[123]         Ex 8-J at paras 20-25 and 33–37.
[124]         T 1-71, lines 1 to 10.
[125]         Ex 8-J11.
As to the past, QGC put the traffic on the road at its peak between 2007 and
2012.[126] Mr Nothdurft said there was a lot of dust during the construction phase.[127]
I accept that this is an amenity impact that could constitute a material change in
circumstances. It is difficult to determine whether there is a material change in
circumstances, though, because of the lack of evidence about dust during the
relevant period. Mr Nothdurft said he made many complaints.[128] However, the
only documented complaint about dust that he produced was made in October
2015.[129] That is well after the relevant period.
[126]         Ex 8-J at para 19.
[127]         T 1-70, lines 15 to 21.
[128]         Ex 1-C at para 17.4.
[129]         Ex 1-C20.
Further, the real complaint appears to be contamination of drinking water, not
amenity impacts of dust. In his statement, Mr Nothdurft said QGC used untreated
CSG water for dust suppression.[130] During evidence, he conceded he did not know
where water used for dust suppression came from.[131]
[130] Ex 1-C at para 17.3.
[131] T 1-70, lines 34 to 45.
QGC denies it used untreated CSG water for dust suppression and submitted there
is no evidence the Nothdurfts’ rainwater tank was contaminated. It led evidence
about its practices and procedures since 2012. I accept use of untreated CSG water
for dust suppression since 2012 would either be prohibited or only allowed with an
internal approval and subject to water quality. [132] However, there is no evidence
from QGC about its practices prior to 2012. That is the period that Mr & Mrs
Nothdurft were most concerned about.
[132] Ex 3-I at paras 84, 86 and 87; Ex 7-I32 at pp 1771, 1773 and 1775.
Mr Houen submitted there is strong circumstantial evidence (which he did not
identify) showing the Applicants’ domestic rainwater tanks were sampled and
found to be heavily contaminated with metals etc.[133] The only potential basis for
that submission is a brief hearsay account by Dr McCarron of tests said to have
been done by someone else. That evidence from Dr McCarron was excluded on
objection by QGC at the beginning of the hearing. Mr & Mrs Nothdurft did not
lead any evidence from a person who had sampled or tested the water. Mr Houen did not seek time to secure such evidence. There is no explanation for why that
was not done.
[133] Applicants’ submissions filed 16 June 2017, at para 83f.
This is an issue on which there is an absence of evidence. Mr Houen’s submission
about contamination about the rainwater tank has no foundation in the evidence
and I reject it. I find there is no material change in circumstances arising from dust
contamination of the rainwater tank.

Perceived health risks inherent in living in or around this gasfield

Mr & Mrs Nothdurft’s position in relation to ill health shifted during the course of
proceedings.
Initially, it seemed that they were alleging that they and their children suffer ill-
health as a result of excessive noise and fugitive gas emissions and that
represented a material change in circumstances. I have already given my finding
that there is no evidence of fugitive gas emissions affecting the Nothdurft home. In
any case, in his written submissions, Mr Houen recast this issue as one of
perceived risk that affects market value, not an actual impact on the health of any
member of the Nothdurft family.
That shift is consistent with the forensic decisions taken by Mr Houen, presumably
on instructions from his client, not to pursue that allegation. During pre-trial
preparation for the hearing, it appeared Mr & Mrs Nothdurft did intend to call
expert evidence about their health. Their compensation materials included an
affidavit of Dr McCarron which contained, amongst other things, a record of some
symptoms she observed in the Nothdurft family and her opinion about the cause of
those symptoms. QGC objected to these passages from Dr McCarron’s evidence
because Mr Houen had informed the Court during pre-trial directions hearings that
she would not be relied upon as an expert. Had QGC been advised otherwise, they
would have sought to have the family independently examined so Dr McCarron’s
evidence could be tested.
However, Mr Houen repeatedly and expressly maintained Dr McCarron was not
called as an expert on any topic, a stance he reiterated on the morning the hearing
commenced.[134]
[134] T 1-11, lines 10 to 15.
Upon QGC’s objection to Dr McCarron’s affidavit at the commencement of the
hearing, I allowed only limited passages of her affidavit[135] which went to her
survey of individuals about their perceptions of the effect of CSG activities on
their health. That is because Mr Houen advised the Court that her evidence was
relevant to the Nothdurft’s argument that the value of their land was diminished by
the petroleum tenure, because of a widespread perception of increased health risks.
He confirmed Dr McCarron’s affidavit was not relied on to demonstrate the
perceptions of risk were well founded. Mr Houen’s insistence that Dr McCarron
was not called as an expert was inconsistent with his argument the Court should
accept her opinion about the health of the Nothdurft family.
[135] Paragraphs relied upon were 1-8, 11-13 and Ex D1.
As I have already observed, Mr Houen is not a lawyer. In this jurisdiction, the
parties have the right to be represented by an agent who is not legally qualified.[136]
Some latitude was given to Mr Houen and I endeavoured to ensure he understood
the implications of his decisions and that he held instructions in relation to them.
[136] Land Court Act s 24.
In giving reasons on QGC’s objection to Dr McCarron’s affidavit, I observed that
those passages expressing an opinion about the health of any member of the
Nothdurft family would have to be excluded if she was not relied upon as an
expert. I also observed that if Mr Houen wanted to change the position he had
earlier announced, he could make that application.[137] Mr & Mrs Nothdurft were
given an opportunity to lead further evidence about health impacts and they did so,
in a very limited way.
[137] T 1-30, lines 15 to 45.
It seems that Mr & Mrs Nothdurft made an informed choice not to lead expert
evidence of health symptoms, diagnosis or possible cause. Ultimately, the only
evidence to support the initial allegation came through Mr Nothdurft. He said he
and his family suffered severe ill health as a result of the CSG activities. He can
say what he personally experienced and I would accept his description of symptoms he said he observed in other members of the family. He is not qualified
to diagnose any particular condition or express an opinion about the cause of any
symptoms.
Mr Nothdurft also gave evidence of his children consulting a paediatrician in
NSW. Mr Houen did not seek leave to call evidence from the specialist himself.
That may be because he could say little of any value. Mr Nothdurft said the
specialist said the environment could not be ruled out,[138] although it is not clear
what the specialist observed or diagnosed in the children.
[138] T 1-76, lines 1 to 13.
Mr Houen’s submissions clarified that the issue maintained by Mr & Mrs
Nothdurft relates to perceived health risks, not actual health impacts. In those
circumstances, it is unnecessary to make a finding about actual health impacts. I
observe, however, that if Mr & Mrs Nothdurft had maintained their initial
allegation, I would not have found in their favour. On the evidence before the
Court there is no basis for making the serious finding that any member of the
Nothdurft family suffers health impacts attributable to QGC’s activities.[139]
[139] In this regard I accept the submissions made about that evidence by QGC in its submissions, filed on 16 June 2017, at paras 209-216.
Returning to perceived health risks, I accept perceptions can affect market value
and, in determining compensation that may be relevant. However, Mr & Mrs
Nothdurft must establish there is a material change in circumstances. That must
mean actual circumstances, not perceptions about them. I fail to see how a
perception, without foundation in fact, can constitute a material change in
circumstances.

Need to relocate their place of residence and relocate Western Downs Spreading and

Contracting office and depot

This issue rests on other allegations. Central to Mr & Mrs Nothdurft’s valuation
evidence is the proposition they have to relocate their home and some aspect of
their business because of noise exceedances and gas emissions. I have already
explained my findings about both these issues. There is no evidence gas emissions
are creating a nuisance at the Nothdurft home. While there have been noise
exceedances over time, I find the home is not rendered uninhabitable. There is no evidence that the business needs to be relocated. I am not satisfied that situation is
likely to change in the future.
Given those findings, I am not satisfied there is a need to relocate the home and
business as alleged.
I am comforted in that conclusion by Mr Nothdurft’s own assertions about the
property – not to the Court but to potential purchasers. He listed Bellara for sale on
Gumtree towards the end of 2015. Initially, he listed it for sale at $3.5 million, but
in early 2016 he increased it to about $4 million. Mr Nothdurft said he was testing
the market to see what it was worth in preparation for negotiations with QGC, as
he had proposed they buy them out. In his advertisement, Mr Nothdurft described
Bellara as ideal for bed and breakfast.[140] That description belies his allegation
they must relocate home and business because of the impact of QGC’s activities.
[140] T 1-72, lines 5 to 15.

Can or should the Court amend the compensation agreed by the parties?

I have found there have been material changes in circumstances due to the
cessation of access to untreated CSG water and because of some exceedance of
noise conditions. Whether the original compensation should be amended as a
result of those changes depends on the compensatable effects of the changed
circumstances.
The term compensatable effect is defined in s 532(4):
compensatable effect means all or any of the following—

(a) all or any of the following relating to the eligible claimant’s land—

(i) deprivation of possession of its surface;
(ii) diminution of its value;

(iii)

diminution of the use made or that may be made of the land or any improvement on it;

(iv)

severance of any part of the land from other parts of the land or from other land that the eligible claimant owns;

(v)

any cost, damage or loss arising from the carrying out of activities under the petroleum authority on the land;

(b)

accounting, legal or valuation costs the claimant necessarily and reasonably incurs to negotiate or prepare a conduct and compensation agreement, other than the costs of a person facilitating an ADR;
Examples of negotiation—
an ADR or conference

(c)

consequential damages the eligible claimant incurs because of a matter mentioned in paragraph (a) or (b).

Change in circumstances relating to access to untreated CSG water

Mr & Mrs Nothdurft no longer have access to untreated CSG water. They did not
have unconditional rights or unrestricted access to untreated CSG water under the
Compensation Agreement. The water could only be used for stock purposes and Mr
& Mrs Nothdurft accepted that was at their, not QGC’s, risk.

In deciding whether the original compensation should be amended, the Court must
assess the compensatable effects of QGC’s activities given the change about access
to water.
Since December 2011, Mr & Mrs Nothdurft have had an annual allocation of 100
ML of treated CSG water from the Chinchilla Beneficial Use Scheme. Mr Nothdurft
said the water taken under its agreement with SunWater is better quality than the
water it could access under the Compensation Agreement.[141] That stands to reason.
The treated water is suitable for a range of purposes, including irrigation and
domestic purposes. Mr & Mrs Nothdurft now irrigate paddocks for cropping and
grow feed for sale as well for feeding their own stock.[142] They could not have done
that under the Compensation Agreement, which limited them to using the water for
stock purposes.
[141] T 1-58, lines 25 to 35.
[142] T 1-60, lines 5 to 40.
Secure access to water has a beneficial impact on the value of a rural property. Mr
Jinks, the valuer engaged by Mr & Mrs Nothdurft, gave some inconsistent evidence
about this. During oral evidence, he said the value of the property would not be
materially different if the owners did not have access to the SunWater pipeline.[143]
That is inconsistent with statements in his first and third reports which indicate the
importance of water to his assessment.[144] In any case, ultimately Mr Jinks reverted
to his original position that water was important to his assessment and materially
affects value.[145] That is simply a matter of common sense.
[143]         T 3-38, line 15 to T 3-39, line 15.
[144]         Ex 3-E at pp 4, 7, 9; ex 9-O at para 5.10.
[145]         T 3-49, line 25 to T 3-50, line 40.
Mr & Mrs Nothdurft say their water supply agreement with SunWater is entirely
separate from the Compensation Agreement and is not surrogate compensation for
the impacts of QGC’s activities on their property. However, the compensatable
effect of the change in circumstances must be assessed in context. The Court cannot
ignore the fact that Mr & Mrs Nothdurft now have access to treated CSG water as a
result of QGC’s activities. It was common ground the Chinchilla Beneficial Use
Scheme would not exist without QGC’s activities on Bellara and other properties.[146]
[146] T 1-58, lines 5 to 25.
There is no evidence any compensatable effect of QGC’s activities has worsened
because Mr & Mrs Nothdurft no longer have access to untreated CSG water under
the Compensation Agreement.
Given that finding, it is not necessary to amend the original compensation as a result
of the cessation of access to that water.

Change in circumstances relating to exceedances of noise conditions

There has been a material change of circumstances relating to the amenity impacts
of noise on the Nothdurft home. Mr Jinks assumed Mr & Mrs Nothdurft must
relocate both their home and some aspects of their business because of QGC’s
activities. I have found to the contrary. This renders Mr Jinks’ evidence largely
irrelevant. These reasons do not address, therefore, the multiplicity of issues which
are predicated on the assumption Mr & Mrs Nothdurft must relocate home and
business. That includes any issues about the costs of locating an alternative
residence and business address; any additional business operating costs; and
whether Mr Jinks’ assessment involves duplication or overcompensation.
The impact of noise on the amenity of a home can diminish its value, which is a
compensatable effect. However, there is scant evidence from either Mr Jinks or Mr
Rabbitt that would allow the Court to determine the diminution of value of the
increased amenity impacts on the home. Further, I have found that those are largely
in the past, not current and enduring, impacts. That makes an assessment based on
land value problematic.
Mr Houen made no suggestions about how the Court could approach the review on
the findings I have made. QGC submitted the Court should approach this like a
claim for damages for nuisance and award a reasonable amount to fairly
compensate Mr & Mrs Nothdurft in light of the character, duration and frequency
of the noise exceedances.[147]
[147] Respondent’s closing submissions filed 16 June 2017, at para 251.
I accept that is a reasonable approach to adopt in the circumstances. That renders a
number of other issues irrelevant, including the different approaches adopted by the
two valuers in determining the value of Bellara without any material change in
circumstance.
QGC submitted there is no evidence to justify an award of more than $55,000. That
is the cost of noise attenuation modifications to the home. QGC made an
unqualified offer of that amount.[148] I accept that is the starting point. I will include
an allowance for Mr Nothdurft’s time in raising and responding to noise impacts. In
the absence of any other basis, I will allow an additional 10%, bringing the award to
$60,500.
[148] Ex 8-L2.
As a check, I refer to some evidence from Mr Rabbitt, the valuer engaged by QGC.
I asked him to identify the difference in the value of the property assuming a
compliant QGC activity and one which is non-compliant. He said:
“It might be somewhere between 810,000 and 650 or 700 thousand. So
there’s either another 100 or 150 in there”.[149]
[149] T 3-35, line 6.
$810,000 was his assessment of the value of Bellara, with a compliant activity. The
further reduction to between $650,000 or $700,000 applied a further discount on
value of about 15%. As his assessment included the benefit of the property being
well watered, I asked him to put aside any consideration of water. His assessment
assumed all of the other material changes in circumstances alleged by Mr & Mrs
Nothdurft, including the allegation that noise exceedances were frequent and
substantial.
The only change in circumstances which I have found to be both material, and to
require the original compensation to be reviewed, is noise impacts, and then not to
the full extent alleged. Accordingly, an award of $100,000 to $150,000 would be
overly generous. That range was a rough estimate by Mr Rabbit doing the best he
could to assist the Court with limited evidence on which to base his assessment.[150] Nevertheless, it provides some assurance an award of $60,500 is adequate on the
evidence.

Observations about Mr Jinks’ evidence

[150] Mr Jinks appears to have agreed with Mr Rabbit on this point: T 3-37, lines 5 to 45.

Before concluding, I should make some brief observations about Mr Jinks’
evidence. Counsel for QGC mounted a substantial attack on Mr Jinks’
methodology. It has not been necessary for me to deal with the many arguments he
made because Mr Jinks’ evidence was irrelevant given I made contrary findings to
his underlying assumptions.

[160]     However, counsel also submitted that Mr Jinks’ fundamentally failed to
comprehend, and comply with, his duty and role as an independent expert giving
evidence before the Court.[151] I regret to say that there is some foundation for that
[151]         Respondent’s closing submissions filed 16 June 2017, at para 231.
submission. Although Mr Jinks regularly gives evidence in this Court,[152] he appears
[152]         T 3-15, lines 15 to 40.
to have difficulty in assisting the Court and at times appears to stray into advocacy.
I noted that during the hearing.[153] This is something an expert must be vigilant
[153]         T 3-40, lines 15 to 25.
about. The Court of Appeal has recently discussed the role of the expert witness and
helpfully stated the following:[154]
[154]         Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127 per Sofronoff P at [90].
“Experts occupy a special position as witnesses. With irrelevant exceptions,
no other witness can give opinion evidence. An expert’s opinion often,
perhaps usually, relates to disciplines that are unfamiliar to a judge hearing a case. Consequently, unlike the position of a witness of fact whose duty is merely to answer questions in a responsive way, an expert has a duty positively to assist the Court. This duty may require a level of candour and voluntary disclosure on the part of an expert that might involve prejudicing the case of the party that called the expert. Nevertheless, the duty to the Court, that is to say the duty to assist the Court in finding the truth of the
matter, overrides any obligations owed to the party who pays the expert’s
fees”.

Ultimately, a Court will always prefer the evidence of a witness who is independent
and who demonstrates they understand and are willing to fulfil their function of
assisting the Court on matters within their expertise. If this case had come down to a
choice between the evidence of Mr Jinks and that of Mr Rabbitt, there would have
been no contest. Mr Rabbitt demonstrated both his independence and his
willingness to assist the Court where he could properly do so.

ORDERS

I order:
1. QGC Pty Limited, BG International Limited, Australia Pacific LNG Pty Limited, CNOOC Coal Seam Gas Company Pty Ltd and Tokyo Gas QCLNG Pty Ltd must pay Mr Allan James Nothdurft & Mrs Narelle Angela Nothdurft an additional $60,500 by way of compensation.
If any party wishes to be heard in relation to costs, they must advise the Court in
writing within 14 days, failing which I will make no order as to costs.

FY KINGHAM
PRESIDENT OF THE LAND COURT

Act 2014.

2nd ed; “13. of substantial import or much consequence.14. Law (of evidence, etc.) likely to influence
the determination of a cause.” Macquarie Online Dictionary.
submissions filed 16 June 2017, at para 80.
(1947) 74 CLR 358, Dixon J (as he then was) at 373-374.
vicinity of the Nothdurft’s dwelling.

Ex 5-I24 p 804.

T 1-61, lines 27 to 30.
Ex 4-16.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Nothdurft & Anor v QGC Pty Limited & Ors [2017] QLC
41
PARTIES:	Allan James Nothdurft and Narelle Angela Nothdurft
(applicants)
v
QGC Pty Limited and BG International Limited and Australia Pacific LNG Pty Limited and CNOOC Coal Seam Gas Company Pty Ltd and Tokyo Gas QCLNG Pty Ltd
(respondents)
FILE NO/s:	PGP114-16
DIVISION:	General division
PROCEEDING:	Application to review compensation
DELIVERED ON:	18 August 2017
DELIVERED AT:	Brisbane
HEARD ON:	22, 23, 24 May 2017
Final submissions 30 June 2017
HEARD AT:	Brisbane
PRESIDENT:	FY Kingham
ORDER/S:	QGC Pty Limited, BG International Limited, Australia Pacific LNG Pty Limited, CNOOC Coal Seam Gas Company Pty Ltd and Tokyo Gas QCLNG Pty Ltd must pay Mr Allan James Nothdurft & Mrs Narelle Angela Nothdurft an additional $60,500 by way of
compensation.
CATCHWORDS:	ENVIRONMENT AND RESOURCES –
COMPENSATION – REVIEW – where the applicants sought to review compensation – meaning of material change in circumstances – whether alleged changes in circumstances are proved – whether proved changes in circumstances are material – where cessation of access to
untreated CSG water found not to be a material change in
circumstances because of access to treated CSG water –
where irregular but ongoing minor exceedances of the night time noise limit was found to be a material change in circumstances
ENVIRONMENT AND RESOURCES – COMPENSATION – REVIEW – scope of review – where
applicant submitted the review should determine
compensation afresh on the changed circumstances – where
the respondent submitted the review is limited to compensation for the compensatable effects of the material
change in circumstances – where the review was conducted
on the basis submitted for by the respondent
Acts Interpretation Act 1954 s 4, s 14A(1), s 20(2) Land Court Act s 24 Mineral Resources Act 1989 s 283B(1)(b)
Petroleum and Gas (Production and Safety) Act 2004
s 3(1)(h), s 120, s 532(1), s 532(2), s 532(4), s 536C, s 537C(1)
Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, considered
Commissioner of Succession Duties (SA) v Executor Trustee
and Agency Co of South Australia Ltd (1947) 74 CLR 358, applied Devon CC v Allens Caravans (Estates) Ltd (1962) 14 P&CR 440, followed East Barnet Urban DC v British Transport Commn [1962] 2 QB 484, followed ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 212 LGERA 342, followed
Marshall v Director General Department of Transport
(2001) 5 CLR 603, applied
Minister for Immigration, Local Government and Ethnic
Affairs v Dela Cruz (1992) 34 FCR 348, followed
Rogers v Whitaker (1992) 175 CLR 479, followed
APPEARANCES:	G Houen agent, Land Holder Services Pty Ltd, for the applicant DG Clothier QC, and SB Hooper of counsel, instructed by
Corrs Chambers Westgarth, for the respondent

(a)	What is the meaning of the phrase a material change in circumstances?
(b)	Assuming there is a material change, what is the scope of the review?

	Has there been a material change in circumstances?
	Can or should the Court amend the compensation agreed by the parties?

	Non-compliance with noise limits
	Discontinuance of untreated CSG water supply
	Gases emitted
	Incorrect well locations
	Owners’ time and resources responding
	Dust - contamination of rainwater tanks
	Perceived health risks in living in or around this gasfield
	Need to relocate place of residence and relocate Western Downs Spreading and
Contracting office and depot

	the type of noise;
	the time the noise happens;
	a subjective assessment of the source noise (i.e. is the noise audible within
the complainant’s backyard and/or house; is the noise at a level that would
preclude sleep or prevent the complainant from enjoying the confines of
their own home; or impact upon the complainant’s ability to watch
television etc.);
	the duration of the noise;
	the frequency of the noise (both the tone/pitch and how often it occurs); and
	notes of any other noise that can be heard (i.e. extraneous noises and any
observation as to their relations in sound level (e.g. traffic noise is much
louder than the noise under investigation, or the noise under investigation
can be heard clearly over other noises etc.)).

(a)	The evidence suggests there were exceedances in 2015 during the months of April,[76] June and July.[77] The April report indicates that out of a total of 104 night time monitoring hours, exceedance[78] occurred seven times.[79] The June/July report demonstrates 11 days of exceedance[80] over a 26 day monitoring period.81 On 23 June QGC took subsequent steps to shut in a number of wellsites resulting in a clear reduction in noise levels.[82]
(b)	In 2016 there were exceedances[83] in July,[84] October and November.[85] On 1-2 July 2016, noise levels of between 29 and 31 dB(A) were recorded between midnight and 6am. On the evening of 2-3 July 2016, noise levels exceeded 28 dB(A) and ranged up to 31 dB(A) between 10:45pm and 11:15pm. On 12 July, there was an exceedance of between 4 dB(A) to 7 dB(A) beyond the 28 dB(A) limit. In October and November there were 4, 15 minute periods of exceedance recorded.[86] Each of these exceedances were between 1 and 2 dB(A) over the noise limit.
(c)	The 2017 monitoring indicated there was an exceedance on 27 April 2017.[87] During this exceedance component noise levels from Kenya CPP were estimated to range between 29-31 dB(A) Leq,15min,adj. This was mainly due to downwind conditions enhancing noise from the CPP.