Reed v Chief Executive, Department of Natural Resources and Mines
[2014] QLC 6
•11 February 2014
LAND COURT OF QUEENSLAND
CITATION:Reed v Department of Natural Resources and Mines & Ors (No. 2) [2014] QLC 6
PARTIES:Garry Arthur Reed
(appellant)
v
Chief Executive, Department of Natural Resources and Mines
(first respondent)
and
QCoal Sonoma Pty Ltd,
CSE Sonoma Pty Ltd,
JS Sonoma Pty Ltd and
Watami (Qld) Pty Ltd
(second respondents)
FILE NO:WAA114-13
DIVISION:General Division
PROCEEDING: Appeal under the Water Act 2000
DELIVERED ON: 11 February 2014
DELIVERED AT: Brisbane
HEARD ON: 8, 9 and 10 January 2014
HEARD AT:Brisbane
MEMBER:WA Isdale
ORDERS:1. The appeal is dismissed.
2.The review decision is confirmed.
3.Any application for costs is to be filed and served within 15 business days of the publication of these reasons and any reply is to be filed and served within 15 business days of any such application.
CATCHWORDS: Appeal against review decision ― water licence
Water Act 2000, ss 210, 211, 880, 882
Environmental Protection Act 1994
APPEARANCES: D Yarrow instructed by p&e Law for the appellant
AJ MacSporran and DA Silvester instructed by Crown Solicitor for the first respondent
MF Johnston instructed by McCullough Robertson for the second respondents
Background
In QCoal Sonoma Pty Ltd (Principal Holder) & Ors v Garry Reed & Ors [2012] QLC 50 this Court considered an amendment application to a draft environmental authority under the Environmental Protection Act 1994. In the present proceedings under the Water Act 2000 (the Act) the appellant is appealing a reviewer’s decision dated 25 February 2013 substantially upholding a decision to permit the diversion of Coral Creek so as to allow coal mining where the creek was naturally located, near Collinsville.
Coral Creek is an ephemeral creek that flows into Pelican Creek in the catchment of the Burdekin River. The existing reach of the creek proposed to be diverted is about 1,280 m. It will instead run in a proposed diversion channel 1,503 m long. The diversion has been designed to withstand an Annual Recurrence Interval (ARI) 100 year flow event and can accommodate a 25,000 year ARI flow. The diversion is designed to minimise the amount of earthworks required and is to be aligned with a straight stretch of Coral Creek to reduce erosion. The greater length of the diversion, with its bed slope 0.02% less than the existing reach of Coral Creek, is planned to reduce flow velocity and the potential for erosion.[1]
[1] Ex 8 Affidavit of Ross Wayne Krebs, maker of the review decision appealed against.
The appeal
The grounds of appeal are set out in the Further Amended Grounds of Appeal in the following terms:
1. The review decision granting the licence to vary the course of Coral Creek should be set aside because:
(a)the second respondents’ hydraulic modelling is unreliable in that it is not based on empirical data, or the application of scientifically adequate modelling techniques;
(b)in the absence of reliable hydraulic modelling:
(i) the Court cannot be satisfied that the interference with the flow of water under the proposed licence is consistent with the purpose of chapter 2 of the Water Act 2000 (Qld) as set out in subsection 10(1); and
(ii) no evidence is available to the Court to determine the full extent to which the interference with the flow of water under the proposed licence will interfere with natural ecosystems or the physical integrity of the watercourses;
(iii) the Court cannot be satisfied that the application should be granted.
2. In the alternative, the following conditions of the licence determined by the review decision should be amended:
(a)Condition 1 of the licence is lacking in certainty and finality in that it:
(i) Does not clearly articulate the scope of interference with the flow of Coral Creek;
(ii) Does not authorise the interference with the flow of Coral Creek for cutoff dams and that part of Coral Creek that is to be closed up.
(b)Condition 1 should be reformulated as a condition:
(i) Capable of certain application; and
(ii) Which describes the whole of the interference proposed for Coral Creek.
(c)Conditions 2 and 3 of the license are lacking in certainty and finality in that they are not capable of prescriptive application.
(d)Conditions 2 and 3 should be reformulated as conditions which are capable of certain application.
The appellant withdrew reliance on paragraphs (c) and (d) of Ground 2 of his Further Amended Notice of Appeal when the appeal was heard.
In the appellant’s particulars dated 15 November 2013 the amendment which the appellant seeks to condition 1 is stated to be to the effect that:
The interference with flow authorised by this water licence is the interference with the flow of water within the existing course of Coral Creek that is reasonably necessary for the construction and operation of the diversion described in the construction drawings set out in Appendix D of the report entitled “Design of Coral Creek Diversion” Brisbane Stormwater Management Pty Ltd dated May 2011 and Appendix G of the report entitled “Design of Coral Creek Diversion Addendum Report” prepared by Brisbane Stormwater Management Pty Ltd and dated 18 November 2011.
The orders sought by the appellant are:
1. That the appeal be allowed.
2. That the review decision granting the licence to vary the course of Coral Creek should be set aside.
3. In the alternative, condition 1 of the licence determined by the review decision be amended.
The nature of the appeal
Section 880(2) of the Act provides that the appeal is by way of rehearing, unaffected by the reviewer’s decision. The Court is to decide the case for itself as if it were the decision maker.
The Court’s powers on appeal
Section 882(1) provides that in deciding the appeal this Court may:
“(a)confirm the review decision; or
(b)set aside the review decision; or
(c)amend the review decision in the way the court considers appropriate; or
(d)send the matter back to the reviewer and give the directions the court considers appropriate; or
(e)set aside the review decision and substitute it with a decision the court considers appropriate.”
The parties agree that the Act current as at 2 January 2014 is the correct version for the purpose of this appeal.
The orders sought by the respondents
All respondents contend that the appeal should be dismissed and the review decision confirmed. The cases for both respondents coincide.
The criteria applicable
The Act, by s 808(2), makes it an offence to interfere with water to which the Act applies unless there is an authorisation to do so. The criteria to be applied in deciding whether to grant or refuse an application for authority such as is in issue here are set out in s 210 of the Act, which provides, so far as is presently relevant:
“In deciding whether to grant or refuse the application or the conditions for the water licence, the chief executive must consider the following—
(a) the application and additional information given in relation to the application;
(b) if notice of the application has been published—all properly made submissions made about the application;
(c) any water resource plan, resource operations plan and wild river declaration that may apply to the licence;
(d) existing water entitlements and authorities to take or interfere with water;
(e) any information about the effects of taking, or interfering with, water on natural ecosystems;
(f) any information about the effects of taking, or interfering with, water on the physical integrity of watercourses, lakes, springs or aquifers;
(g) strategies and policies for the sustainable management of water in the area to which the application relates;
(h) the sustainable resource management strategies and policies for the catchment, including any relevant coastal zone and regional aquifer systems;
(i) the public interest.”
The appellant placed particular reliance on items (e), (f) and (g).
It was not in dispute that the Court is required to apply the Act to the material before the decision maker as supplemented by evidence presented at the hearing of the appeal. The 2,565 page affidavit of the original decision maker is before the Court as exhibit 7 and the 286 page affidavit of the maker of the review decision is exhibit 8. It is from that review decision that this appeal is brought. Although supporting the original decision, the decision on review added an amended condition for monitoring the performance of the diversion by way of an additional requirement, the third dot point, in clause 4(b) which governs the performance report. The relevant portion of the review decision is in the following form:
“Reasons for the internal review decision
Having regard to the material and findings referred to above including the investigation and decision making with regard to the original application. I have decided that the amending of this authority, through an amended Schedule B condition 4 should proceed.
The decision to strengthen the Schedule B condition 4 relating to performance monitoring evaluation and adaptive management has been influenced by the additional evidence presented in the more recently provided submissions. These submissions more comprehensively deal with matters around groundwater, hydraulic and geomorphic conditions. Schedule B condition 4, as amended, places additional obligations on the licensee in terms of performance monitoring and reporting relating to geomorphic and hydrogeological conditions.
The amended conditions (Schedule B condition 4) is as follows:
4. a) The licensee is required to monitor the performance of the diversion by way of a performance report prepared by a registered professional engineer (RPEQ) and informed by advice from suitably qualified professionals in regard to geomorphic and hydrogeological conditions at the following times:
·April of each year; and
·any time alarming, unusual or otherwise unsatisfactory conditions are observed.
Monitoring of the works must include recommendations as per ACARP Project C9068 ‘Monitoring and Evaluation Program for Bowen Basin River Diversions’. Two (2) hard copies and an electronic copy shall be furnished to the Chief Executive by the 30 June each year.
b) The performance report must detail the following:
·The performance of the works by way of comparison with the design report, approved plans and specifications;
·Surveys to identify and quantify any changes to the channel bed and permanent corridor width subjected to settlement;
·A review of the results of the annual program of groundwater monitoring activities including assessment of groundwater levels and quality data and the suitability of the monitoring network;
·Detail any remedial works to be undertaken including a timetable for completion of proposed works; and
·Any recommendations on measures to be taken to ensure the physical integrity of the works.
In addition I am satisfied with and concur with the findings of the original decision maker that:
◦The licence applicant holds a mining lease and environmental authority that permit mining of the resource beneath Coral Creek
◦The granting of this licence is necessary for the ongoing operation of the Sonoma Mine
◦The design has been undertaken to replicate the characteristics of the natural watercourse and there is no evidence to suggest that the diversion should not develop to be a natural feature with the landscape
◦That the diversion should not have a significant long-term impact upon:
·the physical integrity of the watercourse;
·the entitlement of existing licensees, permittees and riparian landowners; and
·the sustainable management of the local water and associated natural ecosystems; and
◦On balance it is considered that the public interest will be served by the granting of this licence.”[2]
[2] Ex 8 p 27-28.
By s 211 of the Act, if the chief executive is satisfied, having applied the criteria in s 210, that the application should be granted, in whole or in part, it must be granted, with or without conditions. If not so satisfied, the chief executive must refuse the application.
The guideline
A departmental guideline “Watercourse Diversions – Central Queensland Mining Industry” found at page 283 and onwards of exhibit 7, is in existence. It is expressed to be used when, inter alia, assessing applications by mining companies for authorisations for watercourse diversions. It was not suggested by any party that the Court should do other than apply this guideline. Indeed, its terms were of some importance to the case put for the appellant. The purpose of the guideline is expressed to be to summarise the design criteria against which applications will be assessed as well as to direct attention to the information required to accompany applications for authorisation to divert watercourses. It notes that in the Bowen Basin, coal deposits frequently extend beneath creeks and rivers and that diverting those streams may be a viable option where it can be adequately managed. The guideline notes that in the past, diversions were often engineered to suit short term needs and that physical and environmental problems required a longer-term view. The guideline states that:
“In granting approvals for the diversion of watercourses the Department is attempting to achieve a diversion structure that appears and functions as a natural feature in the landscape largely indistinguishable from the pre-existing natural watercourse.”
The guideline goes on to relevantly provide:
“Planning
Planning of a watercourse diversion should not be undertaken in isolation and consideration has to be given to all aspects of the mine development plan. Once the requirement to divert has been clearly established planning should proceed along the following lines:
• Determine the preferred location for the diversion taking into consideration topography, geology, location in relation to mine infrastructure and sterilisation of possible reserves;
• Complete hydraulic modelling of the existing natural watercourse to determine the hydraulic needs of the proposed diversion such that it operates in dynamic equilibrium indistinguishable from the existing natural watercourse; [emphasis added]
• Develop and evaluate options for the proposed diversion within the constraints of the hydraulic and environmental parameters demonstrated by the existing natural watercourse;
• Determine the preferred option and prepare the conceptual design;
• It is recommended that the conceptual design is submitted to DERM for review and consultation before proceeding with detailed engineering design;
• Prepare the detailed design including construction drawings based on the conceptual design;
• Make application for a licence to interfere with flow and associated development permit for the works based on the conceptual and detailed design;
• Other external issues may be identified from submissions through the public notification process which may result in a requirement for changes to the design;
• Any commitments under an approved EMOS, EMP or Plan of Operations for the mine site that has been used to support the application for an environmental authority issued under the Environmental Protection Act 1994, will also need to be considered when planning a diversion.The foregoing steps will enable detailed consideration of the authorisation applications by DERM. Each step of the planning process is considered in more detail below.
Location of diversion
The following matters need to be considered in relation to the location of the diversion during the planning stage:
• The diversion should be located wholly within the area covered by the mine lease or land under the ownership of the mine owner/operator;
• Location of the diversion in relation to other mine infrastructure and the constraints this may impose on the route of the diversion;
• Topography constraints which may dictate the route of a diversion;
• Geology of the preferred route of the diversion including soils and how this will impact on the design to achieve a state of dynamic equilibrium.Given the nature of channels to develop meanders over time, any diversion constructed in erodible materials should be located within a corridor of suitable width to accommodate anticipated future movements. Therefore spoil, stockpiles, rehabilitation, etc should be suitably located outside this corridor.
Consideration should be given to a comparison of aerial photography of the watercourse to be diverted to assess the relative stability of the existing natural channel.
Hydrology and geomorphology
A typical stream has natural features that develop through geomorphologic processes. It is possible to mimic these natural stream characteristics (meanders, channel profiles, cross sections, riffles, vegetation, etc) to provide an environment where these conditions can continue to develop at a rate consistent with the natural watercourse. This is referred to as ‘dynamic equilibrium’. Similar features should be designed into the diversion channel in order to obtain a similar dynamic equilibrium to that displayed by the natural watercourse.The engineering design of a stream diversion should be based on the results of hydraulic modelling and should include consideration of the following factors:
• The channel capacity must be at least equivalent to the natural stream channel capacity existing in that vicinity;
• The length of the channel should be nearly the equivalent length of the watercourse it replaces or some form of stable energy dissipater must be incorporated;
• The diversion channel must exhibit features similar to the natural existing watercourse such as meanders, terraces, benches, etc;
• Assessment of the stability and erosion characteristics of the diversion design;
• The capacity of the floodplain to deal with out of channel flows;
• Potential hydraulic and geomorphic impacts of the diversion channel on the adjoining natural reaches of the watercourse both upstream and downstream of the diversion.Hydraulic modelling of the watercourse should be undertaken to determine the peak discharges for the 2, 5, 10, 20, 50 and 100 year Annual Recurrence Interval (ARI) flow events. The peak discharges derived should be used to develop channel geometry design that aims to provide flow velocities, stream power and shear stresses within the parameters outlined in Table 1 below. If these parameters cannot be accommodated within the design, consideration should be given to construction of the diversion and establishment of vegetation before flows are directed into the diversion. In some cases this may require construction of the diversion a year or two before actually needed.
The ACARP project ‘Bowen Basin River Diversions – Design and Rehabilitation Criteria, July 2002’ established a range of stream powers, velocities and shear stresses that are considered to be the upper range for natural Bowen Basin watercourses. Consideration must be given to these upper limits (Table 1) when undertaking the design of a diversion.
Table 1 Scenario Stream
Power
(Watts/metre²
)Velocity
(Metres/secon
d)Shear Stress
(Newtons/metre²
)2 year ARI
(no
vegetation)<35
<1.0
<40
2 year ARI
(vegetated)<60
<1.5
<40
50 year ARI <220
<2.5
<80
ARI – Annual Recurrence Interval
Design of the diversion
Any application under the Water Act2000 for a Licence to Interfere for a diversion and any associated application for operational works made under the Sustainable Planning Act 2009 should be accompanied by reports giving full details of the proposed interference. The submitted information should also include a detailed design report for all works involved with the diversion and details of the proposed monitoring and evaluation program for approval prior to implementation.
The design of any diversion would need to be to acceptable engineering standards and in accordance with this guideline on stream diversions for the Central Queensland mining industry. The design should also be in accordance with the principles outlined in the Australian Coal Association Research Program (ACARP) report – ‘Maintenance of Geomorphic Processes in Bowen Basin River Diversions, Stages 1, 2 & 3’.
The detailed design should include construction drawings of a suitable scale and line form to include:
• Schedule of drawings, notes and locality plan;
• Legend and cross sections setout table;
• Existing site plan;
• New works site plan;
• Longitudinal profile;
• Detailed works plans;
• Cross sections of diversion at set distances;
• Details of diversion plugs, energy dissipaters, floodplain drainage paths and other diversion related works.
Energy Dissipation
Where the length of the diversion is less than the watercourse it replaces there is a resultant increase in bed slope. This has the effect of increasing flow velocities, stream power and shear stress. To overcome the impacts due to increased slope some form of energy dissipation to reduce velocities will be required. Given the long term need to ensure a state of dynamic equilibrium in keeping with the characteristics of the natural stream, most energy dissipation structures are not appropriate if they require long term maintenance. If the diversion is only in a temporary position, then structural energy dissipation may be a viable option.Monitoring and evaluation
The proponent should prepare a monitoring and evaluation program during the development of the diversion design and submit for assessment by DERM at the time of submission of applications for authorisation. Monitoring and evaluation programs may be developed in accordance with the ACARP report, ‘Monitoring & Evaluation Program for Bowen Basin River Diversions’ ACARP Project C9068, ID&A, February 2001.
The monitoring and evaluation must include natural reaches of the existing creek both upstream and downstream of the diversion works.
The detailed monitoring program for the diversion should include monitoring of the condition of any associated works such as levees, including the success of protection measures and a strategy for maintenance of both levees and the diversion, if these works are proposed to remain after mine closure. The monitoring and evaluation program will provide a measure of how well the diversion works are performing in comparison to the natural watercourse and will assist in identifying and tracking any maintenance works required.”[3]
“Complete hydraulic modelling” as referred to in the Guideline
[3] Ex 7 p 284-287.
The appellant contends that the hydraulic evidence supporting the application was both inadequate and unreliable as the value used for “Manning’s n” was not determined by onsite testing and the results obtained for velocity, shear strength and stream power were not obtained from a model that had been verified by sensitivity, error analysis, validation and error assessment and which consequently did not conform to generally accepted scientific standards. In this regard reference was made to Marshall v Department of Transport (2004) 25 QLCR 7 where Member Scott said, at [67]:
“Now the model as finally generated from the input data, has the purpose of representing the behaviour of both real and assumed events. The accuracy of the model in this role, which is often predictive, is dependent on whether it reflects reality and that is ascertained by calibrating it against historical flood events, particularly those whose relevant dimensions are known.”
The hydraulic evidence before the decision maker was two reports prepared by Brisbane Stormwater Management Pty Ltd.[4] The appellant submits that the expression “complete hydraulic modelling” as used in the guideline means that the modelling is carried out in accordance with scientific rigour with the model applied being calibrated against data collected at the site in question and where the limits of the accuracy of the model and the scope for any possible errors is known and disclosed.
[4] Ex 7 p 1570-1772 and p 1773-1926.
The failure to collect field data with which to calibrate the model and the absence of attention to the scope for and effect of errors has the result, the appellant submits, that condition 1 of the licence would not be sufficiently final and certain to be a valid condition. Condition 1 is the one which authorises the interference with the flow of water. It did so by authorising the interference described in the two Brisbane Stormwater Management Pty Ltd reports.[5] The relevant part of the original decision is to be found in exhibit 7 at pages 44 and 45. Condition 4 was amended on review.
[5] Ex 7 p 1570-1772 and p 1773-1926.
The original conditions
The original conditions of the licence (excluding the amended condition added in the review) are in the following terms:
“1. The interference with flow authorised by this water licence is the interference that is described in the following document(s):
• Report entitled “Design of Coral Creek Diversion”, Brisbane Stormwater Management Pty Ltd, May 2011.
• Report entitled “Design of Coral Creek Diversion Addendum Report”, Brisbane Stormwater Management Pty Ltd, November 2011.
2. The interference authorised by this water licence must be rehabilitated in accordance with the report entitled “Design of Coral Creek Diversion”, Brisbane Stormwater Management Pty Ltd, May 2011 and “Design of Coral Creek Diversion Addendum Report”, Brisbane Stormwater Management Pty Ltd, November 2011.
3. Monitoring and evaluation of the performance of the diversion must be carried out in accordance with the report entitled “Design of Coral Creek Diversion”, Brisbane Stormwater Management Pty Ltd, May 2011 and “Design of Coral Creek Diversion Addendum Report”, Brisbane Stormwater Management Pty Ltd, November 2011.
4.a) The licensee is required to monitor the performance of the diversion by way of a performance report prepared by a registered professional engineer (RPEQ) at the following times:
• April of each year; and
•any time alarming, unusual or otherwise unsatisfactory conditions are observed.
Monitoring of the works must include recommendations as per ACARP Project C9068 “Monitoring and Evaluation Program for Bowen Basin River Diversions”. Two (2) hard copies and an electronic copy shall be furnished to the Chief Executive by the 30 June each year.
b) The performance report must detail the following:
•The performance of the works by way of comparison with the design report, approved plans and specifications;
•Surveys to identify and quantify any changes to the channel bed and permanent corridor width subjected to settlement;
•Detail any remedial works to be undertaken including a timetable for completion of proposed works; and
•Any recommendations on measures to be taken to ensure the physical integrity of the works.
5. The licensee must within 90 business days after completion of the diversion provide the Chief Executive with two (2) copies of “as built” plans of the interference. These “as built” plans must be in the same scale and line form as the approved design drawings described in the above conditions.
6. The licensee must maintain to the satisfaction of the Chief Executive the diversion in accordance with the conditions of the licence. Where the operation of the diversion channel in the opinion of the Chief Executive has demonstrated that acceptable channel stability cannot be achieved the Chief Executive may direct the licensee to take whatever approved measure and modifications are considered necessary by the Chief Executive for the protection and proper maintenance of the interference.
7. Relinquishment of this water licence can only occur after the authorised interference has been subjected to a suitable range of flow events, and are deemed by the Chief Executive to be in a stable and functional condition. Any request for relinquishment will be negotiated with the Chief Executive and will require a submission containing operational and relinquishment monitoring data demonstrating stability and functionality in the watercourse over a suitable range of flow events.”
The evidence of Dr Scott Rayburg
At the hearing of the appeal an expert report, exhibit 1, and a reply report, exhibit 2, were tendered on behalf of the appellant. These reports were prepared by Dr Scott Rayburg, who also gave oral evidence. Dr Rayburg is a senior lecturer in water resources engineering at Swinburne University of Technology in Victoria. His expertise is in fluvial geomorphology and hydrology and since 2004 he has published more than 35 peer-reviewed scientific publications in the fields of geomorphology, hydrology and hydraulics and been the co or lead investigator on research projects and consultancies.
Dr Rayburg expressed the opinion that the hydraulic modelling employed by Brisbane Stormwater Management is invalid and therefore the results of that modelling are invalid.[6] While also critical of the hydraulic model used, “Sobek”, his evidence was that the particular model used was a good deal less important than the fact that the modelling had been carried out and the results relied upon when there had not been accurate input and calibration data used. The required data, in the most ideal case, would include measures of flow level and discharge, velocity, shear stress and stream power for at least three flow levels, low, medium and high. However, some validity could be given to the model by data on water levels and velocity from two or three low to intermediate flow events.[7] This stream is ephemeral in nature so will only flow during and soon after rain events which could occur at any time of the day or night. When not flowing it will be dry with perhaps a series of ponds. In recognition of the practical difficulties and no doubt the danger of attempting to measure a stream on short notice in view of the obstacles presented potentially by darkness and swift flow, Dr Rayburg was of the view that some useful calibrations could be achieved with data from the observations made in at least two flow events in the range of up to what could be expected to occur in an event with an ARI of one in two years or less. The thrust of his evidence was that the precise details of what should be collected was not a useful focus of attention. His point was that no flow data at all had been collected so no calibration of the model had been done. In the circumstances, his view was that it would have been better not to model at all rather than to potentially have a modelling outcome which was conveying an unrealistic impression of accuracy.[8] Dr Rayburg has visited the site and did not collect any stream flow data at the time as he maintained that was not his role. He does not contend for a different result from modelling, but rather that the result relied upon is unreliable. The focus of Dr Rayburg’s evidence became the use of a measure called “Manning’s n”, a measure of friction or resistance to flow. The degree of meandering, the type and size of obstructions and the form of the streambed are elements of resistance included in Manning’s n.[9] Without having collected data to arrive at Manning’s n, the applied value used in this case cannot be relied upon, invalidating the result of the modelling. Using the modelling without a disclosure of the extent of possible error and a sensitivity analysis showing what effect varying one element can have on the output of the model has resulted, in his opinion, in unsubstantiated claims being made.[10] Concern expressed by Dr Rayburg in his initial report concerning the reliability of topographical data were not pursued at the hearing. His view was that sensitivity analysis, validation, calibration and error assessment are fundamentals and none were conducted, invalidating the output of the modelling.[11] The model is highly sensitive to Manning’s n and small errors in the accurate determination of this value will result in significant underestimations of flow velocity, shear stress and stream power which have the potential to threaten the stability of the diversion and the creek above and below it.[12] I note that Table 1 in the guideline sets out upper limits to parameters to which regard must be had when designing a diversion. No criticism was made in the appeal of the actual design. The stream power and shear stress relate to the effect on the bed and banks of the flow in the stream.
[6] Ex 1 p 5 3.4.
[7] Ex 1 p 7 4.5.
[8] Ex 1 p 7 4.5.
[9] Ex 1 p 51.
[10] Ex 1 p 8 4.6.
[11] Ex 1 p 11 6.1.
[12] Ex 1 p 13 6.3.
Dr Rayburg, as a scientist, could not identify a single paper in the published scientific literature over the last 30 years where a similar hydraulic model had been used without first calibrating it.[13] He describes as a useful comparison the work of the International Panel on Climate Change which has conducted global climate modelling where the most sophisticated models in the world are calibrated and validated against data from thousands of sites, many of which have data covering 100 years or more.[14] The accuracy and uncertainty of the model is disclosed.[15] Such error reporting is standard practice.[16] Dr Rayburg is of the opinion that the modelling performed in this case does not meet the minimum criteria for best practice for hydraulic modelling.[17] This is not a case where the relevant data was existing but was not used, it is a case where the data was not collected.
[13] Ex 1 p 14 6.6.
[14] Ex 1 p 16 6.10.
[15] Ibid.
[16] Ex 1 p 17 6.10.
[17] Ex 1 p 17 6.11.
Determining Manning’s n
Manning’s n is the only freely varying parameter in the equations, the Saint-Venant equations, that underlie the model[18] of flow in an open channel. The accuracy of the applied value of Manning’s n will be almost exclusively determinative of the accuracy of the output of the model.[19] The most reliable way to arrive at the correct value is to measure flow and to work back to the value using the Manning equation. More measurements make for more accurate outcomes. The next method, second best, is to use published tables based on sediment size. This method tends to produce an overestimation. The least accurate method is to use handbooks with photographs of sample streams with Manning’s n values. An example of this is exhibit 10, “Roughness Characteristics of New Zealand Rivers” by DM Hicks and PD Mason, 1991 Water Resources Survey. While a useful example of such a handbook, in Dr Rayburg’s view it is of no practical assistance presently as the New Zealand streams depicted in it are not usefully comparable to Coral Creek. The directions entitled “How to use this book” on pages 11 and 12 require selecting a similar stream and there was no suggestion that this reference contained anything which could be fairly so described. An earlier (1967) publication in the United States was similarly of no assistance for present purposes.[20]
[18] Ex 1 p 18 7.3.
[19] Ibid.
[20] Ex 1 p 20 7.6.
Dr Rayburg also pointed out that a single estimation of Manning’s n ignores real-world channel variability and the effects of woody debris and vegetated islands.[21] The modelling of the existing stream and of the proposed new channel both use a Manning’s n of 0.045 when it is not possible that the new channel, in the absence of obstructions, would have friction approaching that of the existing stream.[22] This makes it certain that the estimate for the existing creek is incorrect and is another reason why the modelling is invalid.[23]
[21] Ex 1 p 23-24 7.11, p 24 7.12.
[22] Ex 1 p 25 7.13.
[23] Ex 1 p 25 7.13 last sentence.
Referring to the “Bowen Basin River Diversions Design and Rehabilitation Criteria” (2002),[24] Dr Rayburg notes that none of the hydraulic modelling results for the more than 30 streams considered was the result of a model which had been calibrated. The model results must be considered therefore to be invalid.[25] It provided the context within which the modelling results for Coral Creek were evaluated.[26] The earlier report “Maintenance of Geomorphic Processes in Bowen Basin River Diversions” (2000) illustrated how every single previous diversion in the Bowen Basin had resulted in increased sedimentation and erosion[27] which the 2002 design criteria was an attempt to address for future diversions. The guideline, in Table 1, states the criteria drawn from this document. Dr Rayburg states that the Coral Creek diversion is likely to fail by exhibiting accelerated erosion and sedimentation that spreads to the natural stream above and below it.[28] He gives it as his considered opinion that all of the Brisbane Stormwater Management modelling results are invalid. Should the diversion proceed on the basis of this modelling “alone”[29] (emphasis added), it is his view that the diversion and the natural stream above and below it “will experience accelerated erosion and deposition rates that are likely to result in instability in the stream that lasts for decades or longer and may result in a permanent change in the river’s form and process operation”.[30]
[24] Ex 1 p 29 8.1.
[25] Ex 1 p 29 8.3.
[26] Ex 1 p 30 8.4.
[27] Ibid.
[28] Ibid.
[29] Ex 1 p 32 9.1.
[30] Ibid.
In his reply report, exhibit 2, Dr Rayburg responds to reports obtained by the second respondents and adheres to his views. He provides, at Figure 1, eight photographs of Coral Creek showing “elements of friction” such as vegetation, fallen trees and accumulations of sand and rocks. In reply to the report of Dr Connor, who was called by the second respondents, he states that from Dr Connor’s statement that when on the limited occasions when calibration and verification of the model have been available, the performance of the model has been adequate, it is implied that Dr Connor has very limited experience with proper modelling protocol.[31] He states that the lack of existing data is not a reason to proceed without it and that a basic data set for calibration could have been collected by the efforts of no more than two people for half a day’s work on two separate occasions about 2 – 4 weeks apart.[32] He disagrees with Dr Connor that error assessment is rarely done in industry.[33] Dr Rayburg refers to Dr Connor’s statement that where data is absent or minimal practically everyone concerned knows that the results are limited by this as “categorically untrue”.[34] In his view, to not acknowledge that the model results “must be construed as highly suspect in the absence of adequate input data is both inappropriate and misleading”.[35] Dr Rayburg refers to Dr Connor’s emphasis on the reduced slope of the diversion as a factor favouring its stability and states that such a discussion is irrelevant in the absence of an accurate determination of Manning’s n.[36]
[31] Ex 2 p 10 4.1.
[32] Ex 2 p 12 4.4.
[33] Ex 2 p 13 4.4.
[34] Ex 2 p 13 4.5.
[35] Ibid.
[36] Ex 2 p 17 4.12.
Dr Connor’s evidence
The second respondents provided an expert report, exhibit 3, prepared by Dr Thomas Connor, Vice President, Technology and Technical, for the Infrastructure Business Unit of Kellogg Root and Brown Pty Ltd. Dr Connor was awarded the Order of Australia (AO) in 1999 for service to the engineering profession as an industry leader in water management and the development of flood mitigation techniques. He has authored or co-authored over 40 professional papers or presentations. Dr Rayburg noted the distinction to articles published in peer-reviewed academic publications. Dr Connor was engaged to review and respond to Dr Rayburg’ report, exhibit 1.
Dr Connor states that it is totally impractical to implement the suggested data collection which could take many years or decades.[37] The process recommended by Dr Rayburg is contrary to industry-accepted practice, unrealistic and unachievable.[38] Dr Connor states that the modellers have reported the maxima values for the aspects set out in the design criteria and whole channel values will be lower and likely to be below the values in the guideline.[39] He would expect some local erosion and deposition of sediment in the short term but in the long term the diversion stabilisation should occur to a similar pattern to the existing creek.[40] Dr Connor, a chartered professional engineer and a registered professional engineer in Queensland,[41] is qualified to express this opinion. Dr Connor states that:
“The model results as reported imply that the stream parameters are outside DNRM guideline values in some aspects. However the parameters modelled in the existing Coral Creek are also outside those guidelines. The authors of the modelling reports relied on this comparison to justify the diversion model outcome. I agree with the modellers that if the diversion and the existing channel show similar properties, this conclusion is justified. However I have also explained in this report that the guidelines are based on whole channel values while the modellers have reported maxima values.
Whole channel values will be less than maxima values and, since the maxima in the diversion are close to guideline limits, the whole channel values will likely fall below guideline values. This is a like for like comparison and is accordingly the appropriate comparison. As reported herein, recalculation of whole channel values for the proposed diversion show that the shear stress and stream power values do fall within the DRNM (sic) guideline values.”[42]
[37] Ex 3 line (L) 44.
[38] Ex 3 L 63.
[39] Ex 3 L 81.
[40] Ex 3 L 88.
[41] Ex 3 para 3.
[42] Ex 3 L 72-84.
Dr Connor concluded that:
“In my opinion, the proposed conditions (particularly conditions 4 and 6) are appropriate and reasonable in responding to such issues.
• Condition 4 provides for the monitoring of the performance of the diversion by way of a performance report prepared by a registered professional engineer of Queensland (RPEQ) and informed by advice from suitably qualified professionals in regard to geomorphic and hydrogeological conditions in April of each year and at any time alarming, unusual or unsatisfactory conditions are observed. Condition 4 provides that the performance report must detail amongst other things, any remedial works to be undertaken (including a timetable for completion of proposed works) and any recommendations on measures to be undertaken to ensure the physical integrity of the works;
• Condition 6 requires:
- ‘The license (sic) must maintain to the satisfaction of the Chief Executive the diversion in accordance with the conditions of the licence. Where the operation of the diversion channel in the opinion of the Chief Executive has demonstrated that acceptable channel stability cannot be achieved the Chief Executive may direct the licensee to take whatever approved measures and modifications are considered necessary by the Chief Executive for the protection and proper maintenance of the Interference’.
The 20% increase in stream length of the diversion, (as compared to the existing stream length), and resulting reduction in stream slope, together with the extensive vegetation and construction works provide confidence to the long term stability. I disagree with Dr Rayburg’s opinion as to long term instability and permanent change in the river form and process. In any event, conditions 4 and 6 (as noted above) provide adequate monitoring and rectification mechanisms in the event of instability.
In summary, I believe the model is a valid model; the results reported to date justify the approval with the proposed conditions of monitoring and remediation if required; and calculations of whole channel values show that stream parameters in the diversion are within DNRM guidelines.[43]
[43] Ex 3 L 89-117.
Dr Rayburg’s opinion that long term instability in the stream is likely to result[44] is contradicted by Dr Connor, the registered professional engineer who notes that the 20% increase in stream length of the diversion with the consequent reduction in stream slope, together with the extensive vegetation and construction works, provide confidence in the long term stability. This is a matter directly within Dr Connor’s expertise as a registered professional engineer, and is not a matter within the expertise of Dr Rayburg so the Court must accept Dr Connor’s opinion on the point and reject that of Dr Rayburg.
[44] See n.30.
Dr Connor also provided a site visit report, which became exhibit 6. In this he describes his visit, on 25 November 2013, to observe the full length of the section of Coral Creek to be diverted. He took the photographs which are attached to his report. At the time, there was no water in the creek.[45] He states that when a major flood occurs in the small catchment the creek is likely to reach peak height in a matter of hours, fall quickly and tail off steadily over a day or two.[46] For most of the time, the creek will be dry.[47] It will fill quickly with no real warning[48] and forecasts for heavy rain or storms in the area cannot pinpoint small areas such as the creek catchment.[49] This is relevant to the practicality of collecting the data referred to by Dr Rayburg.
[45] Ex 6 L 33.
[46] Ex 6 L 53-57.
[47] Ex 6 L 58.
[48] Ex 6 L 59.
[49] Ex 6 L 60.
Based on his observations made during the site visit, Dr Connor considers a Manning’s n of 0.045, as used in the modelling “a very reasonable assessment for roughness of the whole creek system in substantial events”.[50] He points out that it cannot be known when flow in the creek will occur and measurement would need to be made quickly. Mobilising a measurement team to the site in time would be unlikely unless they were stationed nearby.[51] The need to measure two events compounds the difficulties.[52] Dr Connor considered that automatic level indicators would give “some idea” of peak water levels and levels at different stages of a flood. Although actual flows would not be known, testing with a variety of flood discharge time histories and varying values of Manning’s n “would attempt to match the profile”.[53] This would give some indication of Manning’s n but the likelihood of an event with an ARI of 20 years in the period of a study would be small. Dr Connor was less sanguine than Dr Rayburg about the usefulness of projections from events in the ½ to 2 year ARI to what might be expected in a 50 year ARI event, for instance, not agreeing that it could be done.
[50] Ex 6 L 75.
[51] Ex 6 L 95.
[52] Ex 6 L 96.
[53] Ex 6 L 110-115.
Dr Connor did not believe that the New Zealand book, exhibit 10, would be useful as New Zealand streams regularly experience low flows while Coral Creek is more likely to be largely dry until the occasional flood. The handbook did not show any streams similar to Coral Creek.[54] He did note that for the New Zealand streams experiencing significant flows, greater than 100 cumecs (m³/sec), although high Manning’s n values may be measured at low flows, 86% of the streams exhibited Manning’s n values equal to or lower than 0.047 for flows greater than 100 cumecs. He was of the opinion that this gave “some support” to the view that 0.045 is “not an unreasonable value for roughness in Coral Creek when modelling substantial flows”.[55] (emphasis added) Dr Connor provides his working on pages 3-5 and 3-6 of his report, exhibit 6. He was not challenged on this in cross-examination and there is no evidence from Dr Rayburg on this particular aspect. This is a matter within Dr Connor’s expertise and the Court must accept his evidence on the point. Dr Rayburg did not make any estimate of Manning’s n by any means.
[54] Ex 6 L 144.
[55] Ex 6 L 176-177.
Dr Connor was present during the evidence given by Dr Rayburg. When cross-examined, Dr Connor was shown exhibit 11, an extract from the “Good Modelling Practice Handbook” published by the Dutch Department of Public Works. It sets out the modelling process in a series of steps. Dr Connor was of the view that it should not be a criticism just because you can’t see all those steps in a work; here referring to the modelling that was done. The handbook itself states that the steps in it are not relevant at all times.[56] He was also shown an article titled “Calibration of process-oriented models” which was published in Ecological Modelling 83 (1995) 55-66. This became exhibit 12 and was used in support of the idea that model calibration is a critical phase in the modelling process. Dr Connor was of the view that it is critical “if you have measurements”.[57]
[56] Ex 11 0-2.
[57] Transcript (T) 2-77 L 7.
Mr Clark’s evidence
The second respondents also called Mr Stephen Clark, a director of Water Technology Pty Ltd. Mr Clark is a registered professional engineer in Queensland, specialising in water engineering. He was called as a witness of fact. His affidavit became exhibit 4. He has not been to the Coral Creek site.[58] He is familiar with the steps taken to conduct the hydraulic modelling. He took steps to satisfy himself of what the value of Manning’s n should be. This included reviewing approximately 34 photographs of the creek, referring to a 1967 United States Geological Service paper and text, the text “Open Channel Hydraulics”, Chow, (1959) and a 2009 Australian Handbook of stream roughness coefficients.[59] He states that there is no calibration data available for Coral Creek. If there was such data he would have used it.[60] In his experience, in the absence of calibration data, it is common for an engineer to identify the Manning’s n value having regard to reference texts and previous experience.[61] Consideration was given to the possible consequences of not establishing the revegetation at the time of a flood so a Manning’s n of 0.035 was used to model the results in such a circumstance.[62] Some parts of Mr Clark’s affidavit were excluded after objections taken on behalf of the appellant. These related to expressions of opinion. Mr Clark states that throughout the development of the existing case and design case models and adoption of the Manning’s n, he and the two other engineers who were under his supervision undertook sensitivity testing of the model to ensure that it was producing reasonable and appropriate results.[63] At several stages, the model was run using Manning’s n values of 0.030 and 0.080.[64] A Manning’s n of 0.030, in his experience, is a very low value not often representative of flows in natural channels like Coral Creek. A Manning’s n of 0.080, on the other hand, is a relatively high value for a channel where the vegetation is sparse, such as in this part of Coral Creek.[65] In addition to using the “Sobek” software, which would take up to 12 hours to run on the computer, Mr Clark and his staff used a spreadsheet to estimate the likely impact on the hydraulic modelling of particular changes to the model.[66] He provides an example of these calculations in exhibit SQC-2 of his affidavit, exhibit 4. Mr Clark points out that because the diversion channel was an engineered construction, its regularity in comparison to the creek made it more likely that the spreadsheet would accurately indicate its hydraulics.[67]
[58] Ex 4 para 32.
[59] Ex 4 para 33-34.
[60] Ex 4 para 37.
[61] Ex 4 para 40.
[62] Ex 4 para 60.
[63] Ex 4 para 61.
[64] Ex 4 para 62.
[65] Ex 4 para 65.
[66] Ex 4 para 67.
[67] Ex 4 para 69.
Mr Clark points out that the guideline values for velocity, shear stress and stream power are whole channel values for any particular cross-section[68] whereas the modelling results reported detailed distributions of those parameters for all locations along Coral Creek on the basis of a 5 m grid. The results reported show the maximum values.[69] Mr Clark has undertaken an analysis of the “Sobek” hydraulic modelling results for the existing creek and for the designed diversion to identify the whole channel values for a number of cross-sections. It will be recalled that Table 1 in the guideline requires consideration of three flow situations:
1. An ARI of 2 years when there is no vegetation.
2. An ARI of 2 years when there is vegetation.
3. An ARI of 50 years.
The parameters to be considered are stream power, velocity and shear stress.
[68] Ex 4 para 71.
[69] Ex 4 para 73.
Mr Clark has chosen five cross-sections of the existing Coral Creek and analysed the “Sobek” hydraulic modelling results for the parameters shear stress and stream power in a flow with an ARI of 50 years. The selected cross-sections are at the beginning and end of the relevant section of the creek and roughly evenly within the section of creek. Channel shear stress and stream power in the 1 in 50 year flow event are generally lower in the creek when a Manning’s n of 0.045 is used than in the diversion when a Manning’s n of 0.035 is used for the diversion. The values for the shear stress and stream power in the creek are below the guideline values but above them in one example in the diversion channel. When the Manning’s n for the diversion channel is 0.045 the shear stress and stream powers are close to or below the design guidelines for the 1 in 50 year ARI flow event.[70]
[70] Ex 4 SQC-3. The cross-sections are shown in figures SQC3-1 and SCQ3-2. The hydraulic criteria are shown in Table 1. Table 2 shows shear stress and stream power for the existing creek with a Manning’s n of 0.045. Table 3 shows the diversion at a Manning’s n of 0.035 and Table 4 with it at 0.045.
In his evidence, Dr Rayburg said that “from a general perspective and from an engineering perspective”[71] calibration protocols are well known. Since he is not an engineer he is unable to give evidence of what may or may not be well known to engineers so his statement must be taken as referable to a general perspective, the extent of which was not expressed to be limited in any way. He explained that gathering the data for model calibration would involve the people doing the measuring walking “across the river when there is flow in it”.[72] He was of the opinion that two or three events less than Q2, a flow event expected to recur with a two year interval, would recur “on average more frequently than once every two years”.[73] Measuring velocity at one point, he said, “takes about 60 seconds”.[74] In view of the evidence concerning the rapid rise and fall to be expected in this creek, the uncertainty of when it might take place, day or night and the obvious dangers to the people expected to “walk across the river”, in this case the creek, in conditions which are to be expected to be rapidly changing, opportunities for measurement might be expected to be somewhat limited. Droughts and floods are characteristic of Australia and even a Q2 event is a “bankfull” event[75] which stands apart from Dr Rayburg’s intention that the events to be measured should be those that are “safe”.[76] Dr Rayburg said that data for less than a Q2 event was required.[77] This is understandable when it is recalled that Dr Connor’s evidence was that an ARI or (Q) 2, event will result in peak flow generally from 2 to 4 m deep in this creek.[78] The difficulty with Dr Rayburg’s concept of a “safe” event for measurement is that there was no evidence at all of what the ARI of a “safe” event is and how it may relate to an ARI of ½ or 1 or 2 years. If it is defined as a certain depth, say half a metre, that is a completely different unit of measurement to say, an ARI 1 flow and the evidence does not contain the equivalent of a Rosetta stone that would allow a “safe” and therefore measurable event to be located anywhere on the ARI (or to use the other term Q) 2 scale. I also note that the flow data collection, in view of the practicalities to which I have referred, could not be described as able to be collected “with very little effort”,[79] which is Dr Rayburg’s view.
[71] T 1-46 L 7-9.
[72] T 1-47 L 5.
[73] T 1-46 L 20-21.
[74] T 1-47 L 9.
[75] T 1-46 L 11.
[76] T 1-47 L 18.
[77] T 1-46 L 28.
[78] Ex 6 L 81.
[79] Ex 2 p 12 4.4.
Dr Rayburg states that measurements could have been made on the day he visited the site.[80] He did not make measurements himself[81] but even if he had, and done a subsequent measurement cycle on another day, it is not possible to say where what was measured would be located on the ARI scale. If it cannot be said that what was measured was an ARI ½ or 1 to 1.5 event, for instance, it would be impossible to use it as a basis for extrapolation to any other ARI level such as Q2 or Q50. On the evidence presented, it is not possible to be satisfied that measurements made in the way explained by Dr Rayburg would yield any useful data for modelling of a flow event on the ARI scale such as is required by the guideline. His evidence on this point is unhelpful and it does not actually point to an easily remediable defect in the approach which was actually employed, although he says that it does.
[80] T 1-47 L 23.
[81] T 1-47 L 25.
Conclusions in relation to “Complete hydraulic modelling”
The guideline states that “planning should proceed along the following lines” and goes on to set out some dot points. The second one of these is worded:
“Complete hydraulic modelling of the existing natural watercourse …”
A possible interpretation of the expression “complete hydraulic modelling” is if the measurements and calibration referred to by Dr Rayburg are not done it cannot be complete. Reading the guideline as a whole, particularly having in mind the required parameters in Table 1 thereof, I am satisfied that when those things are addressed the modelling is complete within the meaning of that expression where it is used. Dr Rayburg’s attribution of content to the requirement is not useful for attaining the outcomes in Table 1 so the meaning of the expression which includes performance of the measurements to which he refers cannot be accepted.
From the foregoing, it will be clear that the Court must accept the correctness of the opinion expressed by Dr Connor when he says:
“With respect to the proposed diversion of Coral Creek, Dr Rayburg describes data that is simply not available and which would be impossible to realistically obtain in undertaking the hydraulic modelling. In my experience, it is not at all unusual not to have access to such data in undertaking hydraulic modelling.”[82] (emphasis added)
Exhibit 5 shows illustrations of a like approach in other cases.
[82] Ex 3 L 372-375.
Dr Connor’s evidence was that at a “bankfull” flow, “which we’re saying is a Q2 flow” “two to four metres deep”, Manning’s n is going to be “vastly different” to what is measured with people wading out across a stream. That activity should only be done when the flow is “up to the knee to be safe”.[83] Using instruments to make it unnecessary to wade in the creek will address the physical risk involved in entering the stream but not the logistical challenges of attending at the right times to do the measuring. Dr Connor’s view was that it was “fanciful” to think the measurements could be achieved simply.[84]
[83] T 2-59 L 1-10.
[84] T 2-59 L 15-25.
Dr Connor was of the view that data collected in low flows “may give a very inaccurate outcome for a Q2 or a higher flow”.[85] Dr Rayburg’s view that it might be better not to model at all rather than to do so in a manner which he believes to be unsatisfactory is not an option when the guideline requires that hydraulic modelling is to be completed. The method to determine Manning’s n which Dr Rayburg describes as the least accurate “although perhaps the most commonly used approach”[86] of recourse to a handbook with pictures was employed by Dr Connor in exhibit 6. Dr Connor pointed out that none of the streams appear similar to Coral Creek but he was able to derive “some support” for the view that 0.045 “is not an unreasonable value for roughness in Coral Creek when modelling substantial flows”.[87] (emphasis added)
[85] T 2-56 L 22-23.
[86] Ex 1 p 18 7.3.
[87] Ex 6 L 170-177.
Dr Rayburg does not contend for another value of Manning’s n, just that there could not be confidence in the value applied. After considering:
1. The accessibility of data which would be needed to proceed as Dr Rayburg states is necessary;
2. The lack of utility of what would be collected by the methods he describes;
3. The lack of information on where on the ARI scale a measured flow is located;
4. The evidence of the difficulty of extrapolation of values for Manning’s n found at low flows to that applicable at higher flows up to, for instance, the required 50 year ARI flow level;
5. Some support from exhibit 10 for a Manning’s n of 0.045 being not an unreasonable value;
the Court is satisfied that it cannot accept the opinions of Dr Rayburg and ought to accept the opinions of Dr Connor.
The Court is not satisfied that the second respondents’ hydraulic modelling is unreliable so ground of appeal 1(a) is not made out. It is unnecessary to consider ground of appeal 1(b) in view of this finding.
In accordance with this Court’s duty to consider the matter for itself, the criteria in s 210 of the Act will be considered. Appeal ground 2, that licence conditions should be amended, will be a necessary part of that consideration. This Court has considered all of the criteria set out in s 210(1) of the Act, using all of the material put before the Court at the hearing. This includes the extensive written material. There is no evidence of the second respondents having been convicted of any offence within the scope of sub-section 2 of s 210. In relation to s 210(1)(i), the requirement to consider the public interest, this Court takes into account the following paragraph in the written submissions made on behalf of the second respondents:
“21. Refusal of the water licence, notwithstanding the environmental approvals already secured by way of the amended environmental authority, will have the necessary consequence of quarantining the coal from access because of its location underneath the existing Coral Creek. Winning the resource will generate costs of approximately $7 million to complete the diversion and costs of approximately $69 million for mining, processing and logistics. The diversion and mining will also generate additional royalties of approximately $12 million and additional company tax revenues of approximately $32 million. The diversion thereby has significant and wide-ranging economic benefit, including with respect to employment and other matters, well beyond the economic considerations of the second respondent. These are important considerations with respect to the public interest.” (references omitted)
This was not challenged by the appellant.
Condition 1, the Court is satisfied, does not lack either certainty or finality as it authorises what is described in detail in the reports to which it refers. It does not require reformulation directed to clarity and specificity as these have been sufficiently achieved. The Court is satisfied that what is described in the documents is the whole of the interference with Coral Creek. The requirements in the licence for performance reports by a registered professional engineer, a supervisory condition strengthened on review of the initial decision and the chief executive’s power to issue directions to the licensee are properly understood as safeguards strengthening the regulatory regime rather than indications of uncertainty in the terms of the licence.
For the reasons given, the appeal must be and is dismissed. There is no reason to amend the review decision so the orders of the Court are:
Orders
1.The appeal is dismissed.
2.The review decision is confirmed.
3.Any application for costs is to be filed and served within 15 business days of the publication of these reasons and any reply is to be filed and served within 15 business days of any such application.
WA ISDALE
MEMBER OF THE LAND COURT
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