Swan v Santos GLNG Pty Ltd
[2017] QPEC 2
•3 February 2017
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Swan v Santos GLNG Pty Ltd & Ors [2017] QPEC 2
PARTIES:
STEPHEN JOHN SWAN
(applicant)v
SANTOS GLNG PTY LTD ACN 131 271 648
(first respondent)
and
PAPL DOWNSTREAM PTY LTD ACN 147 649 205
(second respondent)and
TOTAL GLNG AUSTRALIA ACN 146 680 524
(third respondent)
and
THE CHIEF EXECUTIVE ADMINISTERING THE ENVIRONMENTAL PROTECTION ACT 1994
(fourth respondent)
FILE NO/S:
D80 of 2015
DIVISION:
Planning & Environment Court
PROCEEDING:
Application
ORIGINATING COURT:
Planning & Environment Court, Maroochydore
DELIVERED ON:
3 February 2017
DELIVERED AT:
Planning & Environment Court, Maroochydore
HEARING DATE:
13 to 17 June 2016 and 18 August 2016
JUDGE:
Robertson DCJ
ORDER:
The application is dismissed
CATCHWORDS:
PLANNING AND ENVIRONMENT; ENVIRONMENTAL LAW: Where applicant asserts that the first three respondents have breached Environmental Authorities affecting his land imposed in relation to the Gladstone Liquefied Natural Gas Transmission pipeline that was constructed over part of the land in 2013 – 2014; where the applicant seeks orders pursuant to s505(5) of the Environmental Protection Act 1994.
PARTICULARS: where first three respondents assert that the case presented against them was never properly particularised by the applicant as to the offences alleged to have been committed, and the dates and facts and circumstances of such offences.
STATUTORY INTERPRETATION: where Environmental Authorities issued under the EPA are Statutory Instruments and to be construed in accordance with general principles of statutory construction.
NO CASE TO ANSWER: where respondents filed a no case application prior to trial which was heard as part of the trial process; whether the respondents had a case to answer in the absence of proper particulars and/or where remedies sought were incompetent and beyond the jurisdiction of the Court.
Legislation considered
Environmental Protection Act 1994 s 505
Planning and Environment Court Rules 2010
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sustainable Planning Act 2009 ss 441, 446(1)
Statutory Instruments Act 1992 ss 6, 7(2)(c), 7(3)
Acts Interpretation Act 1954 ss 14A(1), 14B(1) and 35C
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558
Crowther v State of Queensland [2003] QPELR 346
F Hannan Pty Ltd v Electricity Commission of New South Wales [No. 3] (1985) 66 LGRA 306
Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180.
Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216
Warringah Shire Council v Sedevic (1987) 10 NSWLR 335Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82
COUNSEL:
R Litster QC of Counsel for the Applicant
J Horton QC and Mr D.M. Favell of Counsel for the Respondent
SOLICITORS:
P & E Law for the Applicant
Carter Newell for the 1st, 2nd, and 3rd Respondents
Mr Stephen Barclay for the 4th Respondent
Introduction
The applicant (Swan) owns two properties near Moura in central Queensland known as Inala (Lot 12) and Mulawa (Lot 3). He also owns other nearby properties which together with Inala and Mulawa he uses for grazing beef cattle and operating a cattle stud. He was born and raised on Inala and, apart from time away with schooling and undertaking an apprenticeship as a diesel fitter, he has lived there all his life. His properties are operated through a trustee company, Shadyland Pty Ltd. He is a beneficiary of the trust and sole director of the trustee company.
He has provided a number of lengthy affidavits in these proceedings and he gave oral evidence over many hours. He impressed me as a passionate man with a real and abiding love for his property; and a grazier who has always operated his business to the highest standards of land management and animal husbandry. He has extensive lay knowledge of soil and water management and chemistry and grass management and weed control consistent with a man who has devoted his life to the proper management of his property.
I accept his unchallenged evidence that at present his aim is to have his farm including Inala and Mulawa organically certified.
In 2008, when his father was still alive, they were approached about the construction of a section of the Gladstone Liquefied Natural Gas Transmission Pipeline (pipeline) through Mulawa and Inala.
The construction of the pipeline was a massive infrastructure project undertaken by the first three respondents.
The proceedings involve allegations of various breaches of environmental authorities held by the respondents. The Amended Originating Application (AOA) filed by Swan on 18 August 2015, sets out (at 5-10) the relationship between the first three respondents. For the purposes of these proceedings that relationship is not relevant. I will refer to the first three respondents as (Santos). The fourth respondent was represented throughout by Mr Barclay whose role was neutral and of assistance to the Court. It has never prosecuted or threatened to prosecute Santos for any alleged breaches of the environmental authorities.
The extent of the pipeline undertaking can be gleaned from the affidavit of Andrew Brier filed 2 October 2015 (C.D.29). From 2012, he held various positions with Santos enabling him to give an overview of the project.
He describes the process in relation to the construction and commissioning of the 420 kilometre pipeline from the Surat and Bowen Basins in central Queensland to Curtis Island off Gladstone at para 11 of his affidavit:
“11. Construction of the lineal component of the (‘pipeline’) was an intensive process in which approximately 420 kilometres of pipeline was installed. The whole of the pipeline was constructed as one linear project and scheduled accordingly. That brought with it a level of complexity and logistical difficulties that attend large scale lineal projects of that kind. Moreover, it necessitated considerable excavation and earthworks through different seasons and different soil types and terrains and across the land of many different landholders.
12. During peak construction of (the pipeline), there would have been some 2000 to 3000 sub-contractors working along the 420 kilometre pipeline.”
The initial contact (and indeed much contact thereafter when difficulties arose) between Swan and Santos, was with their land agent, Dean Salter. After 2012 when Mr Brier commenced employment with Santos, Salter was below him in the Santos chain of command. Salter has filed a number of affidavits but they were not relied upon by Santos.
As Swan explains, prior to 2008, three other companies had constructed pipelines through the farm. The experience in dealing with those projects informed his negotiations with Santos in relation to the pipeline.
Ultimately agreement by way of Deeds of Option for Easement, Upfront Compensation with Santos were entered into in relation to both Lots 3 and 12 in late 2010. I accept Swan’s evidence that the main focus of his and his father’s concerns in relation to both properties is as set out in para 33 of his affidavit filed on 26 August 2015:
“33. During those negotiations, my dad and I told Dean we wanted to preserve the qualities of the farm and in particular the soil. The Line List that became part of the Deeds identified particular matters of concern that we raised including how to deal with:
(a) access;
(b) felled timber;
(c) compaction relief;
(d) reseeding;
(e) weeds;
(f) surface disruption;
(g) excavated materials (particularly as the farm was acknowledged to be free from surface rocks);
(h) stock movement;
(i) soil subsidement; contour banks and erosion control;
(j) soil inversion;
(k) general ‘housekeeping’; and
(l) fencing.”
The Line Lists in both Deeds (which are annexed to his affidavit) reflect these concerns.
Approximately 120 properties have been traversed by the pipeline and actual work on the Swan properties to construct the pipeline over Inala and Mulawa commenced around March or April 2013. There is no real dispute that clearing and grading started on the eastern boundary of Mulawa, and then progressed through Mulawa from east to west to the Theodore – Baralaba Road. Thereafter clearing and grading progressed from the Theodore – Baralaba Road through Inala to its western boundary.
It is common ground that in 2011, Saipem Australia Pty Ltd (Saipem) contracted with GLNG Operations Pty Ltd (which acted and acts) on behalf of Santos, to design, supply, construct and commission the pipeline. As Swan and his common law partner, Ms Alison Hotz, attest in their affidavits, he and she had many dealings with Saipem employees and/or sub-contractors about their concerns about the pipeline construction over Mulawa and Inala as it progressed. No witnesses from Saipem gave evidence in these proceedings.
Alison Hotz (Alison) has provided a number of lengthy affidavits and also gave oral evidence and was cross examined. She is Swan’s partner and has lived with him at Inala since September 2013. She has known him for many years. In June 2014, Swan gave her a Power of Attorney to enable her to assist him in dealing with many problems he had with the way in which the pipeline was being constructed, which had by then become overwhelming for him.
She was at a number of meetings when Swan’s concerns were expressed. She took extensive contemporaneous notes. Again, apart from in relation to subtle detail to which I will refer later, her evidence is largely unchallenged. She presented as an intelligent careful witness with excellent recall of events and conversations. She also undertakes (as at all material times she was undertaking) administrative duties on behalf of the trust in relation to the day to day business of the farm.
Exhibit 7 is a copy of a Farm Plan for Mulawa which generally depicts the area of the pipeline corridor through the property, and ex 8 is a similar Farm Plan for Inala which shows generally the position of the pipeline corridor. There is some evidence that the exhibits may in fact be approximately a kilometre out in a linear sense, but nothing turns on this. The corridor (by reference generally to the easement) is referred to in the AOA and the evidence as the Right of Way (the RoW).
The RoW proceeds over a length of almost 9 kilometres through both properties. On exhibits 7 and 8 it is described (in part) by reference to each “Kilometre Point” (KP), as it passes west to east. Each KP is assigned a number which represents the distance in kilometres from the western point of the pipeline. KP240 lies to the west of the western boundary of Inala. KP241-243 all lie within Inala, and KP244-248 all lie within Mulawa, and KP249 lies to the north east of the eastern boundary of Mulawa. The RoW is 40 metres wide, with 30 metres for the pipeline trench and 10 metres for access and onsite works.
Swan was not aware that Santos (at all material times) held Environmental Authorities, one which took effect from 1 November 2011 (the 2011 EA), and another which took effect from 24 March 2015 (the 2015 EA). The terms of each EA are materially the same. The 2015 EA refers to a Meridian Interconnector now constructed on Inala adjacent to the intersection of the RoW and the Moura – Baralaba Road, to connect the pipeline to other Liquefied Natural Gas Transmission Pipelines. The construction of the Interconnector on Lot 12 and partially on the RoW, was the subject of separate litigation in the Supreme Court involving the same (or similar) parties and was compromised on a commercial basis. It only has some relevance to these proceedings to which reference will be made later.
Swan alleges that almost from the commencement of works by Saipem to construct the pipeline, major events occurred which he now alleges constitute breaches and/or potential breaches, and in some cases, continuing breaches, of the EA’s. For example he alleges that early in the construction phase, and as a result of wet weather making it difficult to work on the RoW, rock was deposited between KP244 and KP245 on Mulawa causing major interference with soil profiles. As a result of vehicles being driven in wet weather, deep wheel ruts and holes were left in the RoW. In April 2013, while he was in hospital, good red soils from around KP243 on Inala were moved into an area around KP242 to enable work to continue in the wet, resulting in what he alleges to be irreversible damage to the soil profiles in that area. He alleges that temporary fencing of the RoW was not complete causing concerns for the safety of his cattle. He alleges that his many complaints to Dean Salter and Saipem representatives were ignored or deflected.
In October 2013, at a time when the pipeline trenches were being backfilled and the RoW being re-levelled, he alleges that contrary to his express instructions to one Brent Howes,, who was then the “team leader” for Saipem, soil, gravel, rock and other under- bore material from the pipeline excavation works under the Theodore – Baralaba Road, was spread from the road to KP244 on Mulawa, increasing the height of the land in that area by approximately 300–400 millimetres over an area of about 3000m2. He alleges that Howes told him, when they had an angry confrontation about the issue, that he had “been instructed to bury rock in the RoW to get rid of it”, but he would not reveal the source of the instructions.
He noted that the material had been covered with topsoil. He also alleges that during construction, clay was taken from the large dam on Inala to fill in subsidence both east and west of the KP241, resulting in a significant change in soil profile which is now inconsistent with the profiles outside the RoW.
He alleges other instances where rock and soils different to those on his property were spread on the RoW. As he notes, the Line Lists acknowledge that Inala and Mulawa were free from surface rock. He also alleges that during construction, berms and contour banks in and around the RoW were disturbed or destroyed and were not, and still have not been reinstated appropriately, except for one large berm reinstalled by him for which he was paid by Santos.
In paras 171-179 of C.D.22 he complains of multiple examples of waste both along and outside the RoW as a result of the pipeline construction. He complains of dam contamination and serious ongoing problems with subsidence along the pipeline trench area particularly on Mulawa.
He also complains of inadequate reseeding in the rehabilitation stage, and the proliferation of weed species previously controlled on his property.
The nature of these proceedings
As pleaded in the AOA, Swan seeks orders pursuant to s 505 of the Environmental Protection Act 1994 (the “EPA”). The orders sought are as follows:
“1. An order under s 505 of the EP Act that (Santos), cause all works on the applicant’s land to cease until measures have been put in place to secure compliance with the Environmental Authorities granted under the EP Act for the petroleum activities for PPL166.
2. An order under s 505 of the EP Act that (Santos) cause an independent investigation be undertaken as its cost, by an expert appointed by the Court, to identify all respects in which the Environmental Authorities granted under the EP Act for the petroleum activities for PPL166 have been contravened on the applicant’s land and the measures to be taken to remedy these contraventions.
3. An order under s 505 of the EP Act that (Santos) cause the contraventions to be remedied by the measures identified by the independent investigation.
4. Such further or other orders as to the court may seem just to remedy the contraventions of the Environmental Authorities granted under the EP Act for petroleum activities for PPL166 that have occurred on the applicant’s land.
5. An order that (Santos) pay the applicant’s costs of these proceedings on such basis as to the court may seem just having regard to all the circumstances.”
Relevantly s 505 of the EPA is in these terms:
“(1) A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, …
… by—
…
(c) someone whose interests are affected by the subject matter of the proceeding;
…
(5) If the Court is satisfied—
(a) an offence against this Act has been committed (whether or not it has been prosecuted);
…
the Court may make the orders it considers appropriate to remedy … the offence.”
There is no dispute that Swan has standing pursuant to s 505(1)(c) of the Act; or that this court has jurisdiction; although an argument is advanced by Santos that Orders 2 and 3 sought in the AOA in their present form are beyond jurisdiction for legal reasons.
Santos has continuously complained that Swan has not properly particularised what “offences” he alleges have been committed, and indeed made an application to strike out the AOA on the basis that it disclosed no case to answer, which application remained extant at the time of the hearing. Santos was content for its strike out application to be considered as part of its “no case” submission made after the court had heard all of the evidence.
On 18 May 2016, when I listed the matter for hearing, I ordered Swan to deliver a list of issues which identified those matters which he contends were actionable under s 505 and continuing to affect his land. That list (filed 9 June 2016) did not identify, by reference to any offence under the Act, the section or sections relied upon.
On day 5 of the hearing (17 June 2016), at a time when Sutherland had given evidence and Mr Brier was about to give evidence, and it was obvious that the matter would need two more days to complete, which were to be 18 and 19 August, I said this to Mr Litster:
“HIS HONOUR: But there is a threshold question and it seems to me the way the evidence has fallen out, the discretionary issues are more readily discernible and capable of being sorted out and worked out. But I can tell you I’m struggling at the moment in relation to the threshold question and I was going to ask you that when you make written submissions about section 505, subsection (5), that you identify the offence or offences by specific reference to evidence in the case.
MR LITSTER: Yes.HIS HONOUR: And if you are going to submit that it’s a continuing offence ‑ ‑ ‑
MR LITSTER: Yes.
HIS HONOUR: ‑ ‑ ‑ I’d want a commencement date. If you’re going to submit a specific offence that has a starting and ending date on the evidence, I’m going to ask you to specify that and to refer to the evidence and I think all this about subsection (4) arises out of the fact that to date that’s not been done by you. You’ve given a list of actionable matters which comes from the grounds, but I’m just expressing to you what my concerns are and I think that’s – well, that’s certainly what your opponent has been talking about all the way through. So I think this is a product of the fact that you’ve not been prepared to give particulars of the offences – or the offences apart from referring to the affidavits and I don’t want to have to do that myself. I want you to, as the prosecutor in the quasi-criminal side of it, and I think that’s probably the reason that the – your opponents want to put on evidence in relation to a possible defence, bearing in mind that if leave is granted ‑ ‑ ‑
MR LITSTER: Yes.
HIS HONOUR: ‑ ‑ ‑ and you feel that you need to reopen your case or you need to adjourn it to have further investigations done, well, I’ll consider that. So that’s my response.
MR LITSTER: I hear what your Honour has said. I won’t respond at this point in time. I’ve made my submissions about the defence and I maintain those – my submissions.”
In his Outline delivered 17 August 2016 Mr Litster identities various paragraphs of the AOA as constituting breaches of s 430 of the EPA (1-55 are the “circumstances”, 56 pleads a breach of s 430); and 58 pleads as an alternative, a breach of s 431 of the Act.
Sections 430 and 431 are (relevantly) in these terms:
“430 Contravention of condition of environmental authority
(1) This section applies to a person who is the holder of, or is acting under, an environmental authority.
(2) The person must not wilfully contravene a condition of the authority.
…
(3) The person must not contravene a condition of the authority.
…
431 Environmental authority holder responsible for ensuring conditions complied with
(1) The holder of an environmental authority must ensure everyone acting under the authority complies with the conditions of the authority.
(2) If another person acting under the authority commits an offence against section 430, the holder also commits an offence, namely, the offence of failing to ensure the other person complies with the conditions.
Maximum penalty—the penalty under section 430(2) or (3) for the contravention of the conditions.
(3) Evidence that the other person has been convicted of an offence against section 430 while acting under the authority is evidence that the holder committed the offence of failing to ensure the other person complies with the conditions.
(4) However, it is a defence for the holder to prove—
(a) the holder issued appropriate instructions and used all reasonable precautions to ensure compliance with the conditions; and
(b) the offence was committed without the holder's knowledge; and
(c) the holder could not by the exercise of reasonable diligence have stopped the commission of the offence.”
It is common ground that Swan has the onus of proving that “offences” have been committed on the balance of probabilities governed by the principles explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 363 per Dixon J as the Chief Justice then was). However the proceedings are entirely civil in nature: Caloundra City Council v Taper Pty Ltd & Anor [2003] QPELR 558
See also the decision of his Honour Judge Robin QC in Crowther v State of Queensland [2003] QPELR 346;, the only case that either party could find in which an application had been made by a private citizen for orders under s 505 of the EPA.
Santos’s primary position is that there is no case to answer; primarily on the basis that the prayer for relief, and in particular the orders sought in 2 and 3 of the AOA, are incompetent as a matter of law. It then argues, by reference to the conditions of the EA’s said to be breached, that on a proper construction of the terms of those conditions, the evidence does not establish any breach of either s.430 or s. 431 of the EPA. Alternatively, it submits that if the court is satisfied that a breach of s 431 has occurred and has been committed by Saipem, Santos has a defence under s 431(4) of the Act. Even if the court is ultimately satisfied that offences have been committed by Santos, it submits that in the exercise of discretion the court should not grant the relief sought.
It is common ground that the orders sought are discretionary in nature and that the exercise of the discretion is governed by the principles discussed in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 341 by Kirby P as his Honour then was.
As to Orders 2 and 3 sought in the AOA Mr Horton QC and Mr Favell submit as follows:
“(a) the relief sought in the AOA lacks the certainty essential to the ground of injunctive relief;
(b) the relief would impermissibly involve the court delegating its function of being satisfied as the commission of offences under the EP Act to a private citizen (a court appointed expert);
(c) no part of the relief seeks that the court be satisfied an offence has been or will be committed;
(d) none of the relief seeks orders directed to remedy or restraining any offences found by the court;
(e) the relief sought in Order 1 would be futile because the pipeline and the meridian Interconnector have been constructed;
(f) the relief fails to specify a time by which the order is to be complied with;
(g) the relief does not meet the requirements of s 505(6)(a) or (b) of the Environmental Protection Act.”
The expert evidence
When Swan’s Originating Application was filed on 26.5.15, no expert evidence was relied on. Both parties involved experts. Ultimately, the position of Swan is that, on the basis of the evidence of his expert, much more investigation needs to be done to establish the extent of the environmental harm along the RoW. Santos’ position is essentially that:-
(a) The expert evidence taken at its highest does not establish any breaches of the EA’s; and
(b) The work undertaken on the RoW since 12.11.15 under the supervision of its expert essentially provides for exactly what is sought by Swan in 2 and 3 of his prayer for relief.
Mr Manning, on behalf Swan, engaged Steven Dudgeon (“Dudgeon”) to prepare a report relevant to alleged breaches of the EA’s as a result of an inspection by him of the RoW on Inala and Mulawa with Swan on 29 June 2015. As Dudgeon notes in his first report dated 18 August 2015 (CD 18) he drove the length of the RoW and concentrated on locations of major concern to Swan.
As he notes, prior to the commencement of works, a preliminary soil management plan covering both properties was commissioned by Saipem. Relevantly he notes that the whole of Inala and Mulawa is mapped as Good Quality Agricultural Land (“GQAL”).
At that first inspection, Swan identified to Dudgeon particular areas of concern, which related to the alleged backfilling of pipeline trenches with shallow sodic heavy clay. As Dudgeon notes, sodic soils have a number of adverse properties including poor surface soil structure, surface crusts, extremely poor plant growth and other issues not conducive to developing pasture along the RoW. He noted five areas of major concern to Swan.
Area 1 is an area around KP241, in which Dudgeon noted hard setting surface crusts characteristic of subsurface sodic soil. This is the area on Inala where Swan alleges that pipe trenches were backfilled with sodic subsoil clay, taken from what is described in Exhibit 7 as the Big Dam on Inala. Dudgeon noted that the hard setting crusts were not evident in other local areas and “unexpected” in the top soil horizon.
Areas 2 and 3 (see page 14 of CD 18) are located east of KP242 and west and east of KP243 on Inala, in the area known as Red Hill South on Exhibit 7. Dudgeon (and indeed, Swan) described this as “the farm’s highest quality red earth soils.”
Dudgeon dug soil inspection pits, and noted in the RoW, that the pit (marked as pit one) had a shallow Red Earth A horizon, less than 250 mm in depth, overlaying a rocky sodic heavy clay layer B horizon. Pit two (see page 15 CD 18), which was dug outside the RoW in the same area revealed a soil profile of “deeper clay loams” to 1m plus.
Area 4 was west of KP 244 on Mulawa, in the area in which Saipem had spread the gravel rock etc. excavated from under the Theodore – Baralaba road along the RoW and covered it with top soil. Similar results to areas 2 and 3 were obtained and, as well, Dudgeon commented on the presence of a large blue rock in one of the pits he dug which was inconsistent with the soil profile outside the RoW.
Area 5, also on Mulawa, and east of KP244 revealed similar results, suggesting a shallow soil horizon overlaying rocky sodic heavy clay, which was inconsistent with the soil profile noted in pit 6 in the same area, but just outside the RoW.
Dudgeon also noticed significant subsidence present, on average, every 250m on Mulawa with an average depth of 0.5m. He also noticed more weeds in the RoW than in the rest of the farm, and a marked visual difference between plants in the RoW and the rest of the farm. He formed an opinion that conditions in the EA 2011 had “not….(been) complied with…”; and detailed reference will be made to the relevant conditions later in these reasons.
Dudgeon was acting on instructions from Mr Manning. One of the issues that has to be resolved is the adequacy of the case presented by Swan, on the basis that particulars of alleged offences have not been given. I do not criticise Dudgeon for expressing the opinion set out at page 26 of his first report, however, clearly the opinion therein expressed is an opinion of law and not an opinion within his expertise to express.
He concluded that there was evidence of subsidence; the surface of the RoW had not been returned to a condition which serves the pre-construction use; pipeline trenches had not been rehabilitated; soil horizons are inconsistent with nearby soil profiles, top horizons of soil profile had not been reinstated; the land had not been reinstated to the pre-disturbed soil suitability class; and there was change in pasture including weed infestation.
He recommended a detailed site survey should be undertaken for soil profile and condition within the RoW, and this should be compared to native adjacent soil profile classifications, and undertaken at a maximum scale of 1:2500; a weed survey; a rehabilitation specific survey to compare the rehabilitation species to the current farming pasture species and a subsidence survey. He recommended from the surveys a revised rehabilitation plan be produced and implemented.
As a result of Dudgeon’s report, Santos engaged agronomist, Mr Neil Sutherland (“Sutherland”), as an expert. There is no suggestion that either man is not qualified as an expert.
Sutherland’s first report (dated October 2015) was filed on 5 November 2015 (CD31), prior to a contested review before me on 12 November 2015 in Brisbane. He undertook a site inspection of the RoW on 1 and 2 October 2015, accompanied by two of his staff. He was briefed with a copy of Dudgeon’s report.
Dudgeon had noted in his first report that although he had a copy of a preliminary Soil Management Plan prepared in 2011, he did not have a Soil Management Plan prepared by Saipem in 2015, which identified a total of four soil orders on the site in accordance with accepted standards.
When Sutherland undertook his inspection, a representative from Dudgeon’s company was present. Swan was also present for some of the inspection on 1 October and “voiced his concerns”, which Sutherland found “helpful.” Sutherland inspected the RoW from approximately KP241 on Inala, to KP248 at the eastern end of Mulawa. Soils and vegetation cover was assessed at a total of twelve locations with six transects across the RoW. For each of the transects, at the orientated perpendicular to the long section of the pipeline, two sampling points were selected – one within the RoW and the other south of the RoW in an area undisturbed by pipeline works. In large part, his selection of the transects was informed by the areas identified in the Dudgeon report.
Transect 1 was in a low-lying level area near the western extent of the RoW near KP241 i.e. on Inala. As he notes, the two sampling locations at each transect were selected by using the “rock in the sock” method to randomly select and eliminate bias. This roughly coincides with Dudgeon’s Area 1, but is further to the west. As well as analysing soil horizons, he assessed groundcover on and off the RoW, and the presence of weed species.
Transect 2 appears to be east of KP242 on Inala in the Red Hill South area. It is approximately in the vicinity of Dudgeon’s Area 2.
Transect 3 is on Mulawa “near KP243.” From the oral evidence, and by reviewing the aerial photographs at 41-42 of CD31, this area seems to be much closer to KP244. KP243 is on Inala, and roughly accords with Dudgeon’s Area 3.
Transect 4 is said to be in the vicinity of KP244. Neither transect coincides with Dudgeon’s Area 4, which is of concern to Swan because of the spreading of gravel etc. on the RoW in that area by Saipem from the excavation under the road. Transect 5 is again on Mulawa but, in the report, is not related to a KP. It appears to be east of KP445 and west of KP246. Transect 6 is in the eastern portion of Mulawa and appears to be close to KP248. Sutherland undertook more extensive sampling than Dudgeon, but not (for example) in the western end of Mulawa in the area allegedly contaminated by material removed from under the road.
His conclusions are set out at 5.3 of his report. His opinion is that there was little difference between the RoW and the undisturbed areas in terms of ground cover. As regards vegetation, he noted observable difference in vegetation composition within a 10m radius at transect’ 3 and 4, and he noted a proliferation of undesirable weed species within the RoW at transect 4. He was only able to locate obvious surface coarse fragments at transect 1 within the RoW.
In his opinion, soil texture was similar (as between the RoW and undisturbed areas) at transects 1, 4, 5 and 6, but differed markedly at transects 2 and 3. Soil structure was “reasonably consistent” through transects 1, 3, 5 and 6, however at transect 2 and transect 4, there was significant difference between the soils in the RoW and those in the undisturbed area. He noted the presence of coarse fragments (i.e. within the soil) in both the RoW and in the undisturbed areas, but “were notably in higher proportion within the RoW at transects 1 and 2.” He thought these fragments were likely to be blast product, but he did not do sampling in Dudgeon’s area 4 in Mulawa, west of KP244.
In relation to the important issue of soil profile (horizon) at 390 (page 16 of CD31), he wrote this:
“390. Evidence of mixed layering as determined by colour and/or texture was present within the RoW soils at transects one (0.15-0.30m) and transect five (0.10-0.30m and 0.30-0.50m). Inconsistencies in the soil horizons between the RoW and the undisturbed areas were also noted at transects two and four. In the case of transect two, the RoW exhibited multiple shallow topsoil horizons with heavier textures and darker colours compared to the lighter colours and textures of the undisturbed area. In the case of transect four, the RoW exhibited a massively structured, poorly drained B horizon from near surface (0.15m BGL) in comparison to the moderately structured B horizon encountered from 0.25m BGL in the undisturbed area. In my view, this indicates the soil profile has not been reinstated to its pre-disturbance condition at these locations.”
He noted that soil moisture was predominantly higher throughout the undisturbed areas except for transects 2 and 4, and subsidence throughout the length of the RoW, which was particularly evident in the eastern portion of Mulawa.
He was asked by Santos’ solicitors to address the EA conditions. In relation to condition D11 (EA 2011) after setting out the condition he writes:
“From my inspection and the assessment undertaken, there were multiple areas of subsidence, exposed subsoils (i.e. poor topsoil coverage or absence of topsoil) and poor soil structure, likely to have resulted from the disturbance, noted along the RoW. This indicates that some parts of the RoW had not been restored to a ‘land use condition that serves the preconstruction use’. However, the restoration of large parts of the RoW did meet the required condition, in my view.”
He then addressed conditions H5, H8 and H9 in EA 2011. He concluded from the inspection and assessment undertaken:
“Significant differences in soil horizons between the RoW and undisturbed areas were apparent in transects one, two, four and five. This included evidence of mixed soil and different soil texture and/or structure.”
In relation to EA 2011 condition 39, he wrote this:
“From my inspection and the assessment undertaken, I noted the presence of weeds included Parthenium, Horse Bean, Dog Burr, Cat Head, Deadly Nightshade and Scotch Thistle within the RoW, adjacent to and east of transect four and also within other areas generally where soil disturbances (e.g. subsidence, mixed soil and exposed subsoil), had occurred.”
At pages 25-26 he proposed a program to address the problems of soil inversion, weed infestation, serious subsidence and other issues addressed in his conclusion. He expresses his conclusions as follows:
“Acknowledging that there was to be progressive rehabilitation and the restoration of large parts of the RoW did meet the A conditions, it was evident that some areas had not yet been restored to a condition that serves the land’s pre-construction use. The soil profiles assessed along the RoW show differences when compared to the undisturbed area. The management measures that relate to this issue should be augmented to provide the necessary actions to address topsoil depth and exposed subsoils post reinstatement work. While subsidence was observed within the RoW, the relevant management plans properly implemented are adequate to satisfactorily address the ongoing management of this issue. Weeds were found to be present mainly in areas exhibiting soil disturbance. In my view, the management plans that relate to this issue will appropriately address the ongoing management of weeds. The rehabilitation plan has been implemented within the required timeframe. However, further repair of the soils and the pastures, together with monitoring and reassessment of the efficacy of the rehabilitation plan measures, need to be addressed. The opportunity to complete these works in time to capture the most likely rainfall in February-March 2016, means the work should be implemented relatively quickly in my view.”
In section 8 of his report, he set out his recommendations. He wrote:
“Acknowledging that at least along parts of the RoW, the rehabilitation of the soils and pastures to pre-disturbance conditions may cause more (further) disturbance than desirable, the following procedures should be implemented to help reinstate the soil profiles, address subsidence and manage weeds.
My recommendations for reinstatement and rehabilitation include three options depending on the degree of land form disturbance over the exiting (sic) condition at the time of my site inspection. The method of rehabilitation should be a simple three-step process of assessment, rehabilitation and monitoring to ensure the rehabilitation has succeeded.
This three-category process is summarised in the following table, where landform disturbance has been characterised as major, medium and minor. In these procedures ‘major’ disturbance extends across the entire RoW width, irrespective of the length along the RoW. ‘Medium’ RoW disturbance is disturbance greater than 150m² in area but less than the width of the RoW and ‘Minor’ disturbance is disturbance less than 150m². This has been based on well-established grassland management strategy of replacement, renovation or retention.
| Area selection criteria | RoW width | >150m2 Area but less than RoW width | < 150m2 area | Notes |
| RoW disturbance | Major | Medium | Minor | |
| [67] Actions | Slash RoW & whippersnip subsided areas | Slash | Slash | 1 |
| Assessment | Assessment | Assessment | 2 | |
| Emu bob | Emu bob | Emu bob | 3 | |
| Spray | - | - | 4 | |
| Soil testing pH | - | - | 5 | |
| Rotavater | - | - | 6 | |
| Gypsum/lime | - | - | 7 | |
| Repair with topsoil | Repair with topsoil | Repair with topsoil | 8 | |
| Fertiliser | Fertiliser | Fertiliser | 9 | |
| Drawbar Seeding | Drawbar or hand seeding & tiling | Hand seeding & tiling | 10 | |
| Water | Water | Water | 11 | |
| Monitoring | Monitoring | Monitoring | 12 | |
| Reassessment | Reassessment | Reassessment | 13 | |
| Further repair | Further repair | Further repair | 14 |
Notes:
1. Because of the successful pasture establishment across areas of the RoW the subsided areas can be camouflaged.
2. A post-slashing assessment is needed to categorise the areas to be rehabilitated.
3. An “Emu-bob” using five people behind the vehicle should be used to collect sticks and any surface rocks > approx. 100mm diameter for disposal. The disposal location should be either offsite or if the landholder agrees, on-site.
4. Spraying with gylophosate or equivalent.
5. Soil testing for pH to determine whether gypsum or lime should be incorporated.
6. First pass with “Crocodile” seeder could be used instead of rotavator.
7. Gypsum (soil 1:5 pH >6.5) or lime to be applied depending on soil test pH result.
8. Topsoil to be supplied from farm in consultation with landowner or certified weed-free from offsite.
9. Either Mono-ammonium phosphate or sulphate of ammonia fertiliser to be applied.
10. Drawbar seeding with “Crocodile” or drum seeder equivalent. Pasture mix to reflect original line list mix (Royal Seeds Biloela).
11. Watering to be completed from single track along RoW centreline if there is no rainfall >5mm within 14 days of seeding and thereafter weekly until 50% groundcover established.
12. Monitoring to be completed on a monthly basis until 75% groundcover established within sward of grasses in sown mix.
13. Reassessment to be completed between months 5 & 6 from seeding date.
14. Further repair to be completed if subsidence reoccurs over more than 5% of the RoW or 75% groundcover is not achieved.”
As a result, there was a review before me on 12 November 2015 which involved a heated contest between two proposed orders. At that review, Mr Brier gave evidence and was cross-examined. As my reasons for judgment delivered that day reveal (see Exhibit 5 Part 2), ultimately I preferred the order proposed by Santos which required it to carry out the works recommended by Sutherland in his report by the end of January 2016. I noted in those reasons by reference to Swan’s then untested evidence, that he had no faith in Santos’ ability to rehabilitate his land to its pre-construction state unless forced to do so by strict orders. I also noted that Santos had complained that Swan has been obstructive and non-compliant in allowing them onto his land to carry out their legal obligations. Some of those preliminary observations are borne out by my assessment of the whole of the evidence.
The order proposed on that occasion by Swan, I found, was overly proscriptive, and likely to provoke more argument. Mr Litster made it very clear to me that because the works proposed by Sutherland were not strictly defined; his client strongly opposed the making of the orders that I did make.
The works proposed by Sutherland were undertaken, and assessed by two environmental officers employed by his firm on 18 and 19 January 2016. As at 25 January 2016 (CD38), Sutherland swore that his recommendations, (apart from ongoing, watering, monitoring and repair), had been implemented.
In his affidavit filed 14 April 2016 (CD43) he referred to a further inspection by him and one of his employees on 10 March 2016. In his affidavit he states:
8. While Mr Holland (his employee) and I were on the property, I paid particular attention to the areas that had been the subject of subsidence repair, seed strike and groundcover rehabilitation. I made the following observations:
(a) The state of the Applicant’s property had generally improved since my visit on 1-2 October 2015;
(b) There were limited areas suffering from subsidence; and
(c) Of the areas where grass seed had been spread, there had been a reasonable “strike” rate (when the seed has germinated) and grass cover.
9. In order to confirm the levels of grass cover, I undertook grass cover measurements using a “quadrat” (the same method referred to a (sic) page ten of my report dated 30 October 2015). The measurements were taken from six randomly selected points (all in the vicinity of those areas measured for my previous report). In all cases the ground cover exceeded 90 per cent.
10. The only area in which further erosion through tunnelling and/or subsidence was evident, was downslope of the red soil boundary on Inala. The area was relatively small – I would estimate it to be approximately 50m². It is located either side of a contour bank. As such, I recommend that additional gypsum be applied to the areas so as to stabilise the soil, before minor rehabilitation works are undertaken (i.e. reseeding and watering).
11. In some areas, it was evident that cattle had trampled areas where subsidence repair had occurred. For the most part, this is of little concern. However, in one area of subsidence repair on the eastern side of Mulawa property there had been very little strike. The soil had become hard set. This was most likely due to cattle trampling on the soil in wet conditions. To try and achieve a better strike area on that area, I recommend it be left to recover without cattle, harrowed and reseeded as soil moisture conditions allow.
…
13. I confirm that the recommendations contained in my report of 30 October 2015 have been implemented by (Santos) to the extent possible.
14. Whilst the recommendations have been implemented, the results have to an extent been curtailed by the lack of recent rain, the presence of cattle on the property and some further subsidence. Given those factors, I recommend:
(a) Further remediation of the subsidence area, referred to in para 10 above;
(b) Re-seeding of the area identified in paragraph 11 above; and
(c) Continued watering of the seeded areas.”
There is significant dispute between the parties as to the extent to which Santos has addressed concerns raised by Swan and Dudgeon in the works supervised by Sutherland’s firm and referred to in his affidavits above. In his affidavit filed 13 May 2016, Dudgeon refers to an inspection undertaken by him on 29 January 2016 along the entire length of the RoW. He says this:
3. It appeared that the works that took place during December 2015 and January 2016 were focused on filling areas of subsidence and erosion with topsoil provided from the property. There had been some ripping of access tracks within the RoW,
4. I saw no evidence of work to rehabilitate poor soil structure, to reinstate modified soil profiles, to remove rock within the soil profile or return filled areas to their pre-disturbance level. For example, the area at the western end of the RoW on Mulawa (where the level of the land appears to have been raised during the construction of the pipeline) did not appear to have been reinstated to its pre-disturbance level.
…
6. Although it is said that an emu-bob occurred prior to slashing, during my inspection I noted rocks, sticks, pegs and rubbish within areas of the RoW that otherwise appeared to have been the subject of work and were meant to have been cleared following the emu-bob. Photos I took record examples of this.
7. Within the areas that had been the subject of work, there were examples of poor reinstatement of contour banks. Photos I took also include examples of this. Photos provided by Mr Holland in relation to his inspection on 18-19 January 2016 also show poor reinstatement of contour banks.
…
10.If contour banks are not properly reinstated they are likely to fail. Failure of a couture bank can increase erosion. Contour banks that are not properly reinstated can result in accumulation of sedimentation behind the contour bank and this will affect the intended operation and integrity of the contour bank.
11.I have been provided with photographs taken by Alison Hotz and Steven Swan of the RoW during January 2016 which shows the gypsum was not spread evenly. Photos provided by Mr Holland in relation to his inspection on 18 and 19 January 2016 also include examples of this.
12.A failure to spread the gypsum evenly leads to variability in soil structures which will effect rehabilitation and growth.
The appearance of the RoW on 29 January 2016 was consistent with gypsum having been applied and a small offset disc plough having been used to attempt to mix the gypsum into the top soil.
…
21.During my inspection on 29 January 2016, it did not appear to me that all access tracks within the RoW had been rehabilitated. There was evidence of a ripper or scarify being used up and down the slope rather than across it. That is not a satisfactory method for insuring rehabilitation of access tracks because it increases the risk of erosion.
…
24.During my inspection on 29 January, there was still evidence of weed. Photos I took also include examples of this.
…
26.As a consequence of my inspection on 29 January 2016, I was instructed to undertake further investigation as directed, in particular, to ascertaining whether there had been work performed to rehabilitate poor soil structure, to reinstate modified soil profiles, to remove rock within soil profile or return filled areas to their pre-disturbance levels.
27.As a consequence, I attended Inala and Mulawa on 23-25 February 2016. Following that inspection I prepared a report of the investigation that I then carried out.
His final report is annexed to his affidavit (CD49). As he notes at 2.1 of his report, his field inspections focused on identification of key areas which should, in his opinion, have been rehabilitated. He refers to Sutherland’s Transect two (his Area 2, KP242); Transect 3 (Area 5, KP245); Transect 4 (KP242). In addition he undertook further investigations in Area 4 which, as I have noted, was not tested by Sutherland.
Dudgeon’s conclusions and recommendations at p 18-19 of his report are in these terms:
“Our soil survey has also identified significant differences at Transect 3 which was highly modified and had severe limitations to plant growth due to compaction and placement of subsoil at shallow depth. At our area, there was sodic and compacted fill containing rocks at shallow depth. The majority of the RoW locations considered (five sites out of six or 83 per cent) have significant differences in soil horizons, structure and texture between the RoW and the undisturbed area.
It is clear from my inspection of Inala and Mulawa that rehabilitation was limited to “filling” in the subsidence along the pipeline with topsoil. It did not address inversion, exposed subsoils, poor soil structure, modified soil profiles, compaction, or introduced fill and rock within the soil profile apparent elsewhere within the RoW.
It is essential to the ongoing sustainability of pastures within the RoW that these matters be addressed. Although a superficial rehabilitation of the kind that has occurred can look successful to the layperson in times of favourable conditions: inversion, poor structure, compaction and sodic soils placed high in the profile, cause physical and chemical barriers which prohibit plant roots from accessing available water and nutrients. If there is lack of soil water due to drought and reduced rooting depth due to these barriers then pasture stress and plant mortality is likely. In wet seasons, waterlogging in the root zone can impact pasture growth.
Despite recent rehabilitation work… there is evidence of the surface not being returned to its pre-disturbance condition that serves the pre-construction use; soil horizons that are inconsistent with those nearby; and the land not being reinstated to the pre-disturbance soil suitability class.”
He then goes on to recommend a detailed site survey similar to that recorded in his first report, except he suggests that it be undertaken at a maximum scale of 1:10,000 as recommended by the guidelines for soil survey along linear features (Soil Science Australia, Queensland Branch, 2015). He recommends an independent survey by a consultant selected by the court.
As a result of orders made on 18 May 2016, the experts met and prepared a joint expert report (CD57). The extent to which the works undertaken by Santos at the direction of Sutherland’s firm have addressed the issues of concern (particularly rehabilitation of poor soil structures and return of soil profiles to pre-construction levels), is the subject of dispute. In this regard it should be noted that the relevant condition in the environmental authority refers to “a condition that serves the preconstruction use”.
By reference to Sutherland’s first report (file 5 November 2015), the experts agreed:
“13.The NS report acknowledged there were areas that had not yet been restored to a condition that served the land’s pre-construction use. It provided recommendations for the remediation and rehabilitation of the site.
14.Those recommendations included three options for the reinstatement and rehabilitation of the RoW depending on the degree of landform disturbance encountered; each included slashing the vegetation, emu-bob to remove large sticks and rocks (>100mm diameter), prepare with topsoil, fertiliser application, seeding, watering and further monitoring the pasture, re-establishment of the pasture establishment and repair as required. Areas of major disturbance also were to include spraying with herbicides for weed control; soil pH testing to determine the selection of either lime or gypsum to improve soil structure.
15. With regard to herbicides, NS limited the recommendation to the use of glyphosate or equivalent based on the knowledge that the applicant was concerned that any residual herbicides could jeopardise a future application to gain organic status on his property.”
They also noted (under points of agreement):
“17.(Santos) initiated works on the site between 23 and 26 November 2016. These works include, emu-bobbing of visible timber of stones over approximately 100mm in diameter and removal of weeds within the RoW, prior to slashing and subsequent mapping areas of subsidence within the RoW and pH testing of soil. A progress report (from Santos) is attached as appendix 3. G&S and Aus Ecology Pty Ltd staff also mapped areas of exposed soil and subsidence over the same period and this mapping is attached as appendix 4.
18. Following these works, NS prepared a letter to (Santos) entitled “Recommendations for soil reinstatement and rehabilitation” dated 3 December 2015. This letter provided further information, expanding upon the recommendations of the NS report and augmented by data provided by Aus Ecology Pty Ltd and G&S staff observations from the November site visit. This is attached as appendix 5.
19.A series of further works were initiated on site between 10 December 2015 and 10 January 2016. The site was attended by a qualified agricultural scientist and hydrogeologist of GNS, Andrew McDonald. The works included further spraying of weeds and subsidence repair, including application of topsoil as required; application, spreading and incorporation of gypsum; application of ammonium sulphate fertiliser; and seeding of repaired areas and any other areas lacking pasture growth.
20.Topsoil was sourced on site from areas approved by the applicant under his or Mr Hotz’s direction.”
Importantly, under the heading “Rehabilitation Principles”, both experts acknowledge:
“24. No soil rehabilitation exercise will result in a replica of the undisturbed soil profile. That said, with disturbance from an infrastructure project such as this, care can be taken to ensure topsoils (generally at 0.300mm depth) from the originating soil profile, remain at the soil surface; and subsoils (generally at >600mm depth) are reinterred below the topsoil layer.”
Both experts also agreed as follows:
“Disturbance impacts
25.Because of the construction disturbance through differing soil types over the length of the RoW, the following short-term impacts are likely:
(a)Grazing, management or harvest disruption over at least two seasons.
(b)Soil erosion, compaction or downslope deposition.
(c)Pasture loss.
26.Similarly, the following longer-term impacts are likely:
(a)Subsidence where the backfill trench has had insufficient compaction or additional material laid over the trench to accommodate post-placement settlement.
(b)Organic matter and seedbank losses.
(c)Interrupted draining.
27.Given the likelihood of these impacts, rehabilitation techniques appropriate to the time scale and magnitude of the impacts were required.
Rehabilitation techniques
28.The use of established rehabilitation techniques, involving amendments to ensure the reinstatement of the pre-disturbance land use was reasonably foreseeable and represents best practice.
29.In respect of the use of amendments, the following represent examples:
(a)Reseeding to allow for a more rapid re-establishment;
(b)Fertiliser;
(c)Organic matter;
(d)Weed control; and
(e)Gypsum or lime.
30.Our observations from site inspections are:
(a)Some areas along the RoW exhibited compacted soil.
(b)Differences in soil structure between the soils on the RoW and outside of the RoW remain.
(c)Some soil profiles within the RoW show evidence of mixed sub-soil layers.
(d)Some soil profiles show differences in sub-soil texture classes between the soil on the RoW and outside the RoW.
(e)There are differences in the abundance of coarse fragments within some soil profiles between the disturbed and undisturbed area.
(f)Occurrence of subsidence has reduced along the RoW post-rehabilitation.
(g)Of the areas where grass seed has been spread, there is reasonable pasture strike and grass colour (>70 per cent ground cover).
31.Soil profile mixing is, in part, remediated by the use of lime or gypsum and organic matter, which are management measures within the profile that result in general soil improvements, such as:
(a)Remediating soil sodicity by increasing calcium;
(b)Improving soil structure and drainage; and
(c)Marginally increasing the salinity of the soil.
32.The trenched areas and the undisturbed and disturbed areas exhibited natural mottling and iron layers are comparable depths, indicating ancestral relics.
Rehabilitation objectives
33.The rehabilitation objectives ordered by the court aim to achieve remediation of the existing soil and landform condition to a plant production potential similar to land outside or and adjacent to the disturbed sections of the RoW. Whilst the rehabilitation program had available to it a range of measures, strategies and actions to fulfil the rehabilitation objectives, those chosen and implemented, aim to maintain existing pasture and the existing seed bank within the soils of the site.
34.Similarly, whilst there was a range of reasonable herbicide choices available for weed management purposes, the one chosen (glyphosate) and used in this instance was more labour intensive, but reflected the land holder’s preference for selective plant eradication by spot-spraying whilst preserving the organic status for future application and maintaining the existing pasture and seed bank.
35.The success of the rehabilitation is measured by ground cover, area of subsidence and pasture availability.
Monitoring
36.The monitoring and ongoing repair provisions detailed in the NS report should continue as prescribed.
One of the vexed issues that arises in their points of disagreement comes about because so much time has elapsed since the acknowledged mixing of soil profiles by actions as directed by Saipem. This includes the depositing of road material in the western end of the RoW in Mulawa, the pushing of high quality red earth soils from around KP243 towards KP242 in April 2013 and the deposit of rock on Mulawa in April 2013 between KP244 and KP245; all of which occurred without the knowledge or acquiescence of Santos. Santos certainly became aware of Swan’s concerns about these issues very soon after each occurred.
(a) historical details concerning the pipeline project;
(b) discretionary matters; and
(c) section 431(4) considerations.
To some extent, his evidence relating to the issues the subject of Swan’s evidence has been overtaken by the involvement of Sutherland. His primary affidavit (CD29) was sworn prior to the filing of Sutherland’s first report. In relation to the issue of post-completion rehabilitation, he says this at para 45-46 of CD29:
“45. The subsidence and insufficient vegetation on the applicant’s land are similar to what occurred on other parcels of land that the (pipeline) passes through. Since July 2015, (Santos’) contractors had been progressing along the (pipeline) and attending to subsidence, erosion, land stability and vegetation issues where they have arose (sic). The contractors are trying to get as much of the rehabilitation and rectification works done as possible prior to the wet season (during which undertaking the necessary works is not practical, economical or safe). Contractors have attended to and rehabilitated more than 60 per cent of properties that the (pipeline) passes through. A third party, Ausecology, is monitoring the works that are being undertaken.
46. In the absence of this proceeding, (Santos’) contractors would have been in a position to undertake rectification of any erosion and/or subsidence on the applicant’s land by mid-September 2015. However, due to the current proceeding and the applicant’s stated wish that his land not be entered, (Santos’) contractors have proceeded to other properties along the (pipeline). In the event that the applicant gave notice that he wished (Santos’) contractors to attend to the rectification of issues on his land, the necessary works can be undertaken relatively quickly (subject to the wet season).”
His affidavit filed 13 April 2016 (CD42), essentially confirms Santos’s commitment to carry out the works recommended by Sutherland.
It is really not disputed that Saipem were responsible for the incidents which underpin most of the allegations made by Swan. Saipem was responsible for moving high quality red earth soil from the area in Inala around KP243 which was pushed downhill towards KP242 to an area with a completely different soil profile which was mixed with other soil and rock and used to backfill the excavation between KP242 and KP243. It was also responsible for depositing rock in Mulawa between KP244 and KP245 sometime prior to June 2013; and was also responsible for using rock and material excavated from under the Theodore-Barrallaba road in October 2013 for depositing on Mulawa between the western boundary and KP244. Saipem was also responsible for depositing clay in the pipeline trench in Inala both east and west of KP241 sometime prior to 15 July 2014.
Mr Brier himself became aware of the red soil issue and the gravel and rock deposited on Mulawa almost immediately. His undisputed evidence was that Santos attempted to have Sapiem remove it when he became aware of its presence. In relation to the under-bore material, his evidence was that Santos became aware of that occurring approximately 2-3 weeks after the event at a time when the rock had been buried.
Given the way in which Swan has conducted his case, it is not possible to say if an offence or offences were committed by Saipem in relation to these specific incidents, and I do not understand Mr Litster to suggest otherwise.
If I had found that Saipem had committed offences, Santos argues that it can then rely on s 431(4) as “a defence”. Certainly, on the evidence placed before this court, there is no basis for finding that Santos had any prior knowledge of Saipem’s intention to do these things which were of such concern to Swan at the time.
Mr Litster submits that s 431(4) is not available to Santos as a matter of law. His submission is that the “defence” is only available to a party when that party is prosecuted for an offence under s 431. I do not accept that argument. For the purposes of s 505(5), no “offence” exists if Santos proves (to the civil standard) all three matters referred to in ss 431(4)(a), (b) and (c). Mr Brier’s oral evidence was largely directed at the relationship between Santos and Saipem. His evidence (as accurately summarised at para 7 of Santos’ outline in relation to s 431(4)) is as follows:
“(a) Saipem was engaged under an EPC contract – an engineering, procure and construct contract. In effect, Saipem was to design, engineer, procure, construct, rehabilitate and manage the building of the (pipeline);
(b) The (pipeline) passes through the land at 114 Landholders. At various times in construction, there were up to 56 work fronts across the (pipeline). At its peak, there were 2000-3000 subcontractors working along the (pipeline);
(c) In the period leading up to April 2013, Mr Brier lead 20-30 meetings and briefings with Saipem, which were ‘specifically aimed at getting them to adhere to their compliance obligations, making sure they understood the regulatory framework in which they are operating and the consequences of non-compliance, both in a legal sense…but also from a social license to operate and reputational sense as well’;
(d) Many of the meetings were with Saipem’s key management staff and personnel. At times, external experts in areas like aquatic ecology, ecology and landform stability were brought in to assist;
(e) The consistent attendees (from a Saipem perspective) were Giuseppe Tassinari, Alessio Testa and Daniel Rapidi;
(f) He had personally warned Saipem representatives in at least five of six of the meetings of the importance of not importing material onto site;
(g) There was a real focus on ensuring Saipem understood the obligations from the beginning because once construction started, methods of ensuring compliance were limited.”
Earlier reference was made to the meeting between Swan, Alison and her brother with Greg Jones on 23 July 2014 at a café in Moura. The invoices contained in Exhibit 11 (and explained in detail in para 15 of Mr Brier’s October 2015 affidavit), indicate a real willingness on the part of Santos to respond to concerns expressed by Swan about the actions of Saipem, and particularly the actions of most concern referred to above.
From April-December 2014, Santos paid Swan for fencing, DNA testing of his cattle after a gate was left open, considerable work on the dam on Mulawa which had been seriously damaged as a result of actions by Saipem; and work on contour banks and berms, and provision of seeds. As noted earlier, many of these invoices included an administration fee and/or payments to Swan and/or Alison for their labour.
At that meeting on 23 July 2014, Alison’s notes record in clear terms that Swan’s anger was directed towards Saipem and its representative. He apparently acknowledged at that time that Santos was endeavouring to respond appropriately by indicating to Jones that he was not happy to work with Saipem but happy to work with Santos.
The response of Santos to the problems raised by Swan after the July meeting does show that it was trying to solve problems, even if it was too late to undo the actions of Saipem that had led to these problems.
On the evidence before this court it should be accepted that Santos did what it reasonably could to ensure that Saipem complied with the regulatory framework underpinning the pipeline project. There is no evidence that Santos was aware that Saipem was acting in relation to the four matters referred to above prior to those actions having occurred. This seems to be acknowledged by Swan in his outline of offences.
The exercise of discretion
In circumstances in which the applicant has not proved the commission of offences so as to enliven the discretion in s.505(5), it is still necessary to express my view, based on the evidence, on matters which in my opinion, would have been relevant to the discretionary power.
The access issue
Santos’ position is that in 2015 Swan unreasonably denied access to its contractors to effect rehabilitation and address a lot of the issues raised in the OA, until forced to do so as consequence of the November 2015 court order. On 18 September 2015, Mr Manning wrote to Carter Newell (Santos’ solicitors) as a result of his client being told that “work crews” were moving along the pipeline “to conduct rehabilitation works”.
By then Swan was disenchanted with Santos as well as Saipem. That letter sought to place conditions on any entry in accordance with Exhibit 10 which is Swan’s Position Statement prepared consequent upon an order of this court made on 11 June 2015. The statement provided very proscriptive conditions for entry and undertaking remedial works, including condition 12:
“12. Powers of O2 Environment + Engineering
The powers of O2 Environmental + Engineering will be:
12.1. To monitor and inspect all aspects of the Remedial Works, other works and access.
12.2. To require Santos to stand down such workers who have shown a continuing lawful disregard for the EA, Easement Terms and Deed.
12.3. To require work to cease on site where there is not an insubstantial non-compliance with the EA, Easement Terms and Deed.”
Not surprisingly, Santos would not accept such a condition. It is common ground that in June 2015, Swan denied access to Ausecology, described in Exhibit 18 as a third party monitoring rehabilitation works undertaken by Santos’ contractor along the pipeline. By then Dudgeon, a principal of O2 Environment + Engineering had been notified as an expert on behalf of Swan.
At the review on 12 November 2015, Swan argued strongly for a highly proscriptive order which I did not accept for reasons published that day. It was not until the order was made on that day that Santos had the ability to progress its obligation under the EAs and the Deeds relating to Swan’s land.
Both experts inferentially acknowledged the need to implement rehabilitation programs sooner rather than later after such major disturbance, and this need was frustrated by Swan’s entrenched position. It is a factor that is relevant to the exercise of the discretion.
Mr Sutherland’s work
For the reasons stated earlier, I am satisfied that Sutherland’s rehabilitation work conducted on behalf of Santos and at its cost has, to a significant extent, met the requirements of the relief sought in paragraphs 2 and 3 of Swan’s AOA. Santos accepts that the obligation is ongoing, but of course, absent any court order, Sutherland would have no further part to play unless Swan agrees.
Santos’ actions since 30 October 2015 when it obtained Sutherland’s first report, has shown good faith and a willingness to comply with its legal obligations. As at the date of his evidence in June 2016, Sutherland was due to again revisit the properties to assess vegetation cover. If he is still involved in the future, and if better methods can be applied in particular situations, he said in evidence that he will recommend the adoption of those methods.
Other Issues
The issue relating to the legal responsibility for maintaining the temporary fencing of the southern side of the RoW, which on the evidence is in a poor state, is also relevant to the exercise of the discretion.
Santos submit that Exhibit 12, when considered in light of the evidence of Swan, also has relevance to discretionary matters.
Exhibit 12 contains exchanges of correspondence and other documents relating to a 320 cubic metre stockpile of soil on Inala which came from the construction of the Meridian Interconnector. As I have noted, there was litigation in the Supreme Court between the parties over the Interconnector site and access to construct it which was resolved on a commercial basis.
Although the AOA (amended at a time when construction of the Interconnector was underway) alleges potential breaches of AH9 from intermingling of soils excavated from the Interconnector site, from Mr Litster’s trial submission, I do not understand his client to be pressing for any conclusions that breaches of the 2015 EA occurred as a result of what occurred on that site.
In his trial affidavit (CD22), Swan refers to this issue from para 22-136. He agreed that the stockpile he was talking about in his affidavit is the same soil referred to in the documents in Exhibit 12. At trial, he was insisting that he did not want the stockpile on his land and he wanted it removed. Swan was closely cross-examined about Exhibit 12 in light of what he had said in trial affidavit. I adopt as a summary of his evidence on this issue when read with the contents of Exhibit 12 what is written as at [133] of Santos’ closing submissions (CD59):
“a. Santos wanted, on 11 June 2015, to remove the soil from Swan’s property;
b. Swan (on 12 June 2015) advised that he was not willing to have the material removed, unless Santos paid $9.00 per cubic meter for it to be stored on his property (provided it was clean-fill);
c. On 17 June 2015, Swan advised that any removal of soil from his land would be treated as conversion of his property and that he would take steps to protect his interests;
d. On 17 June 2015, Swan advised that he had denied Ausecology (a contractor engaged by Santos to undertake rehabilitation works) access to his property. Swan said that this was because legal proceedings were on foot;
e. On 17 June 2015, Santos again sought confirmation as to what Swan wanted done with the soil (which Santos had found was clean-fill);
f. On 18 June 2015, Santos was told by Swan’s solicitors that ‘the excavated material is to remain on our client’s property and is to remain in the area of the Meridian Interconnect works’;
g. On or about 1 July 2015, the independent supervisor identified and approved a site for the removal of the stockpile because Santos could not leave it in the working area and still undertake construction works;
h. on or about 1 July 2015, Swan complained to the police about the removal of soil from his land. Santos therefore instructed its contractor to not remove the soil;
i. On 1 July 2015, Swan’s solicitors advised Santos’ solicitor that ‘your client does not have a clear right to remove excavated material from our client’s property and your client is constrained to do those works within the area identified within the agreement reached and no other area. In the event that your client considers the area is not sufficient that is a matter that your client ought to have addressed at the time of entering into the agreement that was reached’;
j. On 2 July 2015, Santos confirmed its intention to store the soil offsite so as not to hinder the workspace. Santos advised that it would return the soil as soon as possible;
k. On 2 July 2015, Swan’s solicitor advised that if Santos proceeded to remove the excavated material ‘we will refer the matter to the constabulary’;
l. On 29 July 2015, Santos asked Swan to explain why he had contacted the police;
m.On 3 September 2015, Santos advised that it would shortly be in a position to return the soil to Swan’s property. Santos also asked Swan whether he would like the soil placed elsewhere (instead of the working area) or disposed of altogether;
n. On 11 September 2015, Santos (having received no response to its letter of 3 September 2015) advised that unless it received response from Swan by 5.00pm on 18 September 2015, the stockpile soil would be returned to its original stockpile location. It later returned the soil.”
I agree with Santos’ submission made at [134] that these events give considerable insight into how difficult Swan was to deal with at this stage. I agree with Santos that the dispute over the soil was unnecessary and a result only of Swan’s stubbornness and inability to work through matters constructively and simply.
Swan’s attitude to this issue is consistent with his approach generally to issues such as access for rehabilitation purposes, particularly since commencing these proceedings. Given the problems he had had with Saipem historically, and the fact that by 11 June 2015 these proceedings were underway, his attitude is perhaps understandable, but entirely unhelpful to any reasonable resolution of a fairly straightforward problem. His attitude feeds into the issue of monies already received by Swan from Santos.
Monies paid by Santos to Swan Interests
It is not in contest that as a result of the various agreements between Santos and Swan (see para 7 of Mr Brier’s affidavit CE29), Santos paid a total amount of $856,924.29 in relation to 16 invoices issued for and on behalf of Swan interests. This includes option fees, upfront compensation and fencing. It also includes an amount of $76,367.50 paid to Swan interests to enable Swan to repair the Mulawa dam on an invoice dated 21 November 2014. Many of these invoices include administration fees and hourly rates and amounts paid to Swan and/or Ms Hotz. The details of the invoices are in para 15 of Mr Brier’s affidavit referred to above.
Swan argues that the compensation paid is of little or no relevance to the issue of discretion. In particular, he argues that the $462,981.20 received by him to settle the Interconnect litigation is irrelevant to these proceedings.
The Originating Application (commenced by Santos) against Swan to give it access to the 3000 m2 approximately, required on Inala to construct the Interconnector, and the Dead of Settlement of that litigation, is part of Swan’s case, (CD19, p 1258-1265). The Inala Deed of Option for Easement – Upfront Compensation is annexed to Swan’s affidavit (CD22 at p 23). Swan agreed in cross-examination, by reference to the total amount paid to him for the Inala easement, that a pro rata sum for the 3000 m2 Interconnect site was approximately $700.
In my opinion, when one has regard to those documents and Swan’s evidence concerning this issue, this amount is a relevant factor in the exercise of the discretion. The sum paid included $187,350 for the easement (altered to include the Interconnect site) and $147,042 in “further compensation” being an extra amount not under any defined head. The agreement to settle includes an agreement by Santos to pay for an “independent professional expert” to supervise the works, with powers similar to those contained in cl. 12 of Exhibit 10. It is clear that such an expert was appointed and no evidence was called by Swan to suggest that Santos did not comply with any of the relevant binding legal documents or authorities to which it is and was a party relevant to the Interconnect site.
Conclusion
For these reasons, the application is dismissed. I will hear the parties in relation to the issue of costs.
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