LAND COURT OF QUEENSLAND

CITATION:	New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors (No 2) [2021] QLC 44	
		
PARTIES:	New Acland Coal Pty Ltd
ACN 081 022 380
(applicant)	
		
	v	
		
	Oakey Coal Action Alliance Inc.
(active party objector)

and 

Frank Ashman, Lynn Ashman, Glenn Beutel, John Cook, Patricia Cook, Darling Downs Environment Council Inc, Hazel Green, Angela Mason, Paul Mason, Geralyn McCarron, Merilyn Plant, Sid Plant, Tanya Plant, Janet Schick, John Schick, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, Cheryl Vonhoff, David Vonhoff, Steven Ward, Fay Wieck, Grant Wieck, Noel Wieck and Simon Wieck 
(MRA objectors)

and

Frank Ashman, Lynn Ashman, Glenn Beutel, Russell Byron, Clean Air Queensland, Christopher Cleary, Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Pamela (“Aileen”) Harrison, Karen Lavin, Carolyn Lunt, John Millane, Merilyn Plant, Sid Plant, Tanya Plant, Nardi Rowe, Frances Scarano, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, John Standley, Cheryl Vonhoff, David Vonhoff, Steven Ward, Pamole White, Grant Wieck, Noel Wieck and Simon Wieck
Angela Mason (s 186(d) objector)
(EPA objectors)

and

Chief Executive, Department of Environment and Science
(statutory party)	

FILE NOs:	MRA026-21 (MLA 700002)
MRA027-21 (MLA 50232)
EPA028-21 (EPML 00335713)	
		
PROCEEDING:	Remitted hearing of applications for, and objections to, mining leases and related environmental authority 	
		
DELIVERED ON:	17 December 2021	
		
DELIVERED AT:	Brisbane 	
		
HEARD ON:	26, 27 & 28 October 2021; 1, 2, 5, 8, 10, 11, 15 & 25 November 2021	
		
HEARD AT:	Toowoomba and Brisbane 	
		
MEMBER:	PG Stilgoe OAM	
		
RECOMMENDATION:	I make the following recommendations, pursuant to s 269(1) of the Mineral Resources Act 1989, to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989:

1.	I recommended that MLA 700002 and MLA 50232 be granted.

2.	The recommendation stated in paragraph 1 is subject to the condition that it does not take effect unless and until: 

(a)	The applicant applies to the Coordinator-General to amend the environmental authority (EPML 00335713) to account for the conditions as amended by the hearing and/or these reasons;
 
(b)	The Coordinator-General amends those stated conditions; and 

(c)	The Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority. 

3.	Subject to the condition stated in paragraph 2, I recommend the administering authority approve the application to amend EPML 00335713 on the conditions stated in the draft environmental authority, subject to such additions and amendments as are necessary to give effect to these reasons.

4.	If the condition in paragraph 2 is not fulfilled by 31 May 2022 or, if before that date the Coordinator-General decides not to amend those stated conditions, I recommend the Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, refuse the application to amend EPML 00335713.

5.	I direct the Registrar to provide, as soon as practicable, a copy of these recommendations and the reasons to:

(a)	The honourable Minister for Resources; and 

(b)	The honourable Minister for State Development, Infrastructure, Local Government and Planning. 	
		
CATCHWORDS:	ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – OTHER COURTS OR TRIBUNALS – where the objectors contended that the mining leases should not be granted – where only one objector remained active – whether to recommend the grant of the leases under s 269 of the Mineral Resources Act 1989 – consideration of the factors in s 269(4) of the Mineral Resources Act 1989 – consideration of s 58(1) of the Human Rights Act 2019 – where the Court recommended the grant of both leases – where the Court imposed a condition for the applicant to apply to the Coordinator-General to amend the environmental authority – where the Court imposed a condition that the Coordinator-General amend the conditions – where the Court imposed a condition that the administering authority incorporate the amended conditions in the draft environmental authority – where the Court recommended the administering authority approve the application to amend the environmental authority – where the Court recommended the administering authority refuse the application to amend the environmental authority if the applicant does not apply to the Coordinator-General to amend the environmental authority or the Coordinator-General decides not to amend the conditions

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the Court is subject to s 58 of the Human Rights Act 2019 when it makes a recommendation on a mining objection – where the Court considered the five-step process – where the Court found that the impacts on human rights will be adequately managed and that the balance of competing factors favours imposing a limit on human rights

Environmental Protection Act 1994 s 3, s 4, s 8, s 9, s 14, s 15, s 21, s 203, s 319, s 440ZB, s 326, s 326A, s 326B, s 326C, s 326D, s 452, s 453, s 454, s 455, s 456, s 457, s 458, s 459, s 460, s 461, s 466, sch 4
Environment Protection and Biodiversity Conservation Act 1999
Human Rights Act 2019 s 13, s 24, s 25, s 28, s 58, s 108
Mineral Resources Act 1989 s 268, s 269
State Development and Public Works Organisation Act 1971 s 26

Castles v Secretary of the Department of Justice (2010) 28 VR 141; [2010] VSC 310, cited
Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22, cited 
Papillon Mining and Exploration Pty Ltd & Anor v Maddock & Ors [2003] QLRT 62, considered
Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd & Ors [2007] QCA 338, cited
Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473; [1975] HCA 17, cited
Sunland Cattle Co Pty Ltd v Kingham [2021] QSC 287, cited
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, applied 
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 2) [2021] QLC 4, applied	
		
APPEARANCES:	DG Clothier QC, with SJ Webster (instructed by Clayton Utz) for the applicant
J Forsyth SC and S Holt QC, with CJ McGrath and K McAuliffe-Lake (instructed by the Environmental Defenders Office) for the active party objector
J Horton QC, with A Hellewell (instructed by the Litigation Unit, Department of Environment and Science) for the statutory party 
	
[1]	Some residents of the Acland/Oakey area have fought long and hard to prevent approval of Stage 3 of the New Acland mine, taking their fight all the way to the High Court. They feel that the current operations by New Acland Coal Pty Ltd (NAC) has destroyed the amenity of their rural community, and endangered native flora and fauna.
[2]	I respect these residents’ views. I understand their frustration and their mistrust of NAC. However, for the reasons that follow, I recommend the grant of mining leases MLA 700002 and MLA 50232.
Background
[3]	NAC operates an open-cut coal mine near Acland, approximately 50 km north-west of Toowoomba. There has been coal mining in this area since 1913. In fact, the town of Acland was established to support the coal mining industry. 
[4]	On 28 August 2015, NAC applied to expand the mine. MLA 50232 covers three new pits and ancillary operations. MLA 700002 covers the new rail spur and load out facility. I will collectively refer to the two MLAs as Stage 3. The Department of Environment and Science has issued a series of draft Environmental Authorities that will regulate Stage 3 if approved. This decision focusses only on the latest Environmental Authority (the draft EA).
[5]	Oakey Coal Action Alliance Inc. (OCAA) and others objected to both the grant of the mining leases for Stage 3 and the draft EA published in 2016.
[6]	Their objections brought the dispute before this Court. OCAA is now the only active party objector.
[7]	The original objections were wide-ranging. OCAA’s current objections to Stage 3 are limited to NAC’s past performance and the significant adverse environmental impacts of noise and air quality.
[8]	OCAA objects to the draft EA because it says the mine will affect the character, resilience and value of the receiving environment, is contrary to the public interest, will cause serious and material environmental harm, and be contrary to the appropriate consideration and application of environmental protection policies on noise and air (quality). Largely, the particulars of the objections to the draft EA mirror the grounds of the objection to the MLAs: past performance, noise and air quality.
[9]	The statutory party is variously referred to in documents before me as “DES”, the “Department of Environment and Science” and the “administering authority”. For simplicity, throughout these reasons, I will refer to it as DES.
[10]	The Court has determined that it is subject to s 58 of the Human Rights Act 2019 (HRA) when it makes a recommendation on a mining objection. 
The Mineral Resources Act 
[11]	In deciding whether to make a recommendation, I must consider the matters contained in s 269(4) of the Mineral Resources Act 1989 (MRA). The Court of Appeal has made it clear that, regardless of the matters the objectors raise, I must always consider the s 269(4) criteria but I cannot entertain, nor can I hear, any evidence in relation to any objection or ground that is not contained in an objection or ground.
[12]	The criteria in s 269(4) are not stand-alone matters, and I am not required to reach a separate conclusion on each of them. Instead, I must consider how all the relevant factors weigh in the balance.
[13]	However, Martin J has recently observed that “it is not the role to run down every hare which might be started by an objector. Even more so, when the objector did not point to the hare on the horizon and set off in pursuit itself”. For those criteria not argued by OCAA in this hearing, I will simply summarise the effect of the evidence. 

The provisions of the Act have been complied with – s 269(4)(a)
[14]	David O’Dwyer is the General Manager and Site Senior Executive of NAC. He states that the provisions of the MRA have been complied with, and there is no evidence to the contrary.
The area of the land applied for is mineralised or the other purpose for which the lease is sought is appropriate – s 269(4)(b)
[15]	Mr O’Dwyer refers to evidence that the area of MLA 50232 contains approximately 132 million tonnes of product. MLA 700002 provides the infrastructure to enable exploitation of that product.
There will be an acceptable level of development and utilisation of the resources within the area applied for – s 269(4)(c)
[16]	Mr O’Dwyer states that the coal deposits are at a relatively shallow depth and can be profitably mined. He states that NAC will make appropriate use of the resource.
[17]	Jerome Fahrer is an economist. He provided a report that, among other things, discusses the market for coal. His evidence was neither contradicted nor challenged. He considers that the market forecasts are entirely consistent with Stage 3 having a viable customer base for its products.
The land is of an appropriate size and shape – s 269(4)(d)
[18]	Early iterations of OCAA’s objections included a submission that the land was not of an appropriate size and shape because MLA 50232 did not include the northern parts of Manning Vale East Pit or Willeroo Pit proposed to be mined on current ML 50216 or the coal handling and processing plant located on ML 50170 where the coal mined from Stage 3 of the mine was proposed to be processed. There is now no objection on this ground.
[19]	The MLAs include buffer zones to nearby sensitive receptors and environmental areas such as Lagoon Creek.
[20]	There is, however, the “spatial issue” to which I will refer when considering the draft EA conditions.
The term sought is appropriate – s 269(4)(e)
[21]	NAC seeks a term of 30 years. NAC submits that this will provide an appropriate period for ramping up operations, extracting and processing the coal and then rehabilitating the site.
The applicant has the necessary financial and technical capabilities to carry on the mining operations – s 269(4)(f)
[22]	NAC has been mining Stages 1 and 2 since 2002. It has an extensive mining history in other areas of Queensland, New South Wales and abroad. This clearly demonstrates its technical capacity. 
The past performance of the applicant has been satisfactory – s 269(4)(g)
[23]	OCAA submits that NAC has been operating essentially the same activities, in the same location, close to the same sensitive receptors, with the same geography and weather conditions for the last 20 years. It says that NAC does not have a 20-year history of compliance and genuine concern for its neighbours, but that the “lived experience” of NAC’s neighbours is one of persistent disruption and unreasonable impacts. It submits that NAC has had “great difficulty” meeting the limits set out in the current EA.
[24]	Early in the hearing, I placed on record my intention to treat all complaints by locals as genuinely made and genuinely held.
[25]	OCAA submits that there have been 545 genuine complaints during NAC’s 20-year operation. It supports that submission by reference to a redacted complaints register of complaints from 2002 to 2016, a complaints register for the same period, a suite of letters complaining about the activities of Stage 2, and a chronology of noise complaints that runs for 47 pages. OCAA’s complaints registers and the chronology are not evidence; they are compilations of what OCAA submits the evidence discloses. I do not propose to rely on those documents.
[26]	Glenn Beutel and Pamela (“Aileen”) Harrison gave evidence about their numerous complaints and concerns about noise and dust from the existing NAC operations. It is clear from this evidence that they found noise and dust from the operations disturbing. Mr Beutel’s evidence shows complaints and concerns spanning the period of July 2012 to February 2021. Mrs Harrison’s concerns are limited to the period from 2006 to 2010, at which point she moved away from the district. 
[27]	Mr Beutel and Mrs Harrison’s record of “complaints” include incidents that they did not refer to DES for investigation. I understand why they did not; they thought that there was no point in complaining given the lack of action in the past. Although I take these complaints into account, I also note that there is a subjective element to many of them and they are difficult, if not impossible, to verify.
[28]	OCAA points to instances Mrs Harrison recorded where there was a disconnect between her expectations about her noise complaints and NAC’s response. It says that Mrs Harrison is a more reliable narrator and that NAC’s responses show disinterest or obfuscation. 
[29]	The noise experts, Darren Tardio and Shane Elkin, agree that noise had an unreasonable impact on amenity up to and including 2018. The air quality experts, Simon Welchman and John Taylor, were not unanimous about whether past operations had created an unreasonable impact on air quality. Mr Welchman thought it was unlikely. Dr Taylor employed a double negative – the results could not show that there had not been an exceedance at Mr Beutel’s property or Mrs Harrison’s property. He notes Mrs Harrison’s specific complaint to NAC about dust in August and November 2006.
[30]	I accept that there have been unreasonable noise impacts in the past and that there have been dust events that may have been concerning to the neighbours. I note that NAC received a Penalty Infringement Notice in relation to its noise emissions in 2019 which related to a complaint by Mr Beutel.
[31]	OCAA submits that it is NAC’s response to the complaints that demonstrate its poor past performance. It submits that NAC has not demonstrated genuine concern for its neighbours and has demonstrated a continued disregard for compliance, even when it knew of ongoing non-compliance. To consider this submission, a deep dive into the history of NAC’s actions is required.
[32]	NAC engaged acoustic consultant David Moore to conduct noise monitoring from June 2011 to February 2012, following a noise complaint to DES. Mr Moore adjusted his sampling to remove extraneous noises. He also adjusted for tonal and impulsive noise. Mr Moore’s sampling indicated that NAC was generally complying with the noise limits in the current EA. NAC committed to changing its noise monitoring practices to ensure that they were conducted in accordance with the EA conditions, therefore ensuring accurate and meaningful results.
[33]	NAC implemented a Trigger Action Response Plan (TARP) in 2014. It installed a SentineX continuous noise monitor in Acland with a directional microphone. It introduced a live dashboard system that relayed real-time noise data. It developed a training package and work instruction for noise dashboard operators. SentineX includes a low pass filter which cancels out noise above 630Hz on the basis that mining noise in rural areas is typically below that level. 
[34]	On setup of the TARP, dashboard operators applied a “2dB rule” which states that, if the difference between the overall noise level and the low frequency noise level is greater than 2dB, the low frequency noise levels are not sufficiently affected, and mine operator intervention is not required.
[35]	Advitech Environmental validated the performance of Sentinex in a report dated 8 July 2014. 
[36]	Mr Elkin provided an overview of NAC’s dashboard in a report dated 2 July 2014. That report records that the system was generally working as designed.
[37]	OCAA points out that Mr Elkin wrote this report thinking that the dashboard would be (continuously) monitored overnight. In fact, the dashboard was not always monitored throughout the night. Mr Tardio thought this demonstrated NAC’s lack of diligence, given that this was the most sensitive time for complaints. OCAA submits that the failure to monitor the dashboard overnight was “in reckless disregard” and “blatantly put profit before any consideration of…” Mr Beutel’s amenity or NAC’s compliance obligations.
[38]	The oversight is not ideal and NAC has not explained why the TARP was not continuously monitored.
[39]	In October 2014, NAC replaced its omni-directional single microphone with a 4-microphone array.
[40]	In the 2016 objections hearing, the noise experts criticised Mr Moore’s monitoring practices. The noise experts in that hearing agreed that Mr Moore’s work was flawed. However, they also agreed that, up to that point, it was reasonable to assume that NAC believed Mr Moore was doing a competent job.
[41]	OCAA disagrees with the noise experts. It says that, once evidence in the 2016 hearing showed that Mr Moore’s work was flawed, NAC should have taken steps to correct the monitoring system.
[42]	NAC continued to rely on Mr Moore’s analysis until a 2018 study by SLR (the Winter survey).
[43]	The noise experts in the 2016 hearing also criticised the use of the 2dB rule. Again, NAC did not act until after the Winter survey. Again, OCAA is critical of NAC’s failure to respond to this criticism.
[44]	The Winter survey was commissioned in response to DES referring Mr Beutel’s noise complaint to NAC. 
[45]	Following the Winter survey:
1.	NAC stopped using the “2dB rule”; and
2.	NAC determined and implemented the correlation factor between the SentineX and the compliance measurements, resulting in a 4dB reduction in the TARP noise limits.
[46]	OCAA is critical of the Winter survey and NAC’s comments to DES in the letter submitting the survey. It submits that NAC minimised Mr Beutel’s legitimate noise complaints and failed to mention relevant information, principally that the 2dB rule had been validated even though Mr Elkin had criticised it and acknowledged that the rule did not work at dawn. OCAA is critical of Mr Elkin’s work in the Winter survey, submitting that he was “complicit” in making false representations to DES which raises a serious issue as to his independence.
[47]	OCAA notes that, although the Winter survey identified a problem in the use of the 630Hz low pass filter, it took NAC seven months to act. OCAA submits that, given the problem was first raised in evidence at the 2016 hearing, NAC failed to act for over two years. OCAA points out that Mr Beutel continued to suffer amenity impacts during this period of inaction.
[48]	OCAA also notes that during the 2016 hearing, its noise expert, Mr Savery, was concerned that the microphone array had not been correlated. Neither the Advitech report nor the Winter survey commented on this issue.
[49]	The noise experts agree that it is difficult to determine if there has been an unreasonable impact on amenity since the Winter survey, but they think that environmental nuisance is less likely to have occurred given the noise monitoring results available. Mr Tardio suspects that the TARP may have been underreporting noise levels because it did not account for tonal or impulsive adjustments.
[50]	In March 2020, NAC replaced the SentineX with a new TARP and ENC dashboard system. The noise experts consider that this system is sophisticated and generally fit for purpose, but they also agree that the system still requires programming for critical parameters to enable it to correctly align with the proposed noise limits in the EA. 
[51]	There is no doubt that Mr Beutel suffered adverse impacts for over two years to his amenity through a defect in the TARP.  There is no doubt that NAC could have acted sooner to rectify the systemic errors in the TARP. There is no doubt that NAC continued to “put its best foot forward” when communicating with DES in circumstances where a more conciliatory approach may have been better. In isolation, these omissions might be grounds for a finding that NAC’s past performance justifies a recommendation against the grant of Stage 3.
[52]	However, there are mitigating factors. The 2016 hearing took place over almost 100 days lasting more than a year. The transcript of the hearing consumes 8,476 pages. The noise experts’ evidence was taken over four days and spans 458 pages of transcript. It was a complex hearing with many issues. It is not so surprising that NAC did not filter out that specific information and act on it immediately.
[53]	Since 2016, Mr Beutel has been the main complainant. Mr Beutel complained to DES, not NAC. That made it more difficult for NAC to take immediate action to address Mr Beutel’s concerns. Only one complaint in the last five years resulted in a Penalty Infringement Notice.
[54]	NAC has undertaken further improvements in its noise management system which Mr O’Dwyer has detailed. He says, and it is not disputed, that since 2016, NAC has spent $6.2 million on noise mitigation and abatement. It has earmarked a further $9.8 million for further attenuation work if Stage 3 is approved.
Any disadvantage to the rights of holders of existing exploration permits or mineral development licences or existing applicants for exploration permits of mineral development licences – s 269(4)(h)
[55]	There will be no disadvantage to any holder of, or applicant for, an exploration permit or mineral development licence.
The operations to be carried on under the authority of the proposed mining lease will conform with sound land use management – s 269(4)(i)
[56]	The Acland Grazing Trial: Optimising Rehabilitated Grazing Pastures for Sustainable and Economically Viable Beef Production Annual Report 2013/2014 found that:
1.	Cattle from rehabilitated sites performed as well as cattle grazed on an unmined control site;	
2.	Cattle were not stressed by grazing rehabilitated sites adjacent to the operating mine. They were not affected by either noise or dust from the mining operations;
3.	There were no observed negative health impacts of grazing rehabilitated pasture;
4.	Pasture growth was similar or better than the unmined site; and
5.	The abiotic properties of the rehabilitated soils were within the range of the unmined soils.
[57]	William Thompson provided a report on agricultural land use. He is satisfied that Stage 3 will have sufficient suitable topsoil and subsoil to complete rehabilitation to the standard required by the Coordinator-General (CG). 
[58]	Andrew Perkins provided a report on the agricultural economic loss because of Stage 3. He estimated that 923.5 ha of strategic cropping land (SCL) would be converted to grazing land and 437.5 ha of SCL would be lost to the mine void. He calculated the net present value of ongoing opportunity costs related to conversion of SCL to grazing and for lost value of pig production at $38,029,622 (at discount rate of 7%) and $106,482,942 (at discount rate of 2.5%). That represents 0.2976% of the value of agricultural production in the Toowoomba Regional Council area. 
 Vibrations from the blasting activities
[59]	Mr Elkin provided a report about the impact of noise and vibration from blasting activities. He considers the blasting criteria in the draft EA are appropriate to protect residents’ homes and amenity. He thinks that the requirement to monitor for a minimum of 90% of blasts is an appropriate compromise between capturing most blasts to ensure the community is protected and the practical aspects of long-term monitoring such as instruments needing to be calibrated and/or repaired off-site from time to time.
[60]	The blast criteria in the draft EA are in accordance with DES’s guidelines, in accordance with AS2187.2-2006, and more stringent than the levels required by s 440ZB of the Environmental Protection Act 1994 (EPA). However, Mr Elkin notes that the blast ground vibration and air blast overpressure will be audible and “feelable”. Loosely fitted windows, crockery and household objects may rattle even if the blasting complies with the draft EA.
The extent of any adverse environmental impacts caused by the operations – s 269(4)(j)
[61]	NAC points out that Stage 3 will be managed under a comprehensive EA which will place strict limits on the environmental impacts caused by the mining activities and will protect sensitive ecological areas. It submits that, having regard to the benefits associated with the mine, the limited extent of environmental impacts is not a reason to refuse a recommendation to grant.
[62]	That submission is true of many of the possible environmental impacts to which I will briefly refer.
Habitat
[63]	Adrian Caneris is a Certified Environmental Practitioner with Ecology Specialist accreditation. He concluded that the potential for detrimental impacts on koalas and their habitat has been avoided, there will be no residual significant impact on koalas, and he expected an overall net benefit in available habitat and habitat quality. He is not concerned that any increase in traffic would pose a risk to wildlife. He is not concerned about the potential impact of dust. He did not think that Stage 3 would result in an increase in pest species. 
Flora
[64]	Andrew Daniel is an ecologist and flora expert. Dr Daniel is satisfied that the biodiversity offset strategy will ensure that there will be no residual impacts to native vegetation communities in the long term. He considers that the upgrade of the electricity grid can be managed to ensure retention of most verge vegetation and will require clearing only a small amount of native vegetation. He considers that the draft EA conditions adequately protect flora and vegetation communities, and provide adequate protection against significant residual impacts.
Lighting
[65]	Neihad Hussen Al-Khalidy is an expert in, among other things, the control of the obtrusive effect of outdoor lighting. 
[66]	He noted that the draft EA conditions require that NAC not cause an environmental nuisance. AS4282-1997 sets out the general principles that should be applied when designing outdoor light to minimise any adverse effect of the light installation. 
[67]	Compliance with AS4282-1997 does not mean that locals will not see any change to the lighting conditions. There is a small risk that sensitive receptor 32 may see train headlights on the new rail spur. Some locations may be able to see the lighting installations, and Stage 3 is likely to increase the sky glow from the new pits when there is active work and around the new Train Loadout Facility and Materials Handling Facility.
Surface water, flooding and pollution 
[68]	Gregory Roads is a civil engineer. Mr Roads is satisfied that the draft EA conditions are sufficient to protect the environmental values of the local receiving waters, that Stage 3 would be able to comply with the EA conditions, and that it would have no material flooding impacts on neighbours or impact on the geomorphology of Lagoon Creek. 
Noise
[69]	As I recorded in the section on past performance, the issue of noise impacts has been the subject of much work over many years. However, in the most recent joint expert report, Mr Tardio and Mr Elkin agree that:
1.	The draft EA conditions are appropriate to manage noise impacts and the conditions cover the necessary requirements of a mining-related EA;
2.	In principle, noise mitigation and management measures, if implemented correctly, will enable Stage 3 to achieve the draft EA noise limits; and
3.	Sophisticated performance noise monitoring system is required to ensure compliance with draft EA noise limits.
[70]	NAC now has a sophisticated noise performance monitoring system. There are strict conditions proposed against which it will be easier to determine compliance. 
Air Quality
[71]	The air quality experts, John Taylor and Simon Welchman, agree that, with an appropriate air quality monitoring network, effective Air Emissions Management Plan and appropriate EA conditions, Stage 3 may be able to be conducted without causing adverse impacts on air quality. The real debate between them was in the conditions to be imposed and how to monitor compliance. I will consider those issues later.
Health
[72]	Two expert reports deal with the health impacts of Stage 3. 
[73]	David McKenzie deals with physical health. He concludes that, assuming compliance with the draft EA, Stage 3 air quality impacts will not have an unacceptable impact on human health. Dr McKenzie considers that the Stage 3 noise impacts will not cause hearing damage, cardiovascular effects, cognitive problems, or learning difficulties in children. He thinks that Stage 3 noise impacts are unlikely to disturb sleep significantly. He did not expect mine noise to cause persistent sleep disturbance or significant health effects.
[74]	John Chalk is a psychiatrist. He could find no reliable evidence to suggest that the incidence of mental illness will increase if Stage 3 is approved.
The prejudice of public right and interest – s 269(4)(k)
The loss of strategic cropping land and the economic consequences for the local area
[75]	I have already noted the economic opportunity costs related to conversion of SCL to grazing. 
[76]	Dr Fahrer’s report looks at the economic advantages of Stage 3. He estimates that Stage 3 will add over $3 billion to Queensland’s real output and that nearly 90% of that increase will occur in the local region. He notes that, because NAC is predominately Australian owned, the national increase in real income will be larger than the increase in output. He estimates the real economic output over the life of the project will be $2.73 billion for the local region, $3.148 billion for Queensland as a whole and $3.448 billion for Australia as a whole. The real income of the local region from Stage 3 is projected to be $1.0587 billion.
[77]	Dr Fahrer conservatively estimates that Stage 3 will lead to an increase of about 156 jobs in the local region. He considers that the local region will experience a large increase in real wages, due to an increased demand for labour generally.
Impact on the community
[78]	The objectors are concerned that Stage 3 will result in the loss of the Tom Doherty Park and the war memorial it contains. It is important to remember that Mr Beutel and his tenants are now the only residents of Acland.
[79]	The objectors comment on the divisions in the community created by the strong views, both for and against the project, that exist. They are critical of NAC’s self-promotion through various community organisations although there is material filed showing that at least some members of the community place significant value on that contribution. 
[80]	There is a contrasting number of affidavits in which locals speak of the economic benefits that NAC will bring to the community and support the grant of Stage 3.
Impact on local traffic
[81]	Brett McClurg is a traffic engineer. He accepts that Stage 3 will result in the closure of some public roads. Stage 3 will also involve a new access road, realignment of Jondaryan-Muldu Road and alternative and upgraded routes as required by the CG. He does not consider that these closures will inconvenience the locals to any significant degree.
Devaluation of property surrounding Stage 3
[82]	Timothy Rabbitt is a valuer. Mr Rabbitt’s analysis of comparable sales showed a small fall in prices in 2015 to 2016, a relatively flat period in 2017 and then growth. He states that values in the Acland area have grown more slowly than the broader region but they have still grown. 
     Any good reason has been shown for a refusal to grant – s 269(4)(l)
[83]	Apart from the issues of past performance, noise and dust, no good reason has been shown for a refusal of grant.
Conclusion on s 269(4) considerations
[84]	If NAC had taken no action to address noise and air quality concerns, I would have no hesitation in recommending against the grant. If, as OCAA contends, NAC had continued to minimise residents’ concerns and argue against better analysis and protection, I would have no hesitation in recommending against the grant.
[85]	However, in my view, NAC has more than made up for its initial lacklustre response by spending significant time and money to implement a sophisticated real-time responsive TARP. NAC may never recover its social licence in the Acland community but OCAA’s continued distrust and scepticism cannot be a reason to recommend against the grant.
[86]	I am satisfied that the EA can effectively deal with the potential impacts of noise and dust.
The Environmental Protection Act
[87]	Section 3 of the EPA sets out the purpose of the legislation: to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends.
[88]	Section 4 sets out how that purpose will be achieved: by an integrated management program that is consistent with ecologically sustainable development. That is achieved by ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm, monitoring the impact of the release of contaminants into the environment and requiring persons who cause environmental harm to pay costs and penalties for the harm.
[89]	Section 8 defines “environment”. Importantly for Acland, it includes people and communities, and the qualities and characteristics of locations, however large or small, that contribute to amenity, harmony and sense of community. 
[90]	Section 9 relevantly defines an environmental value as a quality or physical characteristic that is conducive to ecological health or public amenity or safety.  
[91]	Section 14(1) defines environmental harm as any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value, and includes environmental nuisance.
[92]	Section 15 defines an environmental nuisance. It includes an unreasonable interference or likely interference with an environmental value caused by fumes, light, noise, odour, particles or smoke.
[93]	Section 21 defines the best practice environmental management of an activity as the management of the activity to achieve an ongoing minimisation of the activity’s environmental harm through cost-effective measures assessed against the measures currently used nationally and internationally for the activity. 
[94]	Section 203(1)(a) provides that the (statutory party) may impose a condition if it considers the condition is necessary or desirable.
[95]	Section 319 defines general environmental duty as all reasonable and practicable measures to prevent or minimise harm. Section 319(2) requires regard to be had to the nature of the harm or potential harm, the sensitivity of the receiving environment, the current state of technical knowledge for the activity, the likelihood of successful application of the different measures that might be taken, and the financial implications of the different measures as they would relate to the type of activity. 
The EA conditions 
[96]	NAC’s past performance colours OCAA’s view of whether NAC can comply with the new EA. 
[97]	OCAA wants the EA conditions to be “strict and enforceable… to provide transparency and certainty to the community”. OCAA submits, as a general principle, that stronger conditions are necessary, given that the current conditions are uncertain and open to interpretation. It submits that future conditions cannot leave matters to chance. I agree with those propositions, as do DES and NAC. 
[98]	OCAA submits, and I accept, that a key consideration in the development of conditions is how the impact on sensitive receptors will be measured and how compliance will be assessed. OCAA says that NAC has historically exploited ambiguity in the EA conditions to avoid responsibility for exceedances and, therefore, it is important to remove any loopholes.
[99]	OCAA submits that elements of the monitoring and management system that are vital to the successful operation of those systems cannot be left to NAC’s discretion or to management plans over which DES has little or no influence. I do not agree that DES has little or no influence over the management plans. The draft EA makes it clear that DES must approve the management plans. The draft EA also makes it clear that the management plans are subject to review by DES. I also note that NAC must provide monthly reports to the CG. 
[100]	Juliana McCosker is employed by DES as Manager of the Business Central Coal in Emerald in the Environmental Services and Regulation division. Dr McCosker was the delegate of the administering authority in October 2020 and currently holds the delegate power of the chief executive of the administering authority to decide an application for an EA under the EPA. OCAA is concerned with Dr McCosker’s evidence that management plans are NAC’s plan of how a matter will be managed. That comment is unexceptional; management plans are proposed by the miner, taking into account its detailed knowledge of the site, its workforce, markets and capacity. It is not for DES to propose a management plan. Similarly, it is not surprising that, once a management plan is approved, NAC will be solely responsible for it. It is for NAC to comply with its terms, and it should not be able to shift blame for non-compliance to a third party.
[101]	OCAA submits that the conditions should make it clear that it is absolutely the role of DES to assess, be satisfied with and approve the content of management plans. Again, that proposition is unexceptional, and the draft EA reflects that position.
[102]	Relying on comments in Papillon Mining and Exploration Pty Ltd & Anor v Maddock & Ors (Papillon), OCAA submits that the scope of the authorisation granted must be explicit and contain conditions that are to the extent practicable, unambiguous about what NAC is entitled to do. 
[103]	I agree with OCAA that Papillon is similar to the present case in the level of community distrust. But the basis for the mistrust is very different. The initial application was for the reprocessing of tailings. The objections were based on reprocessing and the mining warden assessed the application on that basis. The objectors withdrew their objections on the understanding that the application was for reprocessing tailings. Papillon applied for an amendment to the lease and conditions to allow underground mining. That application was made without referral to the objectors. Understandably, the objectors were not happy.
[104]	Here, NAC’s intentions are clear. There may be some opacity about the footprint of the disturbed area, but the objectors are in no doubt about the proposed scale of the operation and its general location.
[105]	It also submits that NAC has not shown any good reason why OCAA’s conditions should not be incorporated because the only impact on NAC will be the cost of implementing the conditions which, in a project of this size, are insignificant. Mr O’Dwyer conceded that appropriate mitigation is just a cost of doing business, but the test for the imposition of a condition is not whether NAC can afford to implement it but whether the condition is necessary or desirable.
[106]	Dr McCosker also wants a “black and white system” to monitor and identify exceedances. In addition to conditions that have greater clarity, DES wants the EA to be the “one central point of truth”.  
[107]	In fact, the EA will be one document in a suite of documents that regulates the operation of Stage 3. It is useful and necessary to put the discussion about EA conditions in context.
[108]	In 2007, the CG declared Stage 3 a significant project pursuant to s 26 of the State Development and Public Works Organisation Act 1971 (Qld). It was also declared to be a controlled action under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The latter declaration required an environmental impact statement.
[109]	The CG received an environmental impact statement (EIS) in 2009, and an amended environmental impact statement (AEIS) in 2014. In December 2014, the CG issued an evaluation report which approved Stage 3. The CG imposed conditions on the approval. Two conditions are generally important:
1.	To verify NAC’s compliance with the imposed conditions, the CG included a requirement for regular third-party audits. The CG has jurisdiction for this condition.
2.	NAC must prepare and make publicly available monthly environmental monitoring reports that address performance against EA conditions that set limits for air, noise and vibration impacts. The CG has jurisdiction for this condition.
Condition A2 – the spatial extent of Stage 3
[110]	The current EA does not include a condition expressly identifying the pits from which extraction was limited. NAC has mined areas of its current lease outside the areas indicated in the current EA, which was contrary to residents’ expectations. Condition 2A in the draft EA states that, in carrying out the mining activity, NAC must comply with Figure 1. 
[111]	Figure 1 shows the disturbance footprint area, the Stage 3 pit area, infrastructure areas and the revised road and rail infrastructure. Figure 1 is entitled “Revised Project Overview Indicative Only”. NAC notes, and both DES and OCAA agree, that Figure 1 does not include ancillary infrastructure such as pipelines, water management infrastructure, telecommunications, access tracks, flood protection levee and monitoring equipment.
[112]	Both OCAA and DES say that the EA should provide certainty and clarity about the location and extent of the area to be disturbed and that reference to Figure 1, together with specifying areas of disturbance, will achieve that certainty and clarity. 
[113]	NAC wants the flexibility to change where the pits and overburden areas sit. It relies on the qualifying words that appear in the several documents and referred me to the mining industry experience that the design of mining activities may change after further, detailed investigation.
[114]	NAC has pointed to several documents that, it says, clearly show Figure 1 was never intended to be proscriptive. Figure 1, itself, is labelled “indicative only”. The CG’s description of the project included a reference to Figure 1 (described as Figure 2.1) as “showing the location of the project” (presumably not the extent). The CG listed the key components of the project, the project infrastructure and then noted that a full project description was contained in the EIS and AEIS. The disturbance footprint was described as “around” 1,466 ha with the pits equating to “around” 1,201 ha.
[115]	In the evaluation section of the report, the CG notes that “the disturbance footprint for the stage 3 project, which includes pits, slope batters, out-of-pit dumps and infrastructure, is 1,815ha. Within the MLA, the disturbance footprint has been reduced to 1,466ha”.
[116]	NAC drew my attention to Figure 5.1 which shows all the proposed MLA as “surface rights area”. To my mind, the figure is relevant only to show the location of sensitive receptors.
[117]	I agree that these documents indicate there is some degree of flexibility in the size and location of the area to be mined. I also agree that the numbers referred to are not intended to be precise.
[118]	DES raised the issue of uncertainty and clarity in a letter to NAC dated 24 March 2021. To be fair to NAC, my interpretation of that letter is less concerned with the precise location and area of the Stage 3 pits and more concerned with excising the Stage 2 mining from the hearing. However, DES did ask NAC to delete the word “indicative” from Figure 1.
[119]	DES did not receive a written response to that letter, so it filed an application seeking a revised Figure 1 showing only those areas in which mining activity was proposed and, in respect of each of those areas, details of what part of the activity was disturbance, what was out of pit dumping, the location of other surface infrastructure and the rail infrastructure.
[120]	In response to that application, NAC provided a Project Overview by email dated 27 May 2021. The overview retained the reference to “indicative only” and each response to specific questions referred to the “indicative” location or “anticipated” infrastructure.
[121]	The justification for the proposed limitation now is said to be on one of three grounds. The first is public interest. DES says that it is in the public interest to have clear spatial boundaries for the permitted activities. It says that people who might be affected by Stage 3 are entitled to know what likely impact they face and the extent of those impacts. Further, DES submits that public interest is served by “good regulation”. 
[122]	The second ground is that each of the experts gave their opinions about the potential impacts of Stage 3 by reference to Figure 1 or the shape files that underpin it. OCAA and DES argue that, because there has been no modelling of impacts from mining outside the areas shown in Figure 1, the EA should not contemplate any deviation from mining outside the areas shown in Figure 1.
[123]	The third ground is to avoid the uncertainty that exists in the current EA. DES referred me to the evidence of Dr McCosker. That evidence does no more than repeat, in brief, DES’s view that there should be certainty and that the expert evidence is premised on Figure 1.
[124]	NAC maintains that there should be flexibility in the condition. It relies on the qualifying words that appear in the several documents and the mining industry experience that the design of the mine may change after further, detailed investigation.
[125]	I have some sympathy for NAC’s argument that detailed investigation may change the location and extent of the disturbed areas. In areas that are sparsely populated and a change of a few hundred metres would have no impact on a sensitive receptor, such a change would not be important. But Stage 3 is in an area where sensitive receptors are closely co-located. The conditions about noise and air quality are strict because there is a high potential for adverse impacts on neighbours. There has been no modelling of potential impacts outside the area delineated in Figure 1. 
[126]	It might be that a change to the location or extent of operations would result in no change to the environmental impacts. There might be some extra areas that could be mined without changing the impacts on noise and air quality. Mr O’Dwyer believes NAC has given a commitment about mining within the proximity of Acland, so it is possible, but unlikely, that the parties could have crafted a condition that protected Mr Beutel absolutely but still allowed the mining footprint to slip south-west away from his property. 
[127]	In the absence of expert opinion on these matters, I am persuaded that a condition limiting the location and extent of the disturbed area is necessary. 
[128]	The shape of the disturbance area is defined by Figure 1. I note that the shape of Manning Vale West is further defined by the boundary ML50216 to the west and the new haul road to the east and south. Manning Vale East is further defined by the interface with Stage 2 to the north and Lagoon Creek to the south-east. Willeroo is further defined by Lagoon Creek to the north west and the boundary of MLA 50232 to the east. 
[129]	It seems that there is scope for some limited flexibility. For example, OCAA conceded that a change to straighten boundaries around, say, Lagoon Creek might be acceptable. The challenge, of course, is to craft a condition that provides certainty for the public interest yet a modicum of flexibility for NAC. Mining to the west of the proposed Manning Vale East disturbance area may have unanticipated impacts on Mr Beutel’s residence. Ideally, Condition A2 should include a fixed boundary on the western edge of Manning Vale East. 
[130]	The most recent draft EA has a notation: 
“Agency Interest — Figures:
The maximum area authorised to be disturbed on ML50232 is 1,575ha generally as shown on Figure 1 (and in which context the word ‘indicative’ on Figure 1 is to be understood) which comprises:
a.	pits, slope batters and out of pit dumps – 1,422ha;
b.	the train loadout facility, the material handling facility, the Balloon Loop and the Haul road – 44ha;
c.	surface infrastructure (being bores, roads for light vehicles, levees, culverts, hardstand areas, tracks, water storage dams, buildings and any other structures built for the purpose of mining activity) – 109ha.”
[131]	I do not understand how, or if, these areas are incorporated into Condition A2 as there is no drafting nexus between this note and the condition. I see some logic in limiting the size of the disturbance area because that is the area that has been the subject of expert evidence about the potential impacts. However, given my earlier comments about the inherent constraints on the disturbance area, I am not necessarily persuaded that reference to the area of disturbance improves the enforceability of the condition or the certainty that adverse impacts will be avoided. I have no confidence that the references to the areas involved in the loadout facilities, haul roads and surface infrastructure will improve the enforceability of the condition or the certainty that adverse impacts will be avoided. 
Condition A2a – the approved extraction rate
[132]	The proposed condition limits NAC to an extraction rate of 5.1 million tonnes per annum (Mtpa). 
[133]	NAC’s application for Stage 3 was premised on an extraction rate of 7.5 Mtpa. All modelling was based on 7.5 Mtpa. The experts’ opinions, which expressed satisfaction with the proposed conditions, were based on 7.5 Mtpa. The CG’s approval was based on 7.5 Mtpa. 
[134]	DES submits there are two reasons why the extraction rate should now be limited to 5.1 Mtpa. 
[135]	The first is Mr O’Dwyer’s evidence that NAC does not propose to exceed 5.1 Mtpa. That statement may have been true when Mr O’Dwyer swore his affidavit, but it ignores the fact that the term sought for Stage 3 is 30 years, and much can change over that period. A statement of NAC’s present intention is not a good enough reason to impose a condition.
[136]	The second is the evidence of the air quality experts, Mr Welchman and Dr Taylor. DES points to Mr Welchman’s statement in the joint expert report, where he states that while the extraction rate remains at 5.1 Mtpa, limits are unlikely to be exceeded.  That statement is true, but not the whole of Mr Welchman’s evidence in this paragraph. What Mr Welchman in fact states is that while the extraction rate remains at 5.1 Mtpa, limits are unlikely to be exceeded at sensitive receptor R44 and that at 7.5 Mtpa there are only two predicted exceedances that are not captured by the monitoring at receptor R38. Mr Welchman recommends the installation of a continuous trend monitor at a location that represents R44 if extraction approaches 7.5 Mtpa. Mr Welchman’s evidence does not support a limitation of 5.1 Mtpa.
[137]	DES submits that Dr Taylor “conceded” that a 5.1 Mtpa rate would produce a materially lower average result in his modelling. The concession arose because the experts were being questioned about the appropriateness of adjusting for things such as the potential for higher wind erosion from particular sources without looking at the whole. Mr Welchman identified a number of factors that would be relevant in making an adjustment. Dr Taylor assumed that NAC would be extracting at 5.1 Mtpa overall and that it could not exceed that rate in any one area/time period. He was asked to assume that there was a higher extraction rate even though the annual extraction remained at 5.1 Mtpa. Dr Taylor frankly and fairly stated that he had not done any modelling on 5.1 Mtpa. Dr Taylor’s concession is simply that the impacts will be lower; it is not a concession that 5.1 Mtpa is the appropriate limit.
[138]	Dr McCosker wants to restrict the extraction rate to 5.1 Mtpa because emissions at 7.5 Mtpa are harder to control and there would be more exceedances. That assertion has to be viewed in the context of the evidence as a whole which was premised on a rate of 7.5 Mtpa and which the experts said could be met without an adverse impact on sensitive receptors. 
[139]	OCAA submits that the need for the condition arose after the expert evidence demonstrated that NAC cannot meet proposed air quality standards 100% of the time without adaptive management.
[140]	The need for adaptive management to manage air quality has never been in dispute. In its 2014 Environment Management Plan, NAC flagged the role of adaptive management measures in dealing with air quality. While the plan does not refer to a specific extraction rate, the hierarchy of dust control action includes the suspension or modification of operations. The “concession” by Mr Welchman that an extraction rate of 5.1 Mtpa will reduce dust emissions was one way of dealing with the issue but not the only way.
[141]	OCAA also submits that NAC’s reluctance to commit to a 5.1 Mtpa limit demonstrates its ongoing reluctance to commit to clear measures that have been shown to reduce impacts on residents. As I have already observed, the application for Stage 3 requests a 30-year term. Much can happen in that period.
[142]	NAC has suggested amendments to conditions B3 and B6 which require additional modelling before it increased its extraction rate beyond 5.1 Mtpa. Those amendments will ensure that NAC demonstrates that it has managed air quality to acceptable levels and will be able to manage it in the future before increasing the extraction rate.
[143]	OCAA submits that a limit of 5.1 Mtpa is consistent with the precautionary principle. Schedule 4 of the EPA, in defining the standard criteria, refers to the precautionary principle without definition. The 1992 UN Conference on Environment and Development defined the precautionary principle this way:
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
[144]	That definition does not seem appropriate to this situation as there is no lack of scientific certainty and, if there was, it is not being used as a reason for postponing a cost-effective measure. But if OCAA is suggesting that DES is acting cautiously in proposing this draft condition, I agree.
[145]	Both experts agreed that a production rate of 5.1 Mtpa will reduce dust emissions and ground level concentrations of dust. That is an obvious statement, but if NAC can comply with the EA conditions at 7.5 Mtpa there is no reason to limit production to 5.1 Mtpa. If Condition A2a is to remain, the extraction rate should be 7.5 Mtpa.
Condition A5 – record keeping
[146]	The parties agree that the monitoring data should be kept. NAC submits that a retention period of five years is sufficient, as the draft EA originally proposed. 
[147]	OCAA and DES submit that the records should be kept for the life of the mine. DES does not explain why it thinks the records should be kept for so long. OCAA adopts the opinion of Mr Tardio who suggested that having data for the life of the mine would assist any expert considering another situation or another proposal in the future. OCAA also submits that this data is inherently required to assist in understanding impacts, improving management, and making informed decisions in relation to future mining activities. It says that providing real-time and historical data is important in providing the community with the opportunity to engage meaningfully in discussions about the effects of the mine.
[148]	An EA authorises the carrying out of an environmentally relevant activity and the prevention of environmental harm unless authorised by the EA. Record keeping under an EA is for those purposes. The suggestion that NAC should keep records for the life of the mine – 30 years – in case it applies for an expansion of the mine is not consistent with the objective of carrying out an authorised activity or the prevention of harm from the authorised activity. Why should NAC keep records if there has been no recorded breach in a five-year period or, indeed, at all? Why should NAC keep records if technology has moved on and the future proposal (if any) relies on a totally different extraction method? Why should NAC keep records if the nature of the receiving environment changes? If DES thinks it is relevant and necessary to keep records for a period longer than five years or for a purpose other than the authorised activity’s compliance with the EA conditions, then it has that capacity.
[149]	No one is disputing that NAC should hold its data for historical purposes, but a retention period of five years is sufficient for Condition A5. Five years of data will allow the community to make informed decisions and give it the opportunity to engage meaningfully in discussions about the effects of the mine.
[150]	OCAA wants the condition to specifically include a reference to the audio recordings from the TARP. NAC says the inclusion of these words is unnecessary because those recordings are part of the monitoring data. There is the added difficulty that the audio data may include private information that should not be publicly available. The inclusion of a reference to audio recording in this condition adds nothing to its efficacy.
Condition A6 – provision of data on request
[151]	Under this condition, NAC must provide data to DES on an annual basis or within 10 business days of a request, or any other time as agreed. OCAA wants to add the words “in addition to any other requirements under these conditions”. I cannot see the point of the inserted words. Of course, the conditions must be read as a whole. Of course, NAC must comply with all its obligations under the EA. Making it plain that this condition is in addition to any other obligation is unnecessary.
Condition A11 – compliance report
[152]	DES and NAC agree that NAC must obtain a compliance report from an appropriately qualified expert within a year of the EA’s commencement. OCAA wants the expert to be “independent” and approved by DES because it has concerns about Mr Elkin’s independence.
[153]	NAC submits that the subject matter of OCAA’s draft goes beyond its objection. I do not agree. Paragraph (i) of OCAA’s objection submits that approval would be contrary to appropriate consideration and application of the environmental protection policies on noise and air. In the alternative, OCAA submitted that, if the application is not refused, conditions should be imposed in accordance with the regulatory requirements to address the matters raised in its grounds for refusal. The suggested drafting change has sufficient nexus with that wider objection.
[154]	NAC makes the point that an expert familiar with its operations will almost certainly be the most appropriate person to provide a report.  That is probably true. The better point, however, is that the CG’s Condition 1 requires separate monthly third-party auditing, and that DES will review the report required under this condition. Both the CG and DES are independent reviewers, and both can call for more information if they are not satisfied. In my view, that is a sufficient safeguard and the changes proposed by OCAA are unnecessary.
Condition A12 – changes to policy or guidelines
[155]	If an EA condition requires compliance with a standard, policy or guideline, and any of them are changed, Condition A12 requires NAC to comply with the change within two years or any other specified period.
[156]	OCAA wants to add “or where another period is specified in this consent”. I understand the reason for the change is that the air quality standards have been under review and that new standards are likely to issue “shortly”. OCAA submits that because there has been advance notice of the change in standards, NAC does not need two years to comply with the amended standard.
[157]	Having advance notice of a possible change does not necessarily mean that NAC will be in a better position to pivot to the changes quickly. The condition already contemplates a different period for effecting change. OCAA’s proposal does not   make the condition more responsive, easier to implement, or easier to monitor compliance.
The air quality conditions generally
[158]	As I have already indicated, the air quality experts agreed that, with an appropriate air quality monitoring network, an effective Air Emissions Management Plan (AEMP) and appropriate EA conditions, NAC may be able to operate Stage 3 without causing adverse impacts on air quality.
[159]	As it was with Stage 2, Mr Beutel’s home at Acland will be the nearest sensitive receptor to Stage 3. The experts agreed that NAC’s monitoring site at Acland is generally sufficient to manage air quality and to demonstrate compliance with the EA conditions at Mr Beutel’s home. 
[160]	OCAA relies on the evidence of Dr Taylor to support its detailed proposed conditions. Dr Taylor’s experience in dust and air quality is considerable. His experience in detailed work with EAs is much more limited. Similarly, he has not had any experience in developing a management plan that connects to an EA. He has no particular experience in the hierarchy of a management plan in reference to an EA. He has completed environmental impact studies for gold mines but not for coal mines.
[161]	It seems to me that, in line with OCAA’s desire to have “loophole proof” conditions, Dr Taylor wanted to run down every uncertainty and every variable that might affect air quality. He “went searching” for media reports about the impacts of the mine on Acland residents. I also note that Dr Taylor has a particular interest, and expertise, in atmospheric flow and dispersion in complex meteorological environments.
[162]	I have no doubt that Dr Taylor’s evidence is well meant and addresses valid concerns about the potential environmental impacts. But where I am asked to consider whether a proposal should sit in the EA or the AEMP, I defer to the greater experience of DES and NAC.
Condition Ba – compliance with air emission limits
[163]	DES and NAC largely agree on conditions to ensure that emissions generated by the mining operations do not exceed the air quality limits. There is one area on which these parties disagree, which I will come to shortly.
[164]	OCAA wants some additions to the draft condition. Firstly, it wants the condition changed to read that NAC must not “cause or contribute to” exceedances. It submits that, if there is another cause of elevated particulate in the air (such as a bushfire) NAC should not “blindly carry on with the excuse that it was not the cause of the exceedance”. It relies on the evidence of Dr Taylor who said that, if the PM2.5 level is high, NAC should be managing to still achieve compliance.
[165]	Dr Taylor’s comment was in the context of whether NAC should monitor PM2.5 as well as PM10 and whether multiple sites were necessary to manage dust on the mine site. Dr Taylor made those comments with the admission that he had never been involved in the design of a dashboard system to monitor a mining operation. 
[166]	Mr Welchman is familiar with designing dashboards for mining operations. He was content with monitoring PM10 and thought that would indicate whether, for example, fires in the area were affecting air quality. What NAC might do with that information is a matter for its AEMP and the existing parameters.
[167]	DES is content with a condition that refers to causation only. I have a similar view.
[168]	OCAA wants the condition to refer to air quality limits and nuisance limits. In the alternative, it wants the condition to refer to the criteria in Table B1. NAC is content with a reference to Table B1. DES is content with a reference to the “limits in Table B1”. The condition specifically refers to Table B1. That table is entitled “air quality limits and monitoring requirements”. It incorporates both an air quality limit and a nuisance limit. I do not think it is my role to be involved in this level of minutiae in draft conditions but, for what it is worth, OCAA’s desire for transparency is best achieved in simplicity. 
[169]	OCAA wants the air quality limits to be reviewed annually and updated to reflect any change in standards or policy. NAC is already subject to conditions that require regular reviews. Condition A12 already deals with changes in standards or policies. OCAA’s proposed change does not add to the clarity or transparency of the EA.
[170]	The condition contains a note that the measurement of air emissions of a sensitive place or a commercial place is either at that place or at a monitoring location representative of the place. OCAA wants the representative place to be the “most” representative. NAC says this introduces unnecessary uncertainty; if a site is representative, who is to say, and why is it necessary to ask, whether another site is more representative of the site chosen. I agree with NAC that the addition does not add clarity or certainty to the condition.
Condition B3 – the provision of an Air Emissions Management Plan (AEMP)
[171]	DES and NAC agree that NAC should submit an AEMP within three months of the grant of Stage 3. OCAA wants NAC to provide the AEMP upon the grant. No party has specifically addressed me on the proposed change. I therefore have no view except that DES is in the better place to decide when it requires this information.
[172]	NAC has suggested that the AEMP be reviewed before it increases its rate of production over 5.1 Mtpa. Because OCAA and DES proposed that NAC’s extraction rate be limited to 5.1 Mtpa, they did not see the need for this condition. Given my view that the EA should not be so limited, the amendment to Condition B3 to include a review is an appropriate concession from NAC.
Condition B4 – the collection of air monitoring data
[173]	OCAA’s proposed changes to Condition B4 are based on Dr Taylor’s comments about the importance of trend monitoring in investigating residents’ concerns, calibration of sensitive receptor locations and assisting in compliance monitoring.
[174]	All parties recognise the utility of trend monitoring. DES and NAC differ from OCAA in whether the use of trend monitoring should be embedded into the conditions.
[175]	NAC submits that most of the detail in Condition B4 should be left to the AEMP. I agree. While I understand OCAA’s desire for transparency and certainty, which is best achieved by a condition, the reality is that some parameters will change over time. The sensitive receptors will change over time. The data NAC collects may indicate that another representative site would be more appropriate, or the correlation details may change, or the measured levels may change, or the way an exceedance is identified may change. It is easier to incorporate those changes in an AEMP, which will still be subject to DES’s approval, than in a condition. 
Condition B6 – review of air quality monitoring
[176]	The condition requires the Table B1 air quality limits to be reviewed within two years of the grant of Stage 3. As it has with Conditions A2 and B3, NAC proposes a further review prior to it increasing the extraction rate over 5.1 Mtpa. Given my view that there should not be a condition limiting extraction to 5.1 Mtpa, NAC’s proposed concession is sensible. 
[177]	NAC proposes a review within three months of the grant. That, too, is a sensible concession that will give OCAA some comfort. Further, NAC proposes that the review incorporate a review of the suitability of the locations, types and parameters of the monitoring network. OCAA agrees with this change.
[178]	Because the review incorporates a review of the monitoring network, NAC and OCAA have proposed a new condition. OCAA wants the results of that review implemented within two months of any approval to change the air monitoring locations. NAC proposes that the changes be implemented “as soon as practicable and before increasing the extraction rate”.
[179]	A two-month window for the change in locations appears to be arbitrary. A change in locations may happen faster but it may also take some time to locate and correlate the data for a new location. NAC’s concession that increased extraction will not occur until the new sites are in place is sensible.
Condition B7 – making the data publicly available
[180]	All parties agree that the continuously monitored parameters required by Table B1 and the forecasting system required by Condition B4 must be made publicly available online and in real time and presented spatially. They also agree that there should be a link to historical 24-hour data.
[181]	NAC and OCAA agree that the public data should include a map showing the monitoring locations, but DES’s draft does not include reference to a map of the monitoring locations. It should.
[182]	NAC’s proposed condition otherwise simply says that the public website must include “Timeseries graph for each monitoring location showing the most recent monthly dust deposition rate”. DES’s proposed condition is more explicit, requiring real-time rolling one-hour average data “that can be drilled into for each location to provide” three different sets of data. DES and OCAA agree that the data should include: real-time short-term (five to six minutes) monitoring data on a rolling three-hour basis; real-time rolling one-hour average data on a 24-hour basis; and links to historical data on a one-hour basis. NAC submits that the specificity of the data to be provided should be left to the AEMP.
[183]	Ordinarily, I would agree with NAC that the specifics should be left to the AEMP. As I have observed on other proposed conditions, technology may change, what can be reported may change, and the interests of members of the public may change. However, the public availability of data is central to a regime designed to meet residents’ complaints in a timely and effective way. The public, through OCAA, is entitled to have some certainty about what will be available to test NAC’s compliance with air quality standards.
[184]	OCAA also wants NAC to publish a summary of meteorological conditions at the Acland weather site, including wind speed and direction, frequency of winds through a wind rose and an estimate of the contribution of different wind directions to the ambient concentration through a dust rose. I viewed the TARP dashboard NAC currently operates. It includes meteorological data from Acland. Presumably, the monitoring data DES requires will include that information. It is unreasonable to require NAC to summarise that data. The requirement that NAC summarise any information may reduce the transparency of that data; any human intervention of statistical data can lead to allegations of manipulation. 
[185]	Similarly, OCAA’s proposed condition that NAC estimate the contribution of different factors may lead to allegations of manipulation.
[186]	A specific reference to a historical download page, as OCAA has suggested, is unnecessary given DES’s requirement that the public data contains links to history data that can be “drilled into”. I have the same view of OCAA’s proposed condition that there be downloadable, unverified dust data from the period of the last report to the latest available dust information.
[187]	Finally, OCAA wants the publicly available data to include factsheets which contain instructions on how to read the data and what the various technical terms might mean. That would be useful information, but it is not a matter that should be the subject of a condition and is not a matter that NAC should be compelled to provide. If DES or OCAA wants to provide that information, then that can be accommodated, presumably by a link or note on the website that provides the data.
Table B1
[188]	DES and OCAA largely agree on what should be monitored and where. NAC disagrees with several of the monitoring requirements recently included.
TSP monitoring
[189]	TSP refers to the total of all particles suspended in the air. The experts were given a draft Table B1 in which TSP was monitored only at Acland. Mr Welchman considers this adequate. He thinks that the PM10 monitors will provide sufficient warning of elevated events and that actions to reduce PM10 will be equally effective in reducing TSP.
[190]	Dr Taylor considers that TSP should be monitored at one site to the east of the mine and one site to the west. He says that the extra monitoring will: 
“…assist understand of short-term TSP concentration variation and identification of potential source of elevated TSP levels through association with meteorological data and real-time monitoring of other particulate data.”
[191]	He thinks that real-time understanding of TSP impacts would be highly beneficial in relation to the management of elevated TSP events. He states that the extra monitoring stations “will enable TSP monitoring across the predominant wind direction providing ability to understand background TSP behaviour through generally having a monitor upwind of mining operations”.
[192]	In his oral evidence, Dr Taylor expanded on this theme. He wanted an understanding of the meteorological conditions co-incident with the actual monitored impact. He wanted to know what was coming into the region, what activities were contributing along the way, the wind conditions, and the rate of mixing.
[193]	Dr Taylor told the court that TSP, in particular, can decrease rapidly from the source. If so, I wonder why Dr Taylor places such emphasis on the additional monitoring stations to TSP. 
[194]	The CG’s conditions require TSP monitoring at receptor 16 by way of Hi Vol sampler. The CG did not require continuous monitoring.
[195]	I accept that an understanding of TSP volumes may assist in understanding the environment generally, and in the management of dust from the mine, but I am not persuaded that a condition requiring this level of monitoring for the life of the mine is appropriate. The requirement would more appropriately sit in the AEMP and it should only be necessary until the matters to which Dr Taylor refer have been adequately explored.
Evaporation
[196]	NAC points out that evaporation is calculated, not measured. NAC does measure solar radiation, rainfall and relative humidity. Evaporation may be a variable that should be included in the AEMP, but it should not be included in a condition.
PM2.5 monitoring at receptors 16, 38 and 39
[197]	As I have already noted, Dr Taylor recommends an additional monitor to the east of the mine (R16) and one to the west (R38). He says that those receptors should monitor PM2.5. He considers that improved understanding of the PM2.5 impacts in the region immediately around the mining operations is desirable, and that these additional sites will assist in providing better understanding of the contribution of mining activities to the PM2.5 concentration in the region and clarify compliance across the locations of highest risk of adverse particulate impacts. He also states that these sites will assist in identifying non-mine elevated PM2.5 levels.
[198]	Mr Welchman does not think that these additional monitors are necessary because the PM10 monitors will provide sufficient warning of elevated events and the controls NAC implements to reduce PM10 will be equally effective in reducing PM2.5.
[199]	Dr Taylor agrees that, given the likely ratios of PM10 to PM2.5 from normal mining activity, PM10 is the most critical, and that the dust emissions caused by PM10 would be reached before the PM2.5 level was reached. In the 2016 joint expert report, Dr Taylor expressed the view that PM2.5 monitoring in conjunction with PM10 monitoring was typically unnecessary, but he advocated a single PM2.5 monitoring station to understand the ratios between the two levels.
[200]	Once again, Dr Taylor posited a condition, which OCAA and DES adopt, which is directed to understanding the background conditions rather than ensuring compliance with identified standards. Once again, I am not persuaded that the proposed monitoring should be the subject of conditions which exist for the life of the mine. The proposed monitoring at these sites, for a limited time, should be part of the consideration of the AEMP to establish the background conditions against which compliance will then be monitored.
Meteorological monitoring
[201]	Dr Taylor makes the point that at low wind speeds, the meteorology across the site varies and different locations across the mine can behave differently when terrain and thermal influence become significant. He thinks that:
“Additional parameters are necessary to understand the atmospheric boundary layer structure and turbulence which is critical for understanding the rate of dispersion or mixing of the particulate released into the air by the mining operations; how much the particulate dilutes prior to impacting sensitive receptor locations.”
[202]	I accept that meteorology is important, but I do not accept that simply picking a site to the east and a site to the west of the mine will address Dr Taylor’s concern. Unless those sites are chosen as being representative of the terrain as well as their location, they are of limited use. Once again, it may be useful or necessary to produce an understanding of the background conditions. This exercise should be limited, not for the life of the mine, and incorporated into the AEMP.

Monitoring at sensitive receptors 37 and 44
[203]	OCAA submits that all potentially affected sensitive receptors should have a monitor on site or be correlated to a monitor that represents the impacts they are likely to experience. Therefore, OCAA submits, there should be compliance monitors at sensitive receptors 37 and 44.
[204]	NAC submits that trend monitoring is sufficient for these two locations. It also points to the fact that the CG’s conditions do not require compliance monitoring at these sites.
[205]	OCAA points to Mr Welchman’s “concession” that a compliance monitor would make it easier to demonstrate compliance at these locations. The proposition is unexceptional; of course, a compliance monitor will make it easier to monitor compliance than a trend monitor.
[206]	OCAA submits that NAC’s preference for trend monitoring at these sites rather than compliance monitoring is a “clear reluctance to maintain a comprehensive monitoring network” and, therefore, any proposed changes must be subject to third-party scrutiny. It points to Dr Taylor’s comment that there is no requirement for regular independent audit and review.
[207]	Dr Taylor’s comments are well-meaning but not correct. I have already referred to the CG’s condition that NAC submits monthly reports on compliance with air quality and noise conditions. The EA conditions require regular review as does the AEMP.
[208]	Except for Acland, the sensitive receptors of interest will change over the life of the mine. It is right that NAC should have a comprehensive monitoring system in place, but it is not appropriate that the location of each component of that system should be written into EA conditions which are inflexible and not necessarily responsive to prevailing conditions.
Condition B9 – odour
[209]	OCAA wants to insert a condition that the release of noxious or offensive odour(s) or any other noxious or offensive airborne contaminant(s) resulting from the mining activity must not cause or contribute to an environmental nuisance at any sensitive place or commercial place.
[210]	NAC submits that the words “contribute to” should not form part of the condition. It says there was no evidence that any odour from the mine contributes to any other odour. 
[211]	NAC is correct. In the joint expert report, the experts noted the results of a study that showed no exceedance of odour criteria and that the concentration of blast related air pollutants were low.
[212]	Dr Taylor was concerned with blast impacts on air quality, but he was more concerned with the particulates released than the odour. He was mainly concerned with the potential release of sulphur-bearing compounds. Mr Welchman acknowledged that Mr Beutel had complained of a gunpowder odour, but he noted no one had complained of a rotten egg smell, which you would expect from the release of a sulphur compound.
[213]	Dr Taylor has extrapolated a risk of odour impacts without any evidence to support his view. OCAA suggests a stricter condition when there is no justification to do so.
Condition B10 – monitoring odour 
[214]	The condition, as drafted, requires DES to investigate any complaint which is neither frivolous or vexatious nor based on mistaken belief in the opinion of the authorised officer. OCAA wants the qualification removed, so that DES must investigate every complaint.
[215]	Whether an odour is offensive is often subjective. The decision about whether a complaint is frivolous or vexatious rests with DES, which is an independent party. 
[216]	OCAA also wants the results of any odour monitoring to be provided to the complainant. NAC will be conducting the monitoring, if required, at DES’s direction. It is for DES to decide whether the results should be given to the complainant and, if so, for DES to pass on the results. The condition should not be drafted so that DES is bypassed in the process of receiving and considering the results of the monitoring.
Condition B11 – consequences of a breach
[217]	Both DES and OCAA’s draft of this condition require that, in the event of a breach, NAC address the complaint including the use of appropriate dispute resolution if required and immediately implement odour abatement measures. NAC suggests that “and” should be replaced with “or” because the condition as proposed would mandate dispute resolution, even if the complainant fails to engage. NAC submits it should not be subjected to a condition with which it may not be able to comply.
[218]	NAC will only have to use dispute resolution “if required”, presumably by DES. DES is unlikely to require dispute resolution if the complainant refuses to engage. Further, the dispute resolution process must be appropriate. A disengaged complainant may not be interested in mediation, but they might be interested in case appraisal. I prefer DES’s draft of this condition. 
Conditions B12 and B13 – designing a blast monitoring program
[219]	This is a condition suggested by OCAA and not supported by DES.
[220]	I have already commented on Dr Taylor’s concerns about blast impacts. I understand why OCAA would craft a condition based on Dr Taylor’s concerns but there is no evidence that supports a need for it. 
[221]	If there is no need for Condition B12, there is no need for Condition B13, which addresses a breach of Condition B12.
Condition B14 – request for further information
[222]	OCAA suggests that, if the annual review required by Condition B4 shows that NAC is not complying with the limits in Table B1, DES should have a range of options available to it.
[223]	The condition is unnecessary. The conditions already allow DES to call for the results of NAC’s monitoring. NAC can already be required to undertaken further monitoring. Under the EPA, DES already has wide powers of investigation.
Noise conditions
[224]	Many of the comments I made in relation to the air quality conditions apply equally to the noise conditions, so I will refer to them in a truncated way. I will reserve more expansive comments for those novel aspects of the noise conditions. 
Condition F1 – exceedances
[225]	As to “cause or contributed to”, I repeat my comments in [210]–[211].
[226]	OCAA suggests an addition to the condition that the measurement of noise to determine compliance with the condition not be limited to compliance monitoring. DES’s draft condition contains a note that the measurement of noise for a noise sensitive place is either at that place or at the monitoring location to which the noise sensitive place is correlated.
[227]	NAC is concerned that these amendments potentially confuse the question of the extent to which performance monitoring can be used to assess compliance. It does not want correlated performance monitoring data to be the measure of compliance when neither expert suggested that it be so. NAC referred to Mr Elkin’s reasons why performance monitoring should not be used for compliance monitoring. 
[228]	Firstly, Mr Elkin states that it is not standard industry practice to use performance monitoring for compliance monitoring and, if it was to occur, that would be a disincentive to use performance monitoring generally. These are not good reasons to reject the proposed change. As OCAA has noted, this mine is unusual in its close co-location with a rural community. Standard industry practice might apply to mines in remote locations but be inapplicable here. A disincentive in the wider industry is interesting but irrelevant; as this hearing demonstrates, specific conditions will always overcome industry disinclination.
[229]	Secondly, Mr Elkin points out that performance monitoring lacks the ability to accurately identify the noise source, which is an essential part of a compliance assessment. He states that the centre microphone at Acland lacks directionality. He states that the performance monitoring system does not have the benefit of an acoustic professional assessing noise on the ground. It is true that the performance monitoring system lacks some elements of intensive compliance monitoring. What it lacks is more than compensated for by its advantage of real-time data.
[230]	Thirdly, the Noise Measurement Manual (NMM) requires background noise measurement to be taken at the same time as compliance measurements. Obviously, this is not possible if performance monitoring is used for compliance monitoring. The NMM requires measurement at the noise sensitive location, which is not possible with performance monitoring. The centre microphone at Acland cannot measure the low frequency range which is required by Condition F5(g).
[231]	NAC submits that Condition F6 contemplates the use of performance monitoring data to assess compliance. I do not think that Condition F6 is clear in that respect. I do think that DES should be able to use the performance monitoring data in assessing compliance, with the appropriate caveats. These conditions do achieve that.
[232]	OCAA wants to amend the conditions to differentiate between different types of train noise. NAC says that the addition is unnecessary because of the way Table F1 is framed, with a limit for the “mining” section of the leases and a separate limit for the rail spur. The experts agree, although Mr Tardio suggests that the wording of the Table might be clearer.
Condition F2 – monitoring for exceedances
[233]	OCAA wants to add a note as follows: 
“the real time monitoring will indicate the potential for exceedances of the relevant limits if the noise level measured at the monitoring locations (as corrected and correlated in accordance with the Noise and Vibration Management Plan) approaches the relevant limits in Table F1 — Noise Limits.”
[234]	NAC submits that the note is unnecessary given the wording of Condition F2. I agree. OCAA’s proposed addition defines what a potential exceedance is but, surely, this is self-evident. If NAC’s monitoring shows that noise levels are approaching the limits, then, unless there are other third-party factors involved, there is scope for a potential exceedance which will require action.
Condition F3 – causing an environmental nuisance
[235]	OCAA wants the condition to read “cause or contribute to”. Again, I repeat my comments in [210]–[211].
[236]	OCAA also wants a notation that the measurement of noise to determine compliance is not limited to compliance monitoring. NAC opposes this addition because it contemplates the use of performance monitoring data to assess compliance. As I noted above, the performance data does have a place in assessing compliance. However, the bald statement proposed by OCAA is unclear and unhelpful.
Condition F5 – compliance monitoring and reporting
[237]	DES and NAC propose that a Noise Monitoring Program (NMP) be developed, approved and implemented within three months of approval. OCAA wants the NMP to be approved prior to commencement. My comments about the approval of an AEMP before commencement at [171]–[172] apply equally to the NMP.
[238]	OCAA wants NAC to make the NMP publicly available. NAC says that this is unusual and there is no advantage or benefit in its publication. The real time noise data will be publicly available. It might be difficult to understand that data without access to the NMP that underpins it. However, that decision should be left to DES when assessing the NMP, rather than embedding it into a condition.
[239]	OCAA wants a condition that compliance monitoring must not be conducted on the same day each month. NAC rightly says that when compliance monitoring should be conducted is a matter for the expert engaged for that purpose. 
[240]	OCAA wants a condition that the monitoring data collected by DES on private property be provided to the owner of that property within 10 days of receiving a request from that property owner. DES should not be compelled to disclose compliance data; it should have a discretion as to what it will disclose and to whom. The proposed addition to the condition is unreasonable and unnecessary.
Condition F4a – monitoring on request
[241]	NAC wants it clear that this condition relates to compliance monitoring and is not a condition that can require noise monitoring in general. Given the extensive monitoring system already in place, any general monitoring on request which is not compliance monitoring seems unreasonable.
[242]	The condition does not need the addition of the words “in response to any request” before the second sentence. The condition is triggered by a request so the monitoring must be in response to the request.
Condition F5 – the conduct of noise monitoring and recording
[243]	DES’s draft applies a safety factor of 4dB for impulsive or tonal noise. None of OCAA, NAC or the experts think that this is necessary. There may be cause for a safety factor to be imposed but the experts agree this will depend on mining conditions, further work by NAC, and is unlikely to be a permanent requirement. If there is to be a safety factor, the NMP is the appropriate place for it to appear.
[244]	DES’s condition includes a requirement for monitoring for low frequency noise. NAC wants to amend the condition so that it only takes place where permitted by the owner/occupier of the noise sensitive place. Mr Elkin gave evidence that low frequency monitoring needs to be done “internally”. If I interpret that evidence correctly, it seems that low frequency noise monitoring must be conducted inside the residence or place concerned. If I am correct in that interpretation, then NAC’s objection is well-founded.
[245]	The experts based their report on a condition that required monitoring of maximum noise levels – night for a minimum of 30 minutes. In the latest iteration of the draft EA, DES has deleted the reference to the 30-minute minimum. The experts did not recommend it, there is no evidence to suggest it should be deleted and DES has not explained why it should be deleted.

Condition F6 – performance noise monitoring program
[246]	The parties agree that this condition should specify a real-time performance monitoring system developed by a suitably qualified and experienced person. They agree on the locations proposed for monitoring.
[247]	NAC does not agree with OCAA’s draft that the condition should specify the use of specific equipment. I agree. As I have already noted, the EA will operate for the life of the mine. Technology will change over that time and, presumably, will improve. A condition that limits the technology to that available in 2021 may, ultimately, restrict NAC’s ability to provide meaningful performance monitoring.
[248]	OCAA proposes that Stage 3 cannot commence until DES has approved the performance noise monitoring program. NAC suggests that the program must be submitted to DES within three months of the grant of Stage 3 and approved within a further three months. That timeframe is consistent with other conditions requiring the approval of management plans. The performance monitoring system will require calibration and it will be difficult to calibrate without some activity in Stage 3 against which levels can be monitored.
[249]	OCAA has included a note that:
“An exceedance of the noise limits in Table F1 - Noise limits identified by the performance monitoring does not necessarily translate to a breach of Conditions F1 or F3. However, the administering authority may use the data collected by the performance monitoring equipment, including the data collected from the Type 1 microphone and the audio data, to assess compliance with Conditions F1 and F3 of this environmental authority at its discretion.”
[250]	DES’s draft includes a note that the data can be used to investigate compliance and NAC agrees with that draft. OCAA’s editorial note is superfluous. DES’s draft condition is sufficient.
Condition F6a – annual noise monitoring report
[251]	NAC does not agree with the inclusion of DES’s proposed paragraph (c) which requires details of any exceedances of the noise limits determined at any of the noise sensitive receptors caused by the mining activities. It submits that non-compliance cannot be established on the performance monitoring alone and that publication of exceedances from the performance monitoring system may give the public the incorrect assumption that Stage 3 was non-compliant.
[252]	DES will already have notice of potential exceedances through the published real-time data and any complaints. It would be unreasonable to require NAC to extract and separately report this data if there had been no corresponding complaint and investigation during the reporting period. 
[253]	OCAA wants the condition to include details of where NAC was conducting operations each month for the preceding 12 months and predictions of where it will occur for the next 12 months. It wants the report to include modelling that predicts whether there are likely to be exceedances without adaptive management. It wants detailed information about the areas of interest and the correction factor to be applied. It wants a comparison between the monthly compliance monitoring and the real-time performance monitoring.
[254]	OCAA’s proposal contains an extraordinary level of detail. If NAC is compliant and operating to DES’s satisfaction, the proposed conditions are unnecessary. If NAC is not compliant, then DES will be able to ask for a wide range of data, including much of which is included in this condition. I understand OCAA may have included these proposed conditions because of its level of distrust in NAC but imposing fine-grained conditions about the provision of information will not necessarily create an atmosphere of cooperation between NAC and disaffected locals. It is much more likely that greater detail will encourage disaffected parties to conduct a detailed forensic analysis to “find fault” perhaps where no fault exists. 
Condition F7 – publication of real-time data
[255]	OCAA wants the real-time data to be publicly available for the life of the mine. NAC submits that this is unreasonable, and I agree. This is a significant amount of data and, as I mentioned in relation to a similar condition about air quality at [146]–[149], its utility must be questioned if there has been no complaint about exceedances. Of course, any data relevant to an exceedance will be captured and kept through the investigation and reporting regimes that otherwise apply.
[256]	For the reasons I expressed in relation to the air quality data at [147]–[148], an addition to this condition allowing DES to request data or information is unnecessary.
Condition F8 – noise and vibration management plan
[257]	OCAA wants NAC to have this plan approved by DES before commencing Stage 3. For the reasons already expressed at [171], it is sufficient to have it in place within three months of commencement.
Condition F9 – a program for continuous improvement
[258]	As with other proposed conditions, OCAA wants to include details about the contents of the plan. NAC points out that these matters are best left to the management plan. 
[259]	Once again, OCAA wants certainty about detail because of its perception that NAC cannot be trusted. Once again, I take the view that prescription and detail in the conditions may ultimately thwart OCAA’s desire for a clear system under which NAC is accountable.
Condition F10 – review of the monthly noise reports
[260]	Condition 3 of the CG’s Conditions imposes the requirement for monthly reports. None of the parties suggest that an annual review of these reports is inappropriate. However, OCAA wants to add conditions to the CG’s Condition. It wants the monthly reports to be peer reviewed, and it specifies the nature of the peer review proposed. It wants the peer review reports to be submitted to DES within 14 days of the monthly reports, and that the peer review reports be publicly available within seven days thereafter.
[261]	NAC submits, rightly, that the form and content of the monthly reports to the CG is a matter for the CG. 
Condition F11 – mitigation
[262]	OCAA wants an addition to the proposed condition F11 as follows:
“The implementation of mitigation measures does not remove the requirement for the environmental authority holder to achieve compliance with the noise limits in Table F1 unless there is a private agreement to the contrary between the environmental authority holder and the owner from time to time.”
[263]	NAC submits, and I agree, that this addition is unnecessary. Condition F11 allows the owner of a noise sensitive place to request noise mitigation and provides a framework for dealing with that request. The owner of a noise sensitive place always has other options available to deal with noise; the condition does not need to reinforce/remind the owner of those rights.
Table F2 – monitoring locations and frequency
[264]	All parties accept that there should be unattended monitoring for seven days and that it should occur monthly for the first 12 months after approval of the NMP. DES’s draft condition makes this clear and NAC accepts that draft. It is not clear how the OCAA draft differs, although it might be that it wants monitoring to start immediately on approval of Stage 3. For the reasons I have already given, DES’s draft is preferable. 
Condition L1 – complaints
[265]	OCAA wants to include a provision that the information in complaints must be updated every 28 days until action has been taken to resolve the complaint. That imposes an additional burden on DES with no apparent benefit. The complainant will know whether the complaint has been resolved and, probably, will be aware of what steps are being taken to resolve it. Updating public information to show that the complaint is outstanding will not increase public confidence in DES’s regime for dealing with complaints and it will not assist DES in resolving those complaints.
The Human Rights Act
[266]	The question of whether the HRA applies to recommendatory proceedings in the Land Court has been canvassed in the decision by Kingham P of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (Waratah). Her Honour concluded that the HRA did apply to mining objection hearings.
[267]	NAC submits that the present case is different from Waratah because of s 108 of the HRA. That section provides that the Act does not affect proceedings commenced or concluded before the commencement, and does not apply to an act, or decision made, by a public entity before the commencement.
[268]	There are powerful submissions both for and against whether my recommendation should be made by reference to the HRA. I do not need to decide that question here as both NAC and DES agree that, if Stage 3 does result in limitations to human rights, the limitations are reasonable and justifiable. 
[269]	However, in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 2), Kingham P pointed out:
“If the question of compatibility with human rights is beyond this Court’s jurisdiction, the Minister and the Chief Executive of DES will not have the benefit of a recommendation made after consideration of the engaged human rights. Both decision makers would likely have to develop some additional process to comply with s 58(1). Given the role the Court’s recommendation plays in the decision making process for both applications, as a matter of policy, an interpretation that avoids that burden better achieves the purpose of the HR Act.”	 
[270]	To assist the final decision-makers, I should therefore consider briefly the five steps identified by DES as the process to consider the impact of the HRA. 
Engagement: Is the prospective decision relevant to a human right and, if so, which one(s)? 
[271]	DES submits that two human rights are relevant: property rights, and right to privacy. NAC has also identified the cultural heritage of indigenous people. 
[272]	Section 24(2) of the HRA states that a person must not be arbitrarily deprived of the person’s property. Mr Beutel owns two properties in Acland, one of which is his home. His property rights may be affected.
[273]	Section 25(a) of the HRA states that a person has the right not to have their home unlawfully or arbitrarily interfered with. Again, Mr Beutel’s privacy rights might be affected.
[274]	Section 28 encompasses several rights unique to Aboriginal and Torres Strait Islander people. NAC has agreed a Cultural Heritage Management Plan with the Western Wakka Wakka people. That suggests there are cultural heritage rights that are engaged by Stage 3.
Limitation: If a right is relevant, is that right limited by my decision? 
[275]	As to property rights, the objectors submitted that Stage 3 would have unacceptable impacts on groundwater, however there was no evidence before me to support that proposition. There was evidence before me to suggest that Mr Beutel’s property may be affected by noise, vibration and dust from Stage 3. There is some suggestion that noise, dust and vibration may also affect other landowners who did not give evidence before me. Therefore, a recommendation to grant the Stage 3 approval may limit some owners’ property rights.
[276]	Similarly, the same impacts may affect those owners’ right to privacy. Even the proposed solution – monitoring sensitive receptors – may affect the right to privacy at those sensitive receptors.
[277]	NAC submits that the cultural heritage rights will be appropriately protected by a Cultural Heritage Management Plan. That submission suggests that these rights may otherwise be limited by Stage 3.
Justification: Are the limits that exist reasonable and can be demonstrably justified? 
[278]	Section 13 of the HRA sets out factors that may be relevant in deciding whether a limit to a human right is reasonable and justifiable. In summary, I must consider whether the limitation is legal and proportional. 
[279]	Any limitation to property and privacy rights from Stage 3 will have been considered in this hearing. Objections have been lodged. I have read and heard expert evidence about the impacts of noise, dust and vibration. The draft EA, in its many iterations, places limits on the noise, dust and vibration impacts. If there are any impacts in the future, the EA will either entitle those impacts, because they are within the prescribed limits, or regulate them. The limits to human rights will be the result of a legal process in which the people affected had a right to participate.
[280]	DES suggests that the limit can be demonstrably justified if there is “an appropriate relationship between the means of expanding the mine and the rights which may be affected”. Section 13(2)(g) of the HRA states that one factor I must consider is the balance between the human right and the purpose of the limitation. Section 269(4)(k) of the MRA requires that I consider public right and interest. All these tests speak of balance. I have considered the question of balance when deciding whether to recommend the grant of the MRA. I am satisfied that a proper balance exists and, therefore, the limits can be demonstrably justified.
Proper consideration to the rights said to be engaged
[281]	DES submits that “proper consideration” is different from the common law requirement for an administrative decision-maker to take into account all relevant considerations. The test, according to DES, is:
“…understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper construction will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

While I accept that the requirements in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.”
[282]	I have carefully considered the impacts on nearby residents, particularly Mr Beutel. As I have acknowledged, he will inevitably suffer some impacts on his amenity. However, I consider that the EA will protect the neighbourhood from all but a few impacts on their property rights and privacy, that the impacts will be adequately managed and that the balance of competing factors favours imposing a limit on human rights.
Is there an inevitable infringement? 
[283]	DES submits that, by exercising my discretion to recommend a grant of the MRA, there is no inevitable infringement.
[284]	That is not quite correct. As OCAA’s objections did not include a reference to human rights it cannot make submissions on this issue. 
[285]	The HRA gives a party to a civil proceeding the right to a fair and public hearing. If OCAA, as a party to the hearing, cannot make submissions on an important point, then it has not been given a fair hearing.
[286]	Of course, if this hearing is not a civil proceeding, then the right does not arise. This conundrum highlights one of the difficulties the court faces in recommendatory proceedings and the need for legislative clarity.
[287]	The complete answer to the question, however, is to be found in s 268(3) of the MRA and s 58(2) of the HRA. Although OCAA’s right to a fair trial may have been infringed, I could not reasonably have acted differently because of the statutory limitation imposed by the MRA.
Recommendation:
I make the following recommendations, pursuant to s 269(1) of the Mineral Resources Act 1989, to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989:
1.	I recommended that MLA 700002 and MLA 50232 be granted.
2.	The recommendation stated in paragraph 1 is subject to the condition that it does not take effect unless and until: 
(a)	The applicant applies to the Coordinator-General to amend the environmental authority (EPML 00335713) to account for the conditions as amended by the hearing and/or these reasons;
(b)	The Coordinator-General amends those stated conditions; and 
(c)	The Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, incorporates the stated conditions (as amended by the Coordinator-General) in the draft environmental authority. 
3.	Subject to the condition stated in paragraph 2, I recommend the administering authority approve the application to amend EPML 00335713 on the conditions stated in the draft environmental authority, subject to such additions and amendments as are necessary to give effect to these reasons.
4.	If the condition in paragraph 2 is not fulfilled by 31 May 2022 or, if before that date the Coordinator-General decides not to amend those stated conditions, I recommend the Department of Environment and Science, as the administering authority for the Environmental Protection Act 1994, refuse the application to amend EPML 00335713.
5.	I direct the Registrar to provide, as soon as practicable, a copy of these recommendations and the reasons to:
(a)	The honourable Minister for Resources; and 
(b)	The honourable Minister for State Development, Infrastructure, Local Government and Planning.