Natural Resources Access Regulator V Maules Creek Coal Pty LTD (2021) NSWLEC 135

Land and Environment Court
New South Wales
Case Name: Natural Resources Access Regulator v Maules

Creek Coal Pty Ltd
Medium Neutral Citation: [2021] NSWLEC 135
Hearing Dates: 16-19 August 2021; 6, 20 September 2021 (written

submissions)
Date of Orders: 24 November 2021
Date of Decision: 24 November 2021
Jurisdiction: Class 5
Before: Pain J
Decision: See [303] of judgment
Catchwords: CRIMINAL – sentencing – plea of guilty to offence of

taking water without a water access licence – clean
water collected at coal mine site and not discharged
to creek downstream – likely environmental harm to
several kilometres of creek downstream of coal mine
– no aggravating circumstance – mitigating factors
considered – limit on prosecutor’s costs ordered to
be paid – penalty imposed – publication order made
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW),

ss 3A, 21A
Criminal Procedure Act 1986 (NSW), ss 247E, 257B
Environmental Planning and Assessment Act 1979
(NSW), s 122B (former), s 9.39
Fisheries Management Act 1994 (NSW), Sch 4
Interpretation Act 1987 (NSW), s 11
Water Management (General) Regulation 2011
(NSW) (repealed), cl 18
(NSW), cl 21
1
Water Management Act 2000 (NSW), ss 3, 4A, 5, 56,
60, 60A, 60C, 60I, 71T, 71V, 336E, 353G, 364A,
Dictionary
Water Sharing Plan for Namoi and Peel Unregulated
and Alluvial Water Sources 2012, cll 4, 9, 10
Cases Cited: Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171;

[2018] NSWCA 146
Camilleri's Stock Feeds Pty Ltd v Environment
Protection Authority (1993) 32 NSWLR 683
Chief Executive of the Office of Environment
and Heritage v Turnbull [2017] NSWLEC 141
Chief Executive, Office of Environment and Heritage
v Parrish and Son Pty Ltd [2020] NSWLEC 47
Council of the City of Sydney v Trico Constructions
Pty Ltd [2015] NSWLEC 56
Director-General, Department of Environment and
Climate Change v Rae (2009) 168 LGERA 121;
[2009] NSWLEC 137
Director-general, Department of Environment and
Climate Change v Hudson (No 2) [2015] NSWLEC
110
Dodds Family Investments Pty Ltd (formerly Solar
Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR
261; [1993] FCA 346
Environment Protection Authority v Custom
Chemicals Pty Ltd [2016] NSWLEC 146
Environment Protection Authority v Hanna (2018)
235 LGERA 114; [2018] NSWLEC 80
Environment Protection Authority v Sam Abbas (also
known as Osama Abbas) [2021] NSWLEC 57
Environment Protection Authority v Truegain Pty Ltd
(No 4) (2014) 206 LGERA 11; [2014] NSWLEC 179
Environment Protection Authority v Waste Recycling
and Processing Corporation (2006) 148 LGERA 299;
[2006] NSWLEC 419
Garrett v Freeman (No 5) (2009) 164 LGERA 287;
[2009] NSWLEC 1
Garrett v Williams (2006) 160 LGERA 115; [2006]
NSWLEC 785
2
Grant Barnes, Chief Regulatory Officer, Natural
Resources Access Regulator v O’Haire [2020]
NSWLEC 158
Harris v Harrison (2014) 86 NSWLR 422; [2014]
NSWCCA 84
Hili v The Queen; Jones v The Queen (2010) 242
CLR 520; [2010] HCA 45
Hoare v The Queen (1989) 167 CLR 348; [1989]
HCA 33
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA
59
Markarian v The Queen (2005) 228 CLR 357; [2005]
HCA 25
Morrison v Defence Maritime Services (2007) 156
LGERA 365; [2007] NSWLEC 552
Muldrock v The Queen (2011) 244 CLR 120; [2011]
HCA 39
Nash v Silver City Drilling (NSW) Pty Ltd; Attorney
General for New South Wales v Silver City Drilling
(NSW) Pty Ltd (2017) 93 NSWLR 338; [2017]
NSWCCA 96
New Galaxy Investments Pty Ltd v Thomson (No 2)
[2017] NSWCA 235
Newcastle City Council v Pace Farm Egg Products
Pty Ltd (No 3) [2005] NSWLEC 423
Plath v Rawson (2009) 170 LGERA 253; [2009]
NSWLEC 178
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Peel [1971] 1 NSWLR 247
R v Thomson; R v Houlton (2000) 49 NSWLR 383;
[2000] NSWCCA 309
R v Visconti [1982] 2 NSWLR 104
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA
21
Stephen James Orr v Narrabri Coal Operations Pty
Ltd; Stephen James Orr v Narrabri Coal Pty Ltd
[2021] NSWLEC 85
Veen v The Queen (1979) 143 CLR 458; [1979] HCA
7
Veen v The Queen (No 2) (1988) 164 CLR 465;
[1988] HCA 14
3
Texts Cited: Chessman, “What’s wrong with the Australian River
Assessment System (AUSRIVAS)?”, (2021) 72
Marine and Freshwater Research 1110
NSW Office of Director of Public Prosecutions,
Prosecution Guidelines (March 2021)
Category: Sentence
Parties: Natural Resources Access Regulator (Prosecutor)

Maules Creek Coal Pty Ltd (Defendant)
Representation: Counsel:
R White and Z Shahnawaz (Prosecutor)
D Hume (Defendant)
Solicitors:
Crown Solicitor’s Office (Prosecutor)
Ashurst (Defendant)
File Number: 2020/192787
4
JUDGMENT
1 The Defendant, Maules Creek Coal Pty Ltd (ACN 140 533 875), has pleaded
guilty to an offence of taking water from a water source without an access
licence contrary to s 60A(2) of the Water Management Act 2000 (NSW) (WM
Act). Between 1 July 2016 and 30 June 2019 1,000ML of clean surface water
was captured in water storages at the Maules Creek Coal Mine (the mine)
without an access licence for the Water Sharing Plan for the Namoi and Peel
Unregulated Rivers Water Sources 2012 (WSP) being held by the Defendant.
The Maules Creek Coal mine is an open cut mine near Boggabri.
2 It is necessary to sentence the Defendant for this offence. A plea of guilty can
be considered as an admission of the essential elements of an offence. The
offence is one of strict liability so that mens rea is not an essential element of
the offence. When sentencing, any matter adverse to a defendant must be
proved by a prosecutor beyond reasonable doubt: R v Olbrich (1999) 199 CLR
270; [1999] HCA 54 (Olbrich) at 281. Any contested matter relied on by a
defendant must be established on the balance of probabilities: Olbrich at 281.
Water Management Act 2000
3 Relevant sections of the WM Act provide:
Chapter 1 Preliminary
3 Objects
The objects of this Act are to provide for the sustainable and integrated
management of the water sources of the State for the benefit of both present
and future generations and, in particular—
(e) to provide for the orderly, efficient and equitable sharing of water from
water sources,
4A Meaning of “overland flow water”
5
(1) In this Act, overland flow water means water (including floodwater, rainfall
run-off and urban stormwater) that is flowing over or lying on the ground as a
result of—
(a) rain or any other kinds of precipitation, or
(b) rising to the surface from underground, or
(c) any other process or action of a kind prescribed by the regulations.
(2) Water is flowing over the ground for the purposes of subsection (1) even if
it flows over the ground by means of artificial structures such as roads, canals
or road gutters.
(3) However, subsection (1) does not include—
(a) water that is collected from a roof (including water collected from a
roof using a rainwater tank), or
(b) water that is flowing over or lying on the bed of a river, lake or
estuary, or
(c) water flowing over or lying on the ground in such circumstances as

may be prescribed by the regulations.
Chapter 2 Water management planning
Part 1 General
Division 1 Water management principles
5 Water management principles
(2) Generally—
(a) water sources, floodplains and dependent ecosystems

(including groundwater and wetlands) should be protected and restored
and, where possible, land should not be degraded, and
(b) habitats, animals and plants that benefit from water or are
potentially affected by managed activities should be protected and (in
the case of habitats) restored, and
(c) the water quality of all water sources should be protected and,
wherever possible, enhanced, and
(d) the cumulative impacts of water management licences and

approvals and other activities on water sources and their dependent
ecosystems, should be considered and minimised, and
(e) geographical and other features of Aboriginal significance

should be protected, and
6
(f) geographical and other features of major cultural, heritage or
spiritual significance should be protected, and
(g) the social and economic benefits to the community should be

maximised, and
(h) the principles of adaptive management should be applied, which

should be responsive to monitoring and improvements in understanding
of ecological water requirements.
Chapter 3 Water management implementation
Part 2 Access licences
Division 1 Preliminary
56 Access licences
(1) An access licence entitles its holder—
(a) to specified shares in the available water within a specified water

management area or from a specified water source (the share
component), and
(b) to take water—
(i) at specified times, at specified rates or in specified

circumstances, or in any combination of these, and
(ii) in specified areas or from specified locations,
(the extraction component).
Division 1A Offences
60A Taking water without, or otherwise than authorised by, an access

licence
(1) A person—
(a) who takes water from a water source to which this Part applies,
and
(b) who does not hold an access licence for that water source, and
(c) who intentionally or negligently takes that water without

obtaining an access licence for that water source,
7
is guilty of an offence.
Tier 1 penalty.
(2) A person—
(a) who takes water from a water source to which this Part applies,
and
(b) who does not hold an access licence for that water source,
is guilty of an offence.
Tier 2 penalty.
60I Access licence required for water used in mining activities
(1) A person who takes water in the course of carrying out a mining activity
is, for the purposes of this Act, taking water from a water source.
(2) Without limiting the generality of subsection (1), a person takes water
in the course of carrying out a mining activity if, as a result of or in
connection with, the activity or a past mining activity carried out by the person,
water is removed or diverted from a water source (whether or not water is
returned to that water source) or water is re-located from one part of an aquifer
to another part of an aquifer.
(3) To avoid doubt, a person who takes water in the course of carrying out
a mining activity as referred to in subsection (2) is required to hold an access
licence authorising the taking of that water.
(4) In this section—
mineral has the same meaning as it has in the Mining Act 1992.
mineral exploration means prospecting pursuant to an assessment

lease, exploration licence, mineral claim, mining lease or opal
prospecting licence under the Mining Act 1992.
mining means the winning or removal of materials by methods such as

excavating, dredging, drilling or tunnelling for the purpose of obtaining
minerals or petroleum, and includes—
(a) the construction, commissioning, operation and

decommissioning of associated works, and
(b) the stockpiling, processing, treatment and transportation of

materials extracted, and
(c) the rehabilitation of land affected by mining.
mining activity means any of the following—
(a) mining,
8
(b) mineral exploration,
(c) petroleum exploration.
petroleum has the same meaning as it has in the Petroleum (Onshore)

Act 1991.
petroleum exploration means prospecting pursuant to a petroleum

title under the Petroleum (Onshore) Act 1991.
(5) This section does not limit any other provision of this Act.
Chapter 7 Enforcement
Part 1 Directions to landholder and other persons
...
Division 8 Enforceable undertakings
336E Enforcement of undertakings
(1) The Minister may accept a written undertaking given by a person for the
purposes of this section in connection with a matter in relation to which the
Minister, the Ministerial Corporation, the Natural Resources Access Regulator
or any other public authority has a function under this Act.
(2) The person may withdraw or vary the undertaking at any time, but only with
the consent in writing of the Minister. The consent of the Minister is required
even if the undertaking purports to authorise withdrawal or variation of the
undertaking without that consent.
(3) The Minister may apply to the Land and Environment Court for an order
under subsection (4) if the Minister considers that the person who gave the
undertaking has breached any of its terms.
(4) The Land and Environment Court may make all or any of the following
orders if it is satisfied that the person has breached a term of the undertaking—
(a) an order directing the person to comply with that term of the
undertaking,
(b) an order directing the person to pay to the State an amount not
exceeding the amount of any financial benefit that the person has
obtained directly or indirectly and that is reasonably attributable to the
breach,
(c) any order that the Court thinks appropriate directing the person to
compensate any other person who has suffered loss or damage as a
result of the breach,
(d) an order requiring the person to prevent, control, abate or mitigate

any actual or likely damage to the built or natural environment caused
by the breach,
9
(e) an order requiring the person to make good any actual or likely
damage to the built or natural environment caused by the breach,
(f) any other order the Court considers appropriate.
(5) The Ministerial Corporation, the Natural Resources Access Regulator or

another public authority may recommend that the Minister accept an
undertaking under this section that the Ministerial Corporation, the Natural
Resources Access Regulator or public authority has negotiated with a person
proposing to give the undertaking in connection with a function of the public
authority under this Act.
(6) Nothing in this section prevents proceedings being brought for the
contravention or alleged contravention of this Act to which the undertaking
relates.
Part 5 Legal proceedings and appeals
Division 1 Legal proceedings
364A Matters to be considered in imposing penalty
(1) In imposing a penalty on a person for an offence against this Act or the
regulations, the court is to take into consideration the following (so far as they
are relevant)—
(a) the impact of the offence on other persons’ rights under this Act,
(b) the market value of any water that has been lost, misused or
unlawfully taken as a consequence of the commission of the offence,
(c) the extent of the harm caused or likely to be caused to the

environment (including, in particular, any water source or waterfront
land) by the commission of the offence,
(d) the practical measures that may be taken to prevent, control,

abate or mitigate that harm,
(e) the extent to which the person could reasonably have foreseen
the harm caused or likely to be caused to the environment by the
commission of the offence,
(f) the extent to which the person had control over the causes that
gave rise to the offence,
(g) whether the offence was committed during a severe water

shortage or an extreme event (that is, in contravention of an order in
force under section 49A, 49B or 324),
(h) the person’s intentions in committing the offence,
10
(i) whether, in committing the offence, the person was complying
with orders from an employer or supervising employee,
(j) in the case of an offence of taking water in contravention of this

Act, whether the water so taken had been released for environmental
purposes and, if so, whether the person was aware of that fact,
(k) any civil penalty that has been imposed on the person under
section 60G in relation to the conduct from which the offence arises.
(2) The court may take into consideration other matters that it considers
relevant.
Dictionary
available water, in relation to a water management area or water source,

means the water that is available in that area or water source in accordance
with an available water determination that is in force in respect of that area or
water source.
available water determination means a determination referred to in

section 59
environment includes all aspects of the surroundings of human beings,

whether affecting them as individuals or in their social groupings.
water management area means an area of land that is constituted as a water

management area by an order in force under section 11.
water source means the whole or any part of—
(a) one or more rivers, lakes or estuaries, or
(b) one or more places where water occurs on or below the surface of the
ground (including overland flow water flowing over or lying there for the time
being),
and includes the coastal waters of the State.
waterfront land means—
(a) the bed of any river, together with any land lying between the bed of the
river and a line drawn parallel to, and the prescribed distance inland of, the
highest bank of the river, or
11
(a1) the bed of any lake, together with any land lying between the bed of the
lake and a line drawn parallel to, and the prescribed distance inland of, the
shore of the lake, or
(a2) the bed of any estuary, together with any land lying between the bed of
the estuary and a line drawn parallel to, and the prescribed distance inland of,
the mean high water mark of the estuary, or
(b) if the regulations so provide, the bed of the coastal waters of the State, and
any land lying between the shoreline of the coastal waters and a line drawn
parallel to, and the prescribed distance inland of, the mean high water mark of
the coastal waters,
where the prescribed distance is 40 metres or (if the regulations prescribe a

lesser distance, either generally or in relation to a particular location or class of
locations) that lesser distance. Land that falls into 2 or more of the categories
referred to in paragraphs (a), (a1) and (a2) may be waterfront land by virtue of
any of the paragraphs relevant to that land.
4 Clause 21 of the Water Management (General) Regulation 2018 (NSW) (WM

Regulation 2018), commencing on 24 August 2018 and in force until the end of
the charge period on 30 June 2019 provides:
Division 2 Exemptions
21 Exemption from requirement for access licence
(1) A person is exempt from section 60A(1) and (2) of the Act in relation to
the taking of water from a water source if the person—
(a) is specified in any provision of Part 1 of Schedule 4, and
(b) takes water for any of the purposes, and in the circumstances,
specified in that provision.
(2) A person exempted under this clause is also exempted from any
mandatory conditions relating to access licences that are imposed on a water
supply work approval.
5 Words and expressions used in an instrument have the same meaning as in

the Act under which the instrument is made (s 11 of the Interpretation Act 1987
(NSW)). For the definition of water source, see above in [3].
12
Water Management (General) Regulation 2011 (repealed)
6 Clause 18 of the now repealed Water Management (General) Regulation 2011

(NSW) (WM Regulation 2011) provided during the charge period from 1 July
2016 until 24 August 2018:
Division 2 Exemptions
18 Exemption from requirement for access licence
(1) A person is exempt from section 60A (1) and (2) of the Act in relation to
the taking of water from a water source if the person:
(a) is specified in any provision of Part 1 of Schedule 5, and
(b) takes water for any of the purposes, and in the circumstances,
specified in that provision.
(2) A person exempted under this clause is also exempted from any
mandatory conditions relating to access licences that are imposed on a water
supply work approval.
(3) An exemption conferred by this clause that requires a watering program

to be approved by the Minister is subject to the condition that any person
claiming the exemption must, if required to do so by an authorised officer,
produce the approved watering program immediately or within the period, and
at the place, specified by the officer.
(4) An exemption conferred by subclause (1) with respect to approved

watering for basic human water needs (within the meaning of clause 14 of
Schedule 5) ceases to apply 4 months after the date on which the relevant
approval was granted by the Minister or such later date as the Minister may
approve of in writing.
(5) An exemption conferred by this clause with respect to the taking of

water for the purposes and in the circumstances specified in clause 15B of
Schedule 5 (Emergency safety measures) is subject to the condition that the
person claiming the exemption must comply with all applicable requirements (if
any) of the Minister:
(a) that are published in the Gazette, or notified in writing to the

person, for the purposes of this subclause, and
(b) that are for the purposes of implementing the water

management principles in relation to the taking of water the subject of
the exemption.
13
Water Sharing Plan for Namoi and Peel Unregulated and Alluvial Water
Sources 2012
7 Relevant provisions of the WSP provide:
Part 1 Introduction
4 Application of this Plan
(3) Subject to subclause (5), these water sources include all water—
(a) occurring naturally on the surface of the ground within the

boundaries of these water sources as shown on the Plan Map, and
(b) in rivers, lakes and wetlands within the boundaries of these

water sources as shown on the Plan Map.
Part 2 Vision, objectives, strategies and performance indicators
9 Vision statement
The vision for this Plan is to provide for the following—
(a) the health and enhancement of these water sources and their water-
dependent ecosystems,
(b) the continuing productive extraction of surface water for economic

benefit,
(c) the spiritual, social, customary and economic benefits of surface water
to Aboriginal communities,
(d) the social and cultural benefits to urban and rural communities that
result from surface water.
10 Environmental objectives
(1) The broad environmental objective of this Plan is to protect, and

contribute to the enhancement of, the ecological condition of these water
sources and their water-dependent ecosystems over the term of this Plan.
(2) The targeted environmental objective of this Plan is to protect, and

contribute to the enhancement of, the following over the term of this Plan—
14
(a) the recorded distribution or extent, and population structure, of
target ecological populations,
(b) the longitudinal and lateral connectivity within and between

water sources to support target ecological processes,
(c) water quality within target ranges for these water sources to support
water-dependent ecosystems and ecosystem functions.
(3) The strategies for reaching the targeted environmental objective of this
Plan are as follows—
(a) establish and maintain compliance with a long-term average

annual extraction limit and a long-term average sustainable diversion
limit,
(b) reserve a portion of flows to partially mitigate alterations to

natural flow regimes in these water sources,
(c) restrict the take of water from in-river and off-river pools when
the volume of that water is less than full capacity,
(d) restrict or prevent water supply work approvals in specified

circumstances.
(e) reserve a portion of flows to maintain longitudinal connectivity

within and between these water sources and other connected water
sources including the Upper Namoi Regulated River Water Source, the
Lower Namoi Regulated River Water Source and the Peel Regulated
River Water Source.
(4) The performance indicator used to measure the success of the

strategies for reaching the broad environmental objective in subclause (1) is an
evaluation of the extent to which the combined outcomes of the targeted
objectives in subclause (2) have contributed to achieving the broad objective.
(5) The performance indicators used to measure the success of the

strategies for reaching the targeted environmental objective in subclause (2)
are the changes or trends in ecological condition during the term of this plan,
as assessed using one or more of the following—
(a) the recorded range, extent or condition of target ecological

populations,
(b) measurements of fish movements through priority fish passage

areas,
(c) the recorded values of water quality measurements including

salinity, turbidity, total nitrogen, total phosphorous, pH, water
temperature and dissolved oxygen.
(6) In evaluating the effectiveness of the strategies in meeting the

objectives in this clause, the following will be relevant—
15
(a) the extent to which the strategies in subclause (3) and
provisions in this Plan have been implemented and complied with,
(b) the extent to which changes in the performance indicators can

be attributed to the strategies in subclause (3) and provisions in this
Plan,
(c) the extent to which the strategies in subclause (3) support

achievement of the environmental objectives,
(d) the extent to which external influences on these water sources

during the term of this Plan have affected progress toward achieving
the environmental objectives.
Terms of Amended Summons
8 The Amended Summons of 9 April 2021 seeks an order that the Defendant
answer the charge that (footnote omitted):
1 … between about 1 July 2016 and 30 June 2019, the Defendant committed
an offence contrary to s. 60A(2) of the Water Management Act 2000 (NSW)
(the Act), in that it took water from the Maules Creek Water Source, being a
water source to which Part 2 of Chapter 3 of the Act applied, when it did not
hold an access licence for that water source.
Particulars
(a) A person
The Defendant was the manager and operator of the Maules Creek
Coal Project (the Mine) located on Therribri Rd, Boggabri NSW 2382,
comprising some 48 parcels of land, a reserve and other features as
described in Appendix 1 to the Mine’s Consolidated Consent dated 23
October 2012, in the Parishes of Leard and Therribri, County of
Nandewar, in the Narrabri Local Government Area (the Project Site),
between 1 July 2016 and 30 June 2019.
(b) who takes water
ln the course of carrying out its mining activities within the Project Site,
the Defendant captured rainfall and surface water runoff between 1 July
2016 and 30 June 2019 by means of dams and other water storages
listed in Table 1 below, which were constructed on the Project Site.
The quantum of the alleged unlawful take was 1.000ML.
The take occurred by the capture of rainfall and surface water runoff by
the following storages:
[see “Table 1” in Statement of Agreed Facts par 50 below].
16
The alleged take occurred when water was captured by each relevant
storage and, in aggregate, comprised the total figure in the unlawful
take column of Table 1.
The unlawful take is further particularised in the Statement of Agreed

Facts dated 9 April 2021.
(c) from a water source to which Part 2 of chapter 3 of the Act applies
The Mine is partly located on the Maules Creek Water Source. Rainfall
captured within the Project Site forms part of the Maules Creek Water
Source which is a water source to which Part 2 of Chapter 3 of the Act
applies.
(d) who does not hold an access licence for that water source
Between 1 July 2016 and 30 June 2019 the Defendant did not hold an
access licence authorising it to take water from the Maules Creek Water
Source.
3 An order that the Defendant pay the Prosecutor’s costs.
Statement of agreed facts
9 The Prosecutor and the Defendant agreed the following Statement of Agreed
Facts (SOAF) (tabs omitted and footnotes moved into brackets):
The Defendant and the approved mine
1 The Defendant, Maules Creek Coal Pty Ltd (ACN 140 533 875)
(MCCPL), is a wholly owned subsidiary of Whitehaven Coal Limited (WHC).
2 MCCPL was the manager and operator of the Maules Creek Coal Mine
(Mine) during the period 1 July 2016 to 30 June 2019 (the Relevant Period).
3 The Mine is an open cut coal mining operation located within the
Narrabri Shire Local Government Area, approximately 17 kilometres north east
of the township of Boggabri. The Mine is located in the Gunnedah Basin. During
the Relevant Period, the project site for the Mine comprised 3,550 ha (the
Project Site). MCCPL is still the manager and operator of the Mine.
4 The Mine is a joint venture between Aston Coal 2 Pty Ltd (ACN 139 472
567) (Aston Coal 2), IRCA MC Pty Ltd (ACN 147 657 074) (ICRA) and J-Power
Australia Pty Ltd (ACN 002 307 682) (J-Power). Aston Coal 2 is a wholly owned
subsidiary of WHC.
5 MCCPL was the lawful occupier of the Mine during the Relevant Period
and is still the lawful occupier.
17
6 A figure depicting the regional location of the Mine is behind Tab 1 of
the attached bundle.
7 The Mine was approved by the Planning Assessment Commission, as

delegate of the Minister for Planning and Infrastructure, pursuant to the now
repealed Part 3A of the Environmental Planning and Assessment Act 1979
(EP&A Act) on 23 October 2012. This approval has been subsequently
modified on five occasions and is now taken to be a development consent
under Part 4 of the EP&A Act (Development Consent) (Government Gazette
(No. 78, 17 August 2018) pp 5235-5236; Environmental Planning and
Assessment (Savings, Transitional and Other Provisions) Regulation 2017,
clause 6(3) of Schedule 2).
8 The Development Consent for the Mine confirms the location of the
Project Site, including the relevant Lots/DPs. A copy of the Development
Consent, as at 6 December 2019, is behind Tab 2 of the attached bundle.
9 The approved general arrangement of the Mine and its boundaries is

depicted behind Tab 3 of the attached bundle.
10 MCCPL is the holder of Environment Protection Licence No. 20221,

which authorises multiple scheduled activities at the Mine under the Protection
of the Environment Operations Act 1997 (EPL).
11 A copy of the EPL is behind Tab 4 of the attached bundle.
12 For the purpose of the Water Management Act 2000 (WM Act), MCCPL
is the “landholder” (WM Act, Dictionary) of the relevant land within the Project
Site.
The offence
13 MCCPL is charged with committing an offence contrary to section

60A(2) of the WM Act in that, during the Relevant Period, it took water from the
Maules Creek Water Source, being a water source to which Part 2 of Chapter
3 of the WM Act applied, when it did not hold an access licence for that water
source.
14 MCCPL captured rainfall and clean surface water runoff ("Water

source" is defined in the Dictionary to the WM Act as including a place where
'overland flow water' flows over the surface of the land. Section 4A of the WM
Act defines "overland flow water" to include rainfall and surface water runoff) in
dams and other water storages within the Project Site specified in Tables 1 and
2 below. This constituted the offending conduct.
The relevant water source
15 The Mine is partly located within the Maules Creek Water Source
(Maules Creek Tributaries Management Zone). This water source is one of the
Namoi Unregulated Rivers Water Sources within the Namoi Water
Management Area.
16 Throughout the Relevant Period, the Maules Creek Water Source was
regulated by the Water Sharing Plan for the Namoi Unregulated and Alluvial
Water Sources 2012 (the WSP) made under the WM Act. The WSP has since
18
been amended and renamed as the Water Sharing Plan for the Namoi and
Peel Unregulated Rivers Water Sources 2012. The Maules Creek Water
Source relevantly included all of the water occurring naturally on the surface of
the ground and in unregulated rivers within the boundaries of this water source
as shown on the WSP Map (WSP, clause 4).
17 A copy of the WSP Map that was in force throughout the Relevant
Period is behind Tab 5 of the attached bundle.
18 Part 2 of Chapter 3 of the WM Act, which provides for access licences,

applied to the Maules Creek Water Source throughout the Relevant Period.
Surrounding watercourses and catchment area
19 The northern Development Consent boundary of the Mine is located

generally along the southern bank of Back Creek. Back Creek has an incised
main channel approximately 1-1.5 metres deep. Back Creek is an ephemeral
watercourse.
20 Back Creek is a tributary of Maules Creek and flows through a wide, flat
floodplain that has mostly been cleared for agricultural activities.
21 Maules Creek flows westwards into the Namoi River about 30

kilometres south-east of Narrabri. The Namoi River has a catchment area to
Boggabri of about 22,600 km2 and an incised main channel that meanders
across a wide alluvial floodplain.
22 A figure depicting the network of surrounding watercourses is behind

Tab 6 of the attached bundle.
23 Prior to the construction of the approved Mine, the relevant land was
drained by various ephemeral tributaries of Back Creek and some gully
catchments.
24 Although the watercourses which existed before the Mine have been
significantly altered by the Mine and its constructed water management
system, there are still some remnant ephemeral streams within the
Development Consent boundary.
Context of the planning approval
25 The Development Consent permits MCCPL to carry out mining

operations at the Mine until the end of 2034.
26 The conditions of the Development Consent require MCCPL to ensure

that:
(a) any surface water discharges of mine water (“Mine water” is

defined in the Definitions section of the Development Consent to mean
“Water that accumulates within, or drains from, active mining areas,
coal reject emplacement areas, tailings dams and infrastructure areas,
synonymous with dirty water”) from the site are of equal or better quality
than the receiving waters and comply with the discharge limits in the
EPL (condition 38 in Schedule 3); and
19
(b) it has sufficient water for all stages of the Mine and if necessary,
adjust the scale of mining operations on site, to match its available
water supply to the satisfaction of the Secretary of the Department of
Planning, Industry and Environment (condition 36 in Schedule 3).
27 The note above condition 36 in Schedule 3 of the Development Consent

records that MCCPL was required to obtain the necessary water licences for
the Mine under the WM Act.
28 The note to condition 38 in Schedule 3 of the Development Consent

states:
The project is based on a zero discharge basis for mine water in all
modelled meteorological events, however the Department
acknowledges that discharge of treated water may be required to be
undertaken following very extraordinary events outside modelled data,
if approved under an EPL.
29 Under condition 40 in Schedule 3 of the Development Consent, MCCPL

is required to prepare and implement a Water Management Plan (WMP) for the
Mine to the satisfaction of the Secretary of the Department of Planning, Industry
and Environment.
The Mine's surface water management system
30 The water management strategy for the Mine was set out in section 4.2
of the WMP approved by the Secretary of the Department of Planning, Industry
and Environment. The WMP states on pages 50-51:
The Project's Water Management System aims to ensure leading-

practice management of all water on site. The objectives of the water
management system are to ensure:
• Clean water runoff from undisturbed catchment areas is

diverted away from the mining area, where possible;
• Sediment laden runoff from disturbed areas is treated

prior to re-use in the water management system or released into
the receiving environment if water quality meets EPL
requirements;
• Mine water (including water that accumulates within, or

drains from, active mining areas, coal reject emplacement areas
and CHPP infrastructure areas) and groundwater collected
within open cut pits is contained and reused on-site;
• No discharge of mine water off-site; and
• On-site water demands are satisfied whilst minimising

offsite water requirements.
31 The Mine's WMP dated 2014 is included behind Tab 7 of the bundle of
documents. The Mine's more recent WMP dated 2019 is included behind Tab 8
of the bundle of documents.
20
32 The Mine's WMP distinguishes between three types of water:
a. “mine water”, which has come into contact with coal;
b. “dirty water” which is surface runoff water from areas that are
disturbed by mining operations, also referred to as sediment-laden
runoff; and
c. “clean water”, which is surface runoff water where water quality

is not affected by mining operations.
33 The primary operational demands for water at the Mine are dust
suppression activities and the operation of the Coal Handling and Preparation
Plant.
34 Under the WMP, the main water supply sources for the Mine were
identified as:
a. mine/dirty water runoff captured within the Mine;
b. river water pumped to the Mine from the Namoi River (Lower
Namoi Regulated River Water Source) via pipeline; and
c. groundwater inflow to the open cut pit.
35 The Mine's WMP described the Mine's water management system in

section 4.3 (pages 51-65), including the erosion and sediment controls, clean
water management system and mine water management system.
36 The performance criteria for the Mine's water management system

were set out in Table 4.6 of the Mine's WMP (pages 66-68). The surface water
quality and quantity monitoring plan was set out at section 4.5.1 (pages 71-72).
The "take" of water under the WM Act
37 Throughout the Relevant Period, the WM Act relevantly authorised a

person to take water from a water source:
a. pursuant to an access licence, in compliance with the conditions

of that access licence;
b. in accordance with an applicable statutory exemption from the

requirement for an access licence; or
c. in accordance with harvestable rights under a relevant

harvestable rights order.
Access licences
38 Under sections 60A and 60I of the WM Act, a person who "takes water
in the course of carrying out a mining activity" is required to hold an access
licence authorising the take of that water.
39 Corporations associated with the Mine hold several access licences

which were relied upon to account for water taken for the Mine's operations.
For example, Aston Coal 2, ICRA and J-Power held one such licence: Water
21
Access Licence No. 13050, a high security access licence which confers an
annual share component entitlement of 3000 mega litres (ML) in the Lower
Namoi Regulated River Water Source. This licence did not authorise the take
of any of the water identified in Table 2 below.
40 MCCPL did not hold an access licence entitling it to take water from the
Maules Creek Water Source at any time during the Relevant Period.
Statutory exemption
41 Clause 21 of the Water Management (General) Regulation 2018 (2018

Regulation) and clause 18 of the now repealed Water Management (General)
Regulation 2011 (2011 Regulation) provided statutory exemptions from the
requirement for an access licence to take water from a water source under the
WM Act.
42 Relevantly, the 2018 Regulation and 2011 Regulation provided an

exemption for water taken from a water source by way of the following category
of “excluded work” (2018 Regulation: cl21(1); item 12 in Schedule 4 and item
3 in Schedule 1 112011 Regulation: cl 18(1); item 12 in Schedule 5 and item 3
Schedule 1):
Dams solely for the capture, containment and recirculation of drainage

and/or effluent, consistent with best management practice or required
by a public authority (other than Landcom or the Superannuation
Administration Corporation or any of their subsidiaries) to prevent the
contamination of a water source, that are located on a minor stream.
(Excluded Works Exemption)
43 MCCPL was not required to hold an access licence to lawfully take

runoff from the Maules Creek Water Source by a dam within the Mine when
that water was taken in accordance with the Excluded Works Exemption.
MCCPL does not rely on the Excluded Works Exemption to authorise the take
of any of the clean water runoff identified in Table 2 below.
Harvestable rights ("Harvestable rights" is defined under the WM Act to mean

the rights conferred on a landholder by a harvestable rights order in force under
section 54 of the WM Act).
44 Division 2 of Part 1 of Chapter 3 of the WM Act and the applicable

harvestable rights order (HRO) made pursuant to section 54 of the WM Act
(Harvestable Rights - Eastern and Central Division, Government Gazette (No.
40, 31 March 2006) pp 1 628-1630) provided for a landholder to capture runoff
by means of harvestable right dams “located on a minor stream” without an
access licence under the WM Act. MCCPL was not required to hold an access
licence to lawfully take runoff from the Maules Creek Water Source by a dam
within the Mine when that water was taken in accordance with MCCPL's
harvestable rights entitlement and the HRO.
45 MCCPL does not rely on harvestable rights to authorise the take of any
of the clean water runoff identified in Table 2 below.
The unlawful take from the Maules Creek Water Source during the
Relevant Period
22
The relevant water storages
46 During the Relevant Period, there were more than 30 water storages
present at the Mine.
47 The relevant water storages within the Mine which are the subject of
this prosecution are identified in Table 1 below:
TABLE 1
Storage Purpose
Highwall Dam 2 (HWD2) Clean water runoff diversion
Highwall Dams 3/4 (HWD3/4) Clean water runoff diversion
Mine Pit Mine water runoff management
Sediment Dam 3 (5D3) Dirty water runoff management
Sediment Dam 7/MC10 (SD7/MC10) Dirty water runoff management
Rio Development Dam/Sediment Clean water runoff

Dam 2 (RDD/5D2) management/Dirty water runoff
management
48 A figure depicting the location of each of these storages within the Mine
is behind Tab 9 of the attached bundle.
23
The volume of runoff unlawfully taken
49 The volume of runoff taken by the storages identified in Table 1 in

contravention of section 60A(2) of the WM Act was 1,000 ML of clean water
runoff during the Relevant Period.
50 The proportion of the 1,000 ML taken by each of the relevant storages

during the Relevant Period is identified in Table 2 below:
TABLE 2
Storage Unlawful take (ML)
HWD2 30
HWD3/4 187
Mine Pit 139
SD3 145
SD7/MC10 340
RDD/SD2 159
Total 1,000
51 The water identified in Table 2 was taken in connection with MCCPL's

mining activities.
52 During the Relevant Period, MCCPL removed a proportion of the

captured water identified in Table 2 from the water storages identified in Table
2 and used this water within the Project Site.
The offending conduct
Take of water by clean water diversions
53 HWD2, HWD3 and HWD4 were highwall clean water diversion dams
located south of the Mine's open cut pit at a higher elevation in the landscape
than the pit. They are assessed as having captured a combined 217 ML of
clean water runoff during the Relevant Period.
54 The purpose of these dams was to prevent clean water runoff flowing
from ephemeral streams into the open cut pit by temporarily intercepting this
runoff and effectively diverting it to downstream watercourses, including Back
Creek.
55 The clean water runoff captured by these dams was not diverted to
downstream watercourses.
24
56 The 30 ML of clean water runoff assessed as having been captured by
HWD2 was not authorised by the Excluded Works Exemption because this
runoff was not captured and managed in accordance with best management
practice for mines or to prevent the contamination of a water source. The clean
water runoff captured by this clean water diversion dam was not managed in
accordance with best management practice because it was not diverted to
57 MCCPL does not rely on harvestable rights to account for the runoff
captured by HWD2.
58 The 187 ML of clean water runoff assessed as having been captured

by HWD3/4 could not be authorised by the Excluded Works Exemption or
harvestable rights because these storages, although located on ephemeral
streams, were not “located on a minor stream”.
59 HWD2, HWD3 and HWD4 no longer exist.
Take of some clean water by the Mine Pit
60 The Mine Pit was assessed as having captured 139 ML of clean water
runoff from ephemeral streams located above the highwall of the Mine's open
cut pit during the Relevant Period.
61 The purpose of the water storages within the Mine Pit was to capture
and contain mine water runoff and thereby prevent the contamination of
62 The Mine's highwall clean water diversion system was not properly
constructed and operated. As a result, the Mine Pit captured clean water runoff
which should have been diverted to downstream watercourses but instead
drained directly into the Mine Pit, where it mixed with dirty water and mine
water.

by the Mine Pit was not authorised by the Excluded Works Exemption because
this runoff was not captured in accordance with best management practice for
mines or to prevent the contamination of a water source. This clean water runoff
was not captured in accordance with best management practice because the
Mine Pit captured clean water runoff which should have been diverted to
64 MCCPL did not rely on harvestable rights to account for runoff captured
by the Mine Pit.
Take of some clean water by the dirty water management system
65 SD3 was a sediment dam located in the north-west corner of the Mine.
It was assessed as having captured 145 ML of clean water runoff during the
Relevant Period.
66 The purpose of SD3 was to prevent dirty water runoff from

contaminating downstream watercourses by securely capturing and managing
such runoff.
25
67 MCCPL operated its water management system such that this sediment
dam captured a volume of clean water runoff that was inconsistent with its
purpose and function.

by SD3 was not authorised by the Excluded Works Exemption because this
runoff was not captured in accordance with best management practice for
was not captured in accordance with best management practice because SD3
captured a volume of clean water runoff that was inconsistent with its purpose
and function.
by SD3.
70 SD7 was located adjacent to the Mine's access road and was an historic
pre-Mine farm dam. MC10 was constructed by Leighton Contractors (on behalf
of MCCPL) as a sediment dam during its construction of the Mine's rail corridor.
SD7 and MC10 were connected “cascading” dams located on the same
ephemeral stream. They are assessed as having captured a combined 340 ML
of clean water runoff during the Relevant Period.
71 The purpose of SD7/MC10 was to prevent dirty water runoff associated

with the construction of the Mine's rail corridor from contaminating downstream
watercourses by securely capturing and managing such runoff.
72 Despite predominantly capturing clean water runoff from an ephemeral

stream, SD7 was not decommissioned by MCCPL.
73 MC10 was used during the Relevant Period as a sediment settling dam.
After settling, water either passively spilled over and/or was actively transferred
over the storage wall into the spillway which reports to SD7.

by SD7/MC10 could not be authorised by the Excluded Works Exemption or
harvestable rights because these storages, although constructed on an
ephemeral stream, were not “located on a minor stream”.
75 RDD was located on a low-lying area that is now underneath the Mine's
northern emplacement stockpile and was a pre-Mine dam that originally
functioned in the Mine's water management system as an overflow dam within
a clean water drainage line. SD2 was constructed directly adjacent to RDD and
operated as a sediment dam. These related storages are assessed as having
captured a combined 159 ML of clean water runoff from an ephemeral stream
during the Relevant Period.

by RDD/SD2 was not authorised by the Excluded Works Exemption because
this runoff was not captured in accordance with best management practice for
was not captured in accordance with best management practice because this
water should have instead been diverted around RDD/SD2 and into a
downstream watercourse.
26
by RDD/SD2.
Cooperation with investigation
78 The Natural Resources Access Regulator (NRAR) commenced an

investigation into alleged unlawful take of water at the Mine in June 2018.
79 MCCPL cooperated with NRAR's investigation and in the preparation of

this Statement of Agreed Facts.
No prior convictions
80 MCCPL has no prior convictions for offences under the WM Act.
Enforceable undertaking
81 The parties have agreed an enforceable undertaking given by the

Defendant to the Prosecutor under the WM Act.
Evidence
Locations of structures, instruments and monitoring sites for ease of reference
10 The map below was tendered by the Defendant (Ex 6). It shows the mine’s
project boundaries, the mine’s rail line, the watercourses in the area including
Back Creek, Maules Creek, the unnamed ephemeral creek known as the
Southwest Tributary and the Namoi River, the irrigation diversion channels on
Back Creek, the water storages the subject of the offence, stream gauges and
surface water monitoring locations.
27
11 The next map, below, was extracted from the Maules Creek Coal Mine Annual
Review 2017 exhibited to the affidavit of Mr Alexander Bowlay of the Natural
Resources Access Regulator (NRAR), affirmed 25 June 2020, showing the
surface water and geomorphological monitoring locations at the mine.
28
12 In this judgment, the “Active Mine Area” means the active operational area of
the mine which is located within the catchment of Back Creek.
13 It is agreed by the parties’ experts that if runoff was not caught by SD7 and
MC10, the dams identified in the SOAF par 70 and shown on the map above in
[10], it would drain to the Southwest Tributary which drains to the Namoi River.
14 There are two irrigation diversion channels, a dam and other surface water
structures present downstream on Back Creek before it meets Maules Creek,
shown as black dashes on Back Creek in the map above in [10]. It was agreed
by the parties’ experts that these could have prevented water in Back Creek
from flowing into Maules Creek and made it unlikely that Maules Creek was
affected by the offence.
15 Dr Peter Hancock’s site inspection (see below in [118]) identified an earth

embankment along the drainage line of the Southwest Tributary, just past SD7.
It was unchallenged expert evidence that this would have prevented a large
29
proportion of water flowing along the Southwest Tributary from reaching the
Namoi River, potentially more than 50%.
Expert evidence
16 The Prosecutor did not ultimately press in closing submissions that

environmental harm to Maules Creek, the Southwest Tributary or the Namoi
River was caused by the offence. Accordingly all of the extensive evidence
heard in relation to those areas will not be set out below. Evidence that follows
focussed on whether there was environmental harm as a result of impacts to
surface water in Back Creek and to adjacent groundwater, and therefore
vegetation and aquatic ecology in Back Creek.
17 The Prosecutor tendered a tender bundle of documents containing all of the

Prosecutor’s evidence as filed (Ex A). Not all of this evidence was ultimately
read, as discussed in [164].
Hydrological evidence
Mr Anderson
18 The Prosecutor tendered Mr Doug Anderson’s lengthy hydrology and

hydrogeology report dated 18 June 2021 and supplementary report dated 30
July 2021. Mr Anderson holds undergraduate and postgraduate qualifications
in environmental engineering and groundwater studies from the University of
New South Wales (UNSW) and is a Principal Environmental Engineering
Hydrogeologist at Pells Sullivan Meynink with 20 years’ experience in
groundwater and surface water assessment. Hydrogeologists have expertise in
understanding and predicting how water moves through the ground.
19 Mr Anderson considered the hydrological/hydrogeological impact or likely

impact of the offence on surface water in Back Creek and groundwater. He was
also instructed to determine how Back Creek is replenished and to explain what
an ephemeral watercourse is. Mr Anderson did not consider that he had enough
data to develop and calibrate a coupled hydrological-hydrogeological model to
predict Back Creek stream flow and shallow groundwater behaviours. Mr
30
Anderson’s reports were not based on complex modelling prepared by him. He
considered modelling conducted by others. For example, Mr Anderson relied
on the modelling conducted by Dr Francois Flocard as well as the Maules Creek
Mine Environmental Impact Statement, Surface Water Impact Assessment
(WRM, 2011). Mr Anderson’s answers to the questions posed were based on
a conceptual (or theoretical) hydrological and hydrogeological model. He
developed a simplified water balance assessment model commensurate with
the information available.
20 Mr Anderson assumed that all 1,000ML captured by the mine would have made
its way to Back Creek, including 340ML captured by SD7/MC10. Mr Anderson’s
reading of the mine’s water management plan (WMP) was the basis for his
assumption. He assumed that SD7/MC10 were in areas not affected by mining
operations because they were located near a rail line and rail operations were
not mining operations. The WMP 2014 at p 63, reads: “runoff from the
undisturbed catchments will also be diverted to the clean water drainage
system and discharged to Back Creek" (see below in [161]). As he considered
SD7/MC10 to be in undisturbed catchments, Mr Anderson considered water in
SD7/MC10 was clean water that would have to be discharged to Back Creek.
21 In relation to groundwater recharge rates in general, Mr Anderson initially

estimated, in the absence of any monitoring data, that 1-30% of surface water
usually enters the ground during rainfall depending on the geology. He
assumed this was applicable to Back Creek. Using the stream level data for
Back Creek provided by Dr David Newton (see below in [62]), Mr Anderson
later revised this recharge rate to 9-43% in his supplementary report.
Impacts on Back Creek
22 The offence had a number of adverse impacts on Back Creek. It reduced the
total volume of overland flow water moving downstream within Back Creek
during and following rainfall runoff; water on the ground within Back Creek
following rainfall runoff; water below the ground within Back Creek following
rainfall runoff (overland flow water infiltrating into the ground into stream bed
31
and stream bank storage); and water infiltrating into the ground through the bed
and banks of Back Creek of which some percentage then drains deep into the
underlying aquifers.
23 Had the taken water been released into the environment in accordance with the
approved WMP as interpreted by Mr Anderson the water would have been
naturally distributed throughout the hydrological cycle. In particular, the
hydrogeological course of the water would be runoff to and within Back Creek
and other tributaries/water courses downstream of the water storage and
capture locations; infiltration into the stream bed and stream bank soil moisture
store; evaporation from any ponded water within the creek bed;
evapotranspiration by riparian vegetation; groundwater recharge to the deeper
aquifers underlying the stream; and groundwater flow to other parts of the
aquifer. The offence has caused a loss of water to all these hydrological zones,
environments and water sources. The offence reduced the water available to
downstream surface and groundwater environments by an amount
approaching 1,000ML.
24 The reduction of the volume of Back Creek surface water occurred during
rainfall events and a few hours to days thereafter. The impact can be
characterised as “minor” and unlikely to extend more than 10km downstream
of the mine. This characterisation was later revised (see [32] below). The
offence caused environmental harm by causing reduced flow in a downstream
direction. It reduced flow into irrigation diversion channels present downstream
on Back Creek (see [14] above) and posed a risk of reduced evapotranspiration
rates for vegetation with roots above ground.
25 The impact on Back Creek soils (stream bed and bank sediments) reduced
replenishment of riparian soils moisture and groundwater on approximately 13
occasions during the charge period. The immediate impacts lasted up to 1-2
months after each runoff event impacted by the offence. The cumulative
impacts potentially lasted for the duration of the charge period (especially
during drought periods). The spatial extent of impact, and consequently
environmental harm, was likely limited to the natural environment of Back Creek
32
and its tributaries closer to and/or on the mine site (to a distance of 9.8km
downstream of the mine’s eastern discharge point); namely the soils,
sediments, rocks and ecology within 6m of ground surface located within 20 to
40m horizontally of the water courses (i.e. the riparian zone of Back Creek and
its tributaries). The offence caused environmental harm in relation to soils and
the stream bed by lowering soil moisture, increasing the risk of reduced
evapotranspiration rates for riparian vegetation and reducing water for aquatic
ecology.
26 The extent of the impact on “flow-through stream pools” (surface water pools
within watercourses within natural depressions recharged either by rainfall
runoff or short-term discharge from local groundwater), if present, was assumed
to be the same as that described in relation to stream bed and bank sediments.
However, both the spatial extent and the duration of impact were unknown
without stream pool mapping. The offence caused environmental harm in
relation to flow-through pools by increasing the risk of reduced
evapotranspiration rates for riparian vegetation, reducing evaporation rates
(and therefore evaporative cooling) and reducing water for aquatic ecology.
27 The impact on local-scale groundwater systems along Back Creek was also
assumed to be of the same spatial extent and duration as described in relation
to stream bed and bank sediments. The offence caused environmental harm in
relation to local groundwater by lowering soil moisture at downstream locations,
reducing groundwater flow into deeper aquifers, reducing groundwater flow
through the stream bed to downstream pools, reducing evapotranspiration
rates by riparian vegetation with roots extending into shallow groundwater and
reducing water for ecology. Mr Anderson assumed that the depth of the riparian
groundwater zone after each runoff event was two metres.
28 Had the offence not occurred there would have been a material increase in soil
moisture and riparian groundwater.
29 The most significant water impacts of the offence, and therefore the
environmental harm, were likely contained within the general vicinity of the Back
33
Creek Catchment extending not more than 9.8km plus or minus 30%
downstream of the mine, potentially restricted to being upstream of the first
irrigation diversion channel.
30 Mr Anderson’s supplementary report responded to the Defendant’s expert

reports prepared by Dr Newton and Mr James Tomlin, summarised below from
[57] and [74]. Mr Anderson did not substantially change his opinions from his
first report despite the commentary of the Defendant’s experts and the new
information in relation to stream level measuring activities within Back Creek.
Some paragraphs in his first report required clarification and qualification.
31 The nature of the stream level gauges SW09 and SW10, which produced data
relied on by Dr Newton in his first report, is discussed below in [62]. The
locations of these gauges are shown at the centre of the map in [10]. SW10 is
upstream of the mine and SW09 is downstream of the mine. Mr Anderson made
use of this data in his supplementary report. The figures were likely too low to
be accurate. Mr Anderson assumed that the figures, given in centimetres,
should be read as in metres.
32 Mr Anderson revised the conclusion in his first report described above in [24]
that the impacts on the Back Creek watercourse were likely minor. It was
possible that the offence extended further downstream in Back Creek. The
impacts of reduced mine site discharge for some large runoff events might have
been distributed throughout Back Creek to near the confluence of Maules
Creek. That is, the impacts would have been more spread than anticipated.
This opinion was revised on the basis of a review of the stream level monitoring
data from Dr Newton which suggested that the irrigation diversion channels did
overflow during some rainfall events during the charge period.
33 Mr Anderson observed that there are significantly less peaks in water levels
passing the gauging stations at SW09 than at SW10 located further upstream.
This would be consistent with stream flow infiltrating into the ground of Back
Creek directly to the north of the mine and becoming riparian groundwater,
some of which would become groundwater recharge at depth, and some of
34
which would have continued to flow downstream. In Mr Anderson’s opinion,
most water flowing past SW10 following low rainfall events during a drought
infiltrates into the ground before SW9, with only 4-5ML observed at SW10 for
small runoff events during the drought. During higher flow events about 38ML
can infiltrate into the ground within Back Creek between SW10 and the
confluence of Back and Maules Creeks. This estimate is 9-43% of flow event
rather than the 1-30% estimate provided in the first report (see above in [21]).
34 The impact of the offence on riparian soil moisture and groundwater, and the
likely harm caused by reductions in available water for evapotranspiration by
riparian vegetation, extended all the way downstream to the confluence with
Maules Creek during larger rainfall events and was constrained upstream of the
first irrigation diversion channel during smaller rainfall events. During a drought,
the “thirsty” trees nearby would have less water available in storage to “drink”
after each rainfall event. Conversely, if a significant rainfall event was
subsequently observed and the riparian zone of Back Creek was flooded, the
riparian groundwater system might have been completely refilled.
Deeper groundwater
35 The volume and rate of groundwater recharge into the aquifers at depth below
the Back Creek watercourse must have been decreased by the offence. The
Gunnedah-Oxley Basin Murray Darling Basin Groundwater Source would have
been affected directly below Back Creek. Effects would be unlikely to extend
more than 9.8km from the mine. Environmental harm would be caused by
reduced groundwater flow and levels to more distant parts of the aquifer or
adjacent aquifers. The effects would be potentially measurable if piezometers
had been installed at shallower depths and monitored more frequently. The
Maules Creek Groundwater Source Upper Namoi Zone 11 would be similarly
affected. There must also have been reduced horizontal groundwater flow into
other parts of the aquifer at distance. The effects would be likely indiscernible
at distance to Back Creek due to increasing aquifer volume and the regional
water table fluctuations caused by climate, regional irrigation, and nearby mine
groundwater use. While the amount of water not reaching the aquifers at depth
35
is much less than the take of water the subject of the offence, in cases where
the aquifer is under pressure from cumulative impacts of historical and current
aquifer interference, even small amounts of recharge provide a benefit,
especially during a drought.
36 Mr Anderson assumed that the duration of effects on aquifers would also be the
same as that described in relation to stream bed and bank sediments. The
water withheld from aquifers might be in the range of 1-30% (the recharge rate
subsequently revised to 9-43%) of the total take of water the subject of the
offence. Mr Anderson’s overall assessment on deep aquifers was nevertheless
that due to the very dry conditions during the charge period, very little
groundwater would have been draining into the aquifers at depth. Any impact
to immediate or regional scale aquifers would be too small to measure or infer
conceptually and required complex numerical modelling to predict with more
data than was available.
Mr Anderson’s methodology and commentary on Dr Newton’s methodology
37 Mr Anderson did not do “quantitative numerical modelling of hydrological and

hydraulic processes of coupled surface water – groundwater systems” because
he “did not have sufficient data (stream flows and shallow groundwater levels
within five metres of ground surface and fifteen metres of Back Creek) … to
undertake that modelling task”. Field work exercises to collect sufficient data
and undertake computational modelling work would require years to complete.
38 While Dr Newton’s Australian Water Balance Model (AWBM) predictions did

cause Mr Anderson to question his opinions, on further consideration he did not
change them; he clarified them. The AWBM is a rainfall-runoff model. Dr
Newton used the AWBM model to inform his report (see below in [58]). The
parameters he entered into the model were determined by the Maules Creek
Mine Environmental Impact Statement, Surface Water Impact Assessment and
are identical to those used by Dr Flocard to estimate the unlawful take volumes
in Table 2 of the SOAF par 50. Dr Flocard’s evidence is briefly examined below
from [80]. Mr Anderson considered that the AWBM modelling used in
36
Dr Newton’s expert report is of limited usefulness. This view was based on
consideration of the AWBM software limitations, the irrigation diversion
channels in Back Creek, and comparisons of the AWBM predictions to the
monitoring data provided. For example, the model grossly overestimates the
volume of surface water flows in Back Creek during drought periods.
39 The AWBM is not a useful tool for predicting how and where water flows
between two points within a catchment, nor effects of riparian groundwater or
evapotranspiration rates. Specifically, it does not simulate hydraulic flow
processes that occur within or along ephemeral creeks, including water
movement into overbank areas, irrigation diversion channels, side storage
channels, and dams. It does not simulate the hydraulic interaction between the
surface water and shallow groundwater along a water course. Dr Newton’s
AWBM modelling therefore does not show where water from the mine site
moves through Back Creek or how much goes into the ground beneath Back
Creek. The AWBM could be calibrated to reasonably predict either high flows
or low flows at single points within a catchment, although probably not within
the same scenario.
40 The AWBM modelling is not reliable for predictions of percentage impact to

stream flow in Back Creek, especially for the 2017/18 and 2018/19 water years.
The AWBM modelling underestimates the percentage impact of the offending
conduct on the stream flow water balance during low flow periods.
41 It may be inferred that the AWBM is not validated to recent data as required by
Project Condition 40(a)(vi) of the approved WMP 2014. The model is not
calibrated and should not be relied upon for application during drought
conditions. The model is not tested against any recent data to be a reliable
predictor of the groundwater infiltration and recharge that did occur between
SW10 and SW3 (a gauge further downstream of Back Creek almost at the
confluence of Maules Creek) along Back Creek during the drought.
37
Drought and other conditions affecting impact of the offence
42 The magnitude of the impacts increased in the charge period because

groundwater levels were likely to be at their lowest levels in the last 70 years.
The timing of the offence coincided with “the worst drought in living memory” –
meaning the water that would have been released into the environment had
significantly more relative value to the environment. Furthermore, the legal
taking of water by the mine in previous years would have led to drier conditions.
43 During a period of above average rainfall the offence would have caused
minimal harm to the riparian ecology of Back Creek relative to the impact of the
mine’s lawful operations. If the take had occurred during a large rainfall event
the impacts would have been relatively less significant.
44 Mr Anderson clarified that he should have written “prolonged period of long-

term below average rainfall” rather than a “prolonged period of below average
rainfall”. The 2016-17 period included a “short lived break” of the drought during
the 2017 calendar year due to above average rainfall conditions. His view was
that this was considered in his first report.
45 While the effects on riparian vegetation in the 2016-17 “short lived break” in the
drought were likely minimal, the taking of water by the offence still represents
a significant loss of water to the system that diminishes the availability of
riparian groundwater during the remaining parts of the drought. Between
20 January 2017 and 29 March 2019 there was a drought based on only a few,
minor flows at the downstream edge of the mine. The CSIRO soil moisture
model predictions in Mr Anderson’s first report (extracted from the CSIRO
Australian Landscape Water Balance Model published by the Australian
Bureau of Meteorology) predicted depleted soil moisture conditions in 2018 and
2019, during which period the environment could have significantly benefitted
from the Defendant not harvesting the water.
38
The offence benefitted groundwater levels
46 Mr Anderson opined at par 124 of his supplementary report that groundwater

users likely benefited and continue to benefit from the offence because had the
Defendant not taken surface water, it would have likely needed to pump
groundwater, increasing the approved drawdown of the groundwater sources.
Groundwater does replenish Back Creek
47 Local shallow groundwater flow systems near Back Creek will contribute
seepage into Back Creek following large rainfall events. If flow in Back Creek
was observed for several weeks following rainfall, or stream pools were
observed and sustained for several weeks without depletion, this would indicate
a groundwater flow system. Considering the additional stream flow data
identified by Dr Newton (described below in [62]), if there is baseflow from local
groundwater systems, it lasts for 3-4 days.
Timing of take
48 Mr Anderson did not identify the precise times the take occurred in terms of
days or months. Relying on data sourced from Dr Flocard’s report (see below
from ([80]), the unlawful take of 1,000ML occurred in the following volumes at
the following times:
(1) 2016-2017: 640.6ML
(2) 2017-2018: 171.4ML
(3) 2018-2019: 188ML
49 Again relying on data sourced from Dr Flocard’s report, the percentage of

allocated water in the Maules Creek Water Source (described in the SOAF
pars 15-16) that was taken by the offence in the relevant years was 23.7% of
the total allocated water over the entire period, broken down as follows:
(1) 2016-2017: 45.5%
39
(2) 2017-2018: 12.2%
(3) 2018-2019: 13.4%.
Mr Anderson’s oral evidence
50 Mr Anderson was cross-examined by the Defendant. Mr Anderson accepted in

cross-examination that his preference would have been to carry out quantitative
(computational) modelling but he was not able to do so. He had not done
quantitative modelling of either surface water systems or groundwater systems.
Nor did he have the kind of observational data necessary to validate predictions
in a model. He nevertheless opined that he could still express views about
hydrological consequences without such a model. In re-examination,
Mr Anderson expressed the view that it was not a limitation that he did not have
a computational model. In the process of understanding something, a
conceptualisation of the impacts is first needed.
51 Mr Anderson accepted that there was no evidence of how the water moved
down Back Creek due to a lack of instrumentation deployed by the Defendant.
He was relying on his experience from other sites and observational data that
becomes available in respect of those sites.
52 Mr Anderson estimated that the “simple toolkit” he used to draft his reports
could make estimates within 30-50% accuracy, whereas a complex
computational model could probably make predictions to within 10-30%
accuracy of the actual figures.
53 Mr Anderson was aware that he based his reports (see above in [19]) on reports
based on AWBM modelling, namely the Maules Creek Mine Environmental
Impact Statement, Surface Water Impact Assessment, and Dr Flocard’s report,
which he relied on to ascertain the total volume of water taken. Mr Anderson
understood why Dr Newton had used the AWBM modelling and that there were
advantages to it. He also accepted that the AWBM model is a good tool for
predicting flows past a point.
40
54 Mr Anderson accepted that water takes would generally be less significant in a
high rainfall period during a high rainfall event. Nevertheless, if water is withheld
during a period preceded by years of drought but with a blip of above average
rainfall in the middle, the impact of the take could in fact be amplified.
55 Dr Newton is correct that if the sediment dams SD7/MC10 were not there, and
had the take not occurred, water would have flowed down the Southwest
Tributary and into the Namoi River rather than Back Creek (see below in [61]).
Mr Anderson assumed that SD7/MC10 would capture water which would have
been dealt with in accordance with the WMP by being pumped into Back Creek.
56 Mr Anderson agreed that he had no experience dealing with pressure gauges

such as SW09 and SW10 in ephemeral streams but did not consider the
gauges would work differently in ephemeral streams compared to creeks beds
and streams in Sydney where he did have experience. He clarified in re-
examination that while instruments may degrade differently in different
conditions, this is something for which one can compensate. SW09 and SW10
recorded a number of negative values during the charge period. The most likely
explanation was that the gauges had been programmed slightly inaccurately.
The other explanation is that the instruments were recording a little bit of
“noise”. There was some “noise” in SW09 prior to 30 December 2016. In re-
examination, Mr Anderson clarified that he thought the data looks like normal
raw data.
Dr Newton
57 The Defendant tendered Dr Newton’s surface water hydrology report dated 15

July 2021 (Ex 1) and supplementary report dated 21 July 2021 (Ex 2). Dr
Newton is a Director and Senior Principal Engineer at WRM Water and
Environment Pty Ltd. He has 30 years’ experience as an engineer providing
specialist advice in surface water engineering with a focus on hydrologic and
hydraulic modelling.
58 Dr Newton assessed the impact of the offence on downstream surface water

flow by comparing runoff in Back Creek in two scenarios, firstly if no clean water
41
was discharged from the mine, secondly if it were discharged to Back Creek.
The Back Creek flow volume for the no discharge scenario was estimated by
rainfall runoff modelling of the residual Back Creek catchment excluding the
Active Mine Area. The AWBM was used, discussed above in [38]. Volumes of
water in Back Creek under the clean water discharge scenario were estimated
by adding the take the subject of the offence to the Back Creek flow volume
from the residual catchment.
59 The adopted methodology is likely to provide an upper-limit estimate of the

impact of unlicensed clean water capture because:
(1) any overflows of treated water from sediment dams that may have
occurred during the relevant period have been ignored; and
(2) it is unlikely that 100% of the unlicensed clean water capture volume
could have been discharged to Back Creek due to operational limitations
such as, for example, the inability of pumping infrastructure to fully
dewater highwall dams.
60 Mr Anderson was wrong that water captured in SD7/MC10 would have been
released into Back Creek. The mine's WMP does not provide for clean water
runoff to be captured from the Southwest Tributary by SD7/MC10 and
transferred to any tributary of Back Creek.
61 SD7/MC10’s capture of 340ML did not have any impact on Back Creek or
Maules Creek because runoff draining to SD7/MC10 flows to the Namoi River
via the Southwest Tributary. The impact of the unlicenced clean water capture
on downstream surface water was therefore assessed assuming that only
660ML of the 1,000ML would have been discharged to Back Creek.
62 SW09 is a stream level gauge downstream of the mine, towards the confluence
of Maules Creek and Back Creek. SW10 is a stream level gauge upstream of
the mine. The locations of these gauges are shown at the centre of the map
above in [10]. Dr Newton used the stream level monitoring data captured by the
42
gauges in his report. The data is provided in centimetres for water level and
litres per minute for flow data. It is of poor quality. The recorded water level and
flow data is extremely low (below 1.1cm over the charge period) and is unlikely
to be correct. The data also records negative values which are unlikely to be
correct and were filtered in Dr Newton’s analysis. In Dr Newton’s view, the only
value of the data is to indicate the frequency with which some flow may have
occurred in Back Creek (although even for this limited purpose its usefulness is
questionable). SW09 data looks more realistic than SW10.
63 In Dr Newton’s opinion, “the offence did not have a significant adverse impact
on surface water sources”. Mr Anderson’s conclusion that water captured by
the mine would result in reduced downstream flow was “obvious”.
Impacts of Active Mine Area Capture on Back Creek
64 Adverse impacts on surface water flow caused by the mine’s unlicensed clean
water capture in Back Creek were of low significance. The impact of the Active
Mine Area capture on Back Creek over the charge period varied between about
14% immediately downstream of the mine, to 10% at the Maules Creek
confluence.
65 The catchment is small in the context of the Namoi River system. The estimated
8% to 15% change in flow volume due to the mine’s unlicensed clean water
capture is much less than the range of annual variability due to climatic variation
in this ephemeral watercourse. The Active Mine Area capture would not have
changed the frequency of flow in Back Creek because the portion of the
catchment not affected by mining would generate runoff at the same frequency
as areas captured by the mine. The number of days in which Back Creek was
flowing downstream of the mine would have been unaffected.
Issues with Mr Anderson’s evidence
66 Mr Anderson’s lengthy report in respect of the effect of the offence on Maules

Creek, Back Creek, groundwater and any other water source in the surrounding
area was “unwieldy” and Mr Newton had difficulty understanding it.
43
Mr Anderson’s summary answers do not appear to quantify the magnitude of
impact of the offence beyond general and obvious statements, such as that the
offence would result in reduced flow in the downstream direction. Mr Anderson
failed to consider that the mine capture only affected part of the Back Creek
catchment, the rest of which experienced runoff in the same way as pre-mine
conditions. Mr Anderson failed to consider that only 660ML was diverted from
Back Creek rather than 1,000ML.
67 Mr Anderson misunderstood the AWBM model used in the mine’s

Environmental Impact Statement Surface Water Impact Assessment. This had
consequences for Mr Anderson’s estimate of the depth of the riparian
groundwater zone after each runoff event, and therefore of his assessment of
the extent of the impact of the offence. He attaches some significance to the
depth of the conceptual “buckets” used in the AWBM modelling, which he says
is 2.83m in total. Mr Anderson noted that this figure is close to his estimate of
2m for the depth that 1,000ML would infiltrate into the riparian zone of Back
Creek (above in [27]). However, the accurate figure for the AWBM “buckets” is
120mm, not 2.83m. Mr Anderson’s estimate of the depth to which water
infiltrates the riparian groundwater zone “does not represent the hydrologic
behaviour of the system with or without the Offence in any physically realistic
way”.
Drought
68 Drought conditions did not prevail in the entire charge period. Mr Anderson’s
comments that drought magnified the significance of the offence cannot apply
to the entire charge period. Given WY2016-2017 was not a drought period, and
442ML of the 660ML withheld from Back Creek occurred in WY2016-2017,
Mr Anderson should have only assessed the impact of a 218ML take during
drought periods. The finding that release of additional water would have
benefitted riparian vegetation is not useful without a comparison of conditions
with and without the offence.
44
Groundwater does not replenish Back Creek
69 Groundwater does not replenish Back Creek in any significant way.

Replenishment of Back Creek by groundwater would be evidenced by
streamflow continuing for weeks following rainfall and/or persistent stream
pools. Photographs from the Annual Stream and Riparian Vegetation Health
Assessment reports prepared by Cumberland Ecology (see below in [91] and
in Dr Hancock’s evidence from [116]) of the Back Creek bed at 8 locations
upstream of the mine to just upstream of the confluence with Maules Creek
from 2015-2020 largely show the creek bed as dry and consistently so.
Timing of take
70 Dr Newton did not identify the precise times the take occurred in terms of days
or months. The unlawful takes occurred in the following volumes at the following
times in his opinion:
(1) 2016-2017: 665ML.
(2) 2017-2018: 176ML.
(3) 2018-2019: 159ML.
Dr Newton’s oral evidence
71 In cross-examination, Dr Newton agreed with Mr Anderson’s summary of the

percentage of allocated water in the Maules Creek Water Source (described in
the SOAF pars 15-16) taken per year and overall (above in [49]). Dr Newton
also agreed that in 2018-2019, recorded rainfall in the vicinity of the mine was
below average. From 2016-2018, Dr Newton observed that the cumulative
rainfall deficit “probably had a horizontal trend”.
72 Dr Newton accepted that his modelling does not account specifically for
groundwater other than as a loss of surface flow. AWBM is a surface flow
model. Dr Newton did not put the physical geometry of Back Creek in the
AWBM modelling and the model does not take into account the potential
45
infiltration of water into the stream bed below Back Creek. The AWBM
modelling had not been calibrated since 1983 apart from by annual reviews of
the site water balance and seeing if they were consistent with available site
data. The modelling may be less accurate if conditions varied from when it was
calibrated. However, the AWBM was not less reliable for predicting flows in low
flow conditions during drought. This same model was used by Dr Flocard
(below from [80]) to estimate the agreed 1,000ML total take figure, meaning
that proportionally the impacts of the offence are best determined using the
same modelling.
73 Dr Newton emphasised that the data from SW09 and SW10 (discussed above
in [62] and used by Mr Anderson, see [31]-[33]) was unreliable. The data should
possibly be read as metres instead of centimetres as Mr Anderson had
assumed. Given the unreliability, he could not agree with Mr Anderson’s
estimate that 38ML per runoff event can infiltrate the ground within Back Creek
between SW10 and the confluence of Back Creek and Maules Creek. It was
unclear how Mr Anderson came to his estimate of 9-43% of flow infiltrating as
groundwater. He was probably relying on the inaccurate SW09/SW10 data. The
proposition that the data shows the water was “going somewhere between
SW09 and SW10” was not necessarily correct because the data from the
gauges is showing level, not flow. Flow cannot be deduced from the height of
water level as shown by comparing two different gauges. It is not necessarily
true that there would be a diminution in flow as opposed to level between SW09
and SW10.
Mr Tomlin
74 The Defendant tendered Mr Tomlin’s report dated 15 July 2021 (Ex 3). Mr
Tomlin, hydrogeologist, is a Principal Consultant and Technical Director of
Australasian Groundwater and Environmental Consultants Pty Ltd. He has
qualifications in Australian environmental studies and hydrogeology and
groundwater management with 25 years’ experience in the consulting industry.
He has handled all groundwater investigations for the Maules Creek Coal Mine
since 2010. He provided opinions on the likely impact of the offence on
46
groundwater sources based on information from Mr Anderson, Dr Flocard, data
provided by the Defendant and Water NSW’s groundwater database and Water
Register. Mr Tomlin did not provide an opinion on water stored in the stream
bed and bank, only water that reaches or would reach a fully saturated aquifer.
Impacts of Active Mine Area take on Back Creek groundwater
75 In relation to the effect of withholding 660ML from Back Creek during the charge
period, a portion of that water would have become groundwater recharge for
the less productive Gunnedah-Oxley Basin Murray Darling Basin groundwater
source and also potentially the highly productive Upper Namoi Zone 11, Maules
Creek Groundwater Source when flows are sufficient. There is insufficient
information to determine the proportion of the water that would have become
recharge. Recharge rates could be relatively high along the alignment of Back
Creek, noting Mr Anderson’s estimate of 1-30% (which was revised to 9-
43%,see above in [21]). Assuming a recharge rate of 15% of 660ML, that is a
total loss of 99ML over the charge period. If doubled to a 30% recharge rate,
this is a loss of groundwater of 198ML.
76 Mr Anderson’s estimates of the impact of withholding of groundwater from Back

Creek may have been overestimates because he assumed that 1,000ML was
not discharged into Back Creek. Only 660ML was withheld. Mr Anderson is
correct that the groundwater effects were likely too small to measure. The only
significant effects would be along the alignment of Back Creek. The effects on
groundwater at distance to Back Creek were likely too small to measure.
77 In relation to whether Back Creek surface water is replenished by groundwater,

Mr Anderson’s view that groundwater may contribute seepage after large
rainfall events is wrong. The water table is well below the level of Back Creek
and does not provide baseflow to Back Creek.
Could the amount lost to groundwater be accounted for out of allocated take?
78 As agreed in the SOAF, the Defendant did not hold Water Access Licences
(WALs) entitling it to take water from the Maules Creek Water Source during
47
the charge period. The Defendant did hold groundwater WALs during the
charge period entitling it to access groundwater from the Gunnedah-Oxley
Basin MDB Groundwater Source, Upper Namoi Zone 4, Namoi Valley (Keepit
Dam to Gin’s Leap) Groundwater Source, Upper Namoi Zone 5, Namoi Valley
(Gin’s Leap to Narrabri) Groundwater Source, and Upper Namoi Zone 11,
Maules Creek Groundwater Source.
79 In Mr Tomlin’s opinion, the Annual Reviews for Maules Creek Coal Mine (see
below in [157]) establish that the amount lost to groundwater from both the
SC7/MC10 and the Active Mine Area takes was less than the residual, unused
allocation of Maules Creek Coal Mine under the relevant WALs during the
charge period.
Dr Flocard
80 The Prosecutor tendered Dr Flocard’s water engineering report dated 21

August 2020. Dr Flocard’s report was commissioned by the Prosecutor at an
early stage in proceedings before the Defendant’s plea of guilty and much of
his evidence was not pressed. Sections 1.3, 2.6 and 2.7 were read (Ex B). Dr
Flocard is a Principal Engineer at the Water Research Laboratory at UNSW. Dr
Flocard was engaged by the Prosecutor to inspect the mine site on 11 April
2019 to review the type and number of flow metres and other instrumentation
in use at the site.
81 Dr Flocard’s report provided the basis for much of the SOAF and described
how, in his opinion, the mine’s failure to operate its water management system
effectively allowed the offence to occur. Dr Flocard based his assessment of
the total take of water the subject of the offence on AWBM modelling (see above
in [19]).
Terrestrial and aquatic ecology evidence
Dr Pfautsch
82 The Prosecutor tendered Dr Sebastian Pfautsch’s expert plant hydraulics and

ecohydrology report dated 11 June 2021 and supplementary report dated
48
27 July 2021. Dr Pfautsch is an Associate Professor in urban studies at
Western Sydney University. He has more than 15 years of scientific experience
researching plant-water relations, including four years of field research that
focused on the impact of groundwater drawdown on adjacent woodlands. He
was instructed to provide his opinion on the impact or likely impact on, and harm
or likely harm of the offence to the vegetation in the surrounding environment.
83 Dr Pfautsch was provided with sets of photographs of the vegetation in the

vicinity of the mine. The first set was taken around dams during the early stages
of mining operations (2014-2016). The second set was taken by Ms Roslyn
Druce and Ms Elizabeth Laird and exhibited to their affidavits in these
proceedings (see below in [145]-[146]). These included photographs taken from
2005 to 2019 (in Ms Druce’s case) and 2016 to 2020 (in Ms Laird’s case),
depicting riparian vegetation and creek flows around Back Creek, as well as
Maules Creek, Horsearm Creek and Elfin Crossing (a concreted causeway over
Maules Creek). The third set was a series of images and videos taken and
provided by Mr Bowlay documenting the status of the vegetation along points
at the northern boundary of the mine in May 2021 on a site inspection which Dr
Pfautsch was unable to join. Dr Pfautsch had suggested the sites at which to
take photographs using vegetation maps provided by Cumberland Ecology
Maules Creek Coal Project – Ecological Assessment (2011) (Cumberland EIS).
The sites were chosen because they were either likely to show an impact from
changes in hydrology or were sites at which no change was expected from the
offence, being control sites. Dr Pfautsch examined the photographs from 10
sites (Sites 1-9 and 14) for signs of stress on vegetation. Their location is shown
on the map below. As recorded in the extracted table below, Site 9 was a control
site. Site 7 was recorded as an upstream site.
49
Harm to vegetation
84 Dr Pfautsch did not find impacts at Sites 1-6, 8 and 14. He found signs of
previous stress on plants at Sites 7 and 9 (a control site). The harms visible in
vegetation at Sites 7 and 9 were likely due to a cumulative stress response to
drought and reduced water surface flows. Some of the photographs in evidence
showed vegetation loss. Others did not, indicating that there was no systemic
widespread dieback event happening at a broader landscape scale.
Nevertheless, the photographs show severe damage to vegetation. Site 7
50
featured established trees which display a high capacity to recover from stress
and the stress appeared temporary only at that site.
85 It is highly likely that the take of water has contributed to water stress, reduced
ecosystem functioning, and plant mortality in vegetation communities proximate
to the mine. In particular, there is evidence of severe drought stress in well-
established, long-lived tree vegetation at Sites 7 and 9. Any shallower rooted
species (shrubs, grasses and young trees) would have experienced mortality
at least in some areas. However, grasses with shorter life cycles compared to
shrubs and trees, would have completely recovered following significant rainfall
from February 2020 onwards.
86 The likelihood is very high for occurrence of increased water stress in plants,
reduced availability of sugars for growth, storage and exchange with symbiotic
partners (through reduced capacity to assimilate carbon from the atmosphere),
loss of foliage from tree canopies, reduced defence against pathogens and
insects as well as reduced availability of soil nutrients. The offence would also
cause lower uptake and availability of a range of nutrients. It is highly likely that
the offence harmed the environment at the “worst possible time” to limit
discharge of water into the environment. Although it could be argued that the
system was already stressed due to drought conditions, the added stress
caused by the offence could have pushed plants past threshold levels of water
stress.
Uncertainty of evidence
87 Dr Pfautsch could not state with certainty that the taking of water caused the
effects described above. There was no systematic surveying done of impacted
vegetation before, during and immediately after the period of the offence. Due
to a lack of contemporaneous evidence, Dr Pfautsch could not provide an
opinion on the actual or direct impacts of the offence. It was difficult to quantify
and measure the impact arising directly from the take given the likely impacts
from other factors. He was unable to provide a definite statement of the extent
of the harm. He was unable to state which species of plants may have been
51
affected. He did state, with certainty, that the diversion of surface water caused
by the offence must have contributed to the impacts noted. These impacts
would have been most severe at the northern boundary of the mine and along
Back Creek.
Drought and other conditions affecting impact of the offence
88 The fact that drought and heat not only impacted plants during one but three
consecutive years reinforces the expectation of the likelihood of stress on the
ecosystems. The impact of the offence was reduced by the fact that the drought
broke in February 2020 and the plants in the area have high capacity to recover
from drought stress if lethal thresholds are not surpassed.
89 The extent of the harm within the mine boundary was likely to be low because
of removal of plants by the mine previously. The situation was likely to be
different for the rail corridor associated with the Maules Creek Water Source
(shown in the map in [10]) because the dams along the corridor (SD7/MC10)
were at lower elevations in the landscape. However, as noted, Dr Pfautsch was
unable to provide a definite opinion of the extent of harm.
Impact on vegetation utilising groundwater
90 The available data indicates that “the offence had no direct effect on the
dynamics of near-surface groundwater levels recorded at bores along Back
Creek or Maules Creek”. Such effects cannot be excluded but the likelihood of
additional harm to plants, especially deep-rooted trees from changes in
groundwater was not systemic.
Methodology and the Cumberland Ecology Monitoring
91 In his supplementary report, Dr Pfautsch provided his opinion on the

methodology behind some of Dr Hancock’s report. Dr Hancock relied on
information collected by the Cumberland Ecology Pty Ltd Annual Stream and
Riparian Vegetation Health Assessments 2015-2020 (Cumberland Ecology
Monitoring). The monitoring program included two sites on Back Creek that are
upstream of Maules Creek Coal Mine (BCP1, BCP2) and five sites that are
52
downstream (BCP3, BCP4, BCP5, BCPX, BCP6, BCP8). The location of most
of the Cumberland Ecology Monitoring sites is shown in the map above in [11].
The evidence before the Court is that in relation to vegetation, this monitoring
consisted of visual assessments of vegetation cover. For Dr Hancock’s
conclusions based on the Cumberland Ecology Monitoring, see below in [123]-
[129].
92 In Dr Pfautsch’s view, the information collected by Cumberland Ecology

Monitoring cannot be used to conclude that variation of vegetation cover was
the result of drought only and not the offence. Visual assessments greatly
depend upon the skills of the observer and are the least reliable form of survey.
There are long-known flaws in the methodology of the Australian River
Assessment System, used by Cumberland Ecology, for detecting
anthropogenic impacts on stream health. These limitations were recently
exposed in Chessman, “What’s wrong with the Australian River Assessment
System (AUSRIVAS)?”, (2021) 72 Marine and Freshwater Research 1110.
Dr Pfautsch also opined that the variation in tree cover during the charge period
was so high at Site BCP5 in Cumberland Ecology Monitoring that it cannot be
explained by ecological processes alone.
93 Even if he assumed that the Cumberland Ecology Monitoring was correct,

Dr Pfautsch would not change his views as to extent of harm caused or likely
to be caused to vegetation. Comparing observations from downstream,
presumably “impact” sites, to a single upstream site, presumably a “control”
site, cannot yield reliable information. Dr Hancock selectively picked monitoring
sites (see [117]) rather than examining all available sites.
94 In respect of Dr Hancock’s disagreements with Dr Pfautsch, Dr Hancock’s

views were based solely on visual inspections more than two years after the
offence (see [118], [131]). In response to Dr Hancock’s critique that Site 7 from
Dr Pfautsch’s report was upstream and therefore could not have been affected
by the offence (see [129]), Site 7 was located on a tributary to Back Creek and
therefore the term upstream may have been misleading. In any case observing
53
one image from a single site two years after the offence is a questionable basis
for assessing water stress caused by the offence.
95 Even by reference to the Cumberland Ecology Monitoring for 2019 and 2020,
the impact of the offence was not minor. Those reports indicate that vegetation
coverage did not increase across all monitoring sites between November 2019
and December 2020, and nine of the twelve sites show a decline in canopy
cover. The general criticisms of this form of survey were nevertheless
maintained.
Dr Pfautsch’s oral evidence
96 Dr Pfautsch was cross-examined by the Defendant. He agreed that it was

important to know where water that was taken would have gone for the
purposes of his report. He partly relied on Mr Anderson’s report to form his
views in that regard. He also agreed it was important to know when the water
was taken, particularly when assessing short-term impacts, and he did not form
a view on exactly when the takes occurred.
97 In cross-examination it was put to Dr Pfautsch that he started with the damaged

sites (7 and 9) and then worked backwards to establish whether the water that
might have reached those sites had been sequestered, only then forming the
view that the damage might have been caused by the take. Dr Pfautsch
accepted that this was close to what he did but preferred to characterise his
methodology as identifying sites in advance that could contain vegetation that
was potentially harmed by the take of water. Later in cross-examination, he
appeared to wholly accept counsel for the Defendant’s characterisation.
98 Dr Pfautsch accepted that he was assuming that the offence caused a reduction
in water available at Site 7.
99 Dr Pfautsch was not saying that the offence caused a reduction in groundwater
and thereby affected vegetation. He focused on surface water when it came to
plant stress.
54
Dr Growns
100 The Prosecutor tendered Dr Ivor Growns’ expert aquatic ecology report dated
27 July 2021 and supplementary report dated 27 July 2021. He holds a PhD in
Environmental Science from Murdoch University and is a Research Fellow with
over 25 years’ experience in primarily macroinvertebrate and fish ecology, with
specific expertise in the relationships between water flow and biota of rivers,
streams and wetlands. Dr Growns was asked to assume 1,000ML taken from
the environment would have flowed into Back Creek.
101 Due to a lack of contemporaneous surveying and sampling in the impacted area
immediately before and after the charge period, Dr Growns did not know exactly
what biota would have occurred in the creeks and rivers downstream of the
mine. He was drawing the conclusion that certain species likely existed in the
environment from his own experience, studies and surveys such as the Atlas
of Living Australia, the Sustainable River Audit database for the Murray-Darling
Basin, a desktop assessment prepared by NSW Fisheries of Back Creek and
Maules Creek, and the Cumberland EIS. Dr Growns analysed the impact of the
offence conceptually, using a series of flow diagram conceptual models of the
effects of water extraction on ecosystems.
Assumptions and qualifications
102 The offence resulted in less water being available from rainfall runoff events
extending to approximately 10km downstream of the mine. The less water
available, the greater the impact on aquatic biota. Whether water flows depends
on the duration and volume of a rainfall event. After the cessation of water flow
still water pools are likely to form. Where there is less surface runoff any pools
will dry more quickly and habitat will be lost.
103 The exact extent and duration of the impact on the habitat of biota (measured
in terms of velocity, water depth and surface area) from the offence was difficult
to determine. Moreover, the conceptual models used are subject to the
qualification that responses will vary with natural discharge patterns and the
timing, frequency, and magnitude of extraction.
55
Harm to biota in Back Creek
104 The impact of the clean water take would have been to reduce the flowing water
habitat available to biota in Back Creek at the times the runoff events would
otherwise have occurred. Following runoff events still water habitats (pools)
would also have been affected by reducing their persistence. The impacts
involved alteration of the physical (e.g. a reduction in depth of remnant pools)
and chemical (e.g. a decrease in dissolved oxygen) attributes of still and flowing
waters which directly impact aquatic biota. Taxa requiring water to complete
their reproductive life cycle would be affected by pools drying out more quickly.
Those which can fly in and out of habitats were less likely affected. Insofar as
invertebrate taxa that require water decline, that will impact on predator taxa. A
reduction in habitat reduces the potential for biota to breathe, feed and breed.
The impact on species are summarised by the conceptual models in the report,
which show a wide range of adverse impacts on biota as a result of decreased
water. The range of species likely to be affected based on the databases noted
in [101] were listed in Table 1 and Table 2 of Dr Growns’ report.
105 The opinions expressed in Dr Growns’ first report were not altered or qualified
in his supplementary report. He agreed with Dr Hancock that the effects of the
offence would be short-term because the impacts would stop following the
drying of the creek bed and only be felt once water was back in the environment
and being taken (see [119]). The impacts would also be limited by the fact that
the invertebrates in Back Creek are adapted to the ephemeral creek.
Dr Hancock was also correct (see [126]) that the volume of water taken may
have been minor in comparison to the water already present in Back Creek and
therefore the impacts may have been minor.
106 Given the conceptual models on which Dr Growns’ report was based, the
offence would have caused harm to invertebrates (and terrestrial vertebrates
relying on such invertebrates) through a reduction in the amount of habitat
available. Despite Dr Hancock’s findings that there was such a minor impact on
aquatic biota (such as the loss of a few individual invertebrates) in Back Creek
that there was essentially no harm (see [119], [124], [128]), Dr Hancock’s
56
opinions corroborated Dr Growns’ opinions that harm would be caused to
invertebrates. Contrary to Dr Hancock, in Dr Growns’ opinion the loss of some
invertebrates does constitute harm.
Criticism of Dr Hancock’s methodology and Cumberland Ecology Monitoring
107 Dr Hancock could not reliably assess the level of ecological impacts based on
the data on the number of taxa or the percentage of tolerance taxa provided in
the Cumberland Ecology Monitoring (see above in [91]). The number of taxa
and the percentage of tolerant taxa are set out at pars 29-34 of Dr Hancock’s
report. The use of this data to indicate recovery is problematic for two reasons.
108 Firstly, Dr Hancock’s report contains no statistical analysis to indicate whether

the difference in the number of taxa or percentage of tolerant taxa at sites
upstream (Sites BCP1 and BCP2) and the sites downstream (defined by
Dr Hancock as Sites BCP4, BCP5, BCP6 and BCPX) changed before and after
the offence. For a map depicting the locations of those sites, see above in [11].
Such an analysis would require replicate samples at each site to measure
variability of the data. When conducting statistical analysis it is necessary to
measure variability (the amount of spread in data) in order to calculate formulas
that generate the statistics in the analysis. The statistics are used to assess
whether the difference in the number of taxa or their tolerance is significantly
different (i.e. was not equal to zero) in the impacted area, before and after the
charge period, compared with the upstream sites. Without such a statistical
analysis it is impossible to judge whether any change occurred as a result of
the offence.
109 Secondly, the Cumberland Ecology Monitoring data is problematic because

there are only two sites which have been used to assess the condition of the
invertebrates that would have existed if the offence had not taken place. To
properly assess the potential condition of the invertebrate taxa without the
offence, a large number of sites is required to measure the natural variation in
the invertebrates outside the affected area. The use of only two sites (BCP1
and BCP2) is insufficient. Natural variation occurs in invertebrates because they
57
respond to environmental differences between and within creeks. A larger
number of testing sites is required to see if the number of taxa and the
percentage of tolerant taxa at Sites BCP4, BCP5, BCP6 and BCPX lay outside
what would naturally occur without the offence.
Harm to endangered fish
110 The Prosecutor tendered the NSW Department of Primary Industries 2013
publication entitled “Policy and guidelines for fish habitat conservation and
management” (the Policy) (Ex D). Mr David Ward’s desktop assessment,
summarised below in [135], classified Back Creek’s status as a fisheries habitat
based on the classifications used in the Policy. Dr Growns relied on Mr Ward’s
desktop assessment.
111 The Atlas of Living Australia does not indicate that the Southern Purple Spotted
Gudgeon has been located near Back Creek. Back Creek is ephemeral and
unlikely to support continuing fish populations. Mr Ward’s desktop assessment
attached to Dr Growns’ first report identifies Back Creek as expected
threatened species habitat for Southern Purple Spotted Gudgeon. While
Dr Growns had not seen the data underlying the desktop assessment
conducted by NSW Fisheries, he considered it reliable based on his knowledge
and experience.
Dr Growns’ oral evidence
112 Dr Growns agreed in cross-examination that he needed to understand the

hydrological consequences of the take as a starting point of his assessment.
He was relying on Mr Anderson’s assessment of 1,000ML in his first report and
dealt with the possibility that 660ML was withheld from Back Creek in his
second report. He was relying on Mr Anderson’s view (above in [20]) that every
megalitre of water taken by the storages was deprived from Back Creek. He
was instructed to assume this was the case. Dr Growns accepted that the
physical characteristics of the water course would affect the ability of water
flows to form pools. Dr Growns accepted that he had not done an analysis to
see whether Back Creek has characteristics that would help form pools.
58
113 When pressed as to his assumptions about where the water would have gone
into Back Creek and Maules Creek, Dr Growns stated that he assumed that
any water in Back Creek would have provided animal habitats. Dr Growns had
not done a statistical analysis to indicate whether there were differences in the
number of taxa or percentage of tolerant taxa at sites upstream and sites
downstream change before and after the events. This was the analysis that he
claimed Dr Hancock would need in order to judge whether there was a change
caused by the offence (in [108]).
114 Dr Growns accepted that the duration and nature of rainfall events
accompanying the offence was relevant to assessing impacts on aquatic
ecology, and that he did not have that data. He further accepted that the impact
of the offence would be reduced in winter.
115 Dr Growns accepted that he relied on the views of Mr Ward (see below in [135])
in opining that Back Creek could be a habitat for Purple Spotted Gudgeon in
his first report. He assumed that Purple Spotted Gudgeon could migrate from
Maules Creek to Back Creek.
Dr Hancock
116 The Defendant tendered Dr Hancock’s terrestrial and aquatic ecology report
dated 15 July 2021 (Ex 4) and supplementary report dated 15 August 2021 (Ex
5). He has a PhD in Freshwater Ecology from the University of New England
and is a Principal Aquatic Ecology Consultant with more than 25 years’
experience, primarily in groundwater invertebrates and macroinvertebrates.
Dr Hancock clarified in his supplementary report that he also has expertise in
relation to riparian and terrestrial vegetation, as distinct from plant physiology,
aquatic plants, and riparian plant taxonomy. He was asked to provide his
opinion on the impacts and harm of the offence on aquatic and terrestrial
ecology, and to agree or disagree with the findings of Dr Growns and
Dr Pfautsch.
117 Dr Hancock relied on Cumberland Ecology Monitoring discussed by the

Prosecutor’s experts as reflected above in [91]-[95] and [107]-[109]. In
59
assessing vegetation cover downstream, Dr Hancock relied on Sites BCP3 and
BCP 5 from Cumberland Ecology Monitoring. In assessing vegetation cover
upstream before and after the offence, Dr Hancock relied on Sites BCP1 and
BCP 2.
118 Dr Hancock also conducted a site inspection on 29 June 2021 and was taken
to seven locations: SD7 and the creek line of SD7, a 1.5km reach of Back Creek
extending upstream from 300m downstream of the mine, Back Creek
immediately upstream, Back Creek 1.5km upstream of the mine, Back Creek
at Therribri Road (1km upstream of the confluence with the Namoi River),
Maules Creek at Elfin Crossing and Maules Creek at Browns Lane. He visually
assessed each site he visited, made notes, and took photographs. He also
collected macroinvertebrate samples at Back Creek. He used the Policy (Ex D)
to determine fish habitat classification.
Impacts of Active Mine Area take on Back Creek
119 The unlawful capture of water (660ML over three years) in the Active Mine Area
would have had minor, short-term impacts on aquatic ecology, but has not had
any long-term impacts on aquatic ecology. The unlawful capture of water in the
Active Mine Area has not caused any actual or likely harm to the aquatic or
terrestrial ecology.
120 This conclusion is partly based on Mr Anderson’s assessment of the spatial

extent of the impact of the offence, namely that it was contained to within 9.8km
of the Back Creek catchment or to within the irrigation diversion channels
downstream of the mine on Back Creek (see the dashed lines on the map in
[10]). The magnitude of reduced runoff impacts downstream of the diversions
was likely minor.
121 Back Creek has no suitable habitat for Southern Purple Spotted Gudgeon.
Suitable habitat may be present in the middle reaches of Maules Creek in the
form of isolated perennial pools. However, if the impacts of the offence only
extended up to 9.8km along Back Creek, the offence would not have impacted
these pools.
60
122 The ecology of Back Creek is ephemeral. The creek contains biota “highly
adaptable to a wide range of flow”. Animals living in ephemeral waterways have
life-cycle strategies allowing them to survive dry periods and recolonise when
water returns.
123 Cumberland Ecology Monitoring shows an increase in the taxonomic richness

in Back Creek macroinvertebrate communities in surveys after the charge
period. The data also shows an increase in the proportion of pollution-sensitive
taxa. This is potentially due to longer periods with surface water present in the
channel and despite most of the survey sites being dry in the intervening period
between survey events.
124 Based on observations made during the site visit, the riparian zone along Back
Creek showed no identifiable impact potentially caused by the offence. The
monitoring data in the Cumberland Ecology reports does not demonstrate that
the offence has had any “significant” impact on Back Creek, with sites
downstream of the mine showing similar changes through time as those sites
upstream of the mine.
125 Based on Dr Pfautsch’s assessment of riparian vegetation along Back Creek,

the impact of the offence would be most pronounced on shallow rooted plants
such as grasses, shrubs and young trees. Any reversible effects on the
impacted ecosystems in the relevant area would have occurred in 2020 and
2021 with the resumption of regular rainfall. Sites downstream of the mine along
Back Creek show healthy riparian vegetation and closed grass cover with no
systematic and widespread dieback visible.
126 If all of the Active Mine Area take was discharged to Back Creek during the
charge period, the water may have increased the duration of the flow period of
the creek. The discharges would have occurred immediately following rainfall
events, so Back Creek may already be flowing. If this is the case, then any
water added to the already flowing creek would flow downstream. It is unlikely
that this water would have had an ecologically significant impact on aquatic
biota. If the creek was not flowing at the time of the discharges as a result of a
61
minor rainfall event, then the volume of discharges would correspondingly be
likely to be small. Any water may have flowed for a brief distance downstream
and filled some existing depressions and could therefore have created
temporary aquatic habitat in Back Creek.
127 If water was released directly to Back Creek, there are some circumstances
under which aquatic ecosystems may have an extended duration. For example,
water could have temporarily filled dry waterholes along the creek, or topped
up existing waterholes, providing water for a brief period. The duration of water-
holding may have been long enough to allow some rapidly reproducing
invertebrates (e.g. blackfly, non-biting midges, some species of mayfly and
caddisfly, mosquitoes) to develop through their aquatic phase and emerge as
adults prior to the pool drying up. However, the overall ecological benefits of
this would likely be minor.
128 Insofar as there was any impact on biota as Dr Growns suggested, the area
has recovered as shown by the Cumberland Ecology Monitoring for 2019 and
2020, which showed more invertebrate taxa than before the charge period. To
the extent aquatic insects were impacted, this is unlikely to have significantly
affected terrestrial invertebrates because those animals have other food
sources including many terrestrial invertebrates.
129 In relation to the evidence of Dr Pfautsch, the only sites which appeared
stressed were Dr Pfautsch’s Sites 7 and 9, but these were upstream of the mine
and a control site respectively, and in any case the stress was only temporary
and attributable to drought. There was no evidence of harm to vegetation; and
to the extent harm was caused, it would be minor and not last more than a few
months. The Cumberland Ecology Monitoring showed foliage cover higher than
during the drought and charge period and that vegetation is recovering with the
regular rain since 2020. The Cumberland Ecology Monitoring at sites
downstream of the mine showed patterns of vegetation health consistent with
sites upstream of the mine.
62
Harm to endangered fish
130 Dr Hancock classified Back Creek as Type 2 (Moderately Sensitive) Key Fish
Habitat under the Policy (Ex D) because the reach of the river did not have
rocks greater than 500mm in two dimensions and logs greater than 300mm
diameter and 3m length. Back Creek is not likely to be a suitable habitat for
Southern Purple Spotted Gudgeon because of its lack of aquatic vegetation
and long periods of no flows. The nearest recorded site for the species is
several hundred kilometres away.
Dr Hancock’s oral evidence
131 Dr Hancock accepted that the rainfall which occurred from February 2020 would
have led to the replenishing of soils in the area, which may explain the lack of
impacts on vegetation observed in 2021 and identified in his report (in [129]).
He accepted that trees and shrubs and grasses may have died between 2016
and 2019 at least partly as a result of the offending conduct.
132 Dr Hancock agreed that it was possible that the withholding of water from Back
Creek may have impacted on ecosystem functions and vitality. This was
especially the case if the water was distributed in one event as opposed to
distributed events. He nevertheless felt that the rainfall falling directly on the
soil at the time of rainfall events had a more significant positive impact on the
soil then water in Back Creek sinking into the channel, banks and bed of Back
Creek.
133 In relation to the type of fish habitat prevailing in Back Creek, Dr Hancock
agreed that a factor indicating inclusion within Type 1 Highly Sensitive Key Fish
Habitat under the Policy (Ex D) is whether the location is known or expected
threatened fish species habitat.
Fisheries officer
134 The Prosecutor tendered the affidavit of Mr David Ward affirmed 11 June 2021,
an additional affidavit affirmed 28 July 2021 and exhibit DW-1 to his first
affidavit. Mr Ward has qualifications in zoology and marine biology and is
63
employed as a Fisheries Manager within the Freshwater Environment branch
of the NSW Department of Primary Industries (Fisheries). Mr Ward conducted
a desktop assessment to determine the fisheries values of Back Creek.
135 Back Creek is Type 1 (Highly Sensitive Key Fish Habitat) under the Policy
because it is expected threatened species habitat for Southern Purple Spotted
Gudgeon listed under Sch 4 of the Fisheries Management Act 1994 (NSW),
based on the report entitled “Fish Communities and threatened species
distributions of NSW” (NSW Department of Primary Industries, 2nd ed, July
2016) (Threatened Fish Distributions NSW). Mr Ward spoke with Dr Growns
about his assessment.
136 Mr Ward’s second affidavit of 28 July 2021 responded to the claims made by
Dr Hancock. Mr Ward referred to the DPI Primefact Southern Purple Spotted
Gudgeon Mogurnda Adspersa (July 2017, Primefact 1275, 2nd ed) (Primefact
1275). Mr Ward disagreed with Dr Hancock’s classification of Back Creek as
Type 2 (Moderately Sensitive) Key Fish Habitat on the basis that Dr Hancock
was wrong to treat the presence of rocks greater than 500mm in two
dimensions and logs greater than 300mm diameter and 3m length as a
requirement of a Type 1 habitat; rather, this was only one of the features that
would suffice to make an environment a Type 1 habitat.
137 Mr Ward stated in re-examination that he was relying on the habitat being “any
known or expected protected or threatened species habitat under the Fisheries
Management Act [sic]” for the purposes of classifying the habitat as Type 1
under the Policy (Ex D). Mr Ward observed that some of the features of pools
identified by Dr Hancock in his report seemed to bolster the assertion that Back
Creek may be Southern Purple Spotted Gudgeon habitat because the features
were consistent with Primefact 1275.
138 In cross-examination, Mr Ward admitted there are benefits of a field

assessment relative to a desktop assessment. He agreed that no surveys had
been conducted for fish in Back Creek to his knowledge.
64
139 Mr Ward was asked about the report Threatened Fish Distributions NSW.
Figure 14 is a map of the indicative distribution of the Southern Purple Spotted
Gudgeon in NSW. Mr Ward agreed that this map only indicated that populations
of that species may be present, with a level of confidence that may be as low
as 33% and as high as 100%.
140 Mr Ward was taken to Primefact 1275 and agreed that Back Creek was not in
the Macquarie, Gwydir and Border River catchments or in the Castlereagh
catchment, areas to which Primefact 1275 indicates that the Murray-Darling
Basin population of the Southern Purple Spotted Gudgeon are confined.
Departmental officers’ evidence read by Prosecutor
141 The Prosecutor tendered the affidavit of Mr Timothy Baker affirmed 10 June
2021 which was relied on in part. Mr Baker is a Senior Water Regulation Officer
at NRAR. He stated that water sharing plans are the primary tools to facilitate
the provision of water for the environment in addition to providing water for
water users. Mr Baker provided:
(1) a summary of the regime for water allocation under the WM Act;
(2) information about the allocation levels at unregulated water sources

such as Maules Creek (which is generally 100%);
(3) a letter from the NSW Office of Water to the NSW Department of
Planning on 12 October 2011 providing comments on the Environmental
Assessment for the Maules Creek project application lodged by Aston
No 2 Coal Pty Ltd (Aston No 2);
(4) a letter from the NSW Office of Water to Resource Strategies Pty Ltd on
20 November 2014 outlining the Office’s comments on the revised WMP
for Maules Creek Coal Mine;
(5) a letter entitled “Initial Advice on preliminary draft WMP” from the NSW
Office of Water to Whitehaven Coal Limited (Whitehaven) on
65
21 February 2013 outlining the Office’s comments on the draft WMP,
including a comment on the reporting and review data in relation to water
that was required by the Department.
142 The Prosecutor tendered the affidavit of Mr Mark Burrell affirmed 6 August
2021. Mr Burrell is a water accountant at the Department of Planning, Industry
and Environment. He described the system of trading for water allocation
between water access licence users pursuant to s 71T (assignment of water
allocation between access licences) or s 71V (interstate assignment of water
allocations) of the WM Act. Using data generated by trades, the NSW
Department of Primary Industries trade dashboard produces a trade report,
which collates inter alia the volume of water allocation traded in megalitres for
each water source and the weighted average trade price of water allocation in
$AUD per megalitre (the cost of water). Mr Burrell identified, where available
for relevant years, the cost of water in the:
(1) Maules Creek Unregulated River Water Source (no transactions);
(2) Lower Namoi Regulated River Water Source;
(3) Gunnedah-Oxley Basin MDB Groundwater Source;
(4) Upper Namoi Zone 4, Namoi Valley (Keepit Dam to Gin’s Leap)
Groundwater Source;
(5) Upper Namoi Zone 5, Namoi Valley (Gin’s Leap to Narrabri)

Groundwater Source; and
(6) Upper Namoi Zone 11, Maules Creek Groundwater Source (no data
available).
143 The Prosecutor tendered the affidavit of Mr Simon Keough affirmed 1 February
2021 and exhibit SJK-1 to his affidavit. Mr Keough is a Customer Experience
Service Improvement Specialist at Water NSW. His affidavit records that a
number of water trade applications were made by Aston No 2. In these trades
66
Aston No 2 sold water allocations from the Upper and Lower Namoi Water
Sharing Plan.
144 The Prosecutor also tendered the affidavit of Mr Bowlay affirmed 25 June 2020
and exhibit AJB-1 to his affidavit. Mr Bowlay’s affidavit affirmed 9 June 2021
and exhibit AJB-3 was also tendered. Neither were referred to (except for the
Maules Creek Coal Mine annual reviews for 2017, 2018 and 2019 exhibited to
the affidavit affirmed 25 June 2020).
Local residents’ affidavits read by Prosecutor
145 Ms Roslyn Druce swore an affidavit dated 18 May 2021, but only paragraphs
1-3 and 36-63 and parts of exhibit RSD-1 (tabs 18-41) were read. Ms Druce
lives on a property at Wongolea. She took photographs between 2005 and 2019
of flooding events at Back Creek and of Melaleuca riparian forest communities
on Back Creek at various locations, exhibited to her affidavit (tabs 18-41). Dr
Pfautsch relied on some her photographs (see [83]).
146 Ms Elizabeth Laird swore an affidavit dated 4 June 2021, but only paragraphs
100-105 and tabs 54-59 of the exhibit EAL-1 were read. Her evidence included
photographs taken in 2019 showing Maules Creek and Elfin Crossing, a photo
of fish in a pool of water near Elfin Crossing, a photo of the creek bed of Maules
Creek near Elfin Crossing, a photo of fish that appeared dead in a pool of water
in the creek bed of Maules Creek, and a photo within the creek bed of Maules
Creek upstream of Elfin Crossing. Dr Pfautsch relied on some her photographs
(see [83]).
147 Mr Derek Williams affirmed an affidavit dated 4 June 2021, but only paragraphs
1, 5, 8 and annexure 2 were read. He owns a property situated near the junction
of Maules Creek and Back Creek. He and his wife owned a surface licence to
take water from Maules Creek, reproduced in annexure 2 to his affidavit. That
licence came with conditions, including condition 8, restricting the take from
Maules Creek and Horsearm Creek when flows are in the “Very Low Flow
Class” subject to certain exemptions. This evidence was not relevant to the
circumstances of this offence and was read to show that there were residents
67
in the area with water access licences attached to which were conditions
regulating when they could take water from the Maules Creek Water Source.
Representatives of Maules Creek Coal Mine read by Defendant
148 Mr Huw Morgan, who affirmed an affidavit dated 16 July 2021, is Group
Manager – Water and Property for Whitehaven. He is responsible for providing
subject matter expert advice and operational support with respect to the mine.
He identified the rectification works carried out by the Defendant since the
offence to address the deficiencies of the mine’s water management systems
as identified in the SOAF, the recent history of the irrigation diversion channels
and other water management structures on Back Creek, and his actions to deal
with those structures. He stated that the mine had been negotiating an
enforceable undertaking with the Prosecutor since 29 March 2021.
149 Mr Morgan provided evidence that the rectification works program in which the
mine is engaged includes three components:
a. a new highwall dam clean water diversion system;
b. a new western clean water diversion system; and
c. the decommissioning of the SD7/MC10 storages within the Mine's rail

corridor and reinstatement of the historical natural watercourse at the location
of these storages.
150 The first two components are outlined in an addendum to the mine’s approved
WMP. The full rectification plan is to be carried out in accordance with the
enforceable undertaking. The Highwall dam system is expected to be
completed in January 2022 and is expected to cost $6,000,000. The
construction of the western clean water diversion system was completed in
December 2020. It was not operational as of July 2021 because the existing
pump system has been impacted by repeated pump failures caused by
sediment from the base of the dam entering into and blocking the dam’s pump
intake mechanism. The Defendant needed to uninstall the existing pump
system and replace it with a pontoon pump system. This work was estimated
to be completed by September 2021. Mr Morgan had also, as of July 2021,
68
commenced work to decommission the two irrigation diversion channels on
Back Creek, the drainage barrier on Back Creek (so as to prevent surface water
being impeded), and the pipe and valve located next to the large dam to the
south of Back Creek (so as to prevent water entering the dam).
151 Mr Ian Humphris, who affirmed an affidavit dated 21 July 2021, is a Director of
the Defendant. He attested to the Defendant’s remorse, the changes in
governance of the Defendant since the offence, the rectification works
undertaken by the Defendant and to the Defendant’s character as a “corporate
citizen”.
152 Mr Humphris is authorised by the boards of the Defendant and Whitehaven to

express on behalf of those companies:
a. MCCPL's acknowledgment and acceptance that it is responsible for the

Offence; and
b. regret and apologise to the Prosecutor, the Court and the broader community
for the Offence.
153 Mr Humphris attested to the changes in governance that have occurred since
the incident. Mr Morgan has been appointed to oversee rectification works of
the type outlined above to address deficiencies with the Mine’s water systems.
154 Mr Humphris outlined Whitehaven’s Aboriginal and Torres Straits Islander

Engagement Strategy, commitment to fostering female employment in the
mining industry, the Defendant’s investment in local skills programs,
discretionary investments in intergenerational equity, the Defendant’s and
Whitehaven’s prioritisation of local employment and the Defendant’s financial
contributions to various community organisations. The Defendant has no prior
convictions for offences under the WM Act.
Enforceable undertaking
155 The enforceable undertaking under s 336E of the WM Act between the
Prosecutor and the Defendant on 11 August 2021 was tendered (Ex C). The
Defendant undertook to:
69
a) construct approved Highwall Dams 8, 9, 10 and 11 and all associated works*
by no later than 25 March 2022 or a later date agreed in writing by NRAR which
agreement will not be unreasonably withheld in circumstances where delay is
beyond the control of MCCPL (Figure 1 shows the general configuration of this
clean water management system, including the location of the dams, pumps,
pipeline, access road and the discharge point into an existing clean water
diversion drain within the Mine's project boundary);
b) operate approved Highwall Dams 8, 9, 10 and 11 and all associated works*

(while operational) for the purpose of transferring captured clean water runoff
from undisturbed catchments into a tributary of Back Creek in accordance with
the water management plan under the SSD Consent;
c) operate the already-constructed and approved Western Clean Water

Diversion and all associated works* (while operational) for the purpose of
transferring captured clean water runoff from undisturbed catchments into a
tributary of Back Creek in accordance with the water management plan under
the SSD Consent (Figure 2 shows the general configuration of this clean water
management system);
d) decommission Sediment Dam 7/MC10 and re-establish the historical natural

drainage line at the location of these storages within the rail corridor by no later
than 29 July 2022 or a later date agreed in writing by NRAR which agreement
will not be unreasonably withheld in circumstances where delay is beyond the
control of MCCPL; and
e) submit an updated water management plan for approval under the SSD
Consent by 30 November 2021 or a later date agreed in writing by NRAR
which:
1. documents the procedures for operating the Highwall Dams and the
Western Clean Water Diversion as an automated release system to
maximise the volume of clean water diversion and the procedures for
monitoring and reporting the water managed by these clean water
management systems including:
i. the location of the equipment used to monitor the volume of

clean water discharged by the Highwall Dams and the Western
Clean Water Diversion (figure and table of spatial coordinates);
ii. the location of the pipes, pumps, flow meters and water level
sensors for the Highwall Dams and the Western Clean Water
Diversion (figure and table of spatial coordinates);
iii. the stage storage curves for each Highwall Dam and the
Western Clean Water Diversion Dam;
iv. a figure showing the general configuration of the Highwall

Dams and the Western Clean Water Diversion (including the
undisturbed catchments reporting to each dam); and
v. the planned operational life and decommissioning date of

each Highwall Dam;
2. provides for:
70
i. the existing Back Creek stream health monitoring to be
undertaken on a biannual basis and include monitoring of tree
and canopy health and density (taking into account seasonal
changes) at the 9 existing monitoring sites shown in Figure 3
including the:
• 2 locations on Back Creek upstream of the Mine site;
• 5 locations on Back Creek downstream of the Mine site;
• 2 locations on Maules Creek, one upstream and one

downstream of the confluence with Maules Creek;
ii. associated trigger indicators for carrying out an investigation

into potential unexpected surface water impacts of the Mine on
tree and canopy health and density and for carrying out
additional monitoring of riparian vegetation communities;
3. provides for:
i. water quality monitoring of the water discharged by the

Highwall Dams and the Western Clean Water Diversion during
release events. The monitoring data shall include:
• at least one sample (parameters: the parameters listed

in Table 4.9 of the approved March 2019 Water
Management Plan) per release event (subject to access)
from the clean water end of pipe release point;
• at least one sample (parameters: the parameters listed

in Table 4.2 of the approved March 2019 Water
Management Plan) per release event (subject to access)
taken from Back Creek both upstream and downstream
of the clean water dam release points;
ii. this water quality monitoring data to be reported quarterly on

the publicly accessible website for the Mine;
iii. associated trigger indicators for carrying out an investigation

into unexpected surface water quality impacts in Back Creek, to
determine impacts from the Mine;
iv. multi-level monitoring and reporting of shallow soil and rock

moisture content at three locations within the main stream bank
of Back Creek (one for each geological unit traversed by the
creek) for the purpose of providing records for the calibration of
surface water and groundwater management models for the
area and the purpose of estimating and managing the Mine's
surface water and groundwater effects. Each location monitored
should record daily-average soil moisture at 0.5m, 1.5m, 3m and
6m depths;
v. the following:
71
• details of current and any additional stream flow
gauging, and the soil moisture monitoring of Back Creek
described above;
• documentation of the make and model of current and

any additional instruments used to record stream water
levels and the methods applied to post-process and
quality control this information into stream level records;
• documentation of the make and model of proposed soil

moisture probes and the methodology relevant to their
use;
• cross-section surveys of the existing and any proposed

Back Creek surface water level gauging sites; and
• development and reporting of rating curves for the

gauging sites to enable conversion of monitored stream
levels to stream flow.
f) submit an updated biodiversity management plan for approval under the SSD
Consent by 30 June 2022 or a later date agreed in writing by NRAR which
provides for:
i. monitoring at a number of permanent sites proximate to Back Creek

and its tributaries downstream of the Mine (northern and north-west
boundary) to monitor vegetation health in the area likely to be affected
by water management at the Mine;
ii. monitoring at a number of permanent sites in forested areas

proximate to Back Creek and its tributaries upstream of the Mine
(mostly east, but also west of the Mine) to monitor vegetation health in
the area unlikely to be affected by water management at the Mine;
iii. monitoring techniques, trigger points/thresholds and associated

actions relating to the monitoring set out at (i) and (ii).
156 The Defendant agrees to monitoring and reporting of compliance in relation to

the undertaking.
Annual reviews and annual reports
157 Annual review documents for Maules Creek Coal Mine for 2017, 2018 and 2019
were exhibited to Mr Bowlay’s affidavit affirmed 25 June 2020. These were
environmental reviews prepared pursuant to the former s 122B (now s 9.39) of
the Environmental Planning and Assessment Act 1979 (NSW). The Defendant
also provided the 2020 Annual Report, “Half Year Results Presentation”
published 17 February 2021 and the 2021 Annual Report for Whitehaven (of
which the Defendant is a wholly owned subsidiary). In financial year (FY) 2020,
72
Whitehaven recorded net profit after tax of $30,000,000. In FY 2021, it recorded
a net loss after tax of $87,300,000 million. In FY 2020 Whitehaven had net
assets worth $3,249,590,000 and in FY 2021 it had net assets worth
$2,705,738,000. The Defendant further provided two financial tables for the
Defendant in FY 2020 and FY 2021. They show that in FY 2020, Maules Creek
made a net profit of $37,837, had total assets worth $8,758,833 and total
liabilities worth $12,489,632. In FY 2021, the Defendant made a profit of $5,909
and had total net assets worth $9,639,186 and total liabilities worth
$13,364,076. According to the Whitehaven Annual Report Whitehaven owns
and operates through its subsidiaries a number of mines in New South Wales
and Queensland.
Water management plan
158 The SOAF at pars 29-36 sets out detail about the mine’s WMPs. The 2014 and
2019 WMPs were attached to the SOAF at tabs 7 and 8. Relevant aspects of
the WMP 2014 are summarised as follows.
159 Section 2.4 and table 2.3 of the WMP 2014 outlines the requirements of the
WMP in accordance with the project approval, including a Site Water Balance,
a Surface Water Management Plan and a Groundwater Management Plan. The
Surface Water Management Plan begins at section 4.0. Table 2.3’s description
of the Surface Water Management Plan requirements includes requirements
for a detailed description of the water management system on site, including
water storages, clean water diversion systems and mine water management
systems.
160 Section 4.2 of the WMP 2014 is the Water Management Strategy. It broadly
describes the aims of the mine’s water management system.
161 Section 4.3.1 of the WMP 2014 is in relation to a “Proposed Water Management
Infrastructure and System Configuration”, which included as an element of the
operational strategy that the mine water dam be used as the first priority storage
for supply of all mine site demands, excluding the vehicle wash-down demand.
Another element is that runoff accumulated in the high wall structures is
73
pumped or drained to clean water drains and diverted around disturbed areas
through the mine site to Back Creek. Section 4.3.3 of the WMP 2014 outlines
that surface water from areas where water quality is not affected by mining
operations is considered clean water. Runoff from undisturbed catchments will
be diverted to the clean water drainage system and discharged to Back Creek.
162 Table 4.4 of the WMP 2014 presents a brief description of the water
management structures, including mine water dam, the highwall dams (HWDs)
and sediment dams. The mine water dam accepts water from the mine pit and
the coal processing infrastructure area and supplies water management system
demands at the highest priority. The purpose of SD2 and SD3 was to capture
runoff from the operations area.
163 Section 4.5 of the WMP 2014 outlines the surface water monitoring objectives
and planned actions of the mine. Table 4.7 identifies surface water monitoring
objectives and monitoring actions, including in relation to water quality
downstream of the mine and minimising impacts on stream and riparian health
and vegetation. The monitoring proposed to deal with the latter objective was
annual stream and riparian vegetation health assessment comprising macro-
invertebrate monitoring and physical and chemical monitoring of Back Creek.
Section 4.5.1 describes a surface water quality and quantity monitoring plan
which is described as key to the surface water management system. According
to section 4.51, the protocols in section 4.5.1 will ensure compliance with the
mine’s licences and provide valuable information on the performance of the
water management system.
Evidence not read
164 The Prosecutor did not read the following documents served on the Defendant:
(1) the affidavit of Ms Susan Pucci affirmed 20 January 2020;
(2) the affidavit of Ms Jeanette Nestor sworn 9 February 2021;
(3) the affidavit of Mr Bowlay affirmed 19 March 2021;
74
(4) the expert report of Dr Ivars Reinfelds of 29 March 2021;
(5) the affidavit of Mr Glen Hamblin affirmed 13 May 2021;
(6) the affidavit of Mr Richard Laird sworn 3 June 2021;
(7) the affidavit of Mr Ian Norrie affirmed 7 June 2021; and
(8) the “bundle of documents regarding compliance history”.
Purposes of sentencing
165 Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act)
states:
Part 1 Preliminary
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender

are as follows—
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from
committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the
community.
166 The sentence must reflect all the relevant objective circumstances of the
offence and subjective circumstances of a defendant: Veen v The
Queen (1979) 143 CLR 458; [1979] HCA 7 at 490 (Jacobs J) and Veen v The
Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (Veen (No 2)) at 472-473
75
(Mason CJ, Brennan, Dawson and Toohey JJ), 490-491 (Deane J). The
sentence should not exceed what is justified as appropriate or proportionate to
the gravity of the crime considered in light of its objective
circumstances: Veen (No 2) at 472, 485-486, 490-491, 496 and Hoare v The
Queen (1989) 167 CLR 348; [1989] HCA 33 (Hoare) at 354 (Mason CJ, Deane,
Dawson, Toohey and McHugh JJ).
167 The CSP Act (in particular, Pt 3 Div 1) contains provisions relevant to
sentencing procedures. Section 21A of the CSP Act identifies numerous
matters that a court must take into account when sentencing including those in
relation to aggravating (s 21A(2)) and mitigating (s 21A(3)) factors.
Objective seriousness
168 The objective seriousness of an offence is determined by considering the

following factors where relevant: the nature of the offence; the maximum
penalty for the offence; the environmental harm caused by the offence; the
defendant’s state of mind; the defendant’s reasons for committing the offence;
the foreseeability of the risk of harm to the environment; the practical measures
available to the defendant to avoid harm to the environment; and the
defendant’s control over the causes of the harm: Chief Executive of the Office
of Environment and Heritage v Turnbull [2017] NSWLEC 141 at [16]. Some of
these factors overlap with mandatory sentencing considerations under the
heads of s 364A(1) of the WM Act below.
Nature of offence
169 A fundamental consideration for environmental offences is the extent to which

the defendant’s conduct offends against the legislative objectives expressed in
the offence: R v Peel [1971] 1 NSWLR 247 at 262; Garrett v Williams (2006)
160 LGERA 115; [2006] NSWLEC 785 at [89]; Garrett v Freeman (No 5) (2009)
164 LGERA 287; [2009] NSWLEC 1 at [52]; and Director-General, Department
of Environment and Climate Change v Rae (2009) 168 LGERA 121; [2009]
NSWLEC 137 at [15]. The objects of the WM Act in s 3 are extracted above
in [3].
76
170 It is agreed that the Defendant did not hold an access licence entitling it to take
water from Maules Creek Water Source during the charge period. Under s 56
of the WM Act an access licence is required to take water other than for
domestic and stock rights and harvestable rights. Under s 60I(3) of the WM Act
a person who carries out a mining activity is required to hold an access licence
authorising the taking of water. The WM Regulation 2018 and WM Regulation
2011 provide statutory exemptions from the requirement to hold a licence to
take water from a water source under the WM Act, for an excluded work. Those
exemptions did not apply.
171 As the Prosecutor submitted the important role of water sharing plans in
facilitating the provision of water for both the environment and water users is
identified in the affidavit of Mr Baker (in [141]). Water allocations are used to
ensure long term water security based on the availability of water in a water
source as prescribed by a water sharing plan. The vision statement for the WSP
is to “provide for healthy and enhanced water sources and water dependent
ecosystems and for equitable water sharing among users in these water
sources”, including the Maules Creek Water Source (WSP cl 9). Consistent with
the objects of the WM Act, the objectives of the WSP, at the relevant time,
included the following (cl 10):
(a) protect, preserve, maintain and enhance the important river flow
dependent and high priority groundwater dependent ecosystems of
these water sources,
(d) manage these water sources to ensure equitable sharing

between users
172 For each year within the charge period, the estimated share component of the
Maules Creek Water Source was 1,406 units, which translates to 1,406ML.
173 The water management principles are identified in s 5(2) of the WM Act. Apart
from basic landholder rights and some exemptions, it is fundamental to the
statutory scheme that a person can only take water from a water source if the
77
person is the holder of an access licence, or a person undertaking mining must
have an access licence to authorise the take of water.
174 Taking water that is not accounted for by the system under the WM Act
undermines the purpose of the legislation. It circumscribes the ability of the
regulator to deliver a scarce resource equitably and to effectively plan for a
sustainable future. This impacts the environment. It undermines user
confidence and public confidence in the system, at a time when community
concerns already exist about the management of this valuable resource and of
the impacts to water resources from development of the mine.
175 The Defendant submitted that the Prosecutor’s submissions on the nature of
the offence reduce to the proposition that taking water without a licence is a
serious offence. The Defendant does not dispute that taking water without a
licence is an offence. The Prosecutor has not established that any significance
should be given to the fact that the WSP estimates that the share components
of Maules Creek Water Source unregulated river access licences total 1,406
unit shares, or that any significance should be made of comparing the unlawful
take to the total share component of 1,406 unit shares.
176 Contrary to the Defendant’s submissions above I agree with and accept the
Prosecutor’s submissions on the importance of the statutory scheme in the WM
Act to the regulation of water as highly relevant to this offence. That this offence
took place over three years as a result of carrying out a large coal mine project
does significantly undermine the regulatory scheme as the Prosecutor
submitted. Putting the circumstances of the offence in the context of the Maules
Creek Water Source was relevant and did lend force to those submissions.
Maximum penalty
177 The maximum penalty in the charge period was $1.1 million and is relevant to
determining the objective gravity of the offence. The maximum penalty reflects
the public expression by Parliament of the seriousness of the offence:
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32
NSWLR 683 at 698. It also provides a sentencing yardstick for the case before
78
the Court. As the High Court noted in Markarian v The Queen (2005) 228 CLR
357; [2005] HCA 25 at [31]:
It follows that careful attention to maximum penalties will almost always

be required, first because the legislature has legislated for them;
secondly, because they invite comparison between the worst possible
case and the case before the court at the time; and thirdly, because in
that regard they do provide, taken and balanced with all of the other
relevant factors, a yardstick.
Reasons for offence
178 The Prosecutor has not provided any evidence relevant to the intention of the
Defendant in taking water the subject of the charge without an access licence.
It submitted that the water was used in the course of mining operations, citing
pars 52, 54, 62, 68, 70 and 75 of the SOAF. These words do not appear in
those paragraphs. The words that appear is that the water was used “within the
Project Site”. The Prosecutor submitted that it should be inferred that the water
was used for mining operations. As it bears the onus of proof beyond
reasonable doubt for matters adverse to the Defendant, far more than an
asserted inference is needed for it to establish to the necessary standard of
proof that the water was used in mining operations and/or that was intended. In
any case the Prosecutor failed to prove what proportion of water was used in
mining operations and to establish the significance of the mine using the taken
water in its operations.
179 Consideration of the “reasons for the offence” may also encompass the
submission that the offence was for financial gain, an aggravating factor. For
consideration of that issue, see [236] below.
Water Management Act 2000 s 364A(1) considerations
180 Section 364A(1) of the WM Act identifies various considerations to be

considered when sentencing where relevant.
79
Impact of the offence on other persons’ rights under the WM Act, s 364A(1)(a)
181 While the Prosecutor’s written submissions identified that reliance would be
placed on subs (a) ultimately no relevant evidence was read and no reliance
placed on subs (a).
Market value of any water that has been lost, misused or unlawfully taken as a
consequence of the commission of the offence, s 364A(1)(b)
182 The Prosecutor submitted that the water taken had a market value, relying on
the affidavit of Mr Burrell dated 10 August 2021, summarised above in [142],
essentially confirming that there was a water market in NSW. Mr Burrell
identified that the water in the Lower Namoi Regulated Water Source and a
number of nearby groundwater sources had certain values during the charge
period. The Defendant submitted that the evidence did not establish that the
water the subject of the offence had any market value. I agree with the
Defendant.
183 As no attempt was made to tie this evidence to the circumstances giving rise to
the offence subs (b) appears to have no relevance. Evidence of the value of
water in other water sources to which the mine had access does not establish
a market value for water in the Maules Creek Unregulated River Water Source,
in which no trades occurred during the charge period.
Extent of the harm caused or likely to be caused to the environment, s 364A(1)(c)
184 As summarised above the parties’ expert evidence on environmental impact

was extensive with evidence from hydrologists, groundwater hydrogeologists,
terrestrial and aquatic ecologists and plant hydraulics experts/ecohydrologists.
185 The parties’ experts agree that as regards the years of the take, the range of
water taken was as follows:
(a) 2016-2017: 640.6-665ML;
(b) 2017-2018: 171.4-176ML; and
80
(c) 2018-2019: 159ML-188ML.
186 It is apparent that the largest take of water was in the 2016-2017 year.
660ML vs 1,000ML withheld from Back Creek
187 The Prosecutor maintained in closing submissions that in accordance with

Mr Anderson’s interpretation of the WMP (in [20]), environmental harm should
be assessed on the basis that 1,000ML of water would have gone into Back
Creek if not for the offence.
188 The Defendant submitted that Mr Anderson asked the wrong question when
assessing the environmental impact of the offence. He asked what would have
happened if the water had been taken by SD7/MC10 and then dealt with in
accordance with the WMP, when he should have asked what would have
happened if SD7/MC10 did not take water. The Defendant was not charged
with a breach of the WMP or the conditions of project approval. Mr Anderson
accepted that if SD7/MC10 had not taken 340ML of clean water runoff, it would
have flowed down the Southwest Tributary towards the Namoi River. In any
event, the further problem for the Prosecutor is that the WMP did not require
water from SD7/MC10 to be pumped to the north of the site and discharged to
Back Creek. The WMP does not mention SD7/MC10, presumably because it
was intended that they would be decommissioned. SD7/MC10 were not clean
water dams; the proposition that water was to be discharged from SD7/MC10
to Back Creek cannot be correct.
189 The Defendant’s submissions are correct in relation to the scope of the WMP,
namely that SD7/MC10 are not referred to in the WMP unlike the highwall dams
which were part of the clean water runoff diversion system. SD7/MC10 are
located next to the rail line on the southwestern extremity of the mine area and
were not included in the WMP. It follows that no requirement existed for any
water collected in them to be pumped to Back Creek.
190 Accordingly Mr Anderson’s approach of considering that the clean water in

SD7/MC10 was withheld from Back Creek is not correct. The amount of runoff
81
withheld from Back Creek as a result of the offence will be assumed to be
660ML as otherwise agreed by the hydrologists based on Dr Flocard’s report.
191 As I understand the Prosecutor’s final case no separate allegation of

environmental harm arising from the collection of clean water in SD7/MC10 was
made in relation to the Southwest Tributary and the Namoi River.
Timing of take and effect of drought
192 The Prosecutor submitted that the fact that the offence occurred “at the worst
possible time” during a time of drought worsened the extent of harm to the
environment, at least until the drought broke in 2020. The impacts of the
drought are described in the expert evidence, including that it was “the worst,
most prolonged, drought in the area in living memory” (Mr Anderson’s evidence
in [42]), and that the offence occurred at “the worst possible time” (Dr Pfautsch’s
evidence in [86]). The drought meant that even small aquifer recharge would
provide a positive benefit to the water balance of the aquifer. The impacts on
the water storages in the soil, shallow aquifers and deep aquifers were
exacerbated by the drought, when water had increased value to the
environment. Grasses and trees suffered severe distress, as evidenced in
photos from May 2021 which show indicators of former stress. The drought
lasted between 2016 and February 2020. While the observations of water
stress on plants could be from the effects of drought, any harm was potentially
accelerated by the combined effects of the drought and the offending conduct.
193 The Defendant submitted that it is not in dispute that more than 60% of the take
occurred in the 2016-2017 year and the Court can make this finding, to any
requisite standard. The Court can also find that the 2016-2017 year was an
above average rainfall year. The cumulative rainfall deficit for 2016-2018 was
fairly steady overall. Beyond these generalities, the evidence does not permit
the Court to make a finding as to the specific days, or even months, that the
take occurred. The precise times of the takes are important for a number of
reasons. Mr Anderson explained that it is relevant to know whether the take
occurred during a larger rainfall event (in [43]-[45]). Dr Pfautsch explained that
82
the time of the take is relevant to vegetation impacts (in [96]). Each of the three
conceptual models relied on by Dr Growns was subject to the qualification that
“responses will vary with natural discharge patterns and the timing, frequency
and magnitude of extraction” (in [103]). Dr Growns explained that impacts of a
take on aquatic ecology are affected by whether the take affected flow duration
and the creation of water pools (in [102]). However, Dr Growns also explained
that whether water will flow along Back Creek and whether water pools form
depends on the duration and nature of rainfall events (in [102]). Unless one
knows when the take occurred, it is not possible to know whether the take
occurred at a time when the rainfall event had any particular duration or nature.
194 The Court could find that the take would likely have occurred during periods of
rainfall. This is because the charged offence is that “[t]he take occurred by the
capture of rainfall and surface water runoff”. In this respect, the Prosecutor’s
expert Mr Anderson accepted that “impacts of taking water during large rainfall
events are relatively less significant” (in [43]). Mr Anderson also accepted that
if the take had occurred “during [an] above average rainfall period … the offence
would have had minimal harm on [the] riparian ecology of Back Creek relative
to the approved impact” (in [43]). The Defendant submitted that Prosecutor has
not established to the requisite standard that any harm occurred because some
of the take occurred in a drought period.
195 The Prosecutor’s submissions of harm are generalised and not supported by
specific evidence separating the effects of the offence with the effects of the
drought. To do so I can readily accept is difficult. The Prosecutor bears the onus
of proof beyond reasonable doubt of matters adverse to the Defendant. By way
of general comment the Prosecutor’s evidence of actual harm was highly
generalised and did not enable quantification of that harm.
196 The evidence of Mr Anderson and Dr Newton broadly agreed on the percentage
of the overall take which occurred in each three year period, set out above in
[185] which supports the Defendant’s submissions summarised above.
Mr Anderson and Dr Newton also agreed that at least the second half of the
2016/-2017 water year was a year of above average rainfall (see [44], [68]).
83
The majority (more than 60%) of the water take occurred during that year. Since
there is no evidence as to the precise timing of the take, the Prosecutor cannot
prove to the requisite standard that the drought exacerbated actual harm to the
environment as the environmental conditions prevailing at the precise time of
the take are unknown.
197 The evidence of Mr Anderson established that there was a likelihood of harm
to the environment, once again not in a way that can be quantitative. No
criticism is intended by these observations, the expert evidence reflects the
difficulty of determining such matters after an offence has occurred.
Modelling and methodology - hydrologists
198 On the issue of modelling, the Prosecutor submitted in closing that Dr Newton’s
AWBM model is not a model which properly quantifies the impacts of the water
not released by the mine in Back Creek. For the reasons Mr Anderson gave (in
[38]-[41]), Dr Newton’s modelling is fundamentally flawed. The Court should be
satisfied that the conceptual model utilised by Mr Anderson accurately
predicted that the offence caused loss of surface water flows and stream bed
infiltration in Back Creek. Mr Anderson’s conceptual model was demonstrated
to be accurate by the stream flow data from SW09 and SW10 showing
infiltration into the shallow riparian groundwater beneath Back Creek.
199 The Defendant submitted that the AWBM model was used by Dr Flocard and
the original Maules Creek Mine Environmental Impact Statement, Surface
Water Impact Assessment (WRM, 2011), which Mr Anderson relied upon.
Furthermore, Mr Anderson did not do any quantitative modelling of his own. He
could not quantify the effect of the offence. His evidence is at the very highest
level of generality. Mr Anderson also accepted that there were some
advantages to using the AWBM model (see [53]). There is only one
computational model being used and it is Dr Newton’s AWBM. If the model is
problematic, this does not assist the Prosecutor; there will simply be no
quantification at all in the proceedings. The issue is a red herring.
84
200 While the evidence is that the AWBM modelling has limitations, it is the only
modelling in evidence and was used by both parties’ experts to consider the
impact of the offence. Even if I found, which I do not, that the modelling was so
seriously flawed as to be of limited value in these proceedings, this would have
the effect of undermining Mr Anderson’s evidence given his reliance on AWBM
modelling done by others.
201 I do not consider this criticism fundamentally undermines Dr Newton’s

evidence.
Surface water including water course, stream pools, soil, local groundwater
202 The Prosecutor submitted that the offence directly impacted the hydrological
processes of Back Creek, including its stream flow; flow through stream pools;
soils, stream beds and sediments; and shallow groundwater systems. The most
significant water impacts of the offence, and the ensuing likely environmental
harm, likely extended up to 9.8km (+-30%) downstream of the mine including
the soils, sediments and rocks 20-40m horizontally of Back Creek and within
6m of the ground surface i.e. the riparian zone of Back Creek (Mr Anderson in
[29]). The offence reduced the water infiltrating into the stream bed and bank
sediments, reduced soil moisture, leading to less evapotranspiration by riparian
vegetation and faster soil moisture depletion, reduced any stream pools that
may otherwise have formed, and reduced evaporative cooling. Were it not for
the offence, replenishment of riparian soil moisture and groundwater would
have otherwise occurred on approximately 13 occasions during the relevant
period, with the immediate impacts on root zone soil moisture lasting up to 1-2
months after each runoff event that was impacted, and the cumulative impacts
on root zone soil moisture potentially lasting for the duration of the relevant
period, especially during drought periods. Had the offence not occurred there
would have been a material increase in soil moisture and riparian groundwater:
see Mr Anderson in [28]. These impacts are explained in Mr Anderson’s
evidence in [22]-[34].
85
203 The Defendant submitted that the offence did not have a significant hydrological
effect on Back Creek. Any change in volume was much less than the range of
annual variability due to climatic variation. The capture would not have changed
the frequency of flow. Back Creek is an ephemeral stream. The volume of water
taken may have been minor in comparison to that already present in Back
Creek and therefore the impacts may have been minor (Dr Growns in [105]).
Mr Anderson’s evidence was that any significant impacts could extend as far
as 9.8km downstream but could also have extended as little as 70% of that
distance (6.86km). This estimate was based on the incorrect assumption that
1,000ML was deprived from Back Creek. The Court cannot find to the requisite
standard that the data from SW09 and SW10 (see [62]) was reliable.
Mr Anderson relied on the stream level monitoring data in his assessment of
the hydrological impacts (see [31]). Mr Anderson also admitted he has limited
experience with ephemeral stream monitors.
204 The Prosecutor’s submissions assumed that 1,000ML of clean water was
withheld from Back Creek and that it was during a drought period. For the
reasons given above those assumptions are not accepted. I find that the
offence reduced the amount of surface runoff to Back Creek reducing water
that would have otherwise replenished Back Creek’s soils, stream bed and
bank sediments, stream pools and local groundwater systems. I cannot make
an exact finding in relation to the spatial extent or duration of the harm because
Mr Anderson assumed that 1,000ML would have flowed into Back Creek if not
for the offence; relied on the stream level monitoring data which may not be
reliable; and there is a lack of evidence on the precise timing of the offence.
The reduction in water was small relative to the annual climatic variation of Back
Creek and relative to the amount of water likely to have already been flowing in
Back Creek during rainfall events. Since the Prosecutor’s evidence proves only
an unquantifiable degree of harm to Back Creek surface water, I cannot find
beyond reasonable doubt that the offence had significant hydrological effects
on Back Creek surface water.
86
Deeper groundwater
205 The Prosecutor submitted that the evidence demonstrates that the offence
caused reduced deep drainage to aquifers below the watercourse, noting that
while the amount that would have reached the aquifers was much less than the
volume of water taken overall, in cases where the aquifer is under pressure
even small amounts of recharge are important (see [35]).
206 The Defendant submitted that the Court cannot make a finding beyond
reasonable doubt as to the proportion of the take that would have become
groundwater (see Mr Tomlin in [75]). A considerable amount of groundwater
allocation was available and unused in each relevant year (see Mr Tomlin in
[78]-[79]). Mr Anderson conceded that the offence was beneficial to
groundwater in the area overall (see Mr Anderson in [46]). Even if there was
some impact, Mr Anderson maintained it was too small to measure or likely
indiscernible anywhere except directly below Back Creek where no
piezometers had been installed (see in [36]).
207 Whether or not the stream flow data provided by SW09 and SW10 is reliable,
which was the subject of some debate between the experts, the Court does not
have evidence to support a finding to the requisite standard as to the proportion
of surface water runoff that would have become groundwater recharge. Given
the Prosecutor’s own expert identified the groundwater impacts of the offence
as immeasurable or likely indiscernible, opined that very little water would drain
to the deep aquifers, and expressed the view that the offence likely benefitted
groundwater levels in the area, the Prosecutor has not made out a case of
actual or likely harm to groundwater to the requisite standard. I agree with the
Defendant’s submissions as these are borne out by the evidence.
Vegetation
208 The Prosecutor submitted that the evidence from Dr Pfautsch establishes that
the offence highly likely contributed to water stress, reduced ecosystem
functioning and increased plant mortality in vegetation proximate to the mine.
While the Prosecutor originally submitted that the offence caused actual harm
87
to riparian vegetation, this was not ultimately pressed. The actual impact cannot
be determined. Severe drought stress on vegetation is nevertheless
established. The impact would be most pronounced on species that solely rely
on moisture in the upper soil layers (0-30 cm), such as grasses, shrubs and
young trees. There is also evidence of impacts to well-established trees. The
harm to plants is evidenced by contemporaneous photographs of vegetation
taken along Back Creek in 2018 and 2019. Photographs from 2021 show
evidence of former stress. While the observations of water stress described
above could be from the effects of drought, any harm was potentially
accelerated by the combined effects of the drought and the offending conduct
(see Dr Pfautsch in [86]). The harms likely to occur to plants include those
described by Dr Pfautsch in [84]-[86].
209 In relation to the Cumberland Ecology Monitoring used by Dr Hancock as

evidence of the absence of environmental harm to vegetation (see [91], [117],
[125], [129]), the Prosecutor submitted that the monitoring data was of limited
utility based on Dr Pfautsch’s evidence in [91]-[95].
210 The Defendant noted that the Prosecutor alleges likely harm to vegetation, not
actual. Dr Pfautsch conceded that the actual and direct impacts cannot be
determined (in [87]). The Prosecutor conceded that any effects were temporary.
Dr Pfautsch’s evidence does not demonstrate to the requisite standard even
likely harm to vegetation. Dr Pfautsch did not find any harm at sites 1-6, 8 and
14 (in [84]). He found impacts at site 9, but this was a control site; if harm is
found at a control site, that suggests the cause was not the offence. Further,
site 9 was not located on Back Creek. Dr Pfautsch found harm at Site 7, but the
Court cannot find that Site 7 was impacted by the offence because on the
available evidence it cannot find Site 7 was downstream of the water storages
in issue (see [94]). In any case, Dr Pfautsch accepted that the vegetation at Site
7 had a high capacity to recover (in [88]). Dr Pfautsch emphasised that the
primary cause was drought, with the take being a likely cumulative impact (see
[84]). The Prosecutor also conceded in closing submissions that there was no
case of harm to vegetation that relied on deeper groundwater.
88
211 In relation to the Cumberland Ecology Monitoring, the Defendant submitted that
it is the only monitoring data before the Court. The Prosecutor had no
alternative contemporaneous data and only Dr Hancock undertook a site
inspection to view the site after the offence.
212 The Defendant’s submissions are correct. Dr Pfautsch’s evidence is simply

unable to prove likely harm to vegetation to the requisite standard as a result of
the offence. This makes it unnecessary to make findings about the Cumberland
Ecology Monitoring.
Aquatic ecology
213 While the Prosecutor originally submitted that the offence caused actual harm
to aquatic ecology, this was not ultimately pressed. Relying on the evidence of
Dr Growns, the Prosecutor submitted that the take would have likely reduced
the water forming flowing and still water habitats in Back Creek, reducing the
ability for biota to breathe, feed and breed (in [104]). Invertebrate taxa with rapid
lifecycles would likely have been affected, and these provide food for other
terrestrial invertebrates. Reduced water would likely have adversely impacted
the range of taxa identified by Dr Growns in his report. The likely harm caused
to the riparian environment of Back Creek would have been significant. The
evidence of Mr Ward shows Back Creek is classified as highly sensitive key fish
habitat under the Policy (see [135]). This was because Back Creek was
identified as an expected habitat for the Southern Purple Spotted Gudgeon, an
endangered species.
214 The Defendant submitted that the Prosecutor did not run a case of actual harm
to aquatic ecology in Back Creek, only likely harm. Dr Growns accepted that
“without …a statistical analysis, it was impossible to judge whether any change
occurred as a result of the offence”. He did no such analysis (in [108], [113]).
At most there were minor shortterm impacts. There is evidence of increased
taxonomic richness since the charge period (in [123]). The riparian zone shows
no identifiable impact (in [124]). The ecology is highly adaptable to a range of
flows (in [122]). The take would have occurred during rainfall events meaning
89
Back Creek was already flowing, reducing the impact of the offence (in [126]).
Any impacts were likely to have been short-term and may have been minor
according to the Prosecutor’s witness (in [105]).
215 Dr Growns conceded that Back Creek was unlikely to support continuing fish
populations (in [111]). The Prosecutor did not establish to the requisite standard
that there is Southern Purple Spotted Gudgeon habitat in Back Creek, given
the only evidence the Court has on which to base such an assessment is an
indicative map with confidence levels as low as 33% (in [139]). Back Creek is
not in any of the catchments in which the Southern Purple Spotted Gudgeon
has been found (see [140]). No field assessment indicating the existence of the
Southern Purple Spotted Gudgeon has occurred (see [138]). Dr Hancock made
observations during his site visit to Back Creek which suggested to him that it
was unlikely to host habitat for Southern Purple Spotted Gudgeon (in [130]).
216 I accept that the reduction of water in Back Creek would likely have caused
some harm to the aquatic ecology of Back Creek, in particular to certain
invertebrate taxa. Most notably, some rapid life cycle invertebrate species were
likely affected by the absence of stream pools that otherwise would have been
present in Back Creek. The experts effectively agreed that the evidence can
only sustain at most minor, short-term likely impacts.
217 I agree with the Prosecutor that merely because Dr Hancock found on his site
visit that Back Creek did not have the rocks or snags of sufficient size to fit
within one bullet point of Table 1 of the Policy, does not mean Back Creek
cannot be Type 1 highly sensitive key fish habitat under the bullet point “any
known or expected protected or threatened species habitat …” Back Creek may
correctly be classified as Type 1 highly sensitive key fish habitat under the
Policy, contrary to Dr Hancock, given the indicative range of the Southern
Purple Spotted Gudgeon in the document Threatened Fish Species NSW.
However, given the very low confidence levels (potentially as low as 33%)
attached to the indicative distribution map in that document, and the absence
of any surveys or sightings of the Southern Purple Spotted Gudgeon near the
90
vicinity of the mine, I cannot find to the requisite standard that there was likely
to be Southern Purple Spotted Gudgeon in Back Creek when flowing.
Practical measures that may be taken to prevent, control, abate or mitigate harm,
s 364A(1)(d)
218 The Prosecutor submitted that there were three practical measures the
Defendant could have taken to prevent the risk of harm. The first was not to
take surface water without a licence. The second was to operate the mine’s
water management system in accordance with the WMP by diverting water from
the highwall dams back to the environment and not capturing clean water in
sediment dams or the mine pit. The third was to comply with the mine’s
obligations attached to the project approval to include within a Surface Water
Management Plan a range of performance criteria, monitoring and reporting
procedures, and further plans to respond to exceedances of the performance
criteria.
219 The Prosecutor was not arguing that the alleged breaches of the WMP 2014
aggravated the offence per se, but that compliance with the WMP 2014 would
have enabled practical measures to prevent, control, abate or mitigate
environmental harm.
220 The Defendant submitted that s 364A(1)(d) refers to the “harm” referenced in
364A(1)(c). That “harm” is the actual or likely harm in fact caused by the
offence. The evidence does not establish that any actual harm was caused by
the offence. To the extent that the evidence establishes likely harm, the
Defendant accepted that there were practical measures it could have taken to
prevent the harm arising from the offences.
221 In relation to the alleged breaches of the WMP 2014, the Defendant submitted
that it was not notified that the Prosecutor would make submissions to the effect
that there had been non-compliance with the WMP 2014 and therefore did not
tender evidence in response. There was no particularisation of such claims.
There was no evidence that the Secretary of the Department of Planning,
Industry and Environment, or its predecessor the Department of Planning and
91
Environment (the Department) considered the WMP 2014 to have been
breached. Relying on Mr Anderson’s evidence in submitting that the mine
should have put other precautionary measures in place because the WMP 2014
was inadequate does not go to the issue of non-compliance with the WMP
2014. In any case a finding that the mine breached the WMP 2014 does not
assist the Court because the offence charged was not a breach of the WMP
2014 but taking water without a licence.
222 For the reasons given by the Defendant, the allegation that it failed to comply
with the WMP 2014 falls outside the offence, was not apparently particularised
before the Prosecutor’s written submissions and I accept the Defendant was
unaware that the issue was to be raised. No evidence has been provided by
the Prosecutor that the relevant regulator, the Secretary of the Department,
considered there was an issue of non-compliance with the WMP 2014.
Nevertheless given that the activities carried out at the mine site were
completely in the Defendant’s control including ensuring that its activities did
not result in the unlawful taking of water I find that there were practical
measures which the Defendant could have taken to prevent the offence
regardless of whether the Prosecutor could raise breaches of the WMP.
Extent to which harm could have been reasonably foreseen, s 364A(1)(e)
223 The Prosecutor submitted that the Defendant could reasonably have foreseen
the harm that was actually caused or was likely to be caused to the environment
by the taking of clean water without an access licence. The nature, extent and
location of the dams, and the failure to divert clean water from undisturbed
catchments away from the mine and back into the environment, made
environmental harm inevitable. The project approval was conditioned on the
mine’s compliance with its WMP. The Court should find that the mine ought
reasonably to have known that the take of water unaccounted for under the
mine’s licences was a matter of great significance to the surrounding
environment and should have foreseen the risk of harm from failing to ensure
that the clean water diversions actually occurred. The Prosecutor originally
submitted that the Defendant had actual knowledge in respect of the offence
92
but did not press that submission in the course of the hearing. That is
appropriate as no evidential basis exists for actual knowledge of harm.
224 The Defendant submitted that foreseeability either that the matter was of great
significance to the environment or that there was a risk of harm is not relevant
to s 364A(1)(e). The question posed by s 364A(1)(e) is whether the actual harm
or likely harm caused by the offence (that is, the particular harm) was
reasonably foreseeable. The Prosecutor makes no case on this topic, as it
could not specify actual harm and the Prosecutor’s submissions do not deal
with harm foreseeable from the offence.
225 I agree with the Prosecutor’s submissions that the actual harm to the limited
extent any was able to be proved to surface water and the potential for harm to
vegetation was foreseeable by the Defendant, whose submissions are hard to
follow.
Control over causes that gave rise to the offence, s 364A(1)(f)
226 There is no dispute that the Defendant had control of the causes that gave rise
to the offence.
Whether the offence was committed during a severe water shortage or an extreme
event, s 364A(1)(g)
227 No specific reliance was placed on s 364A(1)(g) by the Prosecutor although

submissions were made about the drought conditions during much of the
charge period of three years.
Intentions in committing the offence, s 364A(1)(h)
228 No evidence relevant to s 364A(1)(h) was adduced by the Prosecutor.
Complying with orders, s 364A(1)(i)
229 Section 364A(1)(i) is not relevant.
93
Water released for environmental purposes, s 364A(1)(j)
230 Section 364A(1)(j) is not relevant.
Any civil penalty that has been imposed, s 364A(1)(k)
231 Section 364A(1)(k) is not relevant.
Other matters the court may consider relevant
232 The Prosecutor submitted that the fact that the offence occurred during a period
of drought is relevant to the objective seriousness of the offence (see [192]) as
another matter the Court may consider relevant. As the Defendant submitted
whether the area around the mine was subject to drought in the charge period
has been considered already in relation to the extent of impact of the harm and
cannot be “double counted”. As already noted no mention was made of
s 364A(1)(g) by the Prosecutor.
No aggravating factors proved
Financial gain, s 21A(2)(o) not established
233 Financial gain is an aggravating factor under s 21A(2)(o) of the CSP Act that
must be proved beyond reasonable doubt. Financial gain includes costs not
incurred: Environment Protection Authority v Custom Chemicals Pty Ltd [2016]
NSWLEC 146 at [86].
234 The Prosecutor alleged the offence was carried out for financial gain. It
submitted that had the mine not taken the water the subject of the offence, it
would have needed to purchase additional water entitlements from the Lower
Namoi Regulated Water Source or nearby groundwater sources. According to
evidence from Mr Burrell (see [142]), the cost of water from the Lower Namoi
Regulated Water Source was between $141-$391/ML during the charge period.
The prices for groundwater from the sources to which the mine had access
ranged between $37-$214/ML during the charge period. Moreover, relying on
the affidavit of Mr Keough (see [143]), Aston No 2 (one of the joint venturers of
the mine) undertook two temporary water trades under s 71T of the WM Act in
94
June 2017 and April 2018. This earned Aston No 2 a total of $285,750. Aston
No 2 could engage in water trading because the mine unlawfully took water
from Maules Creek Water Source.
235 The Defendant submitted that it cannot be contended that the offence was
committed for financial gain. The Prosecutor does not assert any state of mind.
The Prosecutor contended that had the mine accessed water from another
water source, it would have had to pay for it. There is no basis for this inference.
The logical steps supporting this inference have not been articulated. The
evidence is in fact that the mine had available to it substantial water
entitlements during the charge period which it did not access (see the annual
reviews above in [157]). Mr Keogh’s evidence of water trades by some other
person, Aston No 2, does not establish financial gain by the Defendant. Nor is
any connection drawn by the Prosecutor between the offence and those trades.
236 As the Defendant submitted no attempt was made to tie the water trades made
by Aston No 2 to the offence. The Prosecutor’s submission was simply made
that because the Defendant captured water these trades could occur. No
factual basis had been established to support that submission. No aggravating
circumstance under s 21A(2)(o) has been established.
Finding on objective seriousness
237 The Prosecutor submitted that the offending conduct in this case was of
medium-high objective seriousness, involving the take (for three consecutive
years) of a substantial share of water which was available in each year to be
taken from the Maules Creek Water Source without an access licence. It
thereby offended against the objects of the WM Act, the water management
principles, the vision of the WSP and the statutory provision creating the offence
being s 60A(2) of the WM Act, undermining the regulatory scheme. This
increases the objective seriousness of the offence: Grant Barnes, Chief
Regulatory Officer, Natural Resources Access Regulator v O’Haire [2020]
NSWLEC 158 at [33] (Pepper J) (O’Haire).
95
238 The Defendant disputed this, submitting that the offence was of low, and
certainly no more than moderate seriousness.
239 The Defendant is a large company undertaking a sophisticated mining

operation in the course of which it failed to comply with its obligations under the
WM Act resulting in this offence. The Defendant is a wholly owned subsidiary
of Whitehaven, a very large company which operates directly or through its
subsidiaries a number of coal mines in Australia. The offence took place over
three years, clean water was withheld from the environment of Back Creek in
two years of severe drought and there is no evidence that the Defendant
identified its own failures on its site. The Prosecutor had to reduce its claims of
actual environmental harm in the course of the hearing including reducing the
geographic area affected and the amount of water withheld to 660ML withheld
from about 9.8km of Back Creek downstream of the mine. This reflected the
difficulty of establishing actual harm beyond reasonable doubt in light of the
nature of the environment and the offence. The Prosecutor ultimately alleged
and I accepted that there was undefined actual harm to surface water flows,
and likelihood of harm being caused to vegetation around Back Creek and to
its aquatic ecology as a result of the offence. The Defendant’s failure to comply
with the statutory scheme aimed at the management of water resources
undermines that scheme in a substantial way. I consider the objective
seriousness of this offence is at the low end of the medium range.
Mitigating factors
240 Mitigating circumstances that can be taken into account in sentencing include
those in s 21A(3) of the CSP Act where relevant.
Early plea of guilty, ss 21A(3)(k), 22
241 An early plea of guilty is a mitigating circumstance (ss 21A(3)(k), 22 of the CSP
Act). In respect of this offence, the application of the full discount of 25% for the
utilitarian value of an early plea of guilty as stated in R v Thomson; R v
Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] is warranted.
The Defendant pleaded guilty on the day the Amended Summons was filed.
96
The utilitarian value of a plea is generally intended to reward an early plea which
saves a prosecutor and a court expenditure of time and money in case
preparation and management.
Assistance to authorities, s 21A(3)(m)
242 It is an agreed fact (SOAF par 79) that the Defendant co-operated with the
Prosecutor.
Remorse, s 21A(3)(i)
243 The Defendant submitted, relying on Mr Humphris’ evidence, that the

Defendant is remorseful (in [152]-[153]). The Defendant has entered voluntarily
into an enforceable undertaking (in [155] above) which has been accepted by
the Prosecutor as delegate for the relevant Minister. The detail and
onerousness of the undertaking is part of the punishment and should operate
to reduce the penalty.
244 The Prosecutor submitted that the Defendant had failed to take measures
promptly to avoid further harm since the offence and its remorse is qualified at
best. The Prosecutor referred to the first and third methods of showing contrition
and remorse identified by Preston CJ in Environment Protection Authority v
Waste Recycling and Processing Corporation (2006) 148 LGERA 299; [2006]
NSWLEC 419 at [203]-[214]:
First, the speed and efficiency of action to rectify any harm caused or likely to
continue to be caused by the commission of the offence is the clearest
indication of contrition and remorse. Where it occurs it justifies a reduction in
the sentence…
Thirdly, the taking of action to address the causes of the offence, such as
designing and installing improved pollution prevention and control systems,
also indicates a genuine desire to act responsibly….
245 The Defendant’s conduct does not meet the standards identified by Preston CJ
because there are no HWD storages within the project boundary and the HWDs
and infrastructure promised by the Defendant are not due to be completed until
2022 according to Mr Morgan (see [150]). The clean water diversion system to
97
return water to Back Creek was not operational at the time of written
submissions (28 July 2021). SD7 has not been decommissioned.
246 The Defendant submitted in reply that it should not be criticised for its failure to
construct works (e.g. highwall dams) in accordance with the enforceable
undertaking (in [155] above):
(1) There is no basis for a contention that the Defendant has not acted
“rapidly” to address the harm, contrary to the Prosecutor’s closing
submissions. No such contention has been notified to the Defendant,
and it has not been addressed in lay evidence. In fact, the Defendant
first suggested an enforceable undertaking to the Prosecutor on
5 November 2019 (I note there is no evidence of this date as Mr
Morgan’s evidence refers to March 2021, at [148]) and the Defendant
has offered multiple draft enforceable undertakings since. The
Prosecutor has not addressed these matters in evidence.
(2) The Prosecutor and the Defendant have been in negotiations about an
enforceable undertaking for some time (see [148]).
(3) It is reasonable for the Defendant not to construct a new system unless
and until there is an enforceable undertaking in place identifying what
new system should be constructed.
(4) It is not apparent how the Prosecutor could contend that the Defendant
should have started constructing a new eastern HWD system in
circumstances where the Prosecutor was negotiating with the Defendant
about what that new HWD system should look like.
(5) Mr Morgan has explained the difficulties in constructing a new eastern

HWD system (in [150]). The Prosecutor has not impugned Mr Morgan’s
evidence.
98
(6) The Defendant has already constructed its new western clean water
diversion system (and did so in December 2020), see above in [150].
247 I accept the Defendant’s evidence attesting to its actions in negotiating the
enforceable undertaking and will take that into account in relation to remorse
as being actions which address the causes of the offence. I observe however
that the Defendant’s costs of doing so are essentially the costs of carrying out
its business for profit and I do not take into account the amount necessarily
being spent to build those systems of approximately $6,000,000 attested to by
Mr Morgan as relevant to sentencing.
Good character, s 21(3)(f)
248 The Defendant submits that it is of good character, relying on Mr Humphris’

evidence (see [154]).
249 The Prosecutor submitted that the evidence of good character is primarily in
respect of the parent company of the Defendant, not the Defendant. This
evidence cannot be used to draw conclusions about the character of the
Defendant: Stephen James Orr v Narrabri Coal Operations Pty Ltd; Stephen
James Orr v Narrabri Coal Pty Ltd [2021] NSWLEC 85 (Narrabri Coal) at [219]
(Pepper J).
250 While some of Mr Humphris’ evidence on good character relates to the activities
of the corporate parent of the Defendant, some of it relates directly to the
Defendant, for example its discretionary financial contributions to community
initiatives, its employment practices in relation to Aboriginal and Torres Strait
Islander peoples and local residents, its investment in local skills and lack of
prior convictions. Narrabri Coal is not on all fours with this case. I accept the
Defendant’s evidence on good character.
99
Publication order
251 The Defendant has agreed to the making of a publication order and its contents.
This will be imposed as provided for by s 353G(1)(a) of the WM Act. The parties
have agreed the text of such an order.
Offence could have been prosecuted in the Local Court
252 The Defendant submitted that the fact that the offence could have been
prosecuted in the Local Court with a lower jurisdictional maximum penalty is a
matter that can be taken into account in favour of the Defendant: Harris v
Harrison (2014) 86 NSWLR 422; [2014] NSWCCA 84 at [92] (Simpson J, Hall
and Schmidt JJ agreeing); O’Haire at [185] (Pepper J). The Prosecutor
responded that the offence was most appropriately heard in this Court given
the complexity of the issues.
253 As observed in Chief Executive, Office of Environment and Heritage v Parrish

and Son Pty Ltd [2020] NSWLEC 47 at [127]-[133] (Moore J), when all
prosecutions of the statutory provisions engaged can be brought summarily
before the Local Court, that fact cannot operate universally in mitigation. It is
necessary to identify factors which suggest that the Prosecutor might have
appropriately brought proceedings in the Local Court rather than this Court.
Given the complexity of this matter it was appropriately prosecuted in the Court
in my view.
Sentencing principles
Deterrence, general and specific
254 I considered the meaning of deterrence, general and specific in Environment

Protection Authority v Sam Abbas (also known as Osama Abbas) [2021]
NSWLEC 57 at [104]-[106] as follows:
104 General deterrence is an important aspect of sentencing in environmental

crime. As held by Preston CJ in Bentley v BGP Properties Pty Limited (2006)
145 LGERA 234; [2006] NSWLEC 34 at [139]-[140]:
100
The sentence must serve the purpose of general or public deterrence.
It is the duty of the Court to see that the sentence which is imposed will
operate as a powerful factor in preventing the commission of similar
crimes by those who might otherwise be tempted by the prospect that
only light punishment will be imposed: R v Rushby [1977] 1 NSWLR
594 at 597-598.
This factor is particularly relevant to environmental offences. Persons

will not be deterred from committing environmental offences by nominal
fines: Environment Protection Authority v Capdate Pty Limited (1993)
78 LGERA 349 at 354 and Director-General, National Parks and
Wildlife v Wilkinson [2002] NSWLEC 171 (27 September 2002) at [85]
and [93] per Lloyd J.
105 Specific or personal deterrence is applicable where an offender has a

prior criminal record which manifests a continuing attitude of disobedience,
such that more weight should be given to retribution, personal deterrence or
protection of the community: Veen (No 2) at 477; R v Abboud [2005] NSWCCA
251 at [33]; R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at
[54].
106 Specific deterrence has particular relevance where an offender continues

to operate in the same area of operation in which the offence occurred:
Environment Protection Authority v Ardent Leisure Ltd (ACN 104 529 106)
[2018] NSWLEC 36 at [135] per Robson J citing Preston CJ in Environment
Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 at
[48].
255 Given the importance of the regulatory system of water under the WM Act
general deterrence is an important consideration in this case. The Prosecutor
did not contend that there was any need for specific deterrence in this case.
Denunciation and retribution
256 Section 3A(a), (e) and (f) of the CSP Act sets out retribution and denunciation
as part of the purposes of sentencing and the Court needs to take them into
account. This consideration applies equally to strict liability offences. As Kirby J
explained in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 (Ryan) at
[118]:
A fundamental purpose of the criminal law, and of the sentencing of convicted

offenders, is to denounce publicly the unlawful conduct of an offender. This
objective requires that a sentence should also communicate society’s
condemnation of the particular offender’s conduct. The sentence represents “a
symbolic, collective statement that the offender’s conduct should be punished
for encroaching on our society’s basic code of values as enshrined within our
substantive criminal law”.
101
257 McHugh J elucidated the purpose of achieving retribution in Ryan at [46] as
follows:
the existing principles require many sentences to be retributive in nature, a

notion that reflects the community's expectation that the offender will suffer
punishment and that particular offences will merit severe punishment. The
“persistently punitive” attitude of the community towards criminals means that
public confidence in the courts to do justice would be likely to be lost if courts
ignored the retributive aspect of punishment.
258 These considerations loom large in this matter.
Even-handedness/parity
259 The principle of even-handedness requires that the Court consider if there is
any sentencing pattern for like offences in order to determine a consistent
approach to penalty: R v Visconti [1982] 2 NSWLR 104 at 107 (Street CJ, Lee
and Maxwell JJ agreeing). The principle of even-handedness in sentencing so
that like offences receive like sentences is recognised, but each case must be
determined on its own facts: Hili v The Queen; Jones v The Queen (2010) 242
CLR 520; [2010] HCA 45 at [42]. A history of sentencing in other cases does
not limit my sentencing discretion.
260 The Defendant submitted that O’Haire was comparable. The total penalty in
that case for eight offences was $131,250. The circumstances in O’Haire
included the following:
(a) There were eight charges: [2]. (In contrast, here, there is one
charge).
(b) The relevant offence was that prescribed in s 60C(2) of the

WM Act: [1].
(c) The total unlawful take between 12 April 2016 and 4 March 2019
was approximately 1,378ML: see [2] and [112]. (In contrast, here,
the take is 1,000ML).
102
(d) The water was river water taken via a pump from the Murray River
(Murray Regulated River Water Source) and had market value:
[3], [55] and [121]. (In contrast, here, the water was runoff taken
from an unregulated surface water source and is not established
to have had market value).
(e) Mr O’Haire’s conduct was deliberate: see [137]. He committed the

offences intentionally: [145]. (In contrast, here, there is no
contention that the conduct was intentional).
(f) Mr O’Haire committed the offences to save or defer the incurring

of an expense: [145]. He committed the offences for financial
gain: [147]. (In contrast, here, there is no basis for a contention
that the offences were committed for financial gain).
(g) The Court concluded that in these circumstances the offences

were in the “moderate” range of objective seriousness: [151].
(h) Mr O’Haire was assessed as being at moderate risk of re-

offending: [178]. (In contrast, here, there is no contention that
there is any risk of re-offending).
(i) Mr O’Haire displayed “no regret or remorse whatsoever for his

offending”, had not “demonstrated any insight into his offending
behaviour” and he continued “to implicate the NRAR in his
culpability”: [184]. (In contrast, here, the Defendant has displayed
remorse, and has taken positive steps).
(j) There was a need for specific deterrence: [191]. (In contrast, here,
the Prosecutor does not rely on specific deterrence).
(k) There was no enforceable undertaking (in contrast to the present

case).
103
261 The Defendant argued that the present case is much more favourable to the
Defendant than O’Haire, where approximately 9.4% of the maximum penalty
was considered appropriate before substantial discounts were applied.
262 The Prosecutor submitted that O’Haire was not comparable. Mr O’Haire had a
water access licence for the relevant water source, whereas the Defendant did
not. Mr O’Haire always intended to pay for the water he was taking when the
funds became available. The maximum penalty in O’Haire was less than the
maximum in this case, being $247,500 for charges one to seven and $500,500
for the eighth charge. The Prosecutor in that case conceded that no actual harm
was caused by the offence. Mr O’Haire was a hobby farmer with different
financial circumstances to the Defendant. The Court took into account the
substantial extra-curial punishment he received from negative newspaper
coverage in his small country town. I agree with the Prosecutor’s submissions
and do not consider O’Haire provides any useful comparison to this case.
Legal costs
263 The parties agreed that the payment of the Prosecutor’s costs is “viewed as an
aspect of punishment and should be considered in the determination of the
appropriate penalty as a factor that acts to reduce the penalty”: Director-
general, Department of Environment and Climate Change v Hudson (No 2)
[2015] NSWLEC 110.
264 The Prosecutor seeks legal costs in the amount of $688,075.80 pursuant to
s 257B of the Criminal Procedure Act 1986 (NSW) (CP Act) being for costs
incurred up to the date of entry of the plea on 9 April 2021 including costs
incurred in relation to drafting the summons, collecting evidence necessary for
commencement of proceedings and provision of the s 247E notice of
prosecution case, and preparation for the sentencing hearing. This figure was
revised down from $739,265.38 following correspondence between the parties
after the hearing. The Prosecutor stated it had removed costs related to other
proceedings.
104
265 The Defendant accepts that it should pay some of the Prosecutor’s costs. The
order it seeks is:
Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the Defendant
is to pay 50% of the Prosecutor’s costs of the proceedings as agreed or
assessed, such costs to exclude the costs of the Summons filed on 29 June
2020 in these proceedings and the costs in proceedings 2020/192788,
2020/192789, 2020/192790 and 2020/192791.
Prosecutor’s submissions
266 The Prosecutor submitted that ordinarily when a court convicts and sentences
an accused person for an offence it is appropriate for the court to order the
accused person to pay the costs of the prosecutor: Council of the City of Sydney
v Trico Constructions Pty Ltd [2015] NSWLEC 56 at [143] (Preston CJ). Costs
orders are compensatory: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA
59 at 534. The Court has the discretion not to award costs or all costs. None of
the examples of grounds for not awarding all costs provided in Environment
Protection Authority v Hanna (2018) 235 LGERA 114; [2018] NSWLEC 80
(Hanna) at [281] arise in this case. Those grounds include that the prosecutor
did not succeed in proving certain charges, did not succeed in proving
aggravating factors on sentencing, or there was disentitling conduct leading up
to, bringing or prosecuting the proceedings. No disentitling conduct was alleged
by the Defendant in written closing submissions.
267 In Morrison v Defence Maritime Services (2007) 156 LGERA 365; [2007]
NSWLEC 552 (Morrison), Biscoe J reviewed the civil authorities on
apportionment of costs, holding at [18] that the principles established in those
cases are the same in criminal proceedings. His Honour held at [17] that where
the prosecutor succeeds on only a portion of its case, “the circumstances may
make it reasonable that it bears the expense of litigating that portion upon which
it has failed”. That is “where the prosecutor has failed on a dominant or
separable and sustainable issue”: Morrison at [17]. His Honour held that when
considering apportionment of costs in civil litigation “a balance has to be
maintained between not discouraging litigants from canvassing all material
issues and not rewarding them for unreasonable conduct in the pursuit of
issues. That balance is even more important in a criminal case where a
105
prosecutor has a public duty to put all material issues before the Court”:
Morrison at [20]. See also Newcastle City Council v Pace Farm Egg Products
Pty Ltd (No 3) [2005] NSWLEC 423 (Pace Farm Egg).
268 The circumstances of this case are quite different to Morrison and Pace Farm
Egg. There is no disentitling conduct on the part of the Prosecutor.
269 The question of the extent of the harm caused or likely to be caused to the
environment by the commission of the offence is one of the matters that must
be taken into consideration by the Court in sentencing pursuant to s 364A of
the WM Act. In circumstances where the offending conduct related to a capture
of surface water of 1,000ML in dams and other water storages within the Project
Site (SOAF at (14)) over three consecutive years (at least two of which
coincided with drought conditions), thus preventing that water from entering the
environment, it was reasonably arguable for the Prosecutor to contend that
harm was likely to be caused to the environment, in particular the riparian zone
of Back Creek lying just to the north of the Project Site. Indeed, the Prosecutor
had a public duty to put material issues before the Court. A prosecutor, such as
the State’s water regulator, should not be discouraged from canvassing at the
sentencing hearing reasonably arguable matters such as the likely impact and
extent on the environment of the offending conduct of capturing clean rainwater
pursuant to Morrison at [20].
270 Mr Anderson’s evidence was necessary as no agreement was able to be

reached on the extent of actual or likely harm caused to the environment by the
offending conduct before the hearing. All aspects of Mr Anderson’s evidence
were put in issue because the Defendant maintained that there was no likely
impact at all on the environment including the riparian groundwater of Back
Creek, as a result of its offending conduct. No objections were made to his
evidence including on the grounds of relevance. Mr Anderson was cross-
examined. Mr Anderson’s first report carefully constructed from the ground up
a water balance assessment and hydrological and hydrogeological model
which was appropriate to the highly complex nature of the case. His water
106
balance assessment enabled him to reach robust conclusions about the impact
of the offending conduct on the environment.
271 The Prosecutor submitted that even if all of Mr Anderson’s evidence was not
accepted, the Court could separately come to a view as to whether the
offending conduct caused likely harm to the environment. The evidence of Dr
Pfautsch (on likely harm to vegetation) and Dr Growns (on likely harm to aquatic
ecology) was not based on Mr Anderson’s hydrological analysis, as was made
clear in their evidence (I note that this submission is not consistent with Dr
Pfautsch’s evidence above in [96] and Dr Growns in [112]).
272 Dr Flocard’s report was served in August 2020. It was a critical piece of expert
evidence relied upon by the Prosecutor to prove liability and, in particular, to
rebut the anticipated defence that the defendant could rely on the Excluded
Works Exemption in the WM Regulation 2018 to authorise the take of clean
water. That issue and potential defence necessarily fell away when the
Defendant entered a guilty plea. The SOAF specifies that the Defendant does
not rely on the Excluded Works Exemption to authorise the take of any of the
clean water runoff the subject of the charge. Dr Flocard’s report was used in
part to draw up the SOAF, including his volume calculations in relation to the
material fact that 1,000ML of water was taken. In the circumstances, it would
have been unreasonable for the Prosecutor to have sought to read at the
sentencing hearing those parts of Dr Flocard’s report dealing with the Excluded
Works Exemption, however those parts of the report were essential to resolving
the question of liability between the parties and in ultimately confining the issues
between the parties on sentence.
273 Instead, the Prosecutor tendered only those parts of Dr Flocard’s report which
were relevant to the issues remaining at the sentencing hearing, namely
sections 1.3, 2.6 and 2.7. They were admitted without objection. Dr Flocard was
not cross-examined. The Prosecutor relied on that evidence during the hearing
and in closing submissions. Unlike in Morrison, Dr Flocard’s reports do not go
to a contested and discrete issue which fundamentally affects environmental
harm and culpability and on which the Prosecutor may be unsuccessful. A
107
substantial proportion of the hearing was taken up with consideration of the
Defendant’s failure to comply with its WMP, in relation to which section 2.6 of
Dr Flocard’s report is relevant.
274 Dr Reinfelds prepared an expert report which was served on 19 March 2021,
prior to the entry of the plea. He is a spatial information and modelling specialist.
His report was prepared to prove the location of the various dams and features
of those dams within the Project Site. The costs claimed in respect of Dr
Reinfelds are limited and relate to resolution archive imagery. The imagery and
Dr Reinfelds’ report was part of the Prosecutor’s case on liability, was relevant
to the SOAF in relation to the construction of the mine’s highwall clean water
diversion system (see SOAF par 62) and his evidence was significant in
ultimately confining the issues between the parties on sentence. Once the
Defendant had entered a guilty plea, the Prosecutor no longer needed to rely
upon his evidence and it did not need to be tendered at the sentencing hearing.
Defendant’s submissions
275 The way the Prosecutor conducted the sentence hearing was unnecessarily
lengthy and complex and could have been more efficiently run if issues of fact
in dispute could have been identified in advance of the hearing. Significant parts
of the case on environmental harm beyond Back Creek and impacts on other
water users were abandoned. Voluminous evidence on matters which were not
relevant was prepared but not referred to or relied on by the Prosecutor.
276 The proposed costs order reflects what has already occurred namely the
abandonment of issues and the manner in which the case was conducted. If
the Court does not accept all aspects of the Prosecutor’s case further deduction
also may be warranted.
277 Section 257B is discretionary and can be applied to exclude costs, as has
occurred in numerous cases such as Hanna; Nash v Silver City Drilling (NSW)
Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty
Ltd (2017) 93 NSWLR 338; [2017] NSWCCA 96; Environment Protection
Authority v Truegain Pty Ltd (No 4) (2014) 206 LGERA 11; [2014] NSWLEC
108
179; Plath v Rawson (2009) 170 LGERA 253; [2009] NSWLEC 178. The
principles applied in these cases are not unique to this Court or to the criminal
context. They reflect general principles applicable to the awarding and
quantification of costs. More generally, the cases establish the following
principles in relation to costs.
278 A party may be deprived of all or part of its costs where it loses on a separate
issue which has increased the time taken in Court: e.g. New Galaxy
Investments Pty Ltd v Thomson (No 2) [2017] NSWCA 235 at [21]-[23] (and
cases there cited). Further, where a party is partly successful and partly
unsuccessful, it is open to the Court to apportion costs between issues. The
question of apportionment is a matter of discretion for the trial judge;
mathematical precision is illusory; and the task is largely impressionistic: e.g.
Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane
Industries Pty Ltd (1993) 26 IPR 261; [1993] FCA 346 at 272; Avopiling Pty Ltd
v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 at [172]-[176] (Payne
JA, McColl JA agreeing at [1], White JA agreeing at [182] save as to [34]).
279 Firstly, costs of discontinued proceedings should not be payable (the

Prosecutor says these are not claimed in its amended table).
280 Secondly, costs of the original summons which prosecuted the water take from
Maules Creek which was not pressed ought not be payable.
281 Thirdly, the Prosecutor ran the sentencing hearing very inefficiently and not in
accordance with good practice. In accordance with good practice, the
Prosecutor should have done the following.
(1) Clearly identify to the Defendant the facts which the Prosecutor
contended the Court should find for the purposes of sentencing.
(2) Seek the Defendant’s agreement or disagreement to those facts, such

that there could be a clear list of disputed facts.
109
(3) If appropriate, prepare evidence addressing disputed facts.
(4) Identify for the Court in advance of, or at the outset of, the sentencing
hearing the facts which the Prosecutor sought to have found and (by
reference to the disputed facts) the issues which the Court was being
asked to determine.
282 This good practice is in part reflected in the NSW Office of Director of Public
Prosecutions, Prosecution Guidelines (March 2021), which state at 2.4
(emphasis added):
The prosecutor has an active role to play in the sentencing process.
It is the duty of the prosecutor to present the facts of the case at sentence.
Whenever possible a statement of agreed facts should be submitted (see
Guideline 4.4).
If the offender is being sentenced after trial or hearing, the prosecutor should
prepare a summary of the facts capable of being found by the judge or
magistrate that is consistent with the verdict.
Where facts are asserted on behalf of the offender that are contrary to the
prosecutor’s position on a matter of some significance to sentence, the
prosecutor should identify areas in agreement and those to be
determined following a hearing (often referred to as a ‘disputed facts
hearing’).
283 Fourthly, the Prosecutor abandoned significant parts of the case in the course
of the hearing, including its original submissions that:
(1) the maximum penalty for the offence was 18,200 penalty units (as
distinct from 10,000 penalty units);
(2) the Court should take into account that there had been an increase in
the maximum penalty;
(3) the Defendant had actual knowledge in respect of the offence;
(4) there were adverse impacts on other water users;
110
(5) the offence caused actual harm to riparian vegetation and the aquatic
environment; and
(6) any harm could have been identified and managed sooner had the
Defendant taken sufficient measures to appropriately monitor surface
water impacts and impacts to vegetation.
284 Not only did the Prosecutor abandon these submissions, it appears to include
in the costs it is attempting to claim, its costs in relation to these submissions.
Take, for example, the Prosecutor’s contention that the maximum penalty was
18,200 penalty units. Promptly after that submission was made, the Prosecutor
was corrected by the Defendant. Nevertheless, the Prosecutor has claimed for
its costs of re-doing its work and verifying that the Defendant’s contention as to
maximum penalty was correct.
285 Fifthly, a significant proportion of the Prosecutor’s evidence was either

irrelevant and not admitted or read (see [164]), or so peripheral that it was not
referred to in any significant respect by the Prosecutor, including:
(1) a considerable proportion of the affidavit of Ms Druce sworn 18 May

2021;
(2) most of the affidavit of Ms Laird sworn 4 June 2021;
(3) most of the affidavit of Mr Williams affirmed 4 June 2021;
(4) most of the expert report of Dr Flocard (contrary to the Prosecutor's

submission as to the reliance on Dr Flocard's report to prove liability, a
significant proportion of Dr Flocard's report goes beyond the scope of
the offence which the Defendant pleaded guilty to (e.g. takes by other
storages)).
286 Most of this evidence was not read and not admitted because it was not relevant
to any issue. The Prosecutor should not have its costs of preparing irrelevant
111
evidence or evidence that was not relied on in the proceedings paid by the
Defendant.
287 Further, if there was any evidence which was not relevant to the issues as they
were at the time of the sentencing hearing, the Prosecutor, acting efficiently,
should not have waited until shortly before the hearing and, in most cases, until
mid-way through the sentencing hearing to notify that the evidence would not
be relied on (in response to the Defendant's request, the Prosecutor did confirm
on 12 August 2021, prior to the sentencing hearing, that it would not rely on the
report of Dr Reinfelds, the affidavit of Mr Bowlay affirmed 19 March 2021 and
the affidavit of Ms Pucci affirmed 20 January 2020). The effect of its approach
was (inter alia) to impose costs on the Defendant in preparing to deal with the
evidence.
288 The Prosecutor says that it “did not ultimately press all issues at the hearing”
(e.g. certain lay affidavits, and the issue of impact on water users) and they
therefore “took up relatively little time”. First, it is not correct that those irrelevant
issues took up little time. Hours of the hearing, across multiple days, were spent
addressing these matters. Secondly, and in any event, the issue is not just time
at the hearing. The fact is that the Prosecutor appears to seek to be
compensated by the Defendant for its costs of preparing evidence which was
irrelevant and submissions which had no foundation. Not only that, the
Defendant has had to bear its own costs of addressing those issues.
289 A reduction of costs to 50% is warranted.
290 Costs are a relevant matter to consider in the exercise of the Court’s sentencing
discretion.
Finding on costs
291 Whether costs are awarded in whole or part to a prosecutor pursuant to s 257B
of the CP Act requires the exercise of a court’s discretion. The applicable
principles are identified in the parties’ submissions summarised above in [266]-
[267], [277]-[278].
112
292 As a result of further correspondence after the hearing the Prosecutor reduced
its claim for costs and to the extent that occurred it addressed some of the
Defendant’s complaints in my view.
293 I observe that it is unnecessary to make the order sought by the Defendant
referring to other proceedings not before the Court for sentencing. No costs can
be claimed in those matters if they are not the subject of any costs order by the
Court. There is therefore no need to refer to their exclusion explicitly in an order.
This responds to the first and second matters identified by the Defendant.
294 In relation to the third matter raised by the Defendant, the conduct of
proceedings, I agree with the Defendant above in [281] that the sentencing
hearing on environmental harm could have been run far more efficiently by the
Prosecutor. The SOAF did not include any facts concerning environmental
harm. The parties agreed that no alleged facts on actual or likely harm to the
environment, no draft statement of facts on environmental harm and no draft
list of disputed facts/issues were provided by the Prosecutor to the Defendant
before the sentencing hearing.
295 The topic of environmental harm occupied most of the three-day sentencing
hearing involving numerous experts’ reports and their oral evidence as
summarised above in [18]-[133].
296 Any attempt before the hearing to identify facts even if disagreed would have
been of substantial assistance to the Defendant and the Court. Mr Anderson’s
report was particularly unwieldy and unnecessarily lengthy. Some
consideration needs to be given to the presentation of expert material so that it
can be considered efficiently by the parties and the Court.
297 The Prosecutor did not ultimately press in closing submissions any likelihood
of environmental harm being caused to Maules Creek, the South West Tributary
or the Namoi River as a result of the offence. All the experts prepared evidence
to address these matters. That evidence has not been included in this judgment
113
as it became unnecessary to consider but the Court was referred to it during
the sentencing hearing and I consider that it was substantial.
298 In relation to the fourth matter raised by the Defendant above in [283],
identifying matters that were not pressed by the Prosecutor, these range from
minor in terms of time spent (incorrect identification of maximum penalty) to
major in terms of time spent. For example, the submission in respect of adverse
impacts on other water users was not pressed by the Prosecutor only after it
attempted to read affidavits on that matter to which the Defendant objected.
299 In relation to the fifth matter raised by the Defendant, a large amount of
evidence was prepared and served before the sentencing hearing but not relied
on, referred to in [164], [285]. The Prosecutor’s costs for doing so should not
generally be payable but for one area being Dr Flocard’s and Dr Reinfelds’
reports. Where expert reports are obtained which are foundational to the
proceedings being commenced by the Prosecutor the costs of these can be
claimed, as appears to be the case with Dr Flocard and Dr Reinfeld. The parties
will have to determine whether the costs of all or some of these reports are
claimable in relation to the commencement of these proceedings. Apart from
foundational expert reports which did not need to be read in whole or at all
during the proceedings, evidence served but not ultimately read at the hearing
by the Prosecutor should not be payable by the Defendant.
300 Taking into account all the above matters and given the changes made by the
Prosecutor which address some not all of the Defendant’s complaints I consider
that a costs order should be made that 60% of the Prosecutor’s costs are
payable by the Defendant.
Conclusion on penalty
301 When sentencing, the Court must apply the instinctive synthesis approach by
identifying all the relevant factors, discussing their importance and making a
“value judgment as to what is the appropriate sentence given all the factors of
the case”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]
unanimously following Markarian v The Queen at [51] per McHugh J.
114
302 Taking into account my finding on objective seriousness and mitigating factors,
I consider the appropriate penalty is $250,000 which will be reduced by 25% to
$200,000 in light of the early guilty plea.
Orders
303 The Court orders that:
(1) Maules Creek Coal Pty Ltd (ACN 140 533 875) is convicted of the
offence contrary to s 60A(2) of the Water Management Act 2000 (NSW)
with which it is charged, in that between about 1 July 2016 and 30 June
2019, it took water from the Maules Creek Water Source, being a water
source to which Part 2 of Chapter 3 of the Water Management Act 2000
(NSW) applied, when it did not hold an access licence for that water
source.
(2) Maules Creek Coal Pty Ltd (ACN 140 533 875) is fined $200,000.
(3) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), Maules
Creek Coal Pty Ltd (ACN 140 533 875) is to pay 60% of the Prosecutor’s
costs as agreed or assessed.
(4) Pursuant to s 353G(1)(a) of the Water Management Act 2000 (NSW),

Maules Creek Coal Pty Ltd (ACN 140 533 875) must:
(a) within 28 days of the date of this order, cause a notice in the form
of Annexure ‘A’ to this judgment to be placed within the first 5
pages of the following publications, at a minimum size of 10 cm x
18 cm:
(i) the print and digital versions of The Land;
(ii) the print and digital versions of The Northern Daily Leader;
and
115
(iii) the print and digital versions of the Australian Financial
Review;
(b) within 28 days of the date of this order and for a minimum of 30
days, cause a notice in the form of Annexure ‘A’ to this judgment
to be placed on the Maules Creek Coal Mine website:
https://whitehavencoal.com.au/our-business/our-assets/maules-
creek-mine/;
(c) within 28 days of the date of this order, post the text
of Annexure ‘A’ to this judgment on Whitehaven Coal’s LinkedIn
page. The text is to be posted between the hours of 8:00 am and
10:00 am or 4:30 pm and 6:30 pm on a weekday. The post must
remain as a pinned post on the LinkedIn page for a minimum
of seven days, and as a post on the LinkedIn page for 30 days;
(d) within 40 days of the date of this order, provide to the Prosecutor
a complete copy or screenshot of the entire page of the
publications and websites referred to in orders 4(a) to (c) above in
which the notices have appeared or been posted pursuant to
these orders;
(e) cause a notice in the form of Annexure ‘A’ to this judgment to be

placed in the next annual Sustainability Report published by
Whitehaven Coal after the date of this order; and
(f) within 28 days of publishing the next annual Sustainability Report,

provide to the Prosecutor a complete copy of the page of
the Sustainability Report in which the notice has appeared
pursuant to order 4(e).
(5) The exhibits are returned.
**********
116
I CERTIFY THAT THIS AND THE 116 PRECEDING PAGES ARE A TRUE COPY OF THE REASONS
FOR THE JUDGMENT OF THE HONOURABLE JUSTICE N. H. M. PAIN.
Acting Associate
24 November 2021
117
ANNEXURE A
Maules Creek Coal Pty Ltd (ACN 140 533 875) (“Maules Creek Coal”) was convicted
and fined in the New South Wales Land and Environment Court (“the Court”) on
24 November 2021, for a breach of s 60A(2) of the Water Management Act 2000
(“the WM Act”) relating to the taking of water from the Maules Creek Water Source
without an access licence for that water source between about 1 July 2016 and 30
June 2019.
Following an investigation by the Natural Resources Access Regulator (NRAR),

Maules Creek Coal was prosecuted in the Court, where Maules Creek Coal pleaded
guilty. Maules Creek Coal was fined a total of $200,000 and ordered to pay legal
costs.
All property owners, companies and water users should be aware of the serious
consequences for committing offences against the WM Act. NRAR undertakes
ongoing auditing and investigations to ensure that activities involving the taking of
water are authorised by means of licences so as to ensure the equitable sharing of
water from water sources in line with the objects of the WM Act and the welfare of
the environment.
118

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Natural Resources Access Regulator V Maules Creek Coal Pty LTD (2021) NSWLEC 135

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Land and Environment Court

New South Wales

Case Name: Natural Resources Access Regulator v Maules

Medium Neutral Citation: [2021] NSWLEC 135

Hearing Dates: 16-19 August 2021; 6, 20 September 2021 (written

Date of Orders: 24 November 2021

Date of Decision: 24 November 2021

Decision: See [303] of judgment

Catchwords: CRIMINAL – sentencing – plea of guilty to offence of

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW),

Cases Cited: Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171;

Parties: Natural Resources Access Regulator (Prosecutor)

File Number: 2020/192787

Water Management Act 2000

3 Relevant sections of the WM Act provide:

4A Meaning of “overland flow water”

(a) rain or any other kinds of precipitation, or

(b) rising to the surface from underground, or

(c) any other process or action of a kind prescribed by the regulations.

(3) However, subsection (1) does not include—

(c) water flowing over or lying on the ground in such circumstances as

Chapter 2 Water management planning

Division 1 Water management principles

5 Water management principles

(a) water sources, floodplains and dependent ecosystems

(d) the cumulative impacts of water management licences and

(e) geographical and other features of Aboriginal significance

(g) the social and economic benefits to the community should be

(h) the principles of adaptive management should be applied, which

Chapter 3 Water management implementation

Part 2 Access licences

(1) An access licence entitles its holder—

(a) to specified shares in the available water within a specified water

(b) to take water—

(i) at specified times, at specified rates or in specified

(ii) in specified areas or from specified locations,

(the extraction component).

60A Taking water without, or otherwise than authorised by, an access

(c) who intentionally or negligently takes that water without

60I Access licence required for water used in mining activities

(4) In this section—

mineral exploration means prospecting pursuant to an assessment

mining means the winning or removal of materials by methods such as

(a) the construction, commissioning, operation and

(b) the stockpiling, processing, treatment and transportation of

(c) the rehabilitation of land affected by mining.

mining activity means any of the following—

(c) petroleum exploration.

petroleum has the same meaning as it has in the Petroleum (Onshore)

petroleum exploration means prospecting pursuant to a petroleum

Part 1 Directions to landholder and other persons

Division 8 Enforceable undertakings

336E Enforcement of undertakings

(d) an order requiring the person to prevent, control, abate or mitigate

(f) any other order the Court considers appropriate.

(5) The Ministerial Corporation, the Natural Resources Access Regulator or

Part 5 Legal proceedings and appeals