The Project Approval noise criteria and mitigation strategies differ from those of the INP
327The approach adopted by the Minister in establishing the noise criteria in the proposed conditions differs from the approach required by the INP in five significant respects. First, for many residences, a higher background noise level has been used than is supported by the measurement evidence. As both intrusiveness criteria and amenity criteria are dependent on background noise, the result of using higher background levels has been to increase the project-specific noise levels. Secondly, the project-specific noise levels are not the lower of the intrusive criterion and the amenity criterion, as required by the INP, but have been increased to equate with the predicted noise levels for the Project. Thirdly, the noise limits in the conditions do not apply under all meteorological conditions typical to the area, as required by the INP. Fourthly, the approval conditions do not account for annoying noise characteristics, such as low frequency noise. Fifthly, the noise limits in the conditions of approval are not specific to only the Project but are combined with another mine project not the subject of the approval.
328One consequence of these differences in approach to setting noise limits in the approval is that the noise limits are greater, and hence noise emissions from the Project at the greater noise levels permitted will have greater noise impacts, including intrusiveness and on amenity. In my view, these greater noise impacts are unacceptable. A second consequence flows from the setting of noise limits at too high levels. If the noise limits were to be reduced to the levels that would result from application of the INP, more extensive noise mitigation strategies would be required. In particular, many more properties would need to have mitigation works undertaken, such as insulation, double glazing of windows and airconditioning, or be acquired by Warkworth. The extent of controls at the noise receivers and the impacts those controls will cause, are sufficiently great as to be unreasonable in my view.
329I will now elaborate on the five respects in which the approach of the Project Approval differs from that of the INP.
Establishing too high background levels
330The INP addresses the importance of establishing background levels before intrusive noise can be assessed (3.1, p 22). The respondents relied on the selection of 33 dB(A) as the background noise level based on a noise survey taken at six representative monitoring stations as part of the preparation of the 2002 EIS, and results of monitoring in 2008 which suggested that the 2002 data remained representative of background noise (Minister's Notes in relation to Noise Conditions dated 7 September 2012 [6]). The Department was satisfied that this method of establishing background noise levels, and the levels themselves, were "reasonable and consistent with guidance levels provided by Australian Standards and the INP" (Minister's Notes in relation to Noise Conditions dated 7 September 2012 [6], referring to TB vol 2, tab 9, p 810). In his affidavit Mr Parnell stated (at [20]) that in assessing the Project, he had considered that calculation of the RBL to still represent valid background levels. In assessing the noise impact assessment prepared on behalf of Warkworth, Mr Parnell had noted that "[l]evels adopted as background noise levels are generally within 3-4 dB(A) of the minimum accepted RBL of 30 dB(A) recommended in the INP as a basis for calculation of intrusive noise criteria" (Parnell aff, Annexure D, at 2.1).
331However, the evidence establishes that the background noise level for some residences to the north of Bulga village is 30 dB(A) rather than 33 dB(A). The 2002 Noise and Vibration Study undertaken on behalf of Warkworth by ERM (Supp TB vol 4, p 2199), included data from two noise logger locations in Bulga (N6) and to the north of Bulga (N5). Relying on table 2.2 of the ERM 2002 report, residences close to N5 would have a background noise level of 30 dB(A) during the day and night, and 31 dB(A) in the evening. The correlation of Figures 2.1 and 2.2 of the 2002 ERM report with the mapping of residences in Exhibit W20 confirms that a number of residences to the north of Bulga village, being numbers 25, 27, 29, 34 and 42, would be in that locality. If that is correct, and the background is 30 or 31 dB(A), applying the INP would lead to an intrusive noise level for those residences of 35 or 36 dB(A), rather than 38 dB(A).
332This variation in background noise levels in one part of the Bulga area likely to be affected by noise of the Project raises doubts as to the reliability of the adopted background noise levels for other parts of that area. The six monitoring stations used in preparation of the 2002 EIS for the original mine are not distributed over all of the area likely to be affected by the current Project. The residents' evidence is that there are differences in noise levels and the characteristics of the noise at different receivers to those at or near the monitoring stations.
333The consequence of adoption of too high background noise levels is not only to increase the project-specific noise levels (and the still higher noise levels set in the proposed conditions of approval), but also to apply less noise mitigation strategies. The proposed conditions of approval make the undertaking of noise mitigation or acquisition of properties dependent on the noise generated at the Mount Thorley-Warkworth mine complex exceeding specified criteria. Those criteria are based on the adopted background noise levels plus 5 dB(A) for the intrusiveness criterion plus the margins applicable for either mitigation (3-5 dB(A)) or acquisition (>5 dB(A)). Using the example of the residences to the north of Bulga, adoption of a background noise level of 33 dB(A) for the night period results in a noise mitigation criterion of 41 dB(A), (that is, assigning a right to obtain mitigation measures if the noise generated by the Mount Thorley-Warkworth mine complex is greater than 41 dB(A), being 33 plus 5 plus 3 dB(A)) and a noise acquisition criterion of 43 dB(A) (that is, assigning a right to have the property acquired if noise generated is greater than 43 dB(A), being 33 plus 5 plus 5 dB(A)). However, if a lower background noise level is used, such as 30 dB(A) measured for the night period, the noise mitigation criterion would be 38 dB(A) and the noise acquisition criterion would be 40 dB(A). A lowering of the noise mitigation and acquisition criteria increases the number of properties likely to require mitigation or acquisition.
Setting the criteria based on what the mine can achieve, not what is acceptable
334The setting of criteria by reference to the predicted level above the PSNL is based on the approach adopted by the 2004 Commission of Inquiry under the then s 119(1) of the EPA Act into the environmental aspects of the proposed extension of coal mining operations at the Mount Owen mine. The PSNL had been assessed for that project at 35 dB(A). The then Department of Environment and Conservation (DEC) and Department of Infrastructure Planning and Natural Resources (DINPR) had considered an exceedence of up to 2 dB(A) as minor; between 2 dB(A) and 5 dB(A) as marginal; and greater than 5 dB(A) as significant (Exhibit W3, p 40). The Commission of Inquiry agreed with DIPNR that the applicant should be required to acquire properties affected by noise levels over 40 dB(A) if the owner requested, and recommended that residences predicted to be affected by project noise levels above 37 dB(A) and up to 40 dB(A) should be able to request strategies such as double glazing, insulation and air conditioning (Exhibit W3, p 40). This approach by the Commission of Inquiry has been followed by the Department of Planning and other mine proponents in setting noise limits and criteria for noise mitigation and acquisition of noise-affected properties in development consents and project approvals for mines. (Minister's notes re Applicant's proposed conditions, [6]-[7]).
335The justification provided in these proceedings for regarding predicted exceedences of 1-2 dB(A) as minor, and setting the noise limits to permit higher levels of noise, was that measurement, and perception, of noise, are difficult, and that there should be latitude given that these are conditions that need to be enforced (Williams subs T 8/11/12, p 227.20). Indeed, the reality is that the Project cannot achieve, by controlling noise at the source or the transmission of noise, the project-specific noise levels that would be derived by application of the INP. The noise limits proposed in the conditions have therefore been increased beyond what would be the project-specific noise levels to match the predicted noise levels of the Project.
336The INP does contemplate that it may, in some instances, be appropriate to set noise limits for a development above the project-specific noise limits recommended by the INP (1.4.7, p 6). Part 9 of the INP states that determining an approval condition should take into account the assessed noise impact (including additional impact caused by meteorological conditions); mitigation measures required to achieve project-specific noise levels; identification of a practical limit on noise control; consideration of trade offs; and whether the final noise proposed is acceptable (INP, 9.1, p 47). In particular, there needs to be an evaluation of the acceptability of setting noise limits in the approval conditions above the project-specific noise levels.
337The approach adopted by the Department of Planning and Warkworth in setting the noise limits in the approval conditions is not consistent with the approach recommended by the INP. There should be first a correct identification of the project-specific noise levels, derived from application of the INP. In the case of the Project, these would be lower at many locations than the noise limits proposed in the approval conditions. Next, the predicted noise levels, after applying all feasible and reasonable mitigation strategies, should be calculated. Then there should be an assessment that quantifies the remaining or residual noise impacts of the Project that exceed the project-specified noise levels, after applying feasible and responsible mitigation strategies.
338Finally, there should be an evaluation of the acceptability of the residual noise impacts. The evaluation of acceptability should take into account:
(a)characteristics of the area and receivers likely to be affected, such as the extent of the areas and the numbers of receivers likely to be affected by noise level above the project-specific noise levels, the daily activities of the community (in particular, effects such as sleep disturbance and level of annoyance), the potential change in the ambient noise level as a result of the Project, cumulative noise impacts in the area, and whether parts of the area that are already moderately or badly affected by noise will be more affected;
(b)characteristics of the project and its noise, such as the noise characteristics of the activity, the extent to which any remaining noise impact exceeds the project-specific noise levels, the circumstances and times when the project-specific noise levels are likely to be exceeded, the circumstances and times when the source noise levels are likely to be below the project-specific noise levels (for example when wind blows source noise away from the receiver), the accuracy with which impacts can be predicted and the likelihood that the impacts will occur in the manner predicted, and the economic benefit and social worth of the project for the local area, the region or the nation;
(c)the feasibility of additional mitigation or management measures; and
(d)equity issues in relation to the costs borne by some for the benefit of others, the long term cumulative increase in noise levels, and the opportunity to compensate effectively those affected (INP, 8.2.1, pp 43-44).
339Whilst some of these factors were taken into account by the Department and Warkworth, all of the factors were not taken into account in setting the noise limits in the approval conditions. There has been no evaluation of the acceptability of setting those noise limits for the Project above the project-specific noise levels recommended by the INP. The twin reasons given, that setting higher limits accords with the departmental practice since 1994 and with what is able to be achieved by the Project, are not cogent reasons for departing from project-specific noise levels recommended by the INP.
340In my view, consideration of the factors suggested in the INP for evaluating the acceptability of the residual impacts supports a conclusion that setting the noise limits above the project-specific levels recommended by the INP is unacceptable.
341In relation to the characteristics of the area and receivers likely to be affected, there is a wide area and there are numerous receivers likely to be affected by noise from the Project above the project-specific noise levels. This is firstly illustrated by the fact that the predicted worst case Leq (15 minute) noise level for both Warkworth and Mount Thorley mines would equal or exceed the operational noise limit set for the Warkworth mine in the 2003 Warkworth consent for 84% of Bulga residences and the proposed combined operational criteria for both mines for 56% of Bulga residences.
342This is secondly illustrated by the location and number of properties that would need to have controls at the receiver, either by way of mitigation treatment to the residential dwelling or acquisition of the property. The majority of the 20 properties identified as subject to acquisition on request for noise or noise and air are located in Mount Thorley, to the east of the mine; two are located in Warkworth, to the north, and three in Bulga on Putty Road to the east of Wollombi Creek. Of the 41 properties identified as subject to mitigation measures on request for noise or noise and air, over half are located in Bulga: 11 on Wambo Road to the north, 11 on Inlet Road to the south west, and three on Wambo Road to the south of Bulga village. The remainder are located in Maison Dieu, to the north of the mine, Gouldsville/Long Point to the north east, and eight are located in Hambledon Hill, to the north east of the mine.
343The evidence establishes that noise emitted by existing operations interferes with the daily activities of receivers, including sleep disturbance and annoyance. The residual impacts of noise exceeding the project-specific noise levels could only exacerbate such interference. The residual impacts would be cumulative upon an already adversely affected noise environment.
344In relation to the characteristics of the Project and its noise, the noise characteristics of the Project include low frequency content which increases annoyance. The residual noise impacts exceed project-specific noise levels by a sufficient extent as to justify undertaking controls at numerous receivers, such as by mitigation treatment and acquisition. The project-specific noise levels are likely to be exceeded at any time throughout the day, evening and night, as the Project operates continuously 24 hours a day, each day and there is no restriction on the nature or location of noise-producing activities throughout the day. As indicated below, the noise criteria do not operate during certain meteorological conditions, but this does not mean that noise levels will be below project-specific noise levels at that time - indeed, it is likely they may be above (such as at times of extreme temperature inversions). Under the proposed conditions there will be great difficulty in monitoring compliance with the noise limits proposed in the conditions. There is not reasonable certainty that the Project could comply with those limits, let alone if the limits were set at the lower project-specific noise levels. There is, therefore, considerable uncertainty in the prediction of residual impacts.
345In relation to additional mitigation measures, those measures proposed in the conditions are unlikely to be efficacious in mitigating or managing noise from the source to a sufficient extent, or in a sufficiently timely manner, to reduce noise at receivers to the project-specific noise levels.
346In relation to equity issues, the costs resulting from the residual impacts will be borne by the residents of Bulga who are the noise receivers, but the benefits of the Project will be enjoyed by others, including Warkworth. The burdened residents of Bulga will not be compensated effectively by Warkworth. There will not be full internalisation by Warkworth of the external costs of the Project, occasioned by its noise impacts, on the Bulga residents. Even the residents who are eligible to and do request noise treatment of their houses to control noise at the receiver will not receive compensation for the reduction in amenity and enjoyment from the noise treatment (such as not being able to open windows or use outdoor recreation areas). If they are eligible to and do request acquisition of their properties, compensation will not be on a value to owner basis or address the subjective or emotional loss occasioned by being dispossessed of their home. The long term cumulative increase in noise levels caused by the expansion of the Warkworth mine, as well as the Mount Thorley mine and other mines in the area, is not addressed.
347In my view, the case has not been made for setting the noise limits for the Project at the levels proposed in the approval conditions above the project-specific noise levels recommended by the INP. Furthermore, even if the project-specific noise levels recommended in the INP were to be applied in the approval conditions, the Project would be unable to comply with these limits, triggering far more extensive noise mitigation at receivers and acquisition of receivers' properties, which would itself lead to unacceptable impacts.
Insufficient accounting for the effect of meteorology on noise levels
348The INP requires that the noise limits in the approval conditions (which ordinarily should be the project-specific noise levels) should apply under all weather conditions characteristic of the area. These may include conditions of calm, wind and temperature inversions (INP, 1.4.4, p 5; 5.1, p 31 and 9.1, p 47). To ensure that the noise limits in the approval conditions do apply under typical meteorological conditions, the INP recommends inclusion of a condition of approval to this effect. However, the INP recognises that the approval condition may exclude application of the noise limits in non-standard meteorological conditions (INP, 9.2, p 48).
349The proposed conditions of approval purport to adopt this approach. Conditions 3 and 4 of Sch 3 provide that the noise criteria therein stated apply in the meteorological conditions set out in Appendix 12. Paragraph 1 of Appendix 12 states that the noise criteria apply under all meteorological conditions except those specified in the paragraph, which are:
(a)during periods of rain or hail;
(b)average wind speed at microphone height exceeds 5 m/s;
(c)wind speeds greater than 3 m/s measured at 10 m above ground level; and
(d)temperature inversion conditions greater than 3°C/100 m
350That is a change from the conditions approved by the Minister, which simply stated in the notes to the conditions that "noise generated from the Mount Thorley-Warkworth mine complex is to be measured in accordance with the relevant requirements, and exemptions (including certain meteorological conditions)" of the INP.
351Except for measuring wind speed at microphone height (subpara (b)), the data used is that recorded by the meteorological station located on the site, not at the receivers (para 2).
352The INP identifies two situations where meteorological conditions may increase noise levels: during temperature inversions and where there is a wind gradient with wind direction from the source to the receiver (INP, 5.1, p 31). These two types of meteorological conditions are included in the first example of a condition of approval given in the INP (pp 47-48). However, to be an exception, the inversion or the wind gradient must be non-typical or non-characteristic of the area. Conditions of wind and temperature inversion which are typical or characteristic of an area should not be excepted. The INP's example is of a development where F-class inversions (normally associated with non-arid areas such as the Hunter Valley) are a feature of the area. The Condition given applies the noise limits in all meteorological conditions (including during F-class inversions) except where there is a non-standard intense inversion (a G-Class inversion in the example given). The INP's example also exempts application of the noise limits when there are source-to-receiver wind speeds (at 10m height) which are greater than 3 m/s (INP, 9.2, p 48).
353The assessment of potential for temperature inversions and of wind effects undertaken as part of the Noise and Vibration Study for the 2010 Environmental Assessment (Annexure G) concluded from monitoring in 2006-2008 that F-class inversions occurred for only 10% of winter nights, which is below the 30% threshold where temperature inversions are considered to be a "feature" of the area. While that meant that this factor did not need to be included in the noise impact assessment, the prediction of noise levels included consideration of the effects of a 3°C/100 m temperature inversion. The wind in the Project area was assessed as above the INP threshold of 3 m/s or below at 10 m height occurring for 30% of more of the time in any assessment period in any season. The modelling included a drainage wind of 2 m/s and a 3°C/100 m temperature inversion for Year 2, when [the] mining plant will operate on Saddleback Ridge (Annexure G to EA, p 27).
354I accept that the modelling for the noise assessment incorporated the relevant factors identified in the INP, including F-class temperature inversions which although not found to be a feature of the area, are identified in the INP as being a feature of the Hunter Valley generally.
355The relevance of Appendix 12 comes in determining compliance with the noise criteria in Tables 3 and 4.
356Subparagraph (a) of para 1 of Appendix 12 makes the noise criteria not applicable during periods of rain or hail. The exclusion of periods of rain is consistent with the INP's recommendation that noise monitoring should not be conducted when rainfall occurs (provided the proponent is able to show that sound levels due to rain are at least 10 dB(A) below the noise levels (that is, background and/or ambient) under investigation) (INP, 3.4, p 26 and Appendix B, B 1.1, pp 68-69). The EA in this case does not show that sound levels due to rain are at least 10 dB(A) below the background or ambient noise levels. But in any event, the INP only recommends excluding noise monitoring during rain rather than making the noise criteria for a project not applicable.
357Subparagraph 1(b) excepts application of the noise criteria where "average wind speed at microphone height exceeds 5 m/s". The INP recognises that wind can create extraneous noise on noise-monitoring equipment and suggests that an upper limit of 5 m/s at the microphone position is commonly applied during noise measurement to reduce this effect (INP, 5.3.2, p 35). However, again this is an issue of measurement of the noise generated by the Project at a receiver and does not provide a basis for exempting the Project from complying with the noise criteria. Put another way, if the average wind speed at microphone height at a particular receiver exceeds 5 m/s, it may not be possible to establish whether the noise generated at the Mount Thorley-Warkworth mine complex exceeds the criteria in the conditions of approval, but that does not justify making the criteria not applicable. I note that the example condition given in the INP does not include an exception for wind near the ground at the microphone position.
358Subparagraph 1(c) reflects the default wind speed and height provided in the INP for assessing noise impacts of gradient winds (INP, 5.3.2, p 35). The INP recognises that winds at these speeds can noticeably increase noise received downwind of a noise source but may not increase ambient noise levels to the point where they mask noise from the source and make it unnoticeable. However, the subparagraph does not specify that the exclusion of wind speed greater than 3 m/s only applies when the wind direction is from source to receiver.
359The exception in subparagraph 1(d) ("temperature inversion conditions greater than 3°C/100 m") is drafted so as to continue the application of the noise criteria in an F-class inversion, but not for more intense inversions (G-class or above).
360While these exclusions might be inspired by the approach adopted in the INP for noise prediction and noise monitoring, they do not operate to exclude noise monitoring to determine compliance with the noise criteria during the excluded meteorological conditions but rather operate to exclude the applicability of the noise criteria during those conditions. This lessens the incentive for the mine to conduct its operations so as to keep noise emissions below the specified noise criteria. That would be the case in particular during periods of predicted continued rain when the noise criteria would not apply and there would be no limits to the noise the mine complex could emit.
361Further, the weather data, other than wind speed at microphone height, is taken at the mine, and not at the receiver, and it is therefore possible for experience of actual noise impacts at the receivers to be different, and potentially non-compliant. While Appendix 12 is drafted with greater precision than the conditions as approved by the Minister, it does not provide any assurance that the mine complex would meet the noise criteria at all times.
Insufficient accounting for annoying noise characteristics
362The INP requires modifying factor corrections to be applied to the noise from the source measured or predicted at the receiver before comparison with the noise criteria (see Section 4 of INP). The particular modifying factor affecting noise from the Project is the low frequency content. The SKM report (Ishac report, Appendix C) concluded that two of the eight locations monitored (345 Wambo Road and 339 Inlet Road) were significantly impacted by low frequency noise, as over 30% of results exceeded the INP criteria; and a further two (129 Wambo Road and 5a Noses Peak Road) were moderately affected by low frequency noise (6.3.2, p 33).
363The noise criteria in the proposed conditions of approval have not been set having regard to, and do not refer to, low frequency noise. Low frequency noise is taken into account in evaluating compliance with the noise criteria in the conditions of approval. Conditions 3 and 4 of Sch 3 provide that Appendix 12 sets out "the requirements for evaluating compliance with these criteria" specified in these conditions. Paragraph 4 of Appendix 12 requires compliance monitoring to be carried out in accordance with the relevant requirements for reviewing performance set out in the INP (in Section 11) relating to, amongst other matters, "modifications to noise data collected, including for the exclusion of extraneous noise and/or penalties for modifying factors apart from adjustments for duration". One of the penalties for modifying factors would be to apply a correction of 5 dB to the source noise level at the receiver if the difference between the C-weighted and A-weighted levels over the same period is 15 dB or more (INP, Table 4.1, p 29). Making this correction may result in the corrected source noise level at the receiver exceeding the noise criteria in the proposed conditions of approval for that receiver.
364The difficulty with this approach in the proposed approval would be evaluating compliance of the Project in practice. Appendix 12 requires that attended monitoring only is to be used to evaluate compliance. The conditions do not specify the number of attended monitoring stations, the location of the monitoring stations, the frequency of attended monitoring or the duration of attended monitoring on any occasion. Appendix 12 simply states monitoring is to be carried out in accordance with the requirement for reviewing performance in Section 11 of the INP. While this section of the INP provides guidance, it does not prescribe the number or location of monitoring stations, or the frequency or duration of attended monitoring.
365Condition 8 of Sch 3 of the proposed approval requires the preparation and implementation of a noise management plan. This plan must describe the measures to be implemented to ensure compliance with the relevant conditions of approval, such as a monitoring program that uses attended monitoring measures to evaluate performance of the Mount Thorley-Warkworth mine complex, including a minimum of four days of attended monitoring per quarter at locations agreed by the Director-General or more regularly where required (Condition 8(b), (c) and (d)). Therefore, the number and locations of attended monitoring stations and the frequency of attending monitoring would be determined through preparation of the noise management plan. However, this does not assist the Court, exercising the functions of the approval authority, in determining now whether there will be sufficient attended monitoring to evaluate adequately compliance with the noise criteria. It defers to later, and to the satisfaction of a different person, that determination. Moreover, comparison of the minimum requirement of four days of attended monitoring every 3 months at locations agreed by the Director-General (in Condition 8(d)) with the definition of "sustained exceedence" (in Condition 4) which requires noise generated by the Mount Thorley-Warkworth mine complex not to exceed the noise criteria for 10% or more of an individual day, evening or night on 3 or more occasions during any 30 day period, suggests that the attended monitoring required is unlikely to establish a "sustained exceedence" as there would not be 3 or more occasions of attended monitoring in 30 days at any location.
366The evidence of attended monitoring in the past is insufficient to allow the Court to draw any inference that attended monitoring in the future is likely to evaluate adequately compliance with the noise criteria. Past attended monitoring has been at too few locations on too few occasions.
Combining the noise criteria for different mines
367While there are concerns as to the way in which the noise criteria have been set in variance to the approaches recommended in the INP, of more fundamental concern is the decision to combine the noise criteria for the Warkworth and Mount Thorley mines. This has no precedent in the INP.
368The Mount Thorley and Warkworth mines have separate, but cross linked, ownership and operate under separate consents. The mines have been operated under single management as an integrated mine complex since 2004, sharing employees and surface infrastructure, and are connected by a series of haul roads (with bridges over Putty Road), conveyors and pipelines; coal, overburden, tailings and water is moved between the two mines (DP&I Environmental Assessment Report, TB vol 2, tab 9, p 792). The proposed extension involves the transfer of overburden and coal between the two mines, and the continuation of the use of the Mount Thorley coal preparation plant and other mining infrastructure currently used for the integrated Mount Thorley-Warkworth operations after mining ceases at Mount Thorley in 2017 (Ishac report [10]).
369The Abbey Green modification to the Mount Thorley consent, approved in May 2012, extends the Mount Thorley pit to the west closer to Bulga village (Williams subs, T 8/11/12, p 229). Evidence as to the modelling undertaken for setting the noise limits for Mount Thorley was not before the Court (Williams subs, T 8/11/12, p 228). However, Annexure G to the EA (Vol 3), the PPR, and the data in Exhibit W30, provide a basis for an understanding of the Mount Thorley noise criteria in relation to one of the residential receivers (65), which is located close to the intersection of Wambo Road and Putty Road, and thus for an understanding of how the combined criteria would work. Table 11 of Annexure G (p 49) includes the operational limit of 38 dB(A), and worst case figures of 38 dB(A) in Year 9 (day, adverse meteorological conditions) and Year 21 (night, adverse meteorological conditions). Based on the PPR table 4.3, the predicted worst case was 38 dB(A) for Warkworth alone; and for the combined Warkworth and Mount Thorley, 42 dB(A). The data provided by Mr Ishac (Exhibit W30) that includes the Abbey Green modification shows that for receiver 65, Mount Thorley would be 40 dB(A). On a logarithmic basis, subtracting 38 from 42, Mount Thorley (including Abbey Green) would be 40 dB(A). Warkworth submits (Williams subs T 8/11/12, p 235) that the level of 40 dB(A) would be the predicted noise from Mount Thorley alone, and would satisfy the INP criteria. On that basis, the residents of receiver 65 would be in the same position as they would be if Mount Thorley had been assessed as one project with its predicted noise level of 40 dB(A), and Warkworth as one project with a noise level of 38 dB(A). However, under the proposed conditions, more properties become subject to the mitigation or acquisition entitlements.
370The PPR recognises that the approach of combining Mount Thorley and Warkworth is inconsistent with the INP (TB vol 1, tab 8, p 557), and highlights the difficulties in the approach. Each mine is separately owned and has its own separate consent, and within those consents there are differences in noise criteria for residences in Bulga. For example, for locations 9, 10 and 15 located in Bulga village, the limits under the Mount Thorley consent are 39 dB(A), 35 dB(A) and 39 dB(A) respectively whereas under the Warkworth 2003 consent all have a noise limit of 38 dB(A) (TB vol 1, tab 8, p 558).
371The difficulty with accepting the combined criteria is that compliance with two different consents for two different mines is assumed; and while it may be accepted that in practice the two mines are operated as a single entity, the legal separation remains. There is no evidence before the Court as to any contractual or other arrangements between the two mines. No condition has been put forward that would specify what is the noise limit for the Warkworth mine operations alone. To test the operation of the combined criteria, Condition 3 sets 42 dB(A) LAeq (15 minute) as the criteria for receiver 65. If the operational limit for Warkworth alone is 38 dB(A), Mount Thorley would have to adjust its noise to be no greater than 40 dB(A) in order to meet that level. If noise is emitted from Warkworth transferring overburden onto Mount Thorley land which takes up most of the 42 dB(A) allowed for the combined operation, then that would impact on Mount Thorley's ability to continue operations. That would be beyond the reach of any approval granted to Warkworth for its operations. The combined approach also opens up the possibility that a receiver which would otherwise have an acceptable noise level of 38 dB(A) (consistent with the INP), may be subject to a higher level of noise because a project that is not the subject of the application is included in the calculation. It would be possible for receiver 65, for example, to be subject to noise at 42 dB(A) from Warkworth alone if Mount Thorley was not emitting noise; and that would be in excess of the limits on the 2003 consent, and above the level contemplated under the INP.
372Warkworth submits that in a practical sense that is not how it would operate (Williams subs, T 8/11/12, p 244.15). Warkworth submits that the combined approach is justified, for two reasons: first, the higher number of residences that become entitled to request mitigation or acquisition than would otherwise be the case for Warkworth alone on the 2003 consent; and secondly, because the expectation is that the noise levels will drop once operations at Mount Thorley cease.
373In my view, it is not sufficient to rely either on a present arrangement for the combined management and operation of the two mines, or on the expectation that noise impacts may improve some years hence. The Court is required to assess the likely noise impacts of the mine that is the subject of the present application, namely Warkworth, and any conditions imposed on a project approval must relate to that project, and be capable of implementation by whomever is carrying out the activities authorised by the approval: Hub Action Group Inc v Minister for Planning & Orange City Council [2008] NSWLEC 116; (2008) 161 LGERA 136 at [118]. A condition imposed on an approval granted in these proceedings could not purport to impose obligations on the operator of a separate mine that is subject to its own consent. It is unlikely that any such condition would have a sufficient nexus with the project that is the subject of the present approval and proceedings so as to satisfy the second limb of the Newbury test requiring conditions of consent to fairly and reasonably relate to the proposed project: Hub Action Group at [125]. Further, any approval granted in these proceedings for the proposed extension could not require, or preclude, the operator of Mount Thorley seeking approval to alter its operations, or to extend its operations past the expected cessation in 2017. The legal inability of Warkworth to control the operations of Mount Thorley mine is recognised in proposed Condition 7(i) of Sch 3, which requires Warkworth "to use its best endeavours to procure the lodgement of an application to modify the Mount Thorley Mine Development Consent as soon as reasonably practicable so that it has noise conditions in similar terms to this approval".
374Even if there were power to impose a condition that required for its practical implementation an adjustment to operations of a separate mine, or which depended on the operations of a separate mine in achieving compliance, the difficulty in ensuring compliance with such a condition would be a reason not to impose it. On the evidence before the Court, the real time Barnowl monitors located in Bulga would be unable to distinguish noise generated by Warkworth transferring overburden to Mount Thorley from the noise generated by Mount Thorley operations behind. Attended monitoring would be required at more locations and at a frequency substantially higher than that proposed, which is the minimum four days per quarter proposed in Condition 8(d). However, even attended monitoring will have difficulty in distinguishing the sources of noise generated.