Maules Creek Coal Pty Ltd v Environment Protection Authority; Environment... [2026] NSWCCA 80 | Case summary | Zoe

NSWNSWCCA

Maules Creek Coal Pty Ltd v Environment Protection Authority; Environment Protection Authority v Maules Creek Coal Pty Ltd

[2026] NSWCCA 80

Court of Criminal Appeal (NSW)|2026-06-17|Before: Ward P at [1]; Leeming JA at [326]; Fagan J at [327]

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2026-06-17

Before

Ward P at [1]; Leeming JA at [326]; Fagan J at [327]

Catchwords

CRIME — Appeal from Land and Environment Court — Appeal against conviction — overburden blast — construction of environment protection licence conditions — whether specific limit conditions of airblast overpressure and vibration levels override general obligation of competence — whether specific limits act as a “proxy” for general obligation of competence — as to the timing, stemming and overloading charges, whether it was established beyond reasonable doubt that the appellant failed to carry out the blast in a competent manner — as to the noise charge, whether it was established beyond reasonable doubt that the explosives were not dealt with in a proper and efficient manner

Source

Original judgment source is linked above.

Catchwords

CRIME — Appeal from Land and Environment Court — Appeal against conviction — overburden blast — construction of environment protection licence conditions — whether specific limit conditions of airblast overpressure and vibration levels override general obligation of competence — whether specific limits act as a “proxy” for general obligation of competence — as to the timing, stemming and overloading charges, whether it was established beyond reasonable doubt that the appellant failed to carry out the blast in a competent manner — as to the noise charge, whether it was established beyond reasonable doubt that the explosives were not dealt with in a proper and efficient manner

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Maules Creek Coal Pty Ltd v Environment Protection Authority; Environment Protection Authority v Maules Creek Coal Pty Ltd [2026] NSWCCA 80

Hearing dates: 4 and 5 February 2026

Date of orders: 17 June 2026

Decision date: 17 June 2026

Before: Ward P at [1]; Leeming JA at [326]; Fagan J at [327]

Decision: 1. The convictions for each of the charges are quashed and, in lieu thereof, a verdict of acquittal on each of those charges is entered.
2. The orders of the Land and Environment Court imposing monetary penalties are set aside.
3. The application for leave to appeal against sentence is dismissed.
4. The order for costs made in the Land and Environment Court is set aside.
5. The matter is remitted to the Land and Environment Court on the question of costs of the proceedings in that court.
6. There is no order for costs of the proceedings in this Court.

Catchwords: CRIME — Appeal from Land and Environment Court — Appeal against conviction — overburden blast — construction of environment protection licence conditions — whether specific limit conditions of airblast overpressure and vibration levels override general obligation of competence — whether specific limits act as a “proxy” for general obligation of competence — as to the timing, stemming and overloading charges, whether it was established beyond reasonable doubt that the appellant failed to carry out the blast in a competent manner — as to the noise charge, whether it was established beyond reasonable doubt that the explosives were not dealt with in a proper and efficient manner

Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Beckwith v R (1976) 135 CLR 569; [1976] HCA 55
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Chamberlain v The Queen (1983) 72 FLR 1
Chamberlain v The Queen (1984) 153 CLR 521; [1983] HCA 7
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Commonwealth of Australia; CD v Director of Public Prosecutions (DPP) (SA) [2025] HCA 37; (2025) 99 ALJR 1388
Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; 64 A Crim R 124
Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114
Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37
Environment Protection Authority v Collex Pty Ltd [2001] NSWLEC 177; (2001) 115 LGERA 337
Environment Protection Authority v Elf Farm Supplies Pty Ltd [2017] NSWLEC 60
Environment Protection Authority v GrainCorp Operations Limited [2019] NSWLEC 143
Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39
Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252
Environment Protection Authority v Sydney Water [2022] NSWLEC 100
Environment Protection Authority v Whitehaven Coal Mining Limited [2019] NSWLEC 27
Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; 85 LGERA 197
Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
JBS Australia Pty Ltd v SafeWork NSW [2024] NSWCCA 209
Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
Leda Manorstead Pty Ltd v Secretary, Department of Planning and Environment [2022] NSWCCA 220; (2022) 253 LGERA 184
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Palmanova Pty Ltd v Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362
Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44
Saraswati v The Queen (1991) 172 CLR 1; [1991] HCA 21
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
The Phosphate Co-operative Company of Australia Limited v Environment Protection Authority (1977) 138 CLR 134; [1977] HCA 65

WARD P: On 4 October 2024, Maules Creek Coal Pty Ltd (the appellant on the conviction appeal and respondent on the sentence appeal) (MCC) was found guilty in the Land and Environment Court of four offences – three against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) and the fourth against s 140(1) of the POEO Act (Environment Protection Authority v Maules Creek Coal Pty Ltd (No 3) [2024] NSWLEC 97 (principal judgment)). The offences relate to an overburden blast (the Blast) carried out by MCC on 20 August 2020 at the Maules Creek open cut coal mine in Boggabri, New South Wales (the Mine).
The process of blasting, using explosives, is used to deaggregate rock and other similar material for the purpose of extracting coal. Blasting is a regulated activity, subject to the conditions imposed by the planning authority (the Environment Protection Authority) (EPA), the respondent to the conviction appeal and appellant on the sentence appeal.
Relevantly, the Blast was specifically designed and implemented to address difficulties that MCC had experienced in achieving adequate fragmentation of capping rock in a previous overburden mine blast carried out in the “Herndale seam” on 7 August 2020 (see [7] of the Statement of Agreed Facts dated 2 December 2022 (Ex 2 in the proceedings); principal judgment at [38]-[40]). Capping rock or caprock is the conglomerate material forming part of the overburden that lies at and near the ground surface within the same stratum as the stemming that sits in the blast holes above the explosive charge – see principal judgment at [40].
Following a sentence hearing before the primary judge, final conviction orders were made and monetary penalties were imposed, together with costs orders and other orders pursuant to s 250(1)(a) of the POEO Act (Environment Protection Authority v Maules Creek Coal Pty Ltd (No 4) [2025] NSWLEC 92 (sentence judgment)). The primary judge imposed a penalty of $50,000 for each offence (thus, in total, a penalty of $200,000 for the contraventions of ss 64 and 140 of the POEO Act) and made orders for the publication of a notice as to the offences and for costs.
MCC, by notice of appeal filed on 17 September 2025, appeals its conviction on a number of grounds (not all of which were ultimately pressed). EPA, which prosecuted the charges against MCC in the Land and Environment Court, by notice of appeal filed on 23 September 2025, seeks leave to appeal against the sentences imposed, including on the basis that the sentences are manifestly inadequate.
The conviction and sentence appeals were heard concurrently. For the reasons which follow, the conviction appeal should be allowed and EPA’s application for leave to appeal against sentence will necessarily be dismissed.

MCC had conducted previous blasts in the Herndale area which resulted in poor fragmentation, because of caprock located in the seam, leading to poor digging conditions and safety risks to workers.
Relevantly, in November 2019, a fragmentation issue had been identified (principal judgment at [33]). In 2019, Mr Jorge Moraga, the Mine’s general manager, contacted Dr Cameron McKenzie, an expert in mine blasting, in relation to the problems experienced in achieving adequate fragmentation (principal judgment at [33]). In December 2019, Dr McKenzie produced a report, after attending the Mine over three days, entitled “Review of Blasting Practices at Maules Creek Coal Mine” (Dr McKenzie’s 2019 Report). Dr McKenzie’s 2019 Report included options of reducing stemming length (the recommendation there being in the range of 3 to 3.5m) and adopting fast initiation timing to address the fragmentation problems (principal judgment at [34]). (MCC’s Design Standard dated 16 October 2019 specified a stemming length of 3.5m – see principal judgment at [35]). Stemming is “the amount of inert material which sits in the blast hole above the explosive blast material” and “stemming length” is “the distance between the top of the explosive charge and the surface of the blast that is usually filled with stemming material” (see principal judgment at [35]; 04/06/26; T 4.16).
The fragmentation problems experienced in 2019 were in the “coarse upper flitch of the interburden of the Velyama seam, as opposed to the coarse fragmentation of the overburden on the Herndale seam” (the latter being the issue which led to the subsequent retainer of Dr McKenzie in August 2020) (principal judgment at [36]).
The primary judge noted that none of Dr McKenzie’s then (2019) recommendations had been implemented as at August 2020 (principal judgment at [299]). Pausing here, MCC in its reply submissions notes in relation to this finding that Dr McKenzie gave evidence clarifying that “other than the satellite or the stamp hole drilling, there wasn’t anything they could have done, except six and 12 months beforehand, by pre-drilling or pre-conditioning that scene”.

Prior to the previous blast, on or about 4 August 2020, design for the Blast (which was originally scheduled for 19 August 2020) commenced (principal judgment at [42]). Mr Matthew Williams, MCC’s senior drill and blast engineer designed the drill pattern for the Blast with the assistance of Mr Lee Butler, a graduate mining engineer.
On or about 6 August 2020, the drilling of blast holes for the Blast began. Drilling of blast holes ended on or about 16 August 2020 ([8]; principal judgment at [44]).
The issue of inadequate fragmentation achieved by the previous blast, and the work health and safety risks it posed, was raised at a meeting of mine operators on 13 August 2020 (principal judgment at [47]; [279]-[281]) (i.e., after drilling of blast holes for the Blast had already commenced). At the hearing, Mr Ryan Gomez (the technical services superintendent) estimated that 30%-50% of the drill holes for the Blast had already been drilled by 13 August 2020 (see principal judgment at [47]).
On 14 August 2020, Dr McKenzie (described by the primary judge as a “highly accredited expert”) was engaged to provide advice in relation to what MCC could do in the time available before the scheduled blast to minimise the size of individual pieces of the caprock that would remain after the Blast and improve fragmentation. Mr Gomez advised Dr McKenzie that “the pattern is already drilled or almost completed so there is no room to make any adjustments”. The primary judge noted that, as a result of the late stage of Dr McKenzie’s engagement, the only design aspects that could be controlled to change the fragmentation outcome of the Blast were to the stemming length and to the timing of the charge (principal judgment at [48]; [281]-[283]). (As to this last finding, in its reply submissions MCC says that it was after a work health and safety issue was raised six days before the Blast was scheduled that Dr McKenzie was engaged to advise on minimising caprock and improving fragmentation, while still ensuring that overpressure and vibration complied with the EPL and other approvals.) The timing refers to the rapidity of the sequential detonation of the explosive charges from one drill hole to the next and/or from one line of drill holes to the next.
In an email to Dr McKenzie, copied to Mr Gomez, on 14 August 2020, Mr Williams said that they were “looking at reducing stem heights from 4.0m to 3.0m and using electronic timing to help” (see principal judgment at [50]). The suggested reduction in stemming length was consistent with Dr McKenzie’s 2019 recommendation.
Between 14 and 18 August 2020, Dr McKenzie undertook predictive modelling of changes to the stemming and timing of the Blast to minimise airblast overpressure and vibration resulting from the Blast at the EPL monitoring points in the north-east of the Mine (principal judgment at [283]-[284]). Dr McKenzie was provided with a copy of the drill map and design for the Blast and used data from the previous blast (on 7 August 2020) to make predictions for the Blast.
Dr McKenzie emailed Mr Williams (copying Mr Gomez and Mr Butler) at 10.02pm on 14 August 2020, saying that he had spent “some depressing time on the modelling of this shot”. In that email, Dr McKenzie identified the following three options: “1. We can use fast timing and more conventional stemming lengths; 2. We can use 3 m stemming lengths and conventional timing; 3. We can try 3 m stemming and fast timing, and use the result as a learning opportunity, since I have doubts about the ability to reliably model the impacts on the data I have available”. Dr McKenzie explained the use of the word “depressing” as being “because it tells me that the overpressure impacts may be excessive with just 2.5 metres of stemming, which is what I’d like to recommend. In fact, it says that even with 3 metres, we may be pushing our luck in combination with fast timing”.
In re-examination, Dr McKenzie explained that when he undertook his modelling he was hoping that he would be able to show MCC that it “could use the fastest possible timing, minimal amount of stemming and, therefore, the greatest possibility of getting acceptable or good results and minimising oversight. [Soil oversize, referring to the fragment size of the blasted caprock]. So after such a lengthy period of modelling, if I can’t come up with the answer I wanted, then I’m a little disappointed, depressed” (the primary judge referred to this at [283] of the principal judgment).
In cross examination, Dr McKenzie agreed that the stemming length for the blast holes of 3.0m deviated from MCC’s approved design standard and from what a normal standard would be but said that the whole blast was being done differently. Dr McKenzie did not see that the design of the blast holes would support “any claim of a lack of competence”. Dr McKenzie said that “[i]f the blast had been designed for 5 metres of stemming, but was implement[ed] with 3 that would be incompetent. As far as I can see, it was designed for a stemming length of 3 and that’s what was implemented following a process of assessment and best possible means of evaluating outcomes. So I can’t see how what they did could be called incompetent”.
In his email of 14 August 2020, Dr McKenzie said that his modelling showed that “if we go to the fast timing, then we probably should be looking at 3.5 metres of stemming”. However, as noted, fast stemming in conjunction with 3m stemming was one of the options Dr McKenzie identified. Dr McKenzie was not sure “how much confidence to have in the modelling” as he had never had to model impacts at such extreme distances before (referred to in the principal judgment at [300]).
Between 15 August and 19 August 2020, the blast holes were loaded ([9]). A Blast Clearance Plan dated 20 August 2020 showed the location of the Blast at the Mine relative to the exclusion zones and sentries in place at the time of the Blast ([11]; Tab 3 to the Statement of Agreed Facts).
On 17 August 2020, Mr Butler took over the role of finalising the charge design for the Blast from Mr Williams who was on leave (principal judgment at [57]). Over the course of that day, Mr Butler had various communications with Dr McKenzie to finalise the blast design (principal judgment at [58]-[64]). MCC says that there was no issue as to the design of MCC’s Standard Design Plan; rather, it was the departure from it that is the subject of criticism by EPA’s expert, Dr Cameron (see below).
At 11.34am on 17 August 2020, Dr McKenzie emailed Mr Butler regarding the appropriate clearance distance for the Blast, taking into account both fast timing and reduced stemming. Dr McKenzie suggested a 700m personnel clearance distance and noted that “this blast is a departure from standard blasting practice at Maules Creek” ([60]; [284] principal judgment).
At some stage between 14 and 18 August 2020, Mr Gomez asked Dr McKenzie to carry out modelling on a conservative basis to meet the EPL 95 percentile limits, not merely the EPL absolute limits. The primary judge noted that Mr Gomez described the approach as having “two layers of conservatism” (principal judgment at [284]).
Dr McKenzie’s modelling (based on fast timing and 3.0m stemming) predicted airblast overpressure levels at each of the four EPL monitoring points as set out in the table at [66] of the principal judgment (which included statistics as to the actual overpressure of the Blast). MCC points to the accuracy of Dr McKenzie’s modelling against the result from the Blast and to the fact (which the primary judge accepted was common ground – see [287]) that the actual results were all within the specified limits in the EPL (T 5.14).
Mr David Welch, who was the shotfirer for the Blast, gave evidence (to which the primary judge referred at [78]-[79] of the principal judgment) that he had been concerned about the fast timing being used and had raised those concerns with the engineers (principal judgment at [295]-[297]).

As adverted to above, the Blast was originally scheduled for 19 August 2020 at 3.30pm but was rescheduled (due to high winds on 19 August 2020) to 20 August 2020 at 10.30am when low winds were predicted ([12]).
The primary judge found that notification in advance was given to Boggabri Coal Mine of the Blast (see [77] of the principal judgment). There is no challenge to this finding.
On Thursday, 20 August 2020, at 10.22am, MCC fired the Blast (comprising Shot A and Shot B) along part of the Herndale seam. This involved the loading of 1,197 blast holes with a total of 896,256kg of explosives. MCC’s blast design had provided for the total loading of 854,825kg of explosives. Thus there was a variance of around 41,000kg, as confirmed in an email dated 31 August 2020 from Ms Emma Bulkeley, the environmental superintendent at Whitehaven Coal, to Mr Simon Lund, EPA senior investigator. (The difference between the amount of explosives loaded and the amount of explosives provided for in the blast design raises the overloading issue the subject of one of the four charges brought against MCC.)
After the Blast, airblast overpressure and vibration levels were recorded by blast and dam monitors at the Mine in the north-west ([13]). As already noted, the actual results for overpressure and vibration at each of the four EPL monitoring locations (BM1, BM2, BM3 and BM4) were within the limits required under Conditions L4.1 and L4.3 of the EPL ([14]) (see [84]; [345] of the principal judgment).
As well as the blast monitor records, there were readings from two blast monitors at the Tarrawonga Coal Mine, the Coomalagah monitor (located approximately 12.5km south-east of the Blast) and the Tarrawonga monitor (located approximately 9.7km south of the Blast); by blast monitors at two private residences in Wilberoi East (located south of the Blast) and Goonbri East (located east of the Blast); and at the Boggabri “trigger unit” (located south of the Blast) which recorded airblast overpressure and vibration levels after the Blast. The airblast overpressure and vibration levels recorded by the two blast monitors at the Tarrawonga Coal Mine and Coomalagah monitor are set out in an email from Ecotech to Mr Sebastien Moreno of Whitehaven Coal and reproduced at [288] of the principal judgment. The results from the Wilberoi East and Goonbri East monitors and at the Boggabri trigger unit are summarised in a table reproduced in the principal judgment at [289]. None of those monitoring points were specified monitoring points for the purposes of the EPL limit conditions and, as MCC points out, no evidence was adduced by EPA as to the reliability or accuracy of these other blast monitors.

By summonses filed on 16 August 2021 (and in the case of the first summons, amended on 13 December 2021), EPA (as the prosecuting authority) brought five charges with respect to the Blast. Charge 2 (Summons 2021/234555) was withdrawn and dismissed prior to the principal judgment.
Charges 1, 3 and 4 (brought by Summonses 2021/234554, 2021/234556 and 2021/234557, respectively) are charges for offences against s 64(1) of the POEO Act, each for an alleged contravention of Condition O1.1 of the EPL (that MCC designed and carried out the Blast otherwise than in a competent manner in contravention of that condition in the specific respects particularised in the respective summonses). Those are referred to as the timing charge, the stemming length charge and the overloading charge.
In relation to the timing charge, it was alleged that MCC programmed the electronic initiation system for the Blast with a burden relief time of 0.8 to 1.5ms/m, which did not provide good progressive release of burden as required under cl 3.3.5 of the BLMP. The programming of the timing in this way was referred to as “fast timing”. Burden relief time refers to the interval between detonations of charges in the drill holes, to allow caprock overburden to be slightly displaced by one explosive charge before the next detonation is initiated.
In relation to the stemming length charge, it was alleged that the utilisation of a 3.0m stemming length deviated from MCC’s Approved Design Standard, which specified a stemming length of 3.5m (under the heading “Loading Parameters”).
In relation to the overloading charge, it was alleged that MCC overloaded approximately 19% of the blast holes with amounts of explosives that were more than 10% of the amount of explosives prescribed in the design for the Blast, which was in contravention of MCC’s procedure for loading and stemming the blast holes.
Charge 5 (Summons 2021/234558) alleged a breach of s 140 of the POEO Act for the emission of noise (particularised as the failure of MCC to deal with materials in a proper and efficient manner). This will be referred to (unsurprisingly) as the noise charge. It was alleged that between 4 and 20 August 2020, MCC, as the occupier of the Licensed Premises, dealt with materials in or on the Premises in such a manner as to cause the emission of noise from the Licensed Premises and that the noise so caused was caused by its failure to deal with those materials in a proper or efficient manner.

EPA subpoenaed a number of employees of, or consultants to, MCC, (Dr McKenzie, Mr Gomez, Mr Williams, Mr Welch and Mr Moraga) to attend and give evidence at the hearing and also called evidence from Mr Jonathon Byrnes and Ms Rebecca Severin, both operators at the Boggabri Coal Mine at the date of the Blast, Ms Jasmine Walden, an EPA investigator and Mr Lund. They were examined (principal judgment at [140]) as to the process leading up to the Blast and its immediate aftermath. EPA also called a number of residents from the local area including Ms Druce and employees of the nearby Boggabri Coal Mine, reading seven affidavits from those witnesses (see principal judgment at [136]). Relevant evidence provided by the lay witnesses is summarised by the primary judge in the principal judgment at [141]-[194].
Relevantly, as to the impact of the Blast, Mr Byrnes, deposed in his affidavit sworn 27 July 2021 that “at about 1020 hours on Thursday 20 August 2020, I was present at the go line at Boggabri Coal Mine … As I was walking across the go-line I pulled my ear plugs out and I heard this almighty pop, like a gun shot going off right next to my head”. Mr Byrnes said that he “felt a shake in the ground … looked over and …. saw a blast had gone off at [the mine]”. Mr Byrnes deposed that “[i]mmediately after the blast, I felt pressure in my ear. This lasted for 3 or 4 seconds. After that I had ringing in my ears” and that he “went to see the First Aid Staff … [Ms Severin] and I were then taken into Boggabri Hospital for assessment”. Mr Byrnes deposed that at Boggabri Hospital he “did not have a burst ear drum”. On 29 September 2020, Mr Byrnes completed a worker’s injury claim form with “Coal Mines Insurance”. (For reference I note that the “Go line” was explained by Mr Byrnes during the EPA investigation as the line “where we park all the trucks up for where our crib hut is”.)
Ms Severin deposed in her affidavit sworn 2 August 2021 that, on 20 August 2020, she was sitting outside the crib hut when she heard the first explosion. Ms Severin deposed that “[t]he pain was immediate, and I instantly grabbed my ear”. Ms Severin deposed that “the blast I heard on 20 August 2020 was different to anything I had experienced before. This one was so loud and shook the ground”.
As to expert evidence, EPA relied on the evidence of Dr Alan Cameron, whose experience and background in mining engineering is explained by the primary judge at [195] of the principal judgment. EPA read three affidavits of Dr Cameron: the first, affirmed 4 November 2021, annexing his report dated 4 November 2021; the second, affirmed 9 December 2022 annexing his supplementary report dated 24 May 2022; and the third, also affirmed 9 December 2022, annexing his further supplementary opinion dated 9 December 2022.
In his first report dated 4 November 2021, Dr Cameron sought to identify in relation to each of the timing charge, the stemming charge and the overloading charge, why he considered that Condition O1.1 of the EPL was not met. Dr Cameron opined as follows:

The primary judge considered in detail the lay and expert evidence of the events relating to the Blast and the Blast itself. It is not necessary here to recount this given the background set out above.
The primary judge found (at [41] of the principal judgment) that achieving adequate fragmentation of rock is a key objective of mine blasting, it being an objective directed to both the safety of workers and the efficient commercial operation of the Mine by enabling an efficient dig rate. The primary judge noted that, if capping rock is not adequately fragmented, workers operating certain plants and equipment at the Mine are exposed to potential injuries when large heavy pieces of rock are dug up and loaded into haul trucks, and the process of extraction is more time-consuming and less cost-efficient.
The primary judge described the background to, and reason for, the Blast, including the engagement by MCC of its consultant expert (Dr McKenzie) to conduct predictive modelling of a blast that would address the capping rock issue, and predict flyrock, vibration and airblast overpressure that would occur at four monitoring locations specifically nominated in the EPL (see principal judgment from [33]-[41]). At [45] of the principal judgment, the primary judge found that the Blast had been designed and implemented to address the difficulties in achieving adequate fragmentation of capping rock in the previous blast (carried out on 7 August 2020).
The primary judge found, beyond reasonable doubt, that on 14 August 2020 Dr McKenzie had expressed considerable concern that, after modelling, he could not come up with the answer he wanted (principal judgment at [298]). The primary judge accepted EPA’s submission that Dr McKenzie could not resolve all the uncertainties about the impact of the Blast, where the Blast was a departure from standard blasting practice at the Mine (principal judgment at [301]).
As noted earlier, the primary judge found that the Boggabri Coal Mine was notified in advance of the Blast scheduled to take place on 20 August 2020 ([77] of the principal judgment). However, the primary judge also found that it was established beyond reasonable doubt that MCC failed to consider personnel at the Boggabri Coal Mine (principal judgment at [290]). At [61], the primary judge had earlier recorded that it was not in dispute that Dr McKenzie was not asked to consider the potential impact of the Blast on personnel at the adjacent Boggabri Coal Mine (and see principal judgment at [284]). As I read the reasons, the finding that MCC failed to consider personnel at the Boggabri Coal Mine thus relates to the fact that Dr McKenzie was not asked to consider this issue in his modelling. The primary judge found that the failure to consider personnel at the Boggabri Coal Mine meant that the design of the Blast did not meet an overriding provision of the Australian Standard (principal judgment at [290]).
The primary judge accepted that the Blast had “considerable impact” on lay witnesses, including Mr Byrnes and Ms Severin, (principal judgment at [291]). In this regard, the primary judge accepted the evidence of lay witnesses, including local residents who experienced the Blast (principal judgment at [293]-[294]).
As to the expert witnesses, the primary judge found as follows:

As to the construction of the EPL, the primary judge proceeded on the basis that, as a statutory instrument within the meaning of s 3(1) of the Interpretation Act 1987 (NSW), the EPL must be construed in accordance with ordinary principles of statutory construction, noting that Condition O1.1 must be construed having regard to text, context and purpose (principal judgment at [319]).
EPA had submitted to the primary judge that in the expression “in a competent manner”, “competent” meant to “undertake a task with the necessary and satisfactory level of skill” and “competent manner” required the relevant activities to be carried out with necessary and satisfactory levels; and that, in the context of the EPL, the condition must be considered alongside environmental risk and the nature of the activities. EPA’s contention was that compliance with Condition L4 of the EPL (relating to blasting) did not satisfy the requirement in Condition O1.1 to carry out activities in a competent manner for four reasons: first, because Condition O1.1 focuses on the way the licensed activities are carried out; second, because the Condition must be given work to do in its inclusion in the EPL; third, because carrying out licensed activities in a competent manner may require the consideration of factors not addressed by the terms of the EPL; and, fourth, because Condition O1.1 must be considered in the context of the management of risk.
MCC, on the other hand, had submitted that the EPL needed to be considered as a whole and that the subset of conditions expressly directed to the regulation of mine blasting were Conditions L4.1 and L4.8, noting that Conditions L4.1-L4.4 impose numerical limits on the levels of vibration and airblast overpressure permitted from blasting operations as recorded at the four EPL monitoring points. MCC further submitted that a licensed activity within the meaning of Condition O1.1 is an activity that is regulated by the EPL.
Having referred to the observation by Craig J in Environment Protection Authority v Huntsman Corporation Australia Pty Ltd [2011] NSWLEC 39 (Huntsman) at [65], to the effect that some conditions imposed upon an environment protection licence may be seen to be merely procedural (the consequences of non-observance of which are not necessarily adverse to the environment), whereas others (into which category his Honour placed conditions requiring that an activity be carried out in a competent manner) may be regarded as more fundamental in the control of the regulated activity, the primary judge concluded that Condition O1.1 was of the latter kind (namely a condition more fundamental in the control of the regulated activity) (at [338] of the principal judgment).
The primary judge found that whether there had been a contravention of Condition O1.1 fell to be considered according to the possible environmental consequences of the acts or omissions in question, applying Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; 85 LGERA 197 (Genkem) and Environment Protection Authority v Collex Pty Ltd [2001] NSWLEC 177; (2001) 115 LGERA 337 (Collex), noting that this would involve consideration of the nature of the activities and the environmental risks (principal judgment at [342]).
The primary judge was not satisfied, as a matter of construction of the EPL as a whole, that Conditions L4.1-L4.4 were, in effect, a proxy for Condition O1.1 (as MCC here submits) (principal judgment at [348]) for the following reasons:

At the outset, I note that the conviction appeal is brought under s 5AA read with s 5AB of the Criminal Appeal Act 1912 (NSW) and that the parties accept that it is necessary for MCC to establish an error of law or that the primary judge applied the wrong principle in the fact finding exercise (Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 per Bathurst CJ, Hidden and Davies JJ at [96]; Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 at [12] per Cavanagh J (Gleeson JA and Garling J agreeing); JBS Australia Pty Ltd v SafeWork NSW [2024] NSWCCA 209 at [33]-[34] (Basten JA, Ward P and N Adams J agreeing)).
While it is accepted by MCC that an appeal may be dismissed, despite an appellable error having been established, if the Court is satisfied that no substantial miscarriage of justice has actually occurred (see Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [28] per Santow JA (Hidden and Adams JJ agreeing) followed in Geitonia Pty Ltd v Inner West Council; Gertos v Inner West Council [2016] NSWCCA 186 at [4], [129] and [155]; ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 (2024) 260 LGERA 358 at [66]; Leda Manorstead Pty Ltd v Secretary, Dep**artment of Planning and Environment [2022] NSWCCA 220; (2022) 253 LGERA 184 (Leda Manorstead) at [6] and [17]), MCC submits that if any of the errors it contends are established, it follows that there has been a substantial miscarriage of justice. MCC notes in this regard that there is no assertion by EPA that, if the grounds of appeal are established, no substantial miscarriage of justice has occurred.
MCC groups those grounds of appeal that are now pressed into three categories: construction of the EPL (grounds 1-6); competence findings (grounds 7-14); and the noise charge (grounds 17-18). I will deal with them under those headings.
By way of summary, as to the conclusion I have ultimately reached, I have concluded that the primary judge erred in principle in the findings made as to incompetence and inefficiency because, first, the primary judge did not assess competence and efficiency relative to the mining engineering objectives to which the blasting activity was directed (Grounds 4, 5, 6, 10-13 and 17) and, second, the primary judge did not identify any basis upon which to exclude as a reasonable possibility, Dr Aimone-Martin’s evaluation of the competency/efficiency of the Blast and did not consider the reasonableness of that possibility (Ground 14(c)).

MCC emphasises that the three aspects of the “competence” charges (timing, stemming length and overloading) all operated, either individually or in a combined fashion, to give rise to the ultimate Blast event consequences which manifested in airblast overpressure and ground vibration peak particle velocity and it was accepted (the primary judge described as uncontroversial) that the airblast overpressure and ground vibration were within the specific limits provided for in the EPL. The core of MCC’s complaint raised by Ground 1 is that the manifestation of what was said to comprise the absence of competence, was the very thing that was the subject of specific limit control and monitoring in the EPL.
MCC’s primary contention is that, as a matter of construction of the EPL, Condition O1.1 does not provide for an obligation independently of the specific obligations contained in the EPL in relation to the activity of blasting; rather, the latter override the general obligation of competence in Condition O1.1.
MCC argues that, structurally, the EPL authorises the undertaking of the scheduled activity (coal works, crushing, grinding or separating and mining for coal) and, pursuant to the power to impose conditions (s 63 of the POEO Act), sets out the prescriptive conditions regulating that authority (followed by the general conditions in Chapter 4).
MCC submits that where there is a regime for the specific aspect of blasting within the general licensed scheduled activity, Condition O1.1, as properly construed, has no work to do for that activity. MCC maintains that, on its construction, Condition O1.1 still has work to do in regulating the broader scope of “licensed activities”.
MCC further submits that if (contrary to its contention) the broader obligation of competence remains in the face of the specific obligations in relation to blasting, then compliance with the specific obligations should be regarded as evidence, and satisfaction, of the broader obligation of competence. MCC argues that it is both paradoxical and illogical that it achieved the prescribed result (compliance with overpressure and ground vibration levels) but was found to have not been competent in so doing.
MCC identifies the main error of construction as that raised by Ground 2 (relating to the finding at [348]). MCC argues that none of the reasons given by the primary judge at [348] (see above at [96]), for the finding that the specific conditions (in Conditions L4.1–L4.4) did not override the general provision in Condition O1.1 of the EPL, provides a sufficient answer for that conclusion.
As to the reason given at [348](1), MCC says that there is no relevant distinction to be made about the manner in which activities are carried out as opposed to compliance with specific limits. MCC argues that the specific limits themselves are the result of the carrying out of the activity. It is submitted that if the EPL is directed to regulating the activity and, as part of that regulation, to ensure that certain limits are met at certain locations, there is no relevant distinction to be made in a circumstance where the limits are met, and the broader condition is about the carrying out of the activity. It is submitted that the distinction drawn by the primary judge at [348](1) (between the manner in which licensed activities are carried out and whether operations at specific locations otherwise achieve compliance with specific limits imposed by specific limit conditions) is more concerned with the distinction made by Gleeson CJ in Genkem*,* in circumstances where the complaint there was that there was no prescribed method for undertaking the relevant activity.
As to [348](2), MCC cavils with the primary judge’s conclusion that contrariety is not manifest as between the respective conditions so as to engage the maxim generalibus specialia derogant. MCC submits that it makes no sense for there to be a circumstance where one can act competently (Condition O1.1) but still breach the limits for blasting (Condition L4.1); nor, conversely, that one can meet the limits (Condition L4.1) but be prosecuted for the breach of a condition that required the operator to have done so in a competent manner. MCC submits that, properly considered, they are inconsistent results.
As to [348](3), as adverted to above, MCC submits that Condition O1.1 has work to do beyond the specific limits, arguing that the aspects of the activity the subject of specific control under the EPL may not cover all of the various activities and functions that are undertaken by the licence-holder in undertaking coal mining; and hence Condition O1.1 has work to do in addition to compliance with the specific limits for certain parts of the overall undertaking of the Coal Mine.
As to [348](4), MCC accepts that Condition O1.1 of the EPL is not directed to “blasting” per se; nor is it a term that is included within the actual words of the condition. However, MCC says that blasting is a component of undertaking the controlled activity, to which Condition O1.1 does apply (as also do Conditions L4.1-L4.4) and argues that, if the purpose and object of the provisions is to regulate an identifiable consequence of the carrying out of the controlled activity, then the specific must prevail to the extent of any such inconsistency.
As to [348](5), where the primary judge accepted that Condition O1.1 was concerned with the general management of risk, MCC argues that, once it is recognised that the “possible risk of environmental harm” is measurable by a result which is either less or more than the limits set out in the specific conditions, then in the light of the specific blasting conditions, Condition O1.1 has no work to do.
As to [348](6), where the primary judge rejects MCC’s submission that the design of the Blast was a separate activity to the carrying out of the Blast and not a licensed activity within Condition O1.1, MCC argues that the connection between the particulars of the three charges and the design of the Blast does not establish sufficient reason not to find that, upon satisfaction of Conditions L4.1-L4.4 of the EPL, there can be no breach of Condition O1.1 for the very same aspect of activity.
MCC has filed extensive reply submissions as to the proper construction of the EPL and the interpretation of Condition O1.1, emphasising that the nature of the EPL is to be understood in the light of the legislation pursuant to which it was issued (referring to Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; 64 A Crim R 124 (Aust Iron & Steel) at 505B; Environment Protection Authority v Sydney Water [2022] NSWLEC 100 at [377]) and that this approach requires consideration at the first stage of the construction process of context (used in its widest sense) (referring to Palmanova Pty Ltd v Commonwealth [2025] HCA 35 at [5]; (2025) 99 ALJR 1362; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]), purpose and history (citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2).
MCC argues that the essential nature of the EPL is to permit, on terms, conduct that would otherwise be unlawful (here, the mining for coal, coal works, and crushing, grinding or separating), referring to Aust Iron & Steel (at 505B-C) and says that not all activities carried out at the premises are licensed activities for the purposes of Condition O1.1 (citing Genkem). MCC complains that no consideration was given in the principal judgment to interpreting the EPL in accordance with Aust Iron & Steel. MCC further complains that the primary judge “overlooked” that, in considering various conditions of an environment protection licence, it is not to the point that the drafter of the licence may have devoted more attention to stating what was prohibited (or to “obligations” or “control”) (in this context Conditions L4.1-L4.4) than what was permitted (referring to Aust Iron & Steel at 505B).
MCC says that the primary judge regarded the permissive limits in Conditions L4.1-L4.4 as being subject, or secondary, to Condition O1.1 (referring to [347] of the principal judgment). MCC submits that a reading of the whole of the EPL underscores the permissiveness of the licence and contends that compliance with its terms was either a defence to a charge of failing to comply with Condition O1.1 in relation to the carrying out of the Blast or carried significant weight in considering such a charge (cf [250], [348], [398] of the principal judgment). MCC says that a “defence” in this context may be available, in effect, where the general condition is read down to exclude conduct which complies with the specific regulation of that conduct, or its environmental consequences, elsewhere in the EPL.
MCC contends that, read as a whole, the EPL contains a comprehensive regime for regulating aspects of the environmental consequences of blasting which is carried out as part of coal mining; and says that Conditions L4.1-L4.4 are but one component of this regime (cf [347]-[348] of the principal judgment). In this context, MCC refers to other EPL conditions which relate specifically to blasting (Conditions P1, L4.5, 4.7, Part 5 and Condition R1.1). MCC submits that other pollution limits demonstrate the nature of the regime in the EPL, (referring to: Conditions P1.1 and P1.3 (which refer to the setting of limits for the emission of pollutants to the air and water); Condition L1.1 (which provides that the licensee must comply with s 120 of the POEO Act except as expressly provided by licence conditions); Condition L2, which permits discharge of pollutants; Conditions L3 and L5, which prescribe limits upon noise generated at the premises; and Condition O4.1, which prohibits the emission of offensive blast fumes from the premises) (which MCC says contrasts with the permission to emit blasting overpressure and ground vibration).
MCC complains that, although the primary judge recorded by way of factual background a number of the above conditions, when interpreting the EPL, the principal judgment is confined to a consideration of Conditions L4.1-4.4 vis-à-vis Condition O1.1 and does not record consideration of the EPL as a whole. MCC says that (to the extent this is suggested in the principal judgment – here referring to [346]) the specific conditions are not of lesser importance by virtue of their specificity.
MCC submits that, by not interpreting the EPL as a whole, the primary judge overlooked the purpose and significance of the four monitoring locations identified in the EPL all being to the north and north-west of the Mine (referring to [85] of the principal judgment), these being the only locations specified for monitoring of noise and vibration limits.
MCC emphasises that monitors associated with Boggabri Coal Mine and Tarrawonga Coal Mine are not identified in the EPL (and hence MCC says that those monitors do not, and are not intended to, apply to noise and vibration from blasts carried out at the Mine). MCC refers to the BMS BTM as evidencing co-operation and communication between the three mines in arrangements for blasting; and says that the scheme in the EPL as to monitoring was not intended to apply to locations on the lands of other mines.
Further, MCC notes that the 2018 variation to the permissions for blast limits was effected around two years before the Blast, indicating that recent consideration was given by the regulator to the appropriate permissions and limits to be afforded under the EPL. MCC points out that limits which were more closely tied to noise sensitive locations were removed. MCC says that, on a proper interpretation of the EPL, this change reinforced that, provided the limits in Conditions L4.1-L4.4 (and other specific Conditions) were complied with, the Blast was authorised by the EPL. MCC points out that the BLMP Blast was the product of consultation with the EPA and approval by the Planning Secretary (and that the BLMP made clear that the four monitoring locations to the north and north-west of the Mine were representative of residences on privately owned land, and “as such, will be used to assess compliance with blasting criteria”). Hence, MCC says that EPA was aware of how compliance with the EPL was understood by it.
Fourth, MCC argues that to incorporate unspecified and general airblast overpressure and ground vibration limits, particularly where specific limits are prescribed, introduces significant uncertainty into the operation of the EPL. MCC says that it can never know whether its activities may give rise to a contravention by exceeding some unexpressed or unidentified limit or effect by way of environmental consequence, and that such uncertainty undermines the proper operation of the statutory licensing regime as a whole.
Thus, MCC argues that the primary judge’s reasoning that Conditions L4.1-L4.4, and compliance with them, are “not a proxy” for Condition O1.1, failed to read the instrument as a whole or to read the Conditions of the instrument together, and failed to recognise that compliance either amounted, in effect, to a defence, or was significant evidence that meant the prosecution could not establish a contravention beyond reasonable doubt.
MCC invokes the following two further tenets of statutory interpretation as relevant to the interpretation of the EPL: first, the rule referred to by McHugh J in Saraswati v The Queen (1991) 172 CLR 1 at 23; [1991] HCA 21 (Saraswati) that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation; second, that doubt or ambiguity should be resolved in its favour, it being the party accused of the contraventions (MCC citing Beckwith v R (1976) 135 CLR 569 at 576 (Gibbs J); [1976] HCA 55 (Beckwith); Leda Manorstead at [4]).
As to the first, MCC says that the reasoning employed in Saraswati (where it was held that conduct covered by either of two specific offences under the Crimes Act 1900 (NSW) in that case could not be the subject of a charge under a general offence under that Act) is analogous to the present case. MCC submits that, given that Conditions L4.1-L4.4 of the EPL expressly provide limitations, Condition O1.1 should be read as excluding blasting in compliance with those provisions. MCC contends that the conduct covered by the specific conditions cannot be the subject of a contravention under the general condition.
As to the second of the further tenets of statutory construction to which it has referred in its reply submissions, MCC submits that if there be any ultimate doubt or ambiguity in the interpretation of s 64 of the POEO Act and the conditions of the EPL, this doubt should be resolved in its favour.
MCC emphasises the reference in Genkem to the “possible environmental consequences” of a contravention giving content and colour both to the obligation to act in a proper and efficient manner and to the consequences of breach of that obligation and complains that the primary judge’s approach in focusing on the “manner” in which the licensed activities are “carried out” ([348](1)) overlooks the requirement to assess any alleged contravention according to its possible environmental consequences. Again, MCC emphasises that the EPL is permissive in its nature and permits environmental consequences to occur within the limits it prescribes; and that the actual environmental consequences (noise and vibration) were compliant with the permitted limits under the EPL.
MCC points to the evidence that it asked Dr McKenzie to be conservative in his modelling against the EPL limits, to meet the EPL 95% limits, not only the EPL absolute limits ([156], [248], [284], [377] of the principal judgment) and says that arguments that focus upon “risk” and “way” or “process” fail to recognise that neither the risk of sound and vibration nor the actual sound and vibration caused by the Blast contravened the limits in the EPL.
MCC submits that, on a proper construction, given the nature of the EPL in the light of the statutory scheme, the purpose of Condition O1.1 is not to “eliminate” the risk of pollution (or the risk of environmental harm) generally and is not to “eliminate” the risk of pollution arising from blasting specifically. MCC says that, reading the relevant conditions together, carrying out activities in a competent manner may permissibly result in pollution or environmental consequences, the extent of which are regulated by the EPL.
As noted above, MCC further complains that the primary judge disregarded the compliant environmental consequences of blasting at the monitoring locations under the EPL and relied instead upon environmental consequences at other locations which are not identified in the EPL. MCC says that such reasoning was erroneous; that it was contrary to the licensing scheme under the POEO Act and that it introduced uncertainty in the operation of the EPL.

EPA does not dispute that the airblast overpressure and ground vibration peak particle velocity emanating from the Blast complied with the limits in Conditions L4.1-L4.4.
As to Ground 1, EPA submits that there was no error in the approach taken by the primary judge to the construction of the EPL. EPA submits that the structure of the EPL supports the construction of the primary judge, arguing that the fact that Conditions L4 and O1.1 are found in different chapters of the EPL, supports the view that the obligations of the licensee are owed separately and independently. EPA says that this is true even if certain limits are placed on “blasting” in Conditions L4.1-L4.4 as the subset of a “scheduled activity” (in this case mining for coal). EPA says that this does not indicate that there is “no work to do” for Condition O1.1.
Further, EPA contends that primary judge correctly concluded (at [348]) that in the circumstances of this case, the principle that where an Act contains two inconsistent provisions the general provision is to give way to the specific provision (either by reference to the maxims to which her Honour referred or as set out by Robson J in Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44) is not engaged. EPA submits that, having accepted that the question was arguable ([347]), her Honour engaged in the orthodox construction approach to consider whether in fact the principle applied in the circumstances of this case.
As to Ground 2, EPA submits as follows in relation to the six reasons proffered by the primary judge at [348].
As to [348](1), EPA points out that Condition O1.1 in its terms, directs attention to the manner in which the licensed activities are carried out. EPA argues that it is a condition that seeks to regulate activities under the licence by reference to a standard of satisfactory skill and says that both its terms and purposes are directed to the carrying out of activities.
As to [348](2), EPA argues that there is a sensible and logical basis for there to be circumstances in which one can comply with one of Conditions O1.1 and L4.1 and yet breach the other. It is submitted that the process of blasting can be carried out competently and yet still produce a result that breaches the limit conditions (sounding in a breach of Condition L4.1 but not Condition O1.1) or, conversely, the limit conditions may be complied with but certain action or inaction in the carrying out of the activity may nevertheless have not been carried out in a competent manner.
As to [348](3), EPA argues that the fact that Condition O1.1 may have work to do outside of the activity of blasting is not to the point. EPA says that it is a provision directed to how the scheduled activities are carried out; and that it has work to do for each of the scheduled activities.
As to [348](4), EPA says that the purpose and object of Condition O1.1 is wider than that suggested by MCC.
As to [348](5), EPA maintains that Condition O1.1, properly construed, is concerned with the general management of risk of carrying out a licensed activity. EPA submits that it is necessary and appropriate that the EPL regulate the risk that activities are not carried out competently because they expose a significant risk of environmental harm even though it may be that that harm does not actually materialise.
Finally, as to [348](6), EPA submits that the observations of the primary judge on this point were entirely consistent with the conclusion the primary judge reached.
Thus, EPA submits that there is no identifiable error in the approach of the primary judge to the construction of the EPL and, at the level of principle, there is no reason why the EPL should not have been construed to operate such that there can be a breach of Condition O1.1 even if Conditions L4.1-L4.4 have been complied with in this case.

I am not persuaded that her Honour erred in the construction of Condition O1.1 of the EPL as being that it imposes a separate obligation (of competence in the manner of carrying out the activity of, inter alia, blasting) from the specific obligations in Conditions L4.1-L4.4 albeit that there may be some overlap between the general and specific conditions. Her Honour expressly proceeded on the basis that the EPL must be construed in accordance with ordinary principles of statutory construction and that Condition O1.1 was to be construed having regard to text, context and purpose (see at [319] of the principal judgment). Her Honour noted the reference in both parties’ submissions to the need for the EPL to be considered as a whole (see [321]-[322]). The fact that her Honour did not refer to Aust Iron & Steel in this context does not bespeak error.
In my opinion, her Honour correctly concluded that, in construing the EPL and Condition O1.1, the principle that where there is conflict between a general provision and a specific provision the latter prevails was not here engaged. The structure of the EPL (with the general operating conditions contained in a separate chapter from specific limit conditions supports such a conclusion).
As her Honour observed, Condition O1.1, in its terms, directs attention to the manner in which licensed activities (of which blasting is one) are carried out; Conditions L4.1-L4.4 are specific limit conditions which focus on the outcome of blasting (in terms of airblast overpressure and vibration). I do not accept that Condition O1.1 has no work to do in relation to blasting in light of the specific limit conditions for that activity.
While I accept that a strong indicator of competence may be compliance with the limit conditions (and, conversely, non-compliance with limit conditions may be a strong indicator of a lack of competence in the carrying out of the blasting activity), there is in my opinion, scope for Condition O1.1 to regulate competence in the carrying out of the activity that may not be established merely by achieving the limit conditions. As debated during oral submissions one may postulate circumstances in which a blasting activity was carried out with a lack of competence yet there was (fortuitously or otherwise) compliance with blast limits; for example, where there was non-compliance with safety procedures which nevertheless did not prevent compliance with blast limits. More relevantly, in the present case, one might argue that there was some practical inefficiency in overloading some of the blast holes with explosives beyond the amount provided for in the design plan, without that resulting in non-compliance with the limit conditions. What would turn on this would, of course, be another matter.
Therefore, Grounds 1 and 2 are not made good.

Grounds 4, 5 and 6 impugn the specific findings of the primary judge with respect to the first three charges for aspects of breach of Condition O1.1, respectively in relation to the three separate particulars of timing, stemming length and overloading. (MCC notes that these findings were mirrored in the sentence judgment at [230]). MCC relies on its submissions put forward in relation to Grounds 1-3 in this context. In its reply submissions, MCC amplifies its contention that these findings were in error as follows.
In relation to the timing charge, MCC says that compliance with Conditions L4.1-L4.4 did detract, or should have detracted, significantly from the finding that the programming of the electronic initiation system for the Blast was not “fitting, suitable or sufficient for the purpose”.
In relation to the findings on the stemming length charge and the overloading charge, complaint is made that the primary judge made no reference to the fact that there had been compliance with the EPL conditions directed to blasting (referring to the principal judgment at [413]-[420] in relation to the stemming length charge; [445]-[450] in relation to the overloading charge). MCC says that it is to be inferred that this evidence was erroneously not taken into account in the assessment of liability for these charges.
MCC submits that it was not open to the primary judge to find any of the offences established beyond reasonable doubt, given the circumstances of compliance with the blasting conditions of the EPL and argues that the primary judge’s “preference” for the evidence of Dr Cameron over the evidence of Dr Aimone-Martin as to the ultimate issue was insufficient to find the offences established beyond reasonable doubt (this being raised expressly by Ground 14).
MCC says that such a “preference” was also insufficient to reason as to guilt, given the extensive other evidence bearing on the ultimate issue. MCC says that a “preference” for the evidence of Dr Cameron did not grapple with the substance of evidence given by Dr McKenzie (or submissions made in that respect). MCC points out that Dr McKenzie was eminently qualified in blasting and vibration analysis and modelling, had deep experience in the industry, and gave extensive evidence of the rationale for the design of the Blast both in his record of interview and in oral evidence at the hearing (MCC here refers to Chamberlain v The Queen (1984) 153 CLR 521 at 558 per Gibbs CJ and Mason J; [1983] HCA 7, endorsing remarks of Jenkinson J at Chamberlain v The Queen (1983) 72 FLR 1 at 81-82).
In reply submissions, MCC also complains that, rather than applying the conditions in the EPL that govern the environmental consequences of blasting, the primary judge found that the s 64 offences were established by reference to standards and guidelines that were extraneous to the EPL (in particular, the Project Approval, the BLMP, the Australian Standard and the International Society of Explosive Engineers (ISEE) Blasters’ Handbook). MCC contends that this amounted to an erroneous substitution of criteria, through the “gateway” of Condition O1.1, for the conditions that were expressed in the EPL. MCC says that the findings erroneously amounted to employing Condition O1.1 as a de facto alternative to the blasting conditions in the EPL.
MCC notes that the EPL states that the responsibilities of the licensee, separate to the requirements of the licence, are set out in the POEO Act and its regulations; that it does not state generally that the responsibilities of the licensee under the EPL, for the purposes of blasting, may be found in the Project Approval, the BLMP, the Australian Standard or the ISEE Blasters’ Handbook; and that it contains only limited references to such external criteria. MCC says those references are irrelevant to the charges brought against it.
MCC accepts that, in an appropriate case, relevant evidence as to whether there has been a contravention of a condition of an EPL, such as Condition O1.1, may include expert evidence of applicable industry standards but says that, here, the EPL prescribed a comprehensive regime for the environmental management and permissible environmental consequences of blasting. MCC submits that that regime had to be given paramountcy. MCC contends that, in this context, there is no proper basis effectively to read into the conditions of the EPL or otherwise to impose other standards as a substitute or alternative for the standards set by the EPL to regulate the environmental effects of a blast. MCC argues that this is what, in substance, occurred by finding contraventions assessed against extraneous documents. MCC says that the attention devoted in the principal judgment to other standards and guidelines should not distract from the applicable statutory and licensing framework but that, in any event, the primary judge misapplied section 4.1 of the Australian Standard and the BLMP.
As to the so-called “extraneous documents”, MCC makes the following submissions.
As to the Project Approval, MCC notes that the EPL makes no general reference to picking up or incorporating the Project Approval conditions and does not pick up or apply criteria in Condition 18 of Schedule 3 of the Project Approval or the blast management plan referred to in Condition 25 of the Project Approval. MCC says that the EPL prescribes its own blasting effect criteria but notes that, in any event, Condition 18 relevantly prescribes the same limits as Conditions L4.1-L4.4 of the EPL. MCC points out that the EPL contains only specific and limited references to the Project Approval, namely, to define the boundaries of the “premises”, to identify particular privately owned residences to which noise limits did not apply, and to identify two particular locations for certain construction noise limits.
As to the Australian Standard, MCC notes that Condition M7 of the EPL refers to the Australian Standard but MCC points out that it does so only to specify the method of sampling at monitoring points 31, 32, 33 and 34 and, specifically, not in relation to the use of explosives. MCC cavils with EPA’s submission that the primary judge simply considered the Australian Standard (see its submissions at [75]). MCC says that the primary judge’s findings of contravention of Condition O1.1 directly relied upon section 4.1 of the Australian Standard as setting the relevant standard of competence. It is noted that section 4.1 of the Australian Standard provides:

MCC says that the primary judge expressly based her conclusions that Condition O1.1 was contravened in the timing charge in part upon these generally stated paragraphs (referring to the principal judgment at [399]). MCC contends that these paragraphs are not in their terms a “concrete benchmark” as to the noise and vibration to be emitted by a blast. Further, MCC says that, whereas the second paragraph of section 4.1 refers to an investigation of the site being conducted in order to prepare a blast management plan, the primary judge found that the blast design did not meet the second paragraph (see at [399]). MCC says that the second paragraph does not purport to set a standard for blast design, and, as such, the primary judge misapplied that paragraph.
As to the BLMP, MCC notes that the primary judge found the timing charge to be established based upon what her Honour found to be non-compliance with the fifth and sixth dot points of cl 3.3.5 (see above) (see at [391](6)-(8), [392]-[393] of the principal judgment). MCC points out that the EPL makes no reference to the BLMP and submits that the primary judge took the fifth and sixth dot points out of context in making these findings. MCC says that ensuring that the matters in the dot points in cl 3.3.5 are implemented is expressly directed to a particular objective; namely, to meet relevant overpressure and ground vibration criteria (referring to [385] of the principal judgment). MCC complains that her Honour rejected this submission but did not give reasons as to why it was rejected (referring to [392] of the principal judgment) and that her Honour proceeded to find that “[t]he programming of the electronic initiation system for the blast was not ‘fitting, suitable or sufficient for the purpose’” ([398] of the principal judgment).
MCC says that the relevant purpose, as stated in cl 3.3.5 of the BLMP, was to meet the objective of the relevant overpressure and ground vibration criteria (which are referred to in section 4.1 of the BLMP, which in turn identifies the monitoring locations in the EPL). It is noted that the BLMP states:

MCC points out that Schedule 3, Condition 18 of the Project Approval contains the same overpressure and ground vibration criteria as Conditions L4.1-L4.4 of the EPL; and that the BLMP also states that the principal legislation is the POEO Act and sets out the (previously) applicable conditions of the EPL.
MCC says that, absent reasons for rejection of the submission summarised at [392] of the principal judgment, it is not apparent why the primary judge did not accept that, upon a proper reading of section 4.1 of the BLMP, that section was complied with (which it says equated with compliance with the EPL) (MCC here citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, 444 per Meagher JA).
Pausing here, EPA says that the BLMP was relevant because EPA contended that the Blast was not designed in a competent manner in part because it did not conform to the BLMP, in particular cl 3.3.5, resulting in a high level of noise and airblast overpressure. Hence, EPA does not accept that this was an “extraneous” document.
As to the ISEE Blasters’ Handbook, MCC notes that the primary judge’s conclusion underpinning the stemming length charge included substantial reliance upon a blast ratio that was “significantly less” than that recommended in the ISEE Blasters’ Handbook, her Honour finding that the reduction of stemming length, by reference to that Handbook, was a “significant change” and a “concern” (see at [413](5), [416] of the principal judgment).
MCC points out that the EPL makes no reference to the ISEE Blasters’ Handbook. MCC emphasises that the Handbook comprises many hundreds of pages and complains that it is unclear which part of the extracts substantiates the “rule of thumb” upon which the primary judge based her findings in relation to the stemming length charge (referring to [117]; [416] of the principal judgment).
Finally, as to the Approved Design Standard, MCC notes that the primary judge found that the stemming length charge was established, in part, by utilising the 3.0m stemming length for the blast holes, because this deviated from the design standard, which specified a stemming length of 3.5m ([415]-[416] of the principal judgment). MCC points out that the EPL does not refer to a design standard or to the design of a blast. MCC submits that it is inappropriate to invoke the EPL to govern the specific processes that were made the subject of the stemming length charge rather than the environmental consequences. MCC argues that the design standard was never intended to be applied rigidly and irrespective of the suitability of its terms. MCC notes that the “Approved Design Standard” was selected in adherence with an internal procedure maintained by MCC for planning, design and record keeping of blasts (the Procedure) (referring to [107]-[108] of the principal judgment). MCC emphasises that the design standards “define the target parameters for drill pattern design” and says that a drill pattern design does not include stemming height (which is a loading parameter rather than a drill pattern parameter). It is noted that, under the Procedure, a design standard was to be used to complete the design of the drill pattern, with an objective to deliver a drill pattern design within 10% of the target design parameters (see [108] of the principal judgment).
MCC also notes that its checklist for drilling and blasting design envisaged that the design parameters could be modified (referring to [113] of the principal judgment) and points out that Dr McKenzie did not accept that the variation from the design standard amounted to a failure to carry out the blasting in a competent manner.

MCC made it clear at the hearing of the appeal that it does not challenge the factual findings on which the primary judge’s findings of breach for lack of competence were made (for example, that the blast holes were overloaded to a particular extent). Rather, MCC submits that, on those findings, the primary judge erred in finding that breach of Condition O1.1 was established beyond reasonable doubt. With respect to the primary judge, I consider that submission to be made good.
As noted above, I have concluded that the obligation of competence in Condition O1.1 has work to do (in relation to the blasting activity) beyond the specific obligations imposed by the limit conditions for blasting and that her Honour did not err in concluding that compliance with the specific limit conditions did not provide a defence or implied defence to the charges nor did it of itself necessarily amount to compliance with the overall obligation of competence. However, in my respectful opinion, her Honour did err in concluding that, in the circumstances, it was established beyond reasonable doubt that there was a contravention of Condition O1.1 in relation to the s 64 charges.
As a general observation, a departure from the Approved Design Standard was not in itself an indication of a lack of competence, particularly when the circumstances of the Blast required a departure from the normal standard and the design of the Blast (in particular the deviation from the standard blast design) was carefully modelled by a competent and qualified expert, Dr McKenzie. As MCC submits, its initial documents contemplated that there might be variations from the standard design (and exceedances of limits, for which notification to the other mines would be necessary).
While I do not accept that her Honour erred in taking into account, in assessing competency, the so-called extraneous documents (since competence must surely be tested by reference both to MCC’s internal procedures and to recognised or accepted industry practice), documents such as the BMS BTM recognised that there could be exceedances of limits and the Blast Design Standard and Plan contemplated that an amendment might need to be made to the standard design for blasting.
The fact that there was not compliance with the Australian Standard in certain respects or the procedures set out, for example, in the ISEE Blaster’s Handbook, also does not of itself indicate a lack of competence, particularly if there was a considered reason for so doing.
Addressing each of the three s 64 charges separately, I am of the following opinion.
As to the timing charge, the core of EPA’s contention, which her Honour accepted, is that the use of fast timing did not meet the objective of a good progressive burden release and meant that the maximum instantaneous charge was not limited to conservative and “proven” levels ((cl 3.3.5) of the BLMP).
In so finding, her Honour preferred Dr Cameron’s evidence as to the use of fast timing resulting in a foreseeable large increase in the maximum instantaneous charge. However, the effect of fast timing had been considered and modelled by Dr McKenzie. The fact that Dr McKenzie was not wholly confident as to the modelling carried out in respect of the fast timing (coupled with reduction in the stemming length) does not bespeak a lack of competence. Dr McKenzie appears to have carefully considered the likely impacts (even to the extent of seemingly agonising over the issue) and had ultimately concluded that fast timing was appropriate in order to achieve the designed outcome (of overcoming the fragmentation issues which posed safety risks while at the same time meeting the limit conditions in the EPL). The fact that Dr McKenzie expressed this as a “learning opportunity” does not indicate some reckless adoption of fast timing (and the fact that the limit conditions were met indicates that his predictions were reasonable).
Further, Dr Cameron’s opinion that fast timing would not provide for “good progressive release” goes in essence to the efficacy of use of fast timing. Whether fast timing may have been less efficacious in achieving good progressive release is not the test for whether there was a lack of competence in designing (and carrying out the Blast using fast timing). Competence requires an assessment of risk as part of the assessment of how the Blast was to achieve its objectives. That aspect of competence was met in my opinion by Dr McKenzie’s work.
Insofar as her Honour took into account, as part of the finding of lack of competence on the timing charge, the failure to consider the personnel at the Boggabri Coal Mine (see Ground 10) (see principal judgment at [399]), it is difficult to see how the fact that Dr McKenzie was not directed to consider the personnel at the Boggabri Coal Mine in his modelling (a finding not challenged by MCC) evidenced a lack of competence in the design of the Blast in circumstances where impact on neighbouring mines was the subject of MCC’s internal procedures for notification and those procedures were followed. In any event, to the extent that Dr McKenzie considered (and recommended) the appropriate exclusion zone, there was in fact consideration by him of the impact of the Blast for contractors on the northern part of the Boggabri Coal Mine. In practical terms Dr McKenzie did take into account the impact on personnel at the Boggabri Coal Mine in that sense.
As to the carrying out of the Blast itself, there is no suggestion that there was a lack of competence in how the timing of the Blast was set, in the sense that it followed the design modelled by Dr McKenzie (i.e., it is not as if there was a departure from Dr McKenzie’s specification of timing). The criticism is in substance as to the design of the Blast including the use of fast timing in the first place. The concerns expressed by the shotfirer, Mr Welch, are not to the point. They do not establish a lack of competence.
Insofar as her Honour found a breach of Condition O1.1 on the timing charge by reference to a breach of section 4.1 of the Australian Standard (as extracted at [175] above), the evidence established that Dr McKenzie planned and designed the Blast to achieve the required outcome; that consideration was given to protection of persons (first, the safety of workers for whom the risk of fragmentation posed a safety issue and, second, personnel within the appropriate exclusion zone) and the environment (by reference to the need to comply with licence conditions). Furthermore, there was a blast management plan (the BLMP) which complied with the requirement for such in the Australian Standard.
As to the stemming length charge (Ground 5) the same general observations as to the timing charge apply. There is no dispute that the reduced stemming length was a significant change from that used in the previous blast and a reduction in the length provided for in the standard design plan. However, the reduction in stemming length was, again, a decision made following Dr McKenzie’s careful review and modelling of the design parameters for the Blast. In other words, it was a departure from the standard length for considered reasons having regard to the objectives of overcoming the fragmentation issue while at the same time taking into account environmental risks and safety.
I make the same observations as to the reliance placed by her Honour on the lack of modelling conducted to the Boggabri Coal Mine (which was not within the monitoring points specified in the EPL). As to the lack of documentation or failure to sign off or appropriately complete the drill and blast design checklist, which Dr Aimone-Martin accepted demonstrated that the design procedure was not “formally managed”, the evidence established that the design procedure was in fact managed through the process involving Dr McKenzie’s retainer. The suggestion that failure to include a date in the checklist amounts to a lack of competence in the design and carrying out of the Blast does not take adequately into account the actual steps taken in the design of the Blast.
For those reasons and, again, the reasons in relation to Grounds 7-14, Ground 5 is made good.
Finally, as to the overloading charge, again I make the same general observations as those made in relation to the other two s 64 charges.
The overloading charge is in a somewhat different category to the other two s 64 charges. Her Honour found that lack of competence was established beyond reasonable doubt because approximately 19% of the blast holes were overloaded with more than 10% of the amount of explosives provided for in the design of the Blast and that this was contrary to the loading and stemming blast holes procedure ([445]). Her Honour went on to say that such overloading was not “fitting, suitable or sufficient for the purpose” having regard to the possible environmental consequences. Her Honour found that the loading did not promote the objectives in the Australian Standard (see [446](3)).
Her Honour’s conclusion that there was a lack of competence in this regard thus appears to have been predicated largely on the departure or deviation from the design of the Blast (though her Honour also took into account that practical steps could have been taken to track and control the amount of explosives headed in each hole and that the blast crew did not take these steps) (see [446](7)-(8), and (10)-(11)). (I do not ignore the fact that her Honour also relied on the lack of modelling as to the Bogabbri Coal Mine in relation to this charge but repeat the observations already made as to this issue.)
The difficulty with the conclusion that it was established beyond reasonable doubt that the loading of the blast holes was not undertaken in a competent manner (and hence that there was a breach of Condition O1.1) by reason of the fact that the blast crew overloaded the Blast holes to the extent that her Honour found is that the conclusion proceeds in essence on the fact that there was a percentage departure from that which was planned and controlled in the loading procedures. Deviation from the design plan was not necessarily an indication of lack of competence. There was no expert opinion from which to draw the conclusion that a deviation of 10% from the target design parameters would be regarded as incompetent. Nor would the apparent failure to take (or effectively to take) practical and reasonable steps to track and control the amount of explosives loaded into each blast hole necessarily evidence a lack of competence to the criminal standard. Moreover, Dr Aimone-Martin pointed out that the 10% variance applied only to drill pattern and loading parameters and not to charge weights loaded into blast holes, explaining that the quantities of explosives loaded into blast holes relate directly to, or are a calculated quantity of, drill pattern (drilled burden, spacing, drill holes diameter and hole depth) and loading parameters (stem length and powder factor) set out in the Standard Fixed Pattern.
A separate issue arises as to causation since, while accepting that overloading of explosives may increase the risk of flyrock for example, there was no evidence to establish where the particular overloaded holes were located and what impact their location might have in this regard. It is relevant to note that in Dr Cameron’s opinion, overloading of some of the blast holes would not have caused the increased airblast overpressure from the Blast because the majority of the airblast would have been due to the blast design which reduced the stemming length and utilised “fast timing” (as noted earlier).
The finding that the blasting activity was not conducted in a competent manner because of the overloading is not made good by the expert evidence in my opinion.
For this reason, Ground 6 is also made good.

On the premise that (contrary to MCC’s contention in Ground 7) possible environmental consequences are relevant to determining whether the activity was undertaken in a competent manner, MCC submits as follows.
As to Ground 8(a), MCC argues that, if the possible environmental consequences manifest in noise and vibration, and that noise and vibration is specifically addressed in the limit conditions of the EPL, there is no warrant to depart from the specifics of Conditions L4.1-L4.4 to a “more amorphous” assessment, especially when that assessment leads back to noise and vibration (the very subject matter of Conditions L4.1-L4.4).
As to Ground 8(b), MCC argues that, if it be the case that the noise and vibration limits are at least relevant, the fact of compliance with the conditions of the EPL with respect to noise and vibration is demonstrative of compliance with Condition O1.1.
As to Ground 8(c), MCC says that, in the circumstances of the present case, no wider or different manifestation of potential consequences than noise and vibration were identified in the principal judgment or reported. MCC refers in this regard to the sentence judgment, which MCC says demonstrates the superimposition of the noise and vibration conditions with the notion of potential environmental consequences.
MCC notes, first, that at [113] of the sentence judgment, there was a finding that there was insufficient evidence supporting proof beyond reasonable doubt that the commission of the offences caused either of the two types of actual harm to the environment which would not have been caused anyway by the firing of the Blast. Second, MCC notes that, at [84], [98] and [114]-[116] of the sentence judgment, alleged damage to a biodiversity corridor was considered and there was a finding at [115] of the absence of such damage. MCC further says that the aspect of the matter dealt with at [114]-[116] of the sentence judgment (alleged damage to the biodiversity corridor) is irrelevant to the question of potential environmental harm for the purposes of the principal judgment because no reference is made to that as a potential harm in the principal judgment. Third, MCC refers to [117]-[120] of the sentence judgment, where a finding as to the absence of damage from noise and/or vibration was made with respect to laypersons, and at [121] insofar as the workers at the Boggabri Coal Mine were concerned.
MCC accepts that there was reference to the biodiversity corridor in the principal judgment at [148], [381] and [479(2)] but says that this was not in the context of potential harm for the purposes of considering the matter of competence.

For ease of reference, I note that the findings referred to in Ground 9 are: at [290], the finding that MCC “failed to consider personnel at the Boggabri Coal Mine, located approximately 2.9km from the [B]last” and that this meant that the design of the Blast did not meet an overriding provision of the Australian Standard; at [399], the finding that the Blast design did not meet either the first or second paragraph of section 4.1 of the Australian Standard; at [446](3), that “the loading and stemming blast holes procedure should be approached in a manner that would promote the paragraphs in section 4.1 of the Australian Standard” and that the loading and stemming did not approach in that manner; and, at [484](4)(a), that the manner of dealing with the explosives was not consistent with the Australian Standard.
In my opinion, there was no error in her Honour having regard to the Australian Standard when assessing whether the charges of lack of competence in the conduct of the Blast were met. That is so notwithstanding that the limit conditions in the Australian Standard may have mirrored those in the Project Approval, the EPL or the BLMP. The question of competence in the manner in which an activity is carried out is not confined to a consideration of whether particular outcomes (or limit conditions) are met. I see no error in considering the question of competence by reference (among other things) to what the Australian Standard provided even though it sets no regulatory limits. As already noted, consideration of what amounts to competence (perhaps analogous to consideration of whether there has been professional negligence in the context of claims against doctors, lawyers or other professionals) can in my view properly take into account recognised and accepted practice within the relevant profession or industry. Ground 9, to that extent, is not made good.
Ground 9, in its terms, challenges the finding of breach of Condition O1.1 due to non-compliance with section 4.1 of the Australian Standard. This was but one of the matters relied upon by her Honour for the finding of lack of competence. I have already addressed the grounds of appeal relating to the three s 64 charges and the submissions made as to the question of breach of the Australian Standard in that context.
As already noted, the evidence establishes that the BLMP did incorporate a risk assessment and control of measures; and that the design of the Blast was planned and designed to achieve the “required outcome” with consideration as to the protection of persons, property and the environment. For example, Dr McKenzie modelled for flyrock and recommended an extension of the personnel clearance zone as a safety measure, which was implemented, including for contractors in the northern part of the Boggabri Coal Mine.
I do not understand her Honour’s finding of breach of Condition O1.1 to be solely predicated on the finding of breach of the Australian Standard. To the extent that it was, for the reasons given earlier, I consider that would have been in error.
Beyond this, Ground 9 adds nothing to the earlier grounds.

As to Ground 10, her Honour found (at [415] of the principal judgment) that MCC contravened Condition O1.1 of the EPL because the stemming length used for blast holes deviated from the design standard set out in the BLMP. MCC argues that, it does not follow, as a matter of logic, that not complying with the BLMP sounds in a finding of non-competence (even assuming that the BLMP did not contemplate variation from its course).
MCC submits that the following provisions of the BLMP are of particular relevance: that its objective is to ensure compliance with conditions of the Project Approval and the EPL ([89] of the principal judgment); that there were blast conditions in the Project Approval (pp 7-8 of the BLMP); that there was an EPL, and its terms (pp 11-12 of the BLMP and [90] of the principal judgment); that certain standards were to be applied (including the relevant Australian Standard and also, relevantly, the BMS BTM) ([91] of the principal judgment); that aspects of stemming, timing and loading were to ensure compliance with regulatory limits, referencing back to the blasting requirements in the Project Approval ([92] of the principal judgment); that blast events were designed to meet the relevant overpressure and ground vibration criteria, in certain ways ([94] of the principal judgment); that the environmental assessment predicted that blast vibration was likely to remain well below the criteria for all privately owned residences, and similarly overpressure was likely to be less than the criteria for all privately owned residences (p 13 in the original EPL before its variation – see above); that monitoring was controlled in Chapter 4.0 (p 22 of the BLMP); that there was to be compliance with the BMS BTM (p 23 of the BLMP); and that “the key management measure for the mitigation of cumulative blast impacts will be scheduling of blasts to ensure each mine fires their blast at separate times”.
MCC says that the critical aspect of the finding of lack of competence by non-compliance with the BLMP was by reference to cl 3.3.5 of the BLMP, summarised at [94] of the principal judgment, noting that findings were made by the primary judge as to non-compliance with various aspects of cl 3.3.5 of the BLMP (see [390] and [391]-[393] of the principal judgment).
MCC argues that, to find an absence of competence because of non-compliance with the BLMP, takes Condition O1.1 “too far” because the BLMP was not a creature of the EPL and, in its terms, was not prescriptive either per se or sufficiently to demonstrate lack of competence.
MCC submits that this is demonstrated by consideration of cl 3.3.5 of the BLMP (see [36] above).
MCC notes that the bullet points in cl 3.3.5 of the BLMP are prefaced by the words “[t]his objective will be met by ensuring that …”. MCC says that they should not be construed as prescriptive components, non-adherence to which demonstrate an example of lack of competence; rather, that “blast events are designed to meet the relevant overpressure and ground vibration criteria” and, again, MCC emphasises that those criteria were in fact met.
It is submitted that, viewed in this way, cl 3.3.5 of the BLMP is no different to the example given by Gleeson CJ at Genkem at p 42A-B. There, his Honour said:

MCC points out that the monitoring locations are prescribed in the EPL, not in Part 3A of the Project Approval, and that, in the Project Approval, limits on exceedances are provided but there is no specification of the point at which measurements are made (other than by reference to “residents on privately owned land” and “all public infrastructure” (referring to Condition 18)).
MCC submits that, where specific monitoring points are identified in the very licence that is the subject of a finding of breach, it cannot be said that an indicator of non-competence is not having monitored limits in other locations (it accepts that this submission is not dissimilar to its earlier submissions as to the specific prevailing over the general).
In relation to those other locations, MCC makes the following submissions.
As to the employees at the Boggabri Coal Mine (persons potentially impacted by the Blast, to which her Honour referred at [399], [417] and [448] of the principal judgment), MCC cavils with the finding by the primary judge that they were not considered (although, as earlier noted, MCC’s position was that it did not challenge her Honour’s factual findings). MCC argues that consideration of those employees was in fact undertaken through the mechanism of the BMS BTM (referring to the individual protocol for compliance with the relevant mine’s own blast management procedures and the process for notification between the three mines inter se). MCC notes in this regard the finding that notification was given of the Blast to the Boggabri Coal Mine (see principal judgment at [77]).
MCC also points to the fact that (as noted earlier) in modelling for the Blast, Dr McKenzie recommended an extension of the personnel clearance zone which extended to contractors present in the northern part of the Boggabri Coal Mine, resulting in an extension of the exclusion zone from 500m to 700m (see [60] and [81] of the principal judgment). (MCC says that the finding of the absence of modelling (at [391](4) of the principal judgment) related to modelling as to timing, as derived from the BLMP (as addressed in Ground 10).)
MCC argues that, in those circumstances, there was in fact no need for specific consideration for this specific blast event of the miners at Boggabri Coal Mine because the criteria were met. Insofar as “sensitive” receptors are concerned, MCC notes that workers on an adjoining mine complex were not included as such in the Australian Standard at Appendix J (referring to sections J4.5 and J5.4 of the Australian Standard).
As to the other non-mining related receptors (see [188] of the principal judgment), the location of which was identified in the map extracted at [61] of the principal judgment, MCC argues that compliance at the EPL monitoring points, being more proximate to the Mine, serves as a “proxy” for compliance with Condition O1.1. MCC argues that, if there is compliance at more proximate “sensitive” receptors to the relevant prescribed limits, then there is no need for consideration of any further receptors.
Accordingly, MCC submits that there is no foundation for a finding of a breach of Condition O1.1 in terms of competence by a failure to take into account impacts at locations other than those that were specifically identified in the EPL.

Ground 14(a) is raised as an alternative to the construction argument, the subject of Grounds 1-6. MCC submits that: where there is an allegation of failure to undertake an activity in a competent manner and that activity is otherwise controlled by prescribed limits; and where satisfaction of the limit conditions was conceded by EPA’s expert to be indicative of competence (see [275] of the principal judgment), there can be no finding on the criminal standard of failure to undertake that activity in a competent manner.
Ground 14(b) again raises the fact (emphasised more than once by MCC) that the prescribed limit conditions were satisfied. Irrespective of its argument that the specific overrides the general, MCC argues that there would be no foundation for any finding that the specific provisions of the EPL have no role to play in and for the general provisions and hence MCC argues that even if Conditions L4.1-L4.4 do not modify Condition O1.1 (so as to show satisfaction of the general condition by reason of compliance with the specific conditions), it cannot be said that the specific conditions are of no relevance to the question of competence. In those circumstances, MCC submits that it cannot follow that there can be a finding on the criminal standard of a breach of s 64 of the POEO Act insofar as it is concerned with compliance with Condition O1.1.
Ground 14(c), raised in the alternative to the above, involves the submission that, on the expert evidence, there was reasonable doubt regarding the question of competence. MCC submits that the language by which her Honour resolved the dispute between the experts (Dr Cameron for EPA and Dr Aimone-Martin for MCC), namely the expression of a preference for the view of Dr Cameron over that of Dr Aimone-Martin (see [304] of the principal judgment), is insufficient for a finding of guilt to the requisite criminal standard. MCC submits that unless the opinion of Dr Aimone-Martin was rejected, or was categorised as not constituting reasonable doubt, the finding of guilt on the question of competence could not be made out. In this regard, MCC contends that, on the findings made by the primary judge, guilt beyond reasonable doubt was not made out.

As to Ground 14(a), EPA says that the questions arising in this case, particularly in relation to Grounds 1 to 6, are readily characterised as questions of law (referring to Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 and CD v Commonwealth of Australia; CD v Director of Public Prosecutions (DPP) (SA) [2025] HCA 37; (2025) 99 ALJR 1388 at [61] per Edelman J). EPA says that no issue of fact to which there can be an application of the criminal standard here arises and that the principle of legality (that ambiguity or doubt in the construction of a condition, breach of which is a criminal offence, must be resolved in favour of the accused) has no work to do in this case.
As to Ground 14(b), EPA says that if the primary judge’s construction (of Condition O1.1) is correct, then it was open to the primary judge to make the findings that were made, having been satisfied to the requisite standard.
As to Ground 14(c), EPA submits that there is no error in the language at [304] of the principal judgment; and that this paragraph of the principal judgment should be read together with [303] in understanding the overall approach that was taken by her Honour to the expert evidence. EPA says that the primary judge approached the expert evidence in detail and with appropriate rigour throughout the judgment (referring in particular to her Honour’s detailed summary of Dr Aimone-Martin’s evidence at [212]-[222] and reference to a number of points on which she was cross-examined at [223]-[241]).
In relation to the timing charge, EPA notes that her Honour explained why her conclusion would be the same “even if” she accepted Dr Aimone-Martin’s premise “that what was required was good vertical release, rather than good progressive burden release” (see at [396]), and that her Honour noted points that were accepted by Dr Aimone-Martin (at [397]). In relation to the stemming length charge, EPA notes that her Honour referred to Dr Aimone-Martin’s evidence and concessions made in cross-examination (at [414]). In relation to the overloading charge, EPA notes that Dr Aimone-Martin’s evidence was referred to in the findings at [446](6) and (8), EPA here referring also to [424]. Finally, in relation to the noise charge, EPA says that the primary judge set out clearly and in detail why Dr Aimone-Martin’s evidence was not accepted in relation to the issues relevant for this charge (at [484(4)(e)]).

In essence, Ground 14(a) appears to contend that there must be reasonable doubt as to MCC’s guilt on the respective charges because the limit conditions were met (even if, as a matter of construction, the specific limit conditions did not override the general obligation of competence in the carrying out of the Blast activity). I do not accept that this necessarily follows. While I accept that satisfaction with the limit conditions may be a strong indication of competence (as explained earlier when considering MCC’s construction arguments), that does not necessarily give rise to a reasonable doubt as to lack of competence. Rather, her Honour was required to take into account all the evidence in determining whether (notwithstanding that satisfaction of limit conditions was conceded to be an indication of competence) she was satisfied beyond reasonable doubt that the charges were made out.
As to Ground 14(b), while I accept that compliance with the specific limit conditions in the EPL was of relevance to the question of competence, again I do not accept that it was necessarily determinative.
Accordingly, I do not accept that Grounds 14(a) and (b) are made good.
However, I am persuaded that Ground 14(c) is made good. EPA was required to establish beyond reasonable doubt that there was a lack of competence in the conduct of the Blast (for the purposes of the s 64 charges) and that there was emission of noise from the premises that was caused by a failure to deal with the explosives in a proper and efficient manner (for the noise charge). Where there was competing expert evidence as to the question of competence, it was not sufficient in my view for there simply to have been a preference for one expert’s evidence over that of the other. In this regard, I do not consider that MCC’s complaint on this issue can be dismissed as a mere matter of terminology.
The evidence of Dr Aimone-Martin (particularly when understood in the context of Dr McKenzie’s evidence as to the modelling he carried out for the Blast) gave rise to a reasonable doubt as to the alleged lack of competence (and, in the case of the noise charge, as to the alleged failure to deal with the materials in a proper and efficient manner). Unless that evidence was rejected, I do not accept that there could be a finding that guilt was established beyond reasonable doubt. I do not read the primary judge’s reasons as amounting to a rejection of that evidence or, perhaps more relevantly, as amounting to a conclusion that the evidence did not give rise to a reasonable doubt. In those circumstances, Ground 14(c) is made good.
On the findings made by the primary judge, I consider that EPA failed to establish guilt as to the s 64 charges beyond reasonable doubt.
Ground 14(c) is therefore established in relation to the respective s 64 charges.
I consider the noise charge insofar as it related to overloading in the context of Grounds 17 and 18 below.

The summons alleged that the manner of dealing with the explosives was not proper and efficient “as it resulted in the dispersion of excessive explosive energy upwards into the atmosphere, thereby reducing the explosive energy of the Blast directed towards the breaking of caprock or overburden that was the intended purpose of dealing with the Explosives”. This accorded with Dr Cameron’s opinion as to the dispersion of excessive explosive energy upwards from the Blast.
As extracted above (see at [103]), her Honour found that the noise charge was established beyond reasonable doubt. Relevantly, her Honour was satisfied to the criminal standard that the emission of noise was caused by MCC’s failure to deal with the materials in a proper and efficient manner for the reasons set out at [484](4) of the principal judgment.
Of those reasons, sub-paragraphs (4)(a) and (b) relate to the breach of section 4.1 of the Australian Standard by not considering safety at the Boggabri Coal Mine and the lack of modelling conducted to the south of the Mine; and 4(c), identifies the use of 3m stemming and fast timing. Sub-paragraph 4(d), as I understand it, relates to the issue raised by Dr Cameron as to the fast timing resulting in high levels of airblast overpressure due to the sudden movement of the surface of the Blast and release of high-pressure gases (found not to be in conformity with the objective in cl 1.4 of the BLMP). Sub-paragraph 4(e) is in effect a rejection or non-acceptance of Dr Aimone-Martin’s evidence as to the impact of atmospheric conditions at the time of the Blast. Sub-paragraph 4(f) rejects the proposition that the achievement of fragmentation was a defence to the allegation. Sub-paragraph 4(g) rejects the proposition that EPA could not prove that the noise was caused by the 3m stemming and fast timing.
Significantly, in my opinion, none of those reasons in terms or in substance relates to the overloading charge. Thus, the subject matter of the noise charge appears to have been confined to the same subject matter as two of the three condition breach charges (the stemming and timing charges), as were, appropriately, her Honour’s findings. This is significant because in my opinion, the evidence only tended, at best, to establish some practical inefficiency in relation to the overloading of a proportion of the blast holes, as I explain in due course.

MCC, in oral submissions, referred to this Ground as “problematic”, by which it seems that MCC was referring to its acceptance that, even though the noise levels did not exceed the limit conditions set in the EPL at the specified monitoring points, it was uncontroversial that there was an emission of noise from the site. However, MCC emphasises that the emission of noise was authorised by the EPL and that the Blast complied with the specific limits set in the EPL (Ground 17).
MCC argues, akin to its construction argument raised by Grounds 1-6 in relation to the s 64 charges, that the sensible operation of the POEO Act where there is an environment protection licence, and there is the emission of noise which (whether or not done in an efficient manner) complies with a specific limit in the environment protection licence for discharge of noise, is that there can be no occasion to found a breach of s 140 of the POEO Act.
MCC points out that the specific topic of noise limits was addressed in Condition L3 of the EPL. MCC notes that her Honour (at [463] of the principal judgment) found that an authority to emit noise afforded by an EPL is not relevant, or does not provide a defence, to an alleged breach of s 140 on the basis of an absence of “any sort of implied exception or defence that is based upon what is allowed under the conditions of the EPL”.
MCC argues, to the contrary, that s 140 of the POEO Act should be interpreted as implicitly excluding noise that is emitted from premises in compliance with the permission to do so by an environment protection licence. Further, or in the alternative, MCC argues that the facts that: such a licence has been granted; it permits the emission of noise from the premises; and it has been complied with; amount to a critical and significant relevant consideration as to whether it has been established beyond reasonable doubt that there has been a failure to deal with materials “in a proper and efficient manner” for the purposes of s 140(1).
MCC accepts that Part 5.5 of the POE**O Act does not include exceptions, or a defence, to a breach of s 140 in the same way as, for example, does Part 5.4. However, MCC argues that Part 5.5 does not need to do so because, on a proper construction of the POEO Act as a whole, where there are scheduled activities that are to be controlled by an environment protection licence, those scheduled activities are to be controlled by the terms and conditions of the licence. MCC submits that Chapter 5 of the POEO Act operates, independently of controlling scheduled activities through an environment protection licence, to control aspects of environment protection offences (such as pollution) in circumstances where there is no such licence.
In reply submissions, MCC made extensive submissions in amplification of Grounds 17 and 18, contending that the primary judge misconstrued s 140 of the POEO Act or applied the wrong principles in application of that provision (by misapprehending the relevance of the EPL and its compliance with permitted limits under the EPL during the Blast). MCC also complains that her Honour failed to give reasons for rejecting submissions made in the defence case which relied upon the fact that the EPL permitted noise to be emitted from the premises and that MCC had complied with the blasting limits in the EPL.
MCC relies on the text, context and purpose of s 140(1) of the POEO Act in support of the construction for which it contends, arguing that s 140 contains a qualification of what would otherwise be an absolute prohibition on the emission of noise from a premises caused by dealing with materials in or on the premises (i.e., that the emission of noise must have been caused by “the occupier’s failure to deal with those materials in a proper and efficient manner”). MCC argues that her Honour, in reasoning that compliance with the EPL is not relevant as a charge under s 140(1) “is not a charge for the breach of a condition”, failed to engage in a proper consideration of the text, context and purpose of the provision having regard to the statutory scheme as a whole.
MCC accepts that the meaning of “proper and efficient manner” in s 140(1) takes into account the possible environmental consequences (referring to the principal judgment at [462]), but says that the colour and content of that phrase fell to be interpreted by consideration of the context and purpose of the scheme of the POEO Act, including that the licensing regime that permits and regulates scheduled activities which cause or are likely to cause pollution.
MCC argues that, having regard to the whole of the statutory scheme, it is most unlikely that Parliament intended that persons who are permitted to carry out scheduled activities under the POEO Act on the one hand are exposed to criminal liability for emission of noise within the scope of that permission on the other. MCC says that it follows that such conduct is implicitly excluded from s 140(1) of the POEO Act.
Alternatively, MCC argues that evidence of an EPL and emissions of noise in compliance with its terms is critical in the consideration of whether there was a failure to deal with materials in a “proper and efficient manner”. MCC contends that, on the terms of s 140(1) and its context, the primary judge was bound to give proper consideration, when determining whether the elements of the offence were established, to the fact that the EPL permitted noise to be emitted from the premises and that the noise in fact emitted was in compliance with the EPL limits (citing Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [15]; (2012) 61 MVR 443; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40).
MCC submits that the approach for which it contends is supported by remarks made by Aickin J (in dissent as to the outcome) in The Phosphate Co-operative Company of Australia Limited v Environment Protection Authority (1977) 138 CLR 134; [1977] HCA 65 (Phosphate) as to how offence provisions in the Environment Protection Act 1970 (Vic) interacted with licensing provisions in that Act. Relevantly, MCC refers to the observations of Aickin J at 150-152 to the effect that there was no doubt that the statutory provisions proscribing offences of polluting the atmosphere in that Act must be read as subject to the grant of a licence, even though the provisions did not say so; and as to not making it an offence to do that which was permitted under the licence.
MCC notes that in Environment Protection Authority v Bartter Enterprises Pty Ltd (No 3) [2020] NSWLEC 114 (Bartter Enterprises) at [46], it was said that a licence under the POEO Act “sets the appropriate limits” of the pollution permitted by the licence “and protects the environment from unacceptable impacts that would occur if the licence conditions were not met”. MCC also refers to Environment Protection Authority v Charlotte Pass Snow Resort Pty Ltd [2021] NSWLEC 37 at [121] in this regard. MCC submits that the reasoning adopted by Aickin J in Phosphate is persuasive in the interpretation of s 140(1) of the POEO Act (referring to *Abou-*Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [99] (McColl JA), [132] (Payne JA)).
To the extent that there remains any doubt or ambiguity in the interpretation of s 140(1) of the POEO Act, MCC maintains that the provision should be construed in favour of the accused person, by refusing to extend the category of the offence in s 140(1) to those whose conduct is in accordance with permission granted under an environment protection licence by the regulator (MCC again citing Beckwith at 576 per Gibbs J).

EPA notes that s 140(1) of the POEO Act is a strict liability offence and that there has been no appeal from the finding that the “sound and vibration” resulting from the airblast overpressure that was recorded following the Blast is “noise” for the purposes of the POEO Act (referring to the principal judgment [470]). EPA points out that there has similarly been no appeal from her Honour’s identification of the elements of the offence (at [452]), subject to the issue of whether compliance with the EPL was a defence, or to the construction to be given to the phrase “proper and efficient manner” (as considered in Genkem and Bartter Enterprises).
For the following reasons, EPA contends that there was no error in her Honour’s approach at [462] and [463] in holding that compliance with the EPL was not relevant or determinative, including as a defence, as raised in Grounds 17 and 18.
First, that a charge under s 140(1) of the POEO Act is not a charge for the breach of a condition of an environment protection licence and s 140 does not include a statutory defence of an authority conferred by such a licence, nor does any other section in Part 5.5 of the POEO Act which is headed “Noise pollution”.
EPA contrasts this with the water pollution offence (s 120), for which a statutory defence is provided in s 122(1) where the pollution was regulated by an environment protection licence and the conditions to which that licence was subject, relating to water pollution were not contravened, and the pollute land offence (s 142A), which is subject to a statutory defence that the conditions of an EPL were not contravened (s 142C). EPA submits that Parliament’s decision not to provide for a similar statutory defence for noise pollution offences is a strong reason why s 140(1) should not be interpreted as having any sort of implied exception or defence that is based upon what is allowed under the conditions of an environment protection licence. EPA argues that this is explicable given that both the pollute water and pollute land offences are framed as total prohibitions in their terms, and then subject to statutory (and, if applicable, common law) defences, including compliance with licence conditions. EPA contrasts this with s 140 which EPA submits seeks to draw the boundaries of the offence within its terms. EPA says that the absence of a provision for a defence of compliance with licence conditions is intended to enable the scheme of s 140 to operate effectively and within its purpose.
Second, EPA submits that this conclusion is reinforced by the fact that two limits are placed upon the operation of s 140 by its terms: first, there is an emission from the premises (consistent with this approach as a noise pollution offence); second, that there is a causation requirement in the terms of the provision, that is the emission of noise must be caused by the failure to deal with the materials in a proper and efficient manner. EPA says that it is therefore not the case that every noise (including a de minimis noise) resulting from dealing with materials on a premises is a contravention of s 140(1) of the POEO Act.

The primary judge did not err in finding that compliance with the noise condition in the EPL did not provide a defence (or implied defence) to an alleged breach of s 140 of the POEO Act, for similar reasons to those I have given in relation to the contention that compliance with the limit conditions did not provide a defence to the s 64 charges. That is because it was open to Parliament expressly to provide for such a defence (as was the case with the water and land pollution offences) and it did not do so. The distinction drawn by MCC between those offences and the noise pollution offence does not persuade me otherwise. That said, I consider (as with those other charges) that compliance with specific conditions of the EPL is an indication that the materials were dealt with in a “proper and efficient manner”.
Nor does the fact that the EPL authorises the emission of noise within certain limits assist MCC in circumstances where the focus in s 140 is on how the materials are dealt with and the causal effect of the manner in which they are dealt with on the emission of noise. There is no implied exception in s 140 of the POEO Act for conduct authorised by an EPL. Grounds 17 and 18 to that extent are not made good.
Nor do I accept the criticism made as to the adequacy of her Honour’s reasons as to the noise charge. Her Honour dealt comprehensively with the evidence and more than adequately expressed the reasons for her conclusions.
However, with respect, in my opinion her Honour erred in concluding that the matters identified at [484](4)(a)-(d) of the reasons established beyond reasonable doubt that the explosives were not dealt with in a proper and efficient manner.
As to sub-paragraphs 4(a) and (b), I have already noted the evidence relied upon by MCC against the finding that there was no consideration of the safety of personnel at the Boggabri Coal Mine. As to the use of the reduced stemming length and fast timing, the modelling by Dr McKenzie properly took into consideration those aspects of the Blast and the reasons for the departures from the standard blast design in those respects. To the extent that the conclusion of Dr Cameron was, in effect, that the fast timing was not an efficient use because it resulted in high levels of airblast overpressure, in my view efficiency must be assessed by reference to the outcome sought to be achieved by the Blast, taking into account the objective in cl 1.4 of the BLMP to which her Honour referred.
In that regard, the fact that the Blast met the objective of fragmentation of the caprock and overburden, and did so within the limit conditions as modelled, is a strong indication that the Blast was carried out in a proper and efficient manner.
The one aspect where it might be said that the handling of the materials was inefficient in a practical sense is the overloading, in that more explosives than had been provided for in the design plan were used. However, this was not a particular of the noise charge. Nor is it clear that the overloading was the cause of the noise exceeding the monitor levels at the other (non EPL) monitoring points (i.e., beyond that which would be caused by the stemming and fast timing itself). Dr Cameron’s opinion was that overloading was not the cause of the airblast; rather, that the Blast was inefficient as a result of the fast timing because of the dispersive effect of the explosive energy thereby generated. This must be balanced against the problems of the previous blast and the subsequent modelling carried out by Dr McKenzie, which in my opinion raised reasonable doubt as to the allegation that the materials were not handled in a proper and efficient manner.
Therefore, I have concluded that, on that basis, Ground 17 is made good. Ground 18 takes the matter no further.

Maules Creek Coal Pty Ltd v Environment Protection Authority; Environment Protection Authority v Maules Creek Coal Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Court (Ward P, with whom Leeming JA and Fagan J agreed) allowing the appeal in respect of the conviction appeal, and dismissing the application to appeal against sentence:

Conviction appeal:

JUDGMENT

Background

The Mine

Project Approval

EPL

Blast Management Plan

Problems in achieving adequate fragmentation in 2019

The previous blast on 7 August 2020

Design of the Blast

The Blast

Charges

Statutory provisions

Evidence

Blast Management Strategy for the BTM Complex

Principal judgment

Conviction Appeal

Construction of the EPL – Grounds 1-6

Grounds 1 and 2

MCC’s submissions

EPA’s submissions

Determination

Ground 3

MCC’s submissions

EPA’s submissions

Determination

Grounds 4, 5 and 6

MCC’s submissions

EPA’s submissions

Determination

The competence findings – Grounds 7-14

Ground 7

MCC’s submissions

EPA’s submissions

Determination

Ground 8

MCC’s submissions

EPA’s submissions

Determination

Ground 9

MCC’s submissions

EPA’s submissions

Determination

Grounds 10-12

MCC’s submissions

EPA’s submissions

Determination

Ground 13

MCC’s submissions

EPA’s submissions

Determination

Ground 14

MCC’s submissions

EPA’s submissions

Determination

The noise charge (s 140)

Grounds 17-18

MCC’s submissions

EPA’s submissions

Determination

Conclusion as to conviction appeal

Sentence Appeal

Costs

Orders

Amendments

17 June 2026

Legislation Cited (8)

Cases Cited (54)