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Court of Criminal Appeal 17 June 2026

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

[2026] NSWCCA 80

Other

Citation: Maules Creek Coal Pty Ltd v Environment Protection Authority; Environment Protection Authority v Maules Creek Coal Pty Ltd [2026] NSWCCA 80
Court: Court of Criminal Appeal
Date: 17 June 2026
Judge(s): Ward P (principal judgment); Leeming JA and Fagan J (agreeing)

Background

The appellant coal company operates the Maules Creek open cut coal mine near Boggabri in New South Wales. On 20 August 2020, the company carried out an overburden blast at the mine, a regulated activity governed by the conditions of an Environment Protection Licence issued under the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), a Project Approval, and a Blast Management Plan.

Following the blast, the airblast overpressure and ground vibration levels recorded at all four prescribed monitoring locations were within the specific numeric limits set out in the licence. However, operators at a nearby mine gave evidence of the impact of the blast on them. The EPA prosecuted the company in the Land and Environment Court, alleging that the blast was carried out in an incompetent manner in breach of a general licence condition, and that materials were not handled in a proper and efficient manner.

On 4 October 2024, the Land and Environment Court found the company guilty of three offences under s 64(1) of the POEO Act (relating to the timing, stemming length, and overloading of blast holes) and one offence under s 140 of the POEO Act (the noise charge). The court imposed a monetary penalty of $50,000 per offence, totalling $200,000. The company appealed against the convictions, and the EPA sought leave to appeal against sentence.

  • Whether the specific numeric limit conditions in the licence (Conditions L4.1-L4.4, prescribing airblast overpressure and vibration levels) operate to override, or act as a proxy for, the general obligation to carry out licensed activities in a competent manner (Condition O1.1).
  • Whether compliance with the specific licence limits provided a defence to an alleged breach of the general competence obligation.
  • Whether it was established beyond reasonable doubt that the company failed to carry out the blast in a competent manner, having regard to timing, stemming, and overloading of blast holes.
  • Whether it was established beyond reasonable doubt that the company failed to deal with explosives in a proper and efficient manner for the purposes of the noise charge under s 140 of the POEO Act.

Decision

Construction of the licence conditions. The Court of Criminal Appeal held that Condition O1.1, which imposes a general obligation of competence, is separate and independent from the specific limit conditions in L4.1-L4.4. The distinction drawn was that Condition O1.1 directs attention to the manner in which licensed activities are carried out, whereas the limit conditions focus on measurable outcomes. Compliance with the numeric limits does not, therefore, constitute a proxy for compliance with the competence obligation, and no express provision renders such compliance a defence to a breach of Condition O1.1.

The competence charges (timing, stemming, overloading). While the Court confirmed several aspects of the primary judge's approach, including the relevance of potential environmental consequences to the meaning of "competent manner" and the permissibility of reference to the Australian Standard and the Blast Management Plan, it held that the primary judge erred in concluding guilt was established beyond reasonable doubt. Where competing expert evidence existed on the question of competence, it was not sufficient for the primary judge simply to prefer one expert's evidence over the other in order to reach the criminal standard of proof. The elements of the Blast Management Plan's design standard were not prescriptive, and deviation from them in a non-standard blast did not soundly establish incompetence.

The noise charge. The Court accepted that compliance with the noise condition in the licence did not provide an implied defence to s 140, but held that such compliance was a relevant indication that materials were dealt with properly and efficiently. Efficiency had to be assessed by reference to the objective of the blast, as set out in the Blast Management Plan. Overloading had not been included as a particular of the noise charge, and expert evidence indicated that overloading was not the cause of the airblast. The modelling evidence raised reasonable doubt as to whether the materials had been mishandled for the purposes of s 140.

Sentence appeal. Because the convictions were quashed and verdicts of acquittal entered, the Court did not need to consider the EPA's application for leave to appeal against sentence. That application was dismissed.

Orders Made

  • The convictions on each charge were quashed and verdicts of acquittal were entered in their place.
  • The monetary penalties imposed by the Land and Environment Court were set aside.
  • The EPA's application for leave to appeal against sentence was dismissed.
  • The costs order made in the Land and Environment Court was set aside.
  • The question of costs of the Land and Environment Court proceedings was remitted to that court.
  • No order for costs was made in respect of the proceedings in the Court of Criminal Appeal.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a general competence obligation in an environment protection licence operates independently of specific numeric limit conditions; the two address different things, with the former focused on conduct and the latter on measurable outcomes.
  • Compliance with specific numeric licence limits does not, without an express provision to that effect, constitute a defence to a breach of a general competence condition, though it remains a relevant consideration.
  • Where expert evidence on competence is genuinely contested, preferring one expert over another is not, by itself, sufficient to establish guilt beyond reasonable doubt in a criminal prosecution.
  • Under s 140 of the POEO Act, the efficiency of handling materials must be assessed by reference to the objective sought to be achieved by the activity in question, not merely whether the handling was practically inefficient in some general sense.
  • In dismissing the sentence appeal as unnecessary, the Court left open for the Land and Environment Court to resolve the question of costs of the original proceedings.

Legislation and Cases Referenced

Legislation
- Protection of the Environment Operations Act 1997 (NSW), ss 50(2), 55, 63, 64, 66, 120, 122, 124, 125, 126, 129, 140, 250
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AB
- Environmental Planning and Assessment Act 1979 (NSW), s 75
- Interpretation Act 1987 (NSW), s 3(1)
- Environment Protection Act 1970 (Vic)

Key Cases
- ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
- Beckwith v R (1976) 135 CLR 569; [1976] HCA 55
- Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252