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In brief

The case of Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22 concerned an application to the Supreme Court of Queensland under section 38 of the Judicial Review Act 1991 (Qld) (JR Act) for an order that the Respondent provide a statement of reasons relating to its decision under section 295 of the Environmental Protection Act 1994 (EP Act), concerning the amount and form of financial assurance required for the Blair Athol coal mine in the Bowen Basin of Queensland.

Respondent imposed a condition requiring the payment of a financial assurance as security for compliance with an environmental authority

Orion Mining Pty Ltd (Applicant) became the holder of a mining lease and related environmental authority, which allowed it to operate the Blair Athol coal mine. The Respondent imposed a condition on the environmental authority in accordance with section 292 of the EP Act, which required the Applicant to pay a financial assurance as security for compliance.

Section 295 of the EP Act required the Respondent to have regard to the following when determining the amount of financial assurance to be paid:

(a) any relevant regulatory requirements; and

(b) any criteria stated in a guideline made by the chief executive and prescribed under regulation.

The Respondent was relevantly prohibited under section 295(4) of the EP Act from conditioning a financial assurance that was more than the amount that in its opinion represented the total likely costs and expenses of carrying out necessary rehabilitation work.

In this instance an appointed delegate for the Respondent decided that Orion was to pay in cash a financial assurance of $74,579,309.53. The Applicant's application sought a statement of reasons in respect of this decision.

Court considered whether the Applicant's interests were adversely affected by the Respondent's decision 

The Court identified that the key issue to be determined was whether the Applicant was a person (or entity) "whose interests are adversely affected by the decision" within the meaning of section 20(1) of the JR Act.

To determine this question the Court adopted its reasoning in Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21 and found that it was necessary to consider the legal effect and practical operation of the decision and then to determine if it resulted in an adverse effect on the Applicant's identified interests.

The Court held that a person or entity claiming to be aggrieved by the decision must prove that the practical effect of the decision on its identified interest was beyond the effect had on the general public. To do this the Applicant had to demonstrate a special interest in the subject matter of the decision.

Applicant claimed to have a special interest in the subject matter of the decision and to be aggrieved by its effect

The Applicant claimed to be aggrieved by the Respondent's decision for the following reasons:

(a) at all material times it was an Australian company limited by guarantee whose objects included protection of the natural environment from mining; and

(b) it had a special interest in the protection of the Queensland environment that was greater than the community at large.

Applicant submitted that it was a significant organisation focused on environmental protection in the public's interest

In response to the Court's request, the Applicant defined its interests as follows:

"[Lock that Gate's] interest, consistent with the objects of its Constitution, concern the protection and conservation of Australia's environment, including education, promotion and acting as advocate for members of the Australian public."

The affidavit of a consultant described as the coordinator of the Applicant's mine rehabilitation reform campaign described the Applicant as a significant organisation that had been recognised in Queensland government discussion papers with 103,000 supporters nationally, 20,500 within Queensland and 30 within the locality of the mine.

The consultant's affidavit also confirmed that the Applicant had undertaken a number of activities in pursuit of its key interest after first becoming concerned that the sale of the Blair Athol coal mine may result in rehabilitation obligations under the environmental authority not being met. Examples of these activities included the following:

  • meetings with the local community and the directors of both the Department of Natural Resources and Mines and the Department of Environmental and Heritage Protection;
  • writing to the State Minister for the Environment and Minister for Natural Resources and Mines; and
  • making submissions to the State on the Queensland Environmental Protection (Chain of Responsibility) Amendment Bill 2016 and the deficiencies of the Queensland Government's Mining Financial Assurance calculator.

The Respondent argued that the Applicant's interests were at best those of the general public and were not adversely affected by the decision given the speculative and hypothetical nature of the concerns raised.

Court found that the Applicant was not an aggrieved person with a special interest in the relevant decision 

The Court referred to the following statement from His Honour Judge Stephen in Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 to support its finding that the Applicant had not shown that it had a special interest in the subject matter of the decision or that it had a grievance that it would suffer beyond any ordinary member of the public:

"An individual does not suffer damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern."

The Court held that meeting with relevant decision makers and expending money on a particular concern did not automatically translate into the existence of the requisite special interest.

The Court ultimately found that the following findings in Lock the Gate Alliance Ltd v The Minister for Natural Resources and Mines [2018] QSC 21 applied to the present application with equal force:

  • the Applicant had not shown that it was specifically affected by the decision in comparison to the general public; 
  • the interests of the Applicant were that of the public; and
  • the Applicant had not demonstrated that its involvement in judicial review would confer on it a benefit or relieve it of a disadvantage to an extent greater than a member of the ordinary community.

Given the above findings, the Court found that the Applicant was not entitled to a statement of reasons for the decision and dismissed the application.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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