In brief

The case of Arcturus Downs Limited v Peta Stilgoe (Member of the Land Court of Queensland) & Ors [2019] QSC 84 concerned an application to the Supreme Court of Queensland for a statutory order of review of a decision made by the Land Court to dismiss a landowner's (Landowner) objection to two draft environmental authorities that were issued by the Department of Environment and Heritage Protection (Department) to a mining company (Mining Company) over the Landowner's land.

The subject land, which is located near Emerald in Queensland, was used for dry land cropping and cattle breeding (Land). The Mining Company made an application for a mining lease over the Land, and submitted two applications for environmental authorities. The first environmental authority application concerned a longwall thermal coal mine, whilst the second application concerned a haul road and associated infrastructure. The Department issued complementary draft environmental authorities to the Mining Company. 

The Landowner subsequently objected to the Land Court regarding the grant of the mining lease and the issuing of the two draft environmental authorities. The Land Court dismissed the Landowner's objection, and recommended to the Minister that environmental authorities be issued in terms of the draft environmental authorities. 

The Landowner applied to the Supreme Court to review the Land Court's decision on the basis that it involved errors of law and that the Land Court did not have jurisdiction to make the decision. The Supreme Court dismissed the Landowner's application as it found that the decision did not involve an error of law, and that the Land Court did have jurisdiction to make the decision.

Landowner's submissions

The Landowner argued that the Land Court's decision involved the following errors of law:

  • The Land Court erred in construing section 155 of the Environmental Protection Act 1994 (EPA) as not requiring a single application for an environmental authority for the proposed mining project, and therefore the Land Court had improperly exercised its power and did not have the requisite jurisdiction.

  • The Land Court erred in relying on the criteria identified in section 113 of the EPA in respect of the proposed haul road and associated infrastructure.

  • The draft environmental authorities were invalid as section 93 of the now repealed Strategic Cropping Land Act 2011 (SCLA) required a decision under the SCLA before an environmental authority could be issued.

  • The Landowner was denied procedural fairness in relation to the amendments to the draft environmental authorities.

Supreme Court held that the Land Court had properly construed section 155 of the EPA

The Landowner argued that the Land Court had erred in construing section 155 of the EPA as not requiring the Mining Company to make a single application for an environmental authority for all mining activities that formed the mining project. 

Additionally, the Landowner argued that the environmental authorities were invalid as the Mining Company failed to comply with section 155 of the EPA. 

At the time section 155 of the EPA relevantly provided as follows:

“(1) This section applies to a person who may apply for an environmental authority (mining activities) for mining activities proposed to be carried out as a mining project

(2) The person may only make a single application for 1 environmental authority (mining activities) for all mining activities that form the project…”.

In considering the Land Court's decision, the Supreme Court found that attention must be given to the purpose of the statutory provisions of the EPA as a whole. The Supreme Court held that the EPA, when construed as a whole, offers flexibility to allow the issuance of more than one environmental authority, as the provisions of the EPA allow for non-compliance to be addressed at any stage of the process. 

The Supreme Court therefore concluded that the Land Court did not improperly exercise its power in making its decision. 

Supreme Court held that the Land Court did not err in relying on the criteria established under section 113 of the EPA

The Land Court held that the proposed mining project was not a "single integrated operation" within the meaning of section 113 of the EPA on the basis that the transportation of the coal was to be managed by an independent contractor. Consequently, the Land Court concluded that the Mining Company was not required to make a single application for an environmental authority. The Landowner argued that the Land Court erred in relying on section 113 of the EPA to determine that the proposed mine was not a "single integrated operation". 

At the time the second application for an environmental authority was made, section 155 of the EPA had been replaced by section 118 of the EPA. 

Section 118 of the EPA relevantly provides that if an entity proposes to carry out "environmentally relevant activities [(ERA)] as an ERA project" that entity "may only make a single application for a single environmental authority for all relevant activities that form the project". An ERA project is defined under section 112 of the EPA to include a "prescribed ERA project" or "resource project". Relevantly, a "resource project" includes a project that involves resource activities carried out, or proposed to be carried out, under one or more resource tenures, in any combination, as a "single integrated operation". 

A "single integrated operation" is defined under section 113 of the EPA, which relevantly provides as follows:

"Environmentally relevant activities are carried out as a single integrated operation if—

(a) the activities are carried out under the day-to-day management of a single responsible individual, for example, a site or operations manager; and

(b) the activities are operationally interrelated; and

(c) the activities are, or will be, carried out at 1 or more places; and

(d) the places where the activities are carried out are separated by distances short enough to make feasible the integrated day-to-day management of the activities".

The Supreme Court rejected the Landowner's submission and held that the Land Court correctly relied on section 113 of the EPA to determine that the proposed mine was not a "single integrated operation". The Supreme Court held that the proposed mining activities were not of a kind which were integrated as they were not to be carried out under the day-to-day management of the same person and were different activities.  

Supreme Court held that a draft environmental authority was validly issued by the Court and that an environmental authority was issued under the SCLA

The Landowner argued that the Land Court was required to make a decision under section 93 of the SCLA before an environmental authority could be issued, and as the Land Court failed to do so, the draft environmental authorities were invalid. 

Section 93 of the SCLA provides as follows: "An environmental authority for the resource activity cannot be issued until an SCL protection decision has been made for the environmental authority and the resource authority for the resource activity".

In its decision, the Land Court found that draft environmental authorities were issued rather than an environmental authority. The Landowner consequently submitted that the definition of "environmental authority" was "not a discrete reference to either a draft environmental authority or an environmental authority and therefore it ought apply to both" (see [66]). 

The Supreme Court found that Schedule 4 (Definitions) of the EPA makes a clear distinction between an environmental authority and a draft environmental authority. Consequently, the Supreme Court rejected the Landowner's submission and held that the Land Court did not err in its decision. 

Supreme Court rejected the argument that the Land Court improperly exercised its power and that the decision was unreasonable 

The Landowner argued that the Land Court's decision to recommend the issue of the draft environmental authorities was an improper exercise of its power under the EPA. Additionally, the Landowner submitted that the Land Court's decision was "unreasonable" on the basis that it inappropriately relied on a protocol to seek advice from the Department regarding how a condition of an environmental authority ought be drafted. 

The Supreme Court noted that the Land Court's function is to make an administrative assessment of an application under the EPA. The Supreme Court therefore held that the Land Court did not improperly exercise its power as the Land Court was exercising its administrative function by seeking advice from the Department. 

Supreme Court found that the Landowner was not denied procedural fairness

The Landowner argued that it had been denied procedural fairness by the Land Court in its decision to seek advice from the Department. 

The Supreme Court noted that the parties were given advice from the Department on the same date and had the opportunity to respond to the advice. The Supreme Court found that as there was a full hearing and the parties were given the opportunity to respond to the advice, the principles of natural justice were not breached.

Conclusion

The Supreme Court dismissed the Landowner's application and held that the Land Court did not err in its decision.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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