In brief

The case of Conway & Ors v Australia Pacific LNG CSG Transmissions Pty Ltd & Anor [2020] QLC 26 concerned an application by Landowners to the Land Court of Queensland (Court) seeking compensation from two mining resource companies, together called APLNG, for the diminution of the value of their land, known as Tecoma, which was alleged to have been caused by APLNG taking a sample of a tree that was later determined to be an Ooline tree and providing the sample of the Ooline tree to the Queensland Herbarium (Activities).

The Landowners alleged that the Activities resulted in a new version of the Flora Survey Trigger Maps for Clearing Protected Plants in Queensland (FSTM), which mapped as a high-risk the area on Tecoma within a two kilometre radius of the Ooline tree, which the Landowners argued diminished the value of Tecoma by $700,000. 

The Landowners argued that their entitlement to compensation arose out of the following: 

  • a breach by APLNG of the Option for Easement and Conduct and Compensation Agreement (OECCA) between APLNG and the Landowners in relation to the construction of the Eurombah Pipeline on Tecoma; 

  • under section 81 of the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCP), because of the breach of the OECCA or under the terms of section 81 of the MERCP itself; 

  • an action in trespass to land. 

The Court considered whether a right to compensation had been established under section 81 of the MERCP, in that APLNG had "caused" the Landowners to suffer a compensatable effect, namely the diminution in the value of Tecoma, and did not make a finding in respect of the other causes of action.

The Court held that the Activities and the loss alleged by the Landowners was too remote to satisfy the test of causation, because irrespective of the Activities occurring, the ecological condition existed, namely the Ooline tree. 

In the event that there ought to have been a finding that causation was established, the Court determined that the quantum of the diminution in the value of Tecoma due to the Activities be limited to $20,000.

Background 

The Landowners purchased Tecoma in 2012, at which time they were aware that there were Ooline trees on the south-east corner of the land. 

APLNG has an authority to prospect and a petroleum lease over the whole of Tecoma, under which it issued a notice to the Landowners that indicated that APLNG intended to conduct a site survey that relevantly included investigations and surveys about environmental, flora and fauna issues to determine the land's suitability for development. 

The environmental scientists engaged by APLNG to conduct a flora survey observed an Ooline tree on Tecoma, and later when re-called to Tecoma to conduct a weed survey arising out of the OECCA, took a sample and provided it to the Queensland Herbarium, which confirmed the tree was an Ooline tree.

Version 6 of the FSTM, which was issued subsequent to the confirmation of the existence of the Ooline tree, mapped the land on Tecoma within a two kilometre radius of the Ooline tree as high-risk vegetation. 

The Court observed that part of Tecoma has been protected as a matter of national environmental significance under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) since 2001, and that version 6 of the FSTM largely mirrored the EPBC Act vegetation management map, with the addition of a small area to the west of the Ooline tree. 

Loss and Activities too remote to satisfy the test of causation

The Landowners needed to establish a compensatable effect to give rise to a right to compensation under section 81 of the MERCP, which the Landowners argued was the diminution in the value of the land as a result of the Activities. 

The Court held that the undertaking of an ecological survey was a preliminary activity and therefore an authorised activity under section 81 of the MERCP, and noted that such a survey might well reveal a pre-existing ecological condition that has adverse impacts for a landowner. However, the Court did not accept that a resource authority holder could be responsible for the loss occasioned by the revelation of an ecological condition that existed on the land independent of the resource companies’ activities.

The Court also noted that it would be "frankly, absurd given the numerous people and steps involved" to suggest that version 6 of the FSTM arose solely on the basis of the discovery of the Ooline tree on Tecoma. The connection between the Activities and the loss alleged by the Landholders was held to be too remote to satisfy the Court as to causation. 

The Court also observed that the MERCP does not allow compensation for hurt feelings, disappointment, or anger.

Court not required to consider the claim in trespass 

The Court determined that it was not required to consider a claim for compensation arising out of trespass given its findings in respect of compensation under section 81 of the MERCP, but nevertheless noted that it did not disagree with the submission that it had jurisdiction under section 363 of the Mineral Resources Act 1989 to do so.

Conclusion 

The Court determined that the Landowners were not entitled to compensation on the basis that they had not established causation for the purposes of section 81 of the MERCP, and that the loss of $700,000 alleged by the Landowners was too remote. The Court stated that in the event there ought to have been a finding that causation was established, the Court determined the quantum of the loss to be $20,000. 

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 2020.

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