Gregcarbil Pty Ltd v Backus
[2011] QLC 42
•6 July 2011 (ex tempore)
LAND COURT OF QUEENSLAND
CITATION: Gregcarbil Pty Ltd v Backus & Ors [2011] QLC 0042 PARTIES: Gregcarbil Pty Ltd
(Mining Lease Applicant)v. Cameron Backus and Michael Dolf Schmidt
(Objectors)And
Chief Executive, Department of Environment and Resource Management (Statutory Party)
And
William James Crowther
(Landholder)FILE NO: MRA474-10, EPA606-10, EPA225-11 and MRA229-11 DIVISION: General Division PROCEEDING: Application by landholder to be joined as a party to objections DELIVERED ON: 6 July 2011 (ex tempore) DELIVERED AT: BRISBANE HEARD AT: BRISBANE MEMBER: His Honour PA Smith ORDER: 1. Matters EPA606-10 and EPA225-11 be heard together.
2. That the parties to both matters be common parties and that those parties be, (a), the administering authority, (b), the applicant, Gregcarbil Pty Ltd, (c), the objectors, Mr Schmidt and Mr Backus, the objector to certain environmental conditions, Gregcarbil Proprietary Limited and, finally, Mr Crowther, as a party to the proceedings.
3. Costs reserved.
CATCHWORDS: Environmental Authority Application - objections - late objections - discretion of statutory party - power of Court to order additional parties - objections under EP Act distinguished form objection sunder the MRA. SOLICITORS: Mr AC Barlow of counsel for the Mining Lease Applicant
Ms Hoult, legal officer, for the Statutory Party
Mr Backus self representing for himself and Mr Schmidt
Mr Crowther, landholder, self representing
{1]The Court currently has before it four matters: MRA474-10 which relates to objections to a mining lease under the Mineral Resources Act (1989) ("the MRA"); EPA606-10 which relates to properly made objections under the Environmental Protection Act (1994) (the "EP Act"); EPA225-11 which relates to objections received and accepted by the administering authority under s.217(3) of the EP Act; and MRA229-11 which relates to the determination of compensation with respect to the mining lease application, in so far as that relates to properties owned by Mr Cameron Backus relating to Lot 95 on SP 227975 and Lot 96 on SP 227975.
The matter is unusual for many reasons and it is appropriate to give a brief overview as to the facts as I understand them, noting that this matter is set down for hearing of the objections and for the beginning of the hearing of the compensation determination in the first week of August.
At the time of advertising of the environmental authority, lot 96 was owned by Mr and Mrs Schmidt. The Schmidts made an objection within the timeframe to the Environmental Authority, they also made an objection to the mining lease application and an objection was also made by Mr Cameron Backus, the owner of Lot 95, over which property part of the access to the mining lease application, which is ML70419, traverses.
There have been, since the closing of the objection period, ongoing negotiations between the administrating authority and Gregcarbil Pty Ltd, the applicant for the mining lease, as to the conditions that are to be included in the mining lease authority.
From my experience now of over 11 years in dealing with environmental conditions, it is quite a normal process for applicants and the administering authority and, indeed, objectors, to have discussions in this regard and it is not unique to have conditions changed by agreement between the parties, sometimes alleviating the need for a hearing. So, I see nothing unusual as to the nature of the discussion that was held by the administering authority and Gregcarbil Pty Ltd.
Ultimately, the administering authority determined not to amend the draft environmental authority in matters sought by Gregcarbil Pty Ltd and, following discussions as between Gregcarbil and the administering authority, the manner in which the dispute between the applicant Gregcarbil, and the administering authority, as to these particular conditions, as to how that dispute could be determined by the Court, was discussed and, ultimately, the provisions of s.217(3) of the EP Act were applied.
Section 217(3) is under the heading of dealing with acceptance of objections and states as follows: "The authority may accept a written objection, even if it is not a properly made objection". Acting under the authority of s.217(3), the administering authority accepted the objection by Gregcarbil and thus file EPA225-11 came into existence.
Now, also in recent weeks, the ownership of lot 96 transferred from the Schmidts to Mr William Crowther. Mr Crowther has appeared at the directions hearing today and indicated his desire to be heard with respect to these proceedings. The manner in which the Court is able to proceed to its objections hearing and decision is set out in s.219 of the EP Act, which deals with referrals to the Land Court. To begin with, I should stress that there hasn't been any objections as such made by Mr Crowther for the administering authority to consider under s.217(3) and, in real terms, with the hearing being so close, I expect there would be difficulties in proceeding under s.217(3) at this late stage.
However, s.219(4) of the EP Act states as follows:
"The parties to a proceeding are as follows: (a) the authority; (b) the applicant; (c) each objector for the applicant, and; (d) anyone else decided by the Land Court".
On the first reading of that section, it would appear that there is a broad discretion given to the Land Court, as to who can be heard as a party to proceedings under the EP Act relating to environmental authorities for mining lease applications.
There is one confusing factor in the legislation which I should make reference to. The referral section is s.219(1), which states as follows:
"If there is a current objection relating to the application when the objection period for the application ends, the administering authority must, within 10 business days, refer the application to the Land Court for decision under this subdivision (the objections decision)".
There is tension between s.219(1) and s.217(3). Clearly, if the situation arose where there was no properly made objection, for instance, during the objection period, but an objection was received, say, one day outside of the period, in circumstances such as the recent floods that have just hit Queensland, I can well imagine why the administering authority would agree to accept the objection out of time in those circumstances under s.217(3). Technically, a strict reading of s.219(1) only relates to objections received within the objection period. In my view, such a strict reading of the Act does not give utility to the purposes of the Act, nor does it give utility to the obvious intent of s.217(3).
In the hypothetical circumstances that I have just outlined, I would have no doubt that the Court would proceed under s.219 to hear an objection received late under extenuating circumstances by the administering authority when the authority chose to accept that objection.
In the case at hand, there are, of course, properly made objections which have been received within time, so there was a proper referral to the Court, so the Court has parties as specified by the legislation, being the authority, the applicant and each objector to the application.
In my view, consistent with my reasoning from the hypothetical reading of the matter, the only logical sense that can be given to s.217(3) in the circumstances currently before me, is to accept the objections by Gregcarbil as an objection for the application, pursuant to s.219(4)(c) of the EP Act.
That deals with the position of Gregcarbil, who falls into the rather unique position of being both an applicant and an objector to this same environmental authority. While this is unusual, it does have the benefit that the parties, including those with no legal representation, will have clear material before them to show exactly what areas of the environmental authority application and draft environmental authority Gregcarbil agrees to and those which it takes issue with. It will also make clear the duties and responsibilities of the administering authority, with respect to the draft environmental authority that is issued. So, in a round about way, it does assist the parties in understanding the various positions that each may hold.
I now turn to the situation of Mr Crowther, who has made an oral application today to be made an objector to these proceedings. I do not have any power under s.217 of the EP Act, on my reading of s.217, to receive late objections or to accept any party as an objector to the environmental proceedings. However, s.219(4)(d) of the Act, certainly does give the Court wide discretion to determine who may be a party to the proceeding.
In the unusual circumstances of this case, and taking into account the provisions of s.7 Land Court Act which require the Court to act with as little technicality as possible for the purposes of reaching a just conclusion to the matter, in my view, it is appropriate to allow Mr Crowther to be included as a party to the environmental objections.
In referring to the environmental objections, just to be clear, I am referring to the environmental objections relating to EPA606-10 and EPA225-11.
In simple terms, it is appropriate to order that both EPA files be heard together and the parties in each matter also be parties in the other matter. Accordingly, that means that the parties to both EPA606-10 and EPA225-11 are Gregcarbil, as applicant, the authority, Mr Backus, Mr Schmidt and Mr Crowther.
In very technical terms, in some of these matters, some of the parties have the status of an objector and in other respects they have the status of being a party under s.219(4)(d), but in the practical sense of the hearing of the matter, it is my view that there is no difference and little is to be achieved by going into too great a technicality as to the identification of the parties, further than how I have identified them at this point.
I consider it appropriate that the two environmental objection matters now be heard together with the mining lease application objections, but I do so with one rider, which must be taken note of by Mr Crowther, and that is that the MRA is a very prescriptive Act when it comes to those persons who have a right of objection and a right to be heard under the MRA objections. The MRA does not have a provision like s.219(4)(d) in it for its objection process. So, Mr Crowther will not be able to be a party to the MR objections and therefore will not be able to speak relating specifically to the application for the mining lease, but will be able to speak in an unfettered way, subject to other orders I make regarding the provision of evidence, with respect to all matters relating to the environmental authority for the mining lease application.
I note, of course, that there are Court of Appeal authorities as to the status of duly lodged objections to mining lease applications and when those objections may be heard by the Court and the timing in which those objections may be made. There are also numerous decisions of both the Land and Resources Tribunal, which had jurisdictions in these matters between the years 2000 and 2007, and the Land Court since it assumed jurisdiction in September 2007 to the present, on these same issues.
I wish to make it clear that the decision that I am making in this matter relates specifically to the provisions of the EP Act which are vastly different in the treating of objections and the right of objections and for parties to the Court than the other decisions that have been handed down as to the right of objectors in mining matters, which have all been decisions under the MRA provisions.
One point of clarification ought be made and that is that it may well be the case that in previous decisions there have been objections lodged by parties, both to the MRA provisions and to the EP Act provisions. However, the authorities that I am aware of have only dealt with those objections under the MRA, not under the EP Act. As such, I have specifically and intentionally limited the application of all previous decisions, including those decisions of the Court of Appeal such as the decision in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation[1] to the provisions and objections made under the MRA and not to any objections under the EP Act.
[1] [2002] 1 QdR 347
I am certainly unaware even if there were objections under the EP Act in the ACI case, but I recall from memory that in other cases there have been objections under both pieces of legislation.
The orders therefore that I make are as follows: that matters EPA606-10 and EPA225-11 be heard together and that the parties to both matters be common parties and that those parties be, (a), the administering authority, (b), the applicant, Gregcarbil Pty Ltd, (c), the objectors, Mr Schmidt and Mr Backus, the objector to certain environmental conditions, Gregcarbil Pty Ltd and, finally, Mr Crowther, as a party to the proceedings.
I reserve the questions of costs with respect to this decision to the final determination of the matter.
ORDERS
1.Matters EPA606-10 and EPA225-11 be heard together.
2.That the parties to both matters be common parties and that those parties be, (a), the administering authority, (b), the applicant, Gregcarbil Pty Ltd, (c), the objectors, Mr Schmidt and Mr Backus, the objector to certain environmental conditions, Gregcarbil Proprietary Limited and, finally, Mr Crowther, as a party to the proceedings.
3.Costs reserved.
PA SMITH
MEMBER OF THE LAND COURT
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