M and P Van Den Elsen v The Helidon Hills/Murphy's Creek Landcare Group Inc

[2008] QLC 120

LAND COURT OF QUEENSLAND

CITATION:	M & P Van Den Elsen v The Helidon Hills/Murphy's Creek Landcare Group Inc [2008] QLC 0120
PARTIES:	M & P Van Den Elsen (applicant)
v.
The Helidon Hills Murphy's/Creek Landcare Group Inc  (respondent)
FILE NOS:	EN000207/2005 and AML00206/2005
DIVISION:	Land Court of Queensland
PROCEEDING:	Strike out Application
DELIVERED ON:	Ex Tempore; 11 June 2008
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr RS Jones
ORDER:	Mr Timothy Kane is no longer a necessary or appropriate party to these proceedings and his name should be removed from the list of objectors under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 to and in respect of Mining Lease 50218.
CATCHWORDS:	Objections to mining lease - Mineral Resources Act 1989 - Environmental Protection Act 1994 - application to remove an objector from list of objectors - R69(1)(a) of Uniform Civil Procedure Rules - R4 of Land Court Rules 2000
APPEARANCES:	Mr Z Farmer, solicitor, for the applicant No other appearances

[1]This proceeding concerns an application by Messrs M and P Van Den Elsen to have one Mr Timothy Kane’s objection to the granting of a mining lease be struck out.  Mr Kane is or was a member of a group known as the Helidon Hills/Murphy’s Creek Landcare Group Inc.  The members of the group lodged common objections in respect of the subject mining lease No. 50218.  The objections were lodged pursuant to the Mineral Resources Act 1989 and the Environmental Protection Act 1994.

[2]The group consisted of 11 members including Mr Kane and a Mr Hendrick Arnold Hagedoorn.  Mr Hagedoorn is the president of the group.  The group, save for Mr Kane, decided to withdraw their objections and, on 24 March 2008 a copy of the Notice of Withdrawal of Objection has been lodged with the relevant Mining Registrar, the Environmental Planning Agency and the Land Court.

[3]It is quite clear from the material before me that 10 out of the 11 members of that group who purportedly intended or proposed to file independent but identical objections, no longer wished to proceed with their opposition.  In a statutory declaration sworn 21 April 2008 Mr Hagedoorn relevantly states in paragraph 2, "I, together with the other members of The Helidon Hills/Murphy’s Creek Landcare Group Inc. and other persons associated with the affairs of the Group, lodged objections under the Mineral Resources Act and Environmental Protection Act in relation to ML50207(sic) and its environmental authority." Paragraph 3, "All objectors signed on one objection form." Paragraph 4, “Timothy Kane was one of the objectors and signed the objection form.” Paragraph 5, "At the time Timothy was a student at the University of Queensland and had an interest in the affairs of/was a member of The Helidon Hills/Murphy’s Creek Landcare Group Inc." Paragraph 6, "A decision has now been made by the Helidon Hills/Murphy’s Creek Landcare Group objectors that they should withdraw their objections under the Mineral Resources Act and the Environmental Protection Act and paperwork is being prepared to do this." Paragraph 7, "The form in relation to the withdrawal of the Environmental Protection Act objections is fully signed but for Timothy Kane’s signature and I understand has been filed in the Land Court by Zoe Farmer solicitor for the mining lease applicants. The paperwork for the withdrawal of the Mineral Resources Act objections is currently being circulated for signing." Paragraph 8, "Timothy Kane did not sign the form for the withdrawal of the Environmental Protection Act objections as I could not locate him. He is apparently no longer in the region. Of course, for this reason, he will not be signing the paperwork for the withdrawal of the Mineral Resources Act objections either." Paragraph 9, "I believe I have done all that I reasonably can to locate Timothy Kane. I have made inquiries including: no longer previously known address; landline telephone and mobile numbers are now disconnected; inquiries from then known acquaintances were unsuccessful."

[4]In the circumstances of this application I propose to grant the relief sought.  The reasons for this are essentially that the Helidon Hills/Murphy’s Creek Landcare Group was formed for a specific purpose.  Ten of the 11 members of that group no longer wish to proceed with that purpose.  Also in respect of Mr Kane he apparently no longer lives in the area, no longer resides at his previously known address, has had his previous telephone contact numbers disconnected and has not recently been in contact with the other members of the group.  The last matter is in my opinion of some significance as it tends to reveal a lack of any ongoing interest in the progress of his objection.

[5]Lastly, correspondence by the group to the Land Court dated 5 November 2007 effectively states that any further Land Court action will not produce any worthwhile outcomes that have not already been achieved by other means.  By reference to that correspondence it would appear for the most part that the concerns of all of the objectors were dealt with when the local authority dealt with an application for a material change of use over the subject land.  Relevantly the letter of 5 November 2007 says, "This approval" (material change of use for extraction industry and environmentally relevant activities approval) "contains conditions that adequately address the majority of environmental and social concerns expressed by the objectors to the Mining Lease Application.  With this in view, the objectors do not wish to pursue further action regarding the Mining Lease Application.  It is believed that further Land Court action on this matter will not produce any more worthwhile outcomes than those identified in the Extraction Industry approval.  A copy of the approval is attached for the court’s information."

[6]This correspondence is of some significance as it needs to be borne in mind that the grounds of objection of all of the members of the group including Mr Kane’s are common.  Accordingly, it seems more likely than not that his concerns should have also been addressed by the local council conditions referred to.

[7]For the above reasons I have concluded that it is no longer appropriate for Mr Kane to remain an objector in this proceeding.

[8]I should also note that a Mr Pepper, an officer of the Environmental Protection Agency, on 4th June 2008 by way of an e-mail to this Court advised that his agency consents to the relief sought.  There is no objection to the relief sought.

[9]In respect of the jurisdiction to grant the relief sought, while there is no express power that either Ms Farmer or I am aware of, it is my view that pursuant to the operation of s.32J of the Land Court Act 2000, Rule 4 of the Land Court Rules 2000 and Rule 69(1)(a) of the Uniform Civil Procedure Rules I have the power to make the order that I propose to make. Rule 69(1)(a) of the Uniform Civil Procedure Rules relevantly provides:

"69(1)       The court may at any stage of a proceeding order that -

(a)a person ... who has ceased to be an appropriate or necessary party, be removed from the proceeding; ..."

[10]The order of the Court is that Mr Timothy Kane is no longer a necessary or appropriate party to these proceedings and his name should be removed from the list of objectors under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 to and in respect of Mining Lease 50218.

RS JONES

MEMBER OF THE LAND COURT