New Acland Coal Pty Ltd v Smith
[2018] QSC 88
•2 May 2018
SUPREME COURT OF QUEENSLAND
CITATION:
New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88
PARTIES:
NEW ACLAND COAL PTY LTD ACN 081 022 380
(Applicant)
v
PAUL ANTHONY SMITH, MEMBER OF THE LAND COURT OF QUEENSLAND
(First Respondent)
and
OAKEY COAL ACTION ALLIANCE INC
(Second Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND HERITAGE PROTECTION
(Third Respondent)
FILE NO:
BS No 6002 of 2017
DIVISION:
Trial Division
PROCEEDING:
Application for a statutory order of review
ORIGINATING COURT:
Land Court of QueenslandDELIVERED ON:
2 May 2018
DELIVERED AT:
Brisbane
HEARING DATE:
19, 20, 21, 22 and 23 March 2018
JUDGE:
Bowskill J
ORDER:
For the reasons published today, the Court finds the following grounds in the amended application for review have been established, with the consequence that it will be appropriate to order that the decision made by the Land Court on 31 May 2017 be set aside, and the matter referred back to the Land Court for further consideration:
1. Ground 10, in relation to groundwater.
2. Ground 7, in relation to intergenerational equity, consequent upon the conclusion in relation to ground 10.
3. Ground 1(aii) (by reference to particulars (i), (iiA) and (ii)), in relation to noise.
The parties are directed to make submissions in relation to the appropriate orders and directions to be made under s 30 of the Judicial Review Act 1991, having regard to the reasons published today, and in relation to the “statement of agreed course of action following decision of 14 February 2018” and in relation to costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – where a hearing took place on 2 February 2017, within the course of the proceeding, as a result of concerns raised by the first respondent with the applicant, in relation to media reports interpreted by the first respondent as conveying the imputation that delays in finalising the proceeding were attributable to the first respondent taking leave, which in turn was the potential cause of job losses in the community – whether a fair-minded lay observer might reasonably apprehend that the first respondent felt personally disrespected and offended by the media reports and by his Honour’s perception of the applicant’s actions in contributing to the media reports, and as a result, had a negative view of the applicant’s corporate conduct, which might have affected the first respondent’s ability to assess the issue of the media reports, and the applicant’s actions in relation to them, objectively – whether there is a logical connection between that matter, and the possibility of a departure from impartial decision-making, having regard to the reasons given by the first respondent for his decision to recommend refusal of the mining lease applications and application to amend the environmental authority – whether the applicant waived the right to any objection, on the basis of the circumstances and conduct of the 2 February 2017 hearing, by failing to take action immediately – whether there was anything in the first respondent’s reasons which effectively revived the matters which might be apprehended from the 2 February 2017 hearing, such that it might reasonably be apprehended from the reasons that the first respondent might not have brought an impartial mind to the resolution of the questions he was required to decide
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – APPEAL OR REVIEW – scope of the Land Court of Queensland’s jurisdiction and function in a hearing of a mining lease application, and objections, under ss 265, 268 and 269 of the Mineral Resources Act 1989 (Qld) and of objections to an application for, or to amend, an environmental authority, under ss 185, 190 and 191 of the Environmental Protection Act 1994 (Qld)
ENERGY AND RESOURCES – WATER – WATER MANAGEMENT – SUBTERRANEAN WATER – consideration of legislative amendments to the Mineral Resources Act 1989, Environmental Protection Act 1994 and Water Act 2000, which commenced on 6 December 2016, in relation to the ability of the holder of a mining lease to take or interfere with underground water – where, following the amendments, the applicant would not be entitled to take or interfere with underground water in the area of the proposed mining lease, if the taking or interference happens during the course of, or results from, the carrying out of an authorised activity for the mining lease, until it has obtained an associated water licence to take or interfere with such water under the Water Act – where the legislative intention is that potential impacts of such activity are to be assessed and managed under the Water Act – whether the first respondent erred in law in proceeding on the basis that, despite the separate assessment and management regime established under the Water Act provisions, the Land Court of Queensland had jurisdiction to fully consider the potential impact of proposed mining activities on the availability of underground water (groundwater) supplies to surrounding landowners, on a hearing under ss 268 and 269 of the Mineral Resources Act 1989 and ss 185, 190 and 191 of the Environmental Protection Act 1994
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – whether the first respondent failed to accord procedural fairness, by failing to deal with a substantial argument advanced by the applicant, in relation to the issue of groundwater, by reference to the operation and effect of the overall legal framework which would apply to the expanded mine, including the associated water licence provisions of the Water Act and the suite of conditions which would otherwise apply – whether the first respondent failed to adequately articulate his reasons for rejecting the argument
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where the first respondent found that there was a real possibility the quantity of groundwater supplies available to surrounding landholders could be affected by the proposed mining operations for generations to come, and therefore was satisfied there was a real possibility that at least one of the principles of intergenerational equity would be breached – whether the first respondent erred in treating the principle of intergenerational equity as a stand-alone requirement that was capable of being breached, with such a breach being sufficient to warrant a recommendation for refusal of the mining lease applications and application to amend the environmental authority – whether the discretionary power conferred on the Land Court, under s 269 of the Mineral Resources Act 1989 and s 190 of the Environmental Protection Act 1994 to make a recommendation to the relevant decision-maker, involves a balancing exercise
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where the first respondent found that noise limits ought to be included in any environmental authority, in relation to the proposed mining activities, which were more stringent (lower) than the noise limits imposed by the Coordinator-General under the State Development and Public Works Organisation Act 1971 – whether the first respondent erred in his approach to the interpretation and application of s 51 of the Environmental Protection Regulation 2008 and the Environmental Protection (Noise) Policy 2008 – whether the first respondent erred in finding that it was open to him to consider whether different noise limits to those contained in the Coordinator-General’s conditions should be preferred – whether, if it was open, the more stringent noise condition preferred by the first respondent was inconsistent with the Coordinator-General’s less stringent condition – whether the first respondent erred by concluding that, in circumstances where he preferred a condition which was inconsistent with the Coordinator-General’s condition, he was compelled to, and had no other option but to, recommend refusal of the applications – whether the first respondent failed to exercise the discretionary power conferred on him by s 190 of the Environmental Protection Act 1994
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – whether it was within the jurisdiction of the Land Court of Queensland to consider the prior conduct of the Department of Environment and Heritage Protection, as the administering authority under the Environmental Protection Act 1994, in relation to its administration of the applicant’s existing environmental authority, and to consider the past performance of the applicant in relation to compliance with its existing environmental authority, in determining the relative merits of the applications
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – consideration of the obligation and standard of reasons required to be given for a decision of the Land Court of Queensland to make a recommendation under s 269 of the Mineral Resources Act 1989 and s 191 of the Environmental Protection Act 1994
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environmental Protection Act 1994 (Qld)
Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 (Qld)
Judicial Review Act 1991 (Qld)
Land Court Act 2000 (Qld)
Mineral Resources Act 1989 (Qld)
State Development and Public Works Organisation Act 1971 (Qld)
Water Act 2000 (Qld)
Water Reform and Other Legislation Amendment Act 2014 (Qld)Environmental Protection Regulation 2008 (Qld)
Environmental Protection (Noise) Policy 2008 (Qld)
Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Ltd (2013) 194 LGERA 347
Camden v McKenzie [2008] 1 Qd R 39
CDD15 v Minister for Immigration and Border Protection (2017) 250 FCR 587
Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (2014) 201 LGERA 395
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Coast and Country Association of Queensland Inc v Smith & Anor [2015] QSC 260
Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242
Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324
Commissioner of Police v Kennedy [2007] NSWCA 328
Commissioner of Police v Stehbens [2013] QCA 81
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462
Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 73 ALD 321
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219
Dunn v Burtenshaw (2010) 31 QLCR 156
DWN042 v Republic of Nauru (2017) 350 ALR 582
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
Fox v Percy (2003) 214 CLR 118
Gray v The Minister for Planning & Ors (2006) 152 LGERA 258
Hancock Coal Pty Ltd v Kelly and Department of Environment and Heritage Protection (No 4) (2014) 35 QLCR 56
Hannay v Brisbane City Council (1997) 94 LGERA 212
Hastings Co-operative Ltd v Port Macquarie Hastings Council (2009) 171 LGERA 152
Isbester v Knox City Council (2015) 255 CLR 135
Johnson v Johnson (2000) 201 CLR 488
Keating v Morris & Ors; Leck v Morris & Ors [2005] QSC 243
Kelly v R (2004) 218 CLR 216
Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443
Makucha v Albert Shire Council [1993] 1 Qd R 493
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Momcilovic v R (2011) 245 CLR 1
Netstar Pty Ltd v Caloundra City Council (2003) 127 LGERA 228
New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24
North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435
Rathborne v Abel (1964) 38 ALJR 293
Re Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545
Ross v R (1979) 141 CLR 432
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546
R v Lusink; Ex parte Shaw (1980) 32 ALR 47
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Segal v Waverley Council (2005) 64 NSWLR 177
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
South Australia v Tanner (1989) 166 CLR 161
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235
Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256
Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1981) 148 CLR 150
Vakauta v Kelly (1989) 167 CLR 568
Viskauskas v Niland (1982) 153 CLR 280
Walker v Noosa Shire Council [1983] 2 Qd R 86
Wainohu v New South Wales (2011) 243 CLR 181
Webb v The Queen (1994) 181 CLR 41
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors and Department of Environment and Resource Management (2012) 33 QLCR 79York v General Medical Assessment Tribunal [2003] 2 Qd R 104
COUNSEL:
DR Gore QC, DG Clothier QC and BD Job QC for the Applicant
SC Holt QC and Dr CJ McGrath for the Second Respondent
KA Barlow QC and A Keyes for the Third Respondent
SOLICITORS:
Clayton Utz for the Applicant
Environmental Defenders Office for the Second Respondent
Crown Law for the Third Respondent
Contents
Introduction
Statutory context – Land Court’s jurisdiction and function
State Development and Public Works Organisation Act 1971
Mineral Resources Act 1989
Environmental Protection Act 1994
Water Act 2000
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Obligation and standard of reasons required to be given
Apprehended bias
Relevant principles
Step 1: what is the matter which might lead a fair-minded lay observer to consider that the Land Court member might not bring an impartial mind to the matters he had to decide?
Chronology leading up to the 2 February 2017 hearing
The 2 February 2017 hearing
Step 2: what is the logical connection between that matter and the feared deviation from deciding the case on its merits, as it might appear from the Reasons?
Mr Beutel
Urgency
Mr Denney’s affidavit
Attributions of disrespect
Other matters
Epilogue
Conclusions in relation to apprehended bias ground
Groundwater
Should NAC be permitted to raise the challenge to the Land Court’s jurisdiction?
Does the Land Court have jurisdiction to fully consider groundwater issues?
The position before December 2016
Amendments which took effect from 6 December 2016
Effect of the transitional provision in s 748 of the EPA
Summary of the position after 6 December 2016
Conclusions as to jurisdiction to consider groundwater issues in this case
The alternative ground – failure to consider or give adequate reasons
Intergenerational equity
Noise
First error – did the Land Court member ask himself the wrong question and fail to take into account relevant considerations?
Was the Land Court member required to carry out the environmental objective assessment referred to in s 51 of the Environmental Protection Regulation?
Did the Land Court member err in the manner in which he dealt with the EPP (Noise)?
Second error – reliance upon Xstrata
Third error – inconsistency with Coordinator-General condition
Paramountcy point
Consideration of this issue in previous Land Court decisions
Does the Coordinator-General’s process, leading to the statement of conditions for an environmental authority, “cover the field”?
The discretionary power
No direct inconsistency in any event?
Inquiring into the DEHP and the current environmental authority
Remaining grounds of review
Procedural fairness
Proposed Orders
Introduction
[1]The applicant, New Acland Coal Pty Ltd (NAC), is the owner and operator of the New Acland mine, an established open cut coal mine close to the town of Acland, near Oakey. NAC has been operating the mine since the grant of mining lease ML 50170 in September 2001 (stage 1). The mine was expanded in 2006, with the grant of ML 50216 (stage 2). NAC proposes a further expansion of the mine (stage 3). For that purpose NAC applied under the Mineral Resources Act 1989 (Qld) (MRA) for two mining leases (ML 50232, relating to the mining area, and ML 700002, to facilitate the construction of a rail spur) and under the Environmental Protection Act 1994 (Qld) (EPA) to amend its existing environmental authority to cover the expanded activities.
[2]As contemplated by the MRA and the EPA, objections were lodged in relation to both the mining lease applications and the environmental authority amendment application, including by the second respondent, Oakey Coal Action Alliance Inc (OCAA). The applications, and objections, were referred to the Land Court of Queensland for hearing. The third respondent, the chief executive of the Department of Environment and Heritage Protection, was a necessary party to those proceedings, as the administering authority under the EPA.
[3]The applications and objections were the subject of a lengthy hearing before the first respondent, a member of the Land Court, over almost 100 hearing days between March 2016 and April 2017.[1] For reasons given on 31 May 2017, the first respondent recommended:
(a) under s 269 of the MRA, that the application for ML 50232 be rejected and, consequent upon that, the application for ML 700002 also be rejected; and
(b) under s 191 of the EPA, that the application for amendment of the environmental authority also be refused.[2]
[1] The first respondent was excused from participating in this proceeding from an early stage.
[2] New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24 (the Reasons).
[4]The hearing raised a number of complex issues for consideration and determination by the Land Court, including in relation to air quality and dust, noise, lighting, visual amenity, traffic, transport and roads, general and agricultural economics, climate change, biodiversity of flora and fauna, physical and mental health, land values, livestock and rehabilitation, land use and soils, intergenerational equity, community and the social environment, heritage values and cultural heritage, groundwater and surface water. From an economic perspective, the Land Court found that the expanded mine is likely to provide a significant economic benefit to the local region, the state and the nation. In respect of most of the other issues, the Land Court found either that there was no impact, or any potential impacts could be appropriately managed. There were, however, three issues which lead the Land Court to recommend refusal of the applications:
1.Noise – the Land Court member concluded that as a result of his findings as to what the recommended noise limits should be for evening and night time, he was compelled to recommend that the applications for the mining leases and the amended environmental authority be refused.[3]
2.Groundwater – the Land Court member found that it was necessary for him to fully consider groundwater issues at the hearing, and concluded that the potential impact of the stage 3 mining activity on the availability of groundwater supplies to surrounding land holders had not been properly addressed, in terms of the evidence, particularly the predictive numerical groundwater modelling relied upon by NAC at the hearing, and as a consequence recommended that stage 3 not be approved due to groundwater concerns.[4]
3.Principles of intergenerational equity – the Land Court member found that these principles were breached in at least one respect, with the potential for groundwater impacts to adversely affect landholders in the vicinity of the mine for hundreds of years to come, with this breach being sufficient to warrant rejection of the mining lease applications and the application to amend the environmental authority.[5]
[3] Reasons at [3] and [782]-[787] and [1799], [1803], [1805]-[1806], [1808] and [1838].
[4] Reasons at [16] and [1679]-[1680] and [1799], [1803]-[1804], [1808] and [1839].
[5] Reasons at [14] and [1337]-[1344] and [1799], [1804], [1808] and [1839].
[5]NAC applies for a statutory order of review in relation to the decision made on 31 May 2017, and conduct of the first respondent for the purpose of making the decision, pursuant to ss 20 and 21 of the Judicial Review Act 1991 (Qld) (JR Act).[6]
[6] Amended Application for a Statutory Order of Review, filed on 28 November 2017. Relief was additionally sought under s 43 of the JR Act, s 10 of the Civil Proceedings Act 2011 and s 58 of the Constitution of Queensland 2001 and this court’s inherent jurisdiction. However, the application proceeded by reference to the relief sought under ss 20 and 21 of the JR Act, and it is unnecessary to address the alternative bases for relief sought.
[6]There is no dispute that the decision of the first respondent is a decision to which the JR Act applies. Judicial review is the only available avenue for review of a decision of this kind, as it has been characterised as an exercise of the Land Court’s administrative, rather than judicial function. The making of a recommendation under s 269 of the MRA has been described as “an administrative step consequent upon a statutorily prescribed inquiry conducted by the learned Land Court member”, and not a decision in relation to a proceeding in the Land Court, from which an appeal lies to the Land Appeal Court.[7] The same reasoning logically applies to the making of a recommendation under s 190 of the EPA.
[7] Dunn v Burtenshaw (2010) 31 QLCR 156 at [47]; see also BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107 at [34]-[36] per Philip McMurdo J; cf s 64 of the Land Court Act 2000.
[7]NAC relies upon a number of grounds in support of its application, which can be conveniently grouped together under the following headings:
(a) Apprehended bias – ground 13;
(b) Groundwater – grounds 10 and 15;
(c) Intergenerational equity – grounds 7 and 9;
(d) Noise – grounds 1, 4 and 6;
(e) Inquiring into the conduct of the third respondent (the DEHP) and the current environmental authority – grounds 2 and 3;
(f) Procedural fairness – ground 12;
(g) Legal reasonableness and rationality – ground 14; and
(h) Sufficiency of reasons – ground 15.
[8]The focus of the oral submissions at the hearing was on the grounds referred to in (a) to (d), followed by (e).
[9]I propose first to address the statutory context of the hearing before the Land Court under the MRA and the EPA, and the Land Court’s jurisdiction and function in that regard; then to address an issue raised on this application in terms of the obligation and standard of reasons required to be given by the Land Court member; before turning to deal with the grounds of review.
Statutory context – Land Court’s jurisdiction and function
[10]The relevant statutory context in which the hearing before the Land Court under the MRA and the EPA took place includes the State Development and Public Works Organisation Act 1971 (Qld), the MRA, the EPA, the Water Act 2000 (Qld) and the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
State Development and Public Works Organisation Act 1971
[11]The State Development Act establishes the role of the Coordinator-General for the State (s 4), whose function, in a broad sense, is to do what they consider necessary and desirable to secure the proper planning, preparation, execution, coordination, control and enforcement of a program of works, planned developments, and environmental coordination for the State (s 10(2)). Environmental coordination is dealt with under part 4 of the Act. Among other things, the Coordinator-General has responsibility to coordinate departments of the government and local bodies throughout the State in activities directed towards ensuring that proper account is taken of the environmental effects of any development (s 25).
[12]One of the ways in which this may occur is by the Coordinator-General declaring a project to be a “coordinated project” (previously called a “significant project”)[8] for which an environmental impact statement (or EIS) is required (s 26(1)(a)).
[8] See amendments made by the Economic Development Act 2012, Act No. 43 of 2012.
[13]The stage 3 expansion of the New Acland coal mine was declared a significant project in 2007.[9]
[9] See the Reasons at [20] and [56].
[14]As a consequence, the assessment process provided for under part 4, division 3 of the State Development Act applied, which includes the preparation of a draft EIS for the project (s 32), public notification of the draft EIS (s 33), the opportunity to make submissions in relation to that (s 34) and the preparation of a report by the Coordinator-General (s 34D). In this case, there was a draft EIS prepared, then a new EIS prepared following revision of the stage 3 expansion proposal, and then an amended EIS, following public consultation.[10]
[10] See the Reasons at [56]-[64].
[15]In December 2014 the Coordinator-General issued an evaluation report on the EIS under s 34D. He concluded that “there are significant local, regional and state benefits to be derived from the development, and that any adverse environmental impacts can be acceptably avoided, minimised, mitigated or offset through the implementation of the measures and commitments outlined in the EIS documentation”. The Coordinator-General approved the stage 3 project, subject to the conditions and recommendations made in the Coordinator-General’s report and NAC obtaining all subsequent statutory approvals.[11]
[11] See the Reasons at [65]. See also the Coordinator-General’s evaluation report (exhibit 16 in the Land Court proceedings), exhibit 1, tab 45.
[16]As further discussed from [327] below, the State Development Act contains provisions dealing with the relationship between the approval under this Act, and requirements under other Acts. For example, in relation to the MRA, a Coordinator-General’s evaluation report may state conditions for the proposed mining lease (s 45(1)). Where the mining lease is granted, and the Coordinator-General’s conditions are included in it, if there is any inconsistency between those conditions, and another condition of the mining lease, the Coordinator-General’s conditions prevail to the extent of any inconsistency (s 46). In this case, the Coordinator-General did not state any conditions for the mining lease.
[17]In relation to the EPA, the Coordinator-General’s evaluation report may state conditions for an environmental authority (s 47C(1)). That occurred in this case. The Coordinator-General’s stated conditions for the proposed environmental authority are set out in appendix 2 to the evaluation report.[12] Where the administering authority decides to approve the application under the EPA, and the application relates to a coordinated project, the administering authority must impose on the environmental authority (or draft environmental authority) the Coordinator-General’s conditions. Any other condition imposed on the authority cannot be inconsistent with such a condition (s 205 of the EPA). Similarly, s 190(2) of the EPA provides that where the Land Court decides to recommend the application be approved, but on conditions different to those set out in the draft environmental authority, any such conditions must include the Coordinator-General’s conditions, and cannot be inconsistent with the Coordinator-General conditions. This provision is discussed in more detail from [308] below, in relation to noise.
[12] Exhibit 1, tab 45, pp 170-204.
[18]The Coordinator-General’s report may also recommend conditions for approvals required under other legislation (s 52). In this case, appendix 3 to the Coordinator-General’s evaluation report contained recommendations for conditions to be included in approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Transport Infrastructure Act 1994 (Qld) and the Water Act 2000 (Qld).[13]
[13] Exhibit 1, tab 45, pp 205-212. See the Reasons at [65].
[19]Under s 54B of the Act, the Coordinator-General’s report may also impose other conditions for undertaking the project. Such conditions prevail over the conditions of any other approval applying to the project (s 54E). Under this section, the Coordinator-General imposed the conditions set out in appendix 1 to the evaluation report.[14]
[14] Exhibit 1, tab 45, pp 157-169.
[20]Judicial review is not generally available in respect of a decision, action or conduct of the Coordinator-General under part 4 of the Act, which includes the provisions just referred to in relation to the imposition or recommendation of conditions (s 27AD).
[21]Provision is made in ss 35B to 35K of the State Development Act for the proponent of a coordinated project to apply for changes to be made to the conditions imposed or stated by the Coordinator-General. Sections 35M and 35N also contemplate the Coordinator-General considering a change to the project on his or her own initiative.
Mineral Resources Act 1989
[22]Section 234 of the MRA confers a discretionary power on the Minister to grant a mining lease. The purposes for which a mining lease may be granted are, under s 234(1):
(a) to mine[15] the mineral or minerals specified in the lease and for all purposes necessary to effectually carry on that mining;
(b) such purposes, other than mining, as are specified in the mining lease and that are associated with, arising from or promoting the activity of mining.
[15] The meaning of “mine” is set out in s 6A. It means to carry on an operation with a view to, or for the purpose of, winning mineral from a place where it occurs; or extracting mineral from its natural state; or disposing of mineral in connection with, or waste substances resulting from, the winning or extraction.
[23]The general entitlements of the holder of a mining lease are set out in s 235 (discussed further from [198] below).
[24]An application for a mining lease must comply with the requirements set out in s 245. Where that has been done, under s 252 the chief executive issues a mining lease notice. Under s 252A the applicant for the mining lease is required to give that notice, a copy of the application, and various other documents to affected persons, which includes the owners of land necessary for access, and adjoining land. Section 260 provides for an entity, or an owner of land, to lodge an objection to the grant of the mining lease.
[25]Where the application for a mining lease also relates to an application for, or to vary an existing, environmental authority, and there are objections to both applications, the chief executive must refer the mining lease application and the objections to the Land Court “for hearing” (s 265(2)).
[26]In relation to that hearing, s 268 relevantly provides:
“(1) On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
(2) At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
(3) The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.”
[27]Although not bound by the rules of evidence, the Land Court “must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts”.[16] Nevertheless, a hearing under s 268 of the MRA is in many ways conducted in the same manner as any other court hearing, including on the basis of evidence taken on oath, affirmation or affidavit, which must be recorded.[17]
[16] Section 7 of the Land Court Act 2000.
[17] Section 11 of the Land Court Act 2000.
[28]Following the hearing, the Land Court is required to make a recommendation to the Minister, that the application be granted or rejected, in whole or in part (s 269(2)(a)). A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate (s 269(3)). The Land Court’s powers in this regard have been construed to enable the Court to make alternative recommendations (for example, a recommendation for refusal, with an alternative recommendation for a grant subject to conditions).[18]
[18] Coast and Country Association of Queensland Inc v Smith & Anor [2015] QSC 260 at [15]-[17] and [26]-[29] per Douglas J. This decision was following judicial review of the first respondent’s decision in Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No 4) (2014) 35 QLCR 56, in which his Honour recommended either that MLA 70426 be rejected or that MLA 70426 “be granted, subject to the condition that approval be subject to Hancock first obtaining licences to take, use and interfere with water under s 206(1)(a) and (b) of the Water Act such that all concerns pursuant to the precautionary principle are resolved” (and took the same approach in relation to the environmental authority). See [410]-[414] of Hancock.
[29]Section s 269(4) provides as follows:
“The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether:
(a) the provisions of this Act have been complied with; and
(b) the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
(c) if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
(d) the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to –
(i)the matters mentioned in paragraphs (b) and (c); and
(ii)the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
(e) the term sought is appropriate; and
(f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
(g) the past performance of the applicant has been satisfactory; and
(h) any disadvantage may result to the rights of –
(i)holders of existing exploration permits or mineral development licences; or
(ii)existing applicants for exploration permits or mineral development licences; and
(i) the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
(j) there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k) the public right and interest will be prejudiced; and
(l) any good reason has been shown for a refusal to grant the mining lease; and
(m) taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.”[19]
[19] Emphasis added.
[30]Section 269(4) provides the framework within which the Land Court’s decision on the hearing of a mining lease application and objections takes place, in terms of identifying the scope of the relevant considerations. The Land Court’s function, and jurisdiction, is otherwise determined by s 268, namely to determine the relative merits of the mining lease application, and objections, and other matters (relevantly, the application to amend the environmental authority) and make a recommendation to the Minister.[20]
[20] Cf [131] and [1774] of the Reasons. At [1774] the first respondent said “I am not required by the MRA to specifically consider each element [in] s 269(4) in the current circumstances”. That was said to be because s 269(4) only applies where the Land Court is making a recommendation that the application for a mining lease be granted, not when the recommendation is that it be refused (at [1772]). As this was not a point raised by the parties on the application before me, I will proceed on the basis that what his Honour intended to convey was that, in articulating his reasons for recommending refusal he did not strictly regard it as necessary to address the matters in s 269(4) – and not that those were not matters he needed to consider. The latter would in my view be an error.
[31]It was common ground that the reference to “those operations” in s 269(4)(j) is a reference to “the operations to be carried on under the authority of the proposed mining lease” referred to in s 269(4)(i).
[32]In terms of the Land Court’s jurisdiction under the MRA, the Court of Appeal has confirmed that s 269(4)(i) and (j) allow consideration only of operations to be carried on under the authority of the proposed mining lease.[21]
[21] Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242 at [31]-[33] per Fraser JA, at [51] per Morrison JA, agreeing, and at [1] per McMurdo P, agreeing on this point.
[33]Relevantly, the operations to be carried on under the authority of the proposed mining lease refers to the physical activities associated with winning and extracting coal from the place where it occurs or its natural state.[22]
[22] Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors and Department of Environment and Resource Management (2012) 33 QLCR 79 at [528]-[530], affirmed in Coast and Country Association of Queensland Inc v Smith [2016] QCA 242 at [27] and [31].
[34]The requirement under s 269(4)(k), to consider whether the public right and interest will be prejudiced (by the grant of the mining lease) contemplates broader considerations.[23] However, sub-s (k) and, for that matter, sub-s (l) (which requires consideration of whether “any good reason” has been shown for a refusal to grant the mining lease) are to be construed harmoniously, not inconsistently, with sub-s (i) and (j),[24] such that they could not be relied upon to expand the Land Court’s jurisdiction, in a hearing under ss 268 and 269, to include consideration of, for example, adverse environmental impacts caused by operations or activities for which some other source is the authority other than the proposed mining lease.
[23] For example, as in Coast and Country Association of Queensland Inc v Smith, the scope 3 emissions which could result from the transportation and burning of coal from the mine by others: see [2015] QSC 260 at [41]; [2016] QCA 242 at [42].
[24] See, for example, Ross v R (1979) 141 CLR 432 at 440.
[35]Subject to the overriding obligation to exercise the power reasonably,[25] the weight to be given to the various considerations is a matter for the Land Court on the hearing.[26]
[25] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[26] Coast and Country Association of Queensland Inc v Smith [2016] QCA 242 at [46] per Fraser JA, referring to Rathborne v Abel (1964) 38 ALJR 293 at 295 and 301 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41. See also Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 482 per Gibbs J.
[36]Where the Land Court recommends to the Minister that an application for the grant of a mining lease be rejected, the Land Court is required to give the Minister the Land Court’s reasons for that recommendation (s 269(5)).
[37]Ultimately, it is the Minister who has the power to grant a mining lease (s 234). Under s 271 when the Minister considers the mining lease application, the Minister must consider any Land Court recommendation for the application and the matters mentioned in s 269(4).
[38]The Minister may decide to grant the mining lease, for the whole or part of the land proposed, or reject the application, or refer the matter back to the Land Court to conduct a further hearing (s 271A).
Environmental Protection Act 1994
[39]The object of the EPA is “to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological process on which life depends (ecologically sustainable development)” (s 3).
[40]Section 4 sets out in more detail how that object is to be achieved, by reference to an “integrated management program that is consistent with ecologically sustainable development”. Central to that program is the concept of “environmental values”, both in terms of deciding what are the environmental values to be protected (s 4(4)(b)) and in terms of integrating those environmental values into land use planning and management of natural resources, and ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm (s 4(6)(a) and (b)).
[41]As defined in s 8, the “environment” includes:
(a) ecosystems and their constituent parts, including people and communities; and
(b) all natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas, however large or small, that contribute to their biological diversity and integrity, intrinsic or attributed scientific value or interest, amenity, harmony and sense of community; and
(d) the social, economic, aesthetic and cultural conditions that affect, or are affected by, things mentioned in paragraphs (a) to (c).
[42]As defined in s 9 an “environmental value” is:
(a) a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety; or
(b) another quality of the environment identified and declared to be an environmental value under an environmental protection policy or regulation.
[43]One of the means of “ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm” (s 4(6)(b)) is to require an environmental authority before an environmentally relevant activity may be carried out.
[44]Chapter 5 of the EPA deals with environmental authorities and environmentally relevant activities.
[45]The activity of mining, under a mining lease granted under the MRA, is an “environmentally relevant activity” that is regulated under the EPA,[27] by the requirement to hold an environmental authority. It is an offence to carry out an environmentally relevant activity without holding an environmental authority for the activity (s 426).
[27] See ss 18 (a “resource activity” is an environmentally relevant activity), 107 (a “resource activity” is, inter alia, an activity that involves a “mining activity”) and 110 (defining “mining activity”) of the EPA.
[46]As defined in s 110, a “mining activity” is:
(a) an activity that is an authorised activity for a mining tenement under the MRA; or
(b) another activity that is authorised under an approval under the MRA that grants rights over land.
[47]The term “authorised activity” is not defined in the EPA. But it is defined in schedule 2 to the MRA to mean, for a mining tenement, “an activity that its holder is, under this Act or the tenement, entitled to carry out in relation to the tenement”.
[48]It is necessary to pay particular attention to these provisions, as they define the “activity” for which an environmental authority is required – that is, an activity which the holder of, relevantly, a mining lease is, under the MRA or the mining lease, entitled to carry out in relation to the lease.
[49]The EPA contemplates there being only one environmental authority for a project involving environmentally relevant activities. So if the holder of a mining lease, has already applied for and been granted an environmental authority in relation to mining activity, and wishes to expand their activities, the EPA contemplates an amendment to the existing authority, rather than the grant of a new one.[28]
[28] See ss 118, 119 and 224 of the EPA.
[50]That is what occurred in this case, with NAC making an application, under s 224, to amend its existing environmental authority. The requirements for such an application are set out in s 226. The administering authority (the third respondent) decided that the proposed amendment was a major amendment (s 228), with the consequence that chapter 5, parts 3 to 5 applied to the amendment, as if it were a site-specific application (s 232). This process includes public notification of the application (s 152) and the opportunity for submissions to be made about the application (ss 160 and 161). Following this, the administering authority makes a decision about the application (ss 171, 172, 176), and must give notice of its decision to the applicant and any submitters (s 181).
[51]Under s 176(2), for a variation or site-specific application, in deciding the application the administering authority must –
(a) comply with any relevant regulatory requirement;[29] and
(b) subject to paragraph (a), have regard to each of the following –
(i)the application;
(ii)any standard conditions for the relevant activity or authority;
(iii)any response given for an information request;
(iv)the standard criteria.[30]
[29] See paragraph (a) of the definition of “regulatory requirement” in schedule 4 to the EPA; see also chapter 4, part 2 of the Environmental Protection Regulation 2008 (regulatory requirements for all environmental management decisions).
[30] See the definition of “standard criteria” in schedule 4 to the EPA (discussed further below).
[52]Chapter 5, part 5, division 3 contains provisions dealing with the decision stage of “an application for a mining activity relating to a mining lease” (s 180; see also s 184). If the decision is to approve the application, including where that is on the basis of conditions that are different to the standard conditions, the notice must be accompanied by a draft environmental authority. The notice must also state that a submitter may, by written notice, request that their submission be taken to be an objection to the application; and that the applicant may, by written notice, request that the administering authority refer the application to the Land Court (ss 181(2), 182 and 183).
[53]In this case, the decision of the administering authority was to recommend that the amendment to the environmental authority be approved, and a draft environmental authority was prepared.[31]
[31] See the administering authority’s Environmental Authority Assessment Report (exhibit 12 before the Land Court), exhibit 1, tab 43; and the draft environmental authority (exhibit 9 before the Land Court), exhibit 1, tab 42.
[54]If a submitter gives an objection notice or if the applicant requests referral of the application to the Land Court, the administering authority must refer the application to the Land Court for an “objections decision”, unless that has already been done under s 265 of the MRA (s 185(1)). The Land Court is required to make an order or direction that the (EPA) objections decision hearing happen at the same time as the (MRA) hearing for the mining lease application and objections to it (s 188(2)). That is what occurred in this case.
[55]As in the case of the MRA, the objections decision is a recommendation to the administering authority that the application be approved, either on the basis of the draft environmental authority or on stated conditions that are different to those proposed in the draft environmental authority, or that the application be refused (s 190(1)(a)). If the mining lease is part of a coordinated project, and the recommendation is for approval, any stated conditions must include the Coordinator-General’s conditions and cannot be inconsistent with those conditions (s 190(2)).
[56]Section 191 provides that:
“In making the objections decision for the application, the Land Court must consider the following –
(a) the application;
(b) any response given for an information request;
(c) any standard conditions for the relevant activity or authority;
(d) any draft environmental authority for the application;
(e) any objection notice for the application;
(f) any relevant regulatory requirement;
(g) the standard criteria;
(h) the status of any application under the Mineral Resources Act for each relevant mining tenure.”[32]
[32] Emphasis added.
[57]These matters do not limit the criteria or matters the Land Court may consider in making the decision (s 316).
[58]The “standard criteria” referred to in s 191(g) is defined in schedule 4 to the EPA, and includes:
“(a) the following principles of environmental policy as set out in the Intergovernmental Agreement on the Environment[33] –
[33] A copy of which appears in the schedule to the National Environment Protection Council (Queensland) Act 1994.
(i)the precautionary principle;
(ii)intergenerational equity;
(iii)conservation of biological diversity and ecological integrity; and
(b) any Commonwealth or State government plans, standards, agreements or requirements about environmental protection or ecologically sustainable development; and
…
(e) the character, resilience and values of the receiving environment; and
(f) all submissions made by the applicant and submitters; and
…
(i) the public interest; and
…
(k) any relevant integrated environmental management system or proposed integrated environmental management system; and
(l) any other matter prescribed under a regulation.”
[59]In relation to (a), as articulated in section 3 of the Intergovernmental Agreement on the Environment those principles of environmental policy are to inform policy making and program implementation. They are described in section 3.5 as follows:
“3.5.1 Precautionary principle
Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii)an assessment of the risk-weighted consequences of various options.
3.5.2 Intergenerational equity
The present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations.
3.5.3 Conservation of biological diversity and ecological integrity
Conservation of biological diversity and ecological integrity should be a fundamental consideration.”
[60]The administering authority makes the final decision on the application for, or to amend, an environmental authority. In addition to the objections decision from the Land Court, the EPA makes provision for the MRA Minister and the State Development Act Minister to provide the administering authority with advice about any matters they consider may help in making a decision about the application (s 193). In making the final decision, the administering authority must have regard to the objections decision of the Land Court, any advice provided under s 193 and the draft environmental authority (s 194(4)(a)).
[61]In contrast to the MRA Minister’s decision under s 271 of the MRA, the administering authority is not required to revisit the criteria in s 191. But that is explained by the fact that, under the EPA, the administering authority is obliged to make a decision on the application before it is referred to the Land Court for an objections decision (and in that context, will already have addressed the criteria in s 176).
[62]Reflecting s 190(2), s 205 provides that if the application relates to a coordinated project, and the decision is to approve the application, the conditions of the environmental authority must include the Coordinator-General’s conditions (s 205(2)) and “any other condition imposed on the authority cannot be inconsistent with a Coordinator-General’s condition” (s 205(3)).
[63]In this case, on 14 February 2018, a final decision was made by a delegate of the third respondent to refuse the application to amend the environmental authority, substantially relying upon the findings of the Land Court in relation to noise limits, intergenerational equity and groundwater.[34]
[34] See the Statement of Agreed Course of Action following decision of 14 February 2018 (exhibit 4).
[64]As in the case of s 269(4) of the MRA, ss 190 and 191 of the EPA provide the framework within which the Land Court’s decision on an objections hearing takes place, in terms of identifying the scope of the relevant considerations and the Land Court’s function.
[65]Importantly, what is referred to the Land Court is “the application”, being the application (for an environmental authority) for a mining activity relating to a mining lease (see ss 180 and 184). The objections hearing is not an open-ended inquiry about matters concerning the environment or environmental values. It is an inquiry in relation to the merits of the application for a mining lease and objections to that application, and objections to the application for an environmental authority (see s 268(2) MRA) for the purpose of the Land Court making a recommendation to the relevant decision-makers under the MRA and the EPA. The focus, under the EPA, as under the MRA, is upon the activities the putative holder of the mining lease will be entitled to carry out under the MRA or the mining lease, if it is granted.
[66]I return to this issue from [196] below, but it is appropriate in this context to make the following further points about the scope of the jurisdiction and function of the Land Court, which arise from the groundwater issue.
[67]I accept that the terms “environment” and “environmental values” are broad, and may well encompass the quantity of groundwater available for use by surrounding landowners, as a natural resource, and a characteristic of a place or area that contributes to biological diversity and integrity, and as a physical characteristic of the environment that is conducive to ecological health.[35] However, in my view, that does not assist in identifying the scope of the jurisdiction conferred on the Land Court, for the purposes of an objections decision. That is governed by ss 190 and 191, having regard to the nature of “the application” which those provisions are dealing with, which is an application (for an environmental authority) for a mining activity relating to a mining lease (ss 180 and 184). The function of the Land Court under the EPA is limited to considering the matters identified in s 191 in so far as they relate to those activities – that is, activities which the applicant would be entitled to carry out under the MRA or the proposed mining lease.
[35] See the third respondent’s written submissions at [38] and [39], and oral submissions at T 4-61 to 4-62 (OCAA made submissions to similar effect); cf NAC’s argument to the contrary, in [66] of NAC’s submissions (filed 17 October 2017) and at T 1-63 and 1-68 to 1-79.
[68]This was the approach taken by President MacDonald in Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth – Brisbane Co-Op Ltd & Ors and Department of Environment and Resource Management (2012) 33 QLCR 79 at [588]-[597], which in my respectful view, subject to one possible qualification, is correct, as a matter of construction of the relevant provisions.
[69]The possible qualification arises from a matter addressed by McMurdo P, by way of obiter, in Coast and Country Association of Queensland Inc v Smith [2016] QCA 242. Her Honour expressed the view that, in contrast to s 269(4)(i) and (j) of the MRA, having regard to the object of the EPA, and the broad meaning of the terms “environment”, “environmental value” and “environmental harm”, s 223(c) [now s 191(g)] should not be given a narrow construction, “so as to limit it to a consideration of the standard criteria directly relevant to an activity authorised under the Mineral Resources Act to take place on land to which the relevant mining tenement relates”[36] (at [12]).
[36] My underlining.
[70]The particular matter that her Honour said should be considered, as part of the “standard criteria” (having regard to the inclusion, as part of the standard criteria, of the principles of ecologically sustainable development as set out in the National Strategy for Ecologically Sustainable Development[37]) was the scope 3 emissions, which were not emissions caused by the physical operations which would be undertaken under the proposed mining lease; but rather emissions that may be caused by the transportation and burning of coal by others.
[37] Which, in the context of the Coast and Country decision, appears from the passage quoted at [8] to have been in the form it was prior to the amendment effected by the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Act No. 16 of 2012), s 61.
[71]In the same case, Fraser JA, at [39]-[42], referred to President MacDonald’s conclusion in Xstrata, and to the fact that the first respondent in Hancock (the decision under review in Coast and Country) had adopted President MacDonald’s conclusions. His Honour also noted that Douglas J at first instance affirmed the Land Court member’s adoption of that analysis from Xstrata. Fraser JA did not, on my reading, express a concluded view on the point; observing (as McMurdo P did as well) that it would not affect the result of the appeal even if a broader construction of s 223(c) [now s 191(g)] were adopted. Morrison JA expressed general agreement with Fraser JA.
[72]In my respectful view, the jurisdiction which is conferred on the Land Court under ss 190 and 191 of the EPA has a particular focus – namely, the hearing of an application for (or to amend) an environmental authority, to permit mining activities lawfully to be carried out. The absence of express words such as “relevant to the application” in s 191(g) [s 223(c)][38] does not, in my view, mean that the consideration of “the standard criteria” is at large. Having regard to s 191 as a whole, in the context of subdivision 3 (commencing at s 184), it is implicit that consideration of the standard criteria, like the other matters referred to in s 191, is in relation to the subject matter of the decision to be made – which is an “objections decision” in relation to an application for an environmental authority to carry out particular activities.
[38] Cf the textual analysis of McMurdo P in Coast and Country at [12].
[73]However, just as, under s 269(4)(k) of the MRA, broader considerations may be appropriate in considering whether the public right and interest will be prejudiced (by the grant of the mining lease), the same may be said of some of the “standard criteria” – which also includes, for example, “the public interest”.
[74]It is not necessary, in order for me to determine the issues in this application, to form a conclusive view about the question of construction raised by McMurdo P in Coast & Country. Her Honour’s obiter comments leave that question open for consideration in an appropriate case. However, those comments do not answer the problem posed in this case – which is whether it was within the jurisdiction of the Land Court, in making the objections decision, to fully consider an activity which would not be authorised under the mining lease, but depended upon a separate statutory assessment and approval process under the Water Act. For the reasons developed from [196] below, in my view it was not. In any event, in so far as the Land Court member in this case considered it was part of his Honour’s function, and jurisdiction, to do so, that was not on the basis of a broad interpretation being given to the “standard criteria” under s 191(g).
Water Act 2000
[75]The interrelationship between the Water Act, the MRA and the EPA is central to the resolution of the grounds of review relating to groundwater. The relevant provisions have been addressed in detail at paragraphs [198]-[200], [209]-[214] and [225] below.
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
[76]The objects of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) include to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance (s 3(1)(a)). One of the ways in which this is done is to prohibit certain action, without an approval first being obtained under the Act. Relevantly for present purposes, taking action that involves a large coal mining development, that has or will have, or is likely to have, a significant impact on a water resource, is prohibited without an approval (ss 24D(1), 67 and 67A).
[77]Provision is made under this Act for a bilateral agreement between the Commonwealth and a State that may deal with various things, including minimising duplication in the environmental assessment and approval process through Commonwealth accreditation of the processes of the State, or vice versa (ss 45 and 48). There is such a bilateral agreement in place between the Commonwealth and the State of Queensland.[39] The stage 3 project was assessed by the Coordinator-General under the bilateral agreement, by reference to matters of national environmental significance,[40] with the Coordinator-General’s evaluation report then being provided to the Commonwealth Minister for the Environment in accordance with s 36(2) of the State Development and Public Works Organisation Regulation 2010 and the bilateral agreement.[41]
[39] See [89] of NAC’s written submissions.
[40] Exhibit 1, tab 45, p 63 and following.
[41] Exhibit 1, tab 45, p viii.
[78]Section 505C establishes the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC). Its members must possess scientific qualifications or expertise (in the areas of geology, hydrology, hydrogeology and ecology) that the Commonwealth Minister considers relevant to the performance of the Committee’s functions. The functions of the Committee include “to provide scientific advice to the Environment Minister in relation to … large coal mining developments that are likely to have a significant impact on water resources…” (s 505D(1)).
[79]Like the State EPA, the EPBC Act also makes provision for an approval process for certain actions (ss 133 and 134). In some circumstances, the Minister is required to obtain the advice of the IESC before deciding whether or not to grant an approval (s 131AB). If approval is granted, the conditions of the approval must be complied with; it is an offence not to do so (ss 142, 142A and 142B).
[80]In this case, following advice received in December 2016 from the IESC, the Federal Minister gave EPBC Act approval for the revised stage 3.[42]
[42] Reasons at [1635] and [1746].
Obligation and standard of reasons required to be given
[81]Inadequacy of reasons is relied upon in respect of a number of the grounds of review. It is also a matter that is relevant to consideration of the apprehended bias ground.
[82]Although it has been held, and recently affirmed, that there is no free-standing common law duty to give reasons for an administrative decision,[43] the requirement to give reasons is acknowledged as an incident of the judicial function and process.[44]
[43] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [43], referring to Public Service Board (NSW) v Osmond (1986) 159 CLR 656.
[44] Wainohu v New South Wales (2011) 243 CLR 181 at [54]-[58] per French CJ and Kiefel J.
[83]As explained by French CJ and Kiefel J (as her Honour then was) in Wainohu v New South Wales (2011) 243 CLR 181 the rationale for the duty upon judges to give reasons for their decisions (both final decisions and important interlocutory rulings) is not limited to the availability of rights of appeal; a wider rationale can be derived from the nature of the judicial function. Their Honours referred at [56] to the following summary of the objectives underlying the duty:[45]
“First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Secondly, the general acceptability of judicial decisions is promoted by the obligation to explain them. Thirdly, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.”
[45] From an extra-curial statement by Gleeson CJ, referred to by Heydon J in AK v Western Australia (2008) 232 CLR 438 at [89].
[84]Their Honours also confirmed that the content of the duty will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision. Observing that the duty is an incident of the judicial function, whether or not the court making the relevant decision is subject to appeal, French CJ and Kiefel J said, at [58]:
“The provision of reasons for decision is also an expression of the open court principle, which is an essential incident of the judicial function. A court which does not give reasons for a final decision or for important interlocutory decisions withholds from public scrutiny that which is at the heart of the judicial function: the judicial ascertainment of facts, identification of the rules of law, the application of those rules to the facts and the exercise of any relevant judicial discretion.”
[85]In Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462, which was cited in Wainohu (at [55]) McPherson and Davies JJA said, at 483:
“The extent of the duty to give reasons is affected by the function that is served by the giving of reasons. The requirement is considered an incident of the judicial process, the hallmark of which is, as McHugh JA stressed in Soulemezis (1987) 10 NSWLR 247, 278-279, ‘the quality of rationality’, which is what serves to distinguish a judicial decision from an arbitrary decision. The giving of reasons is thus an aspect of judicial accountability, which was identified by his Honour in Soulemezis as the second of three purposes served by the judicial duty of giving of reasons. The first, his Honour said, is that ‘it enables the parties to see the extent to which their arguments have been understood and accepted, as well as the basis of the judge’s decision’. The third is that judicial reasoning provides a precedent for the decision of future cases…”
[86]Each of the purposes identified by McHugh J in Soulemezis, and referred to in Cypressvale, have equal force in relation to a decision of the Land Court under ss 268 and 269 of the MRA and ss 190 and 191 of the EPA.
[87]There is no question that the Land Court is under an obligation to give reasons for its recommendation in the present context. It is statutorily obliged to do so under s 269(5) of the MRA, when recommending the application for a mining lease be refused. There is no express obligation in the case of a recommendation that the application be accepted, and none in either case under the EPA. But in my view, for the reasons articulated in Wainohu, even in the absence of a statutory requirement, the Land Court is obliged to give reasons for its decision, as an incident of the judicial process. The only reason why there is any scope for debate in the present case about the standard of the obligation to give reasons is because of the characterisation of the decision to make a recommendation under s 269 of the MRA and s 191 of the EPA as administrative, rather than judicial. However, in my view, that characterisation does not alter the fact that the decision is one made by a judicial officer, a member of a court, as part of a judicial process.
[88]This was the conclusion reached by the Court of Appeal of New South Wales in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435,[46] in relation to a decision of a judge of the Land and Environment Court of NSW which was, in effect, an administrative decision. In that case, Kirby ACJ (with whom Sheller and Clarke JJA agreed on this point) at 442 expressed:
“reservations in extending the current immunity against the obligation to give reasoned decisions, enjoyed by pure administrators, to a judicial officer of a superior court. Cf Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666. Whilst it is true that the judge is substituted for the consent authority and is making, in effect, an administrative decision, it is a decision inescapably made by a judge. As an incident of the judicial office, the judge is expected by the community to give reasons which sufficiently demonstrate the lawfulness of what he or she has done. Housing Commission of New South Wales v Tatmar Pastoral Co Ltd [1983] 3 NSWLR 378 (CA) at 385 …; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) at 270. Whilst it is true that the duty of the judge will vary according to the way a case has been conducted and the reasoning followed, where a point is vital and where its resolution is crucial to the contest between the parties, it will ordinarily be expected that the judge will expose his or her reasons for the decision on the issue: see Soulemezis (at 270).”
[46] Referred to by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444, which in turn was referred to by Muir JA in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [63].
[89]In this case, one of the things the court was required to take into consideration was a particular development control plan. A complaint on appeal was that the judge had failed to do that because, on the face of his Honour’s reasons, there was no reference to it.
[90]A unanimous Court of Appeal held that an error of law had been shown in that regard. The reasons for this conclusion included the following (per Kirby ACJ at 442-443, Sheller and Clarke JA agreeing on this point):
1.The only way a court, on appeal, and the parties, can discern whether a consideration crucial to the case was taken into account is by looking to the reasons of the judge. Whilst those reasons should not be examined in an “overly critical or pernickety” way, the facility of appeal is provided by Parliament to ensure that a manifestly lawful decision is made. It is an incident of judicial duty to give reasons which extend to expressing findings upon issues which are critical to the point(s) in contention in a case. In my view, the same observation applies in relation to the facility of judicial review.
2.Although the decision was, in effect, an administrative decision, it was made by a judge, and as an incident of judicial office, the judge is expected by the community to give reasons which sufficiently demonstrate the lawfulness of what he or she has done. The consideration of the development control plan was crucial to the conduct of the case and the contest between the parties. This imposed upon the judge the obligation to at least refer to it, and to indicate his reasons, notwithstanding the application of the development control plan, for coming to the view that consent for the development should be given.
3.From a practical perspective, the trial lasted four days, a great deal of money had been expended by both sides, and many citizens’ interests were involved. In these circumstances, a failure of the judge to indicate, in clear terms, that he had taken into consideration a crucial factor leaves the resolution of the dispute in an unsatisfactory state.[47]
[47] Although the effect of the unanimous decision as to the failure to take into consideration a critical matter was that the matter had to be remitted to the Land and Environment Court, there was a separate aspect of the proceeding (a question of construction of a provision of the planning legislation dealing with whether consent of an owner of adjoining land was required) which was the subject of appeal to the High Court (North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470), prior to the remittal. There was no appeal from the conclusion in relation to reasons.
[91]OCAA placed particular reliance upon the High Court’s decision in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, a decision concerned with the standard of reasons required to be given by a Medical Panel for its opinion on a medical question referred to it. The only basis for an obligation to give reasons was statutory, and as a consequence the standard was a matter of statutory construction. Two considerations were regarded as of particular significance: first, the nature and function performed by the Medical Panel in forming and giving an opinion on the medical question referred to it; and second, the objective, within the scheme of the relevant Act, of requiring the Medical Panel to give written reasons for that opinion (at [43]-[47]).
[92]Wingfoot is of little assistance here, given the fundamentally different nature of the function of the Medical Panel (to form an opinion on a medical question) and the Panel itself, as compared with the decision made by the Land Court in the present context. However, the conclusion I have reached, about the obligation and standard of reasons to be expected of a Land Court member, is also supported by applying those two considerations to this case.
[93]First, in terms of the nature and function performed by the Land Court. The Land Court is a specialised judicial tribunal, a public court of record (s 4 of the Land Court Act). The Land Court has, for exercising jurisdiction conferred on it, all the powers of the Supreme Court (s 7A). In the exercise of its jurisdiction, the Land Court is not bound by the rules of evidence, may inform itself in the way it considers appropriate, and must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts (s 7). This provision does not diminish the obligation to give reasons for its decisions, or somehow lower the standard – it is a general provision, applying to the exercise of all aspects of the Court’s jurisdiction, whether characterised as judicial or administrative decisions.
[94]Hearings before the Land Court are conducted in essentially the same way as any other court hearing, save for the fact that the court is not bound by the rules of evidence. Evidence is taken formally and recorded (s 11). The Court has the power to subpoena a person to give evidence or produce documents (s 8) and to punish for contempt (s 9). Parties are entitled to be legally represented (s 24). The Court has power to make an order for costs (s 34).
[95]The hearing before the Land Court in this matter was substantial, extending over almost 100 hearing days. It involved, in addition to the applicant and the statutory party, 12 objectors (both organisations, such as OCAA, and individuals) who actively participated (and another 27 who did not).[48] A number of the parties were legally represented, including by senior and junior counsel; whilst others represented themselves. The hearing involved multiple, complex issues, in respect of which both lay and expert evidence was led;[49] and required consideration of a large body of evidence as well as extensive, detailed and complex submissions on matters of fact, including as informed by technical expertise, and law. In terms of the practical considerations referred to by Kirby ACJ in North Sydney Council v Ligon 302 Pty Ltd (a trial of four days, involving expenditure of a “great deal of money” and involving “many citizens’ interests”), it might be observed that in the case of this Land Court proceeding those considerations are far more compelling.
[48] Reasons at [83].
[49] Reasons at [103] (the Court heard from 38 lay witnesses and 28 expert witnesses).
[96]As to the second matter, the objective, within the scheme of the relevant legislation, of requiring reasons to be given, there are three important aspects to this:
(a) first, the reasons are required in order to inform the Minister under the MRA and the administering authority under the EPA, as the ultimate decision makers, of the basis for the recommendations to refuse the applications;
(b) second, the reasons are required to inform the parties as to the basis for the decision, and also to facilitate review rights of the parties, by disclosing what was taken into account and in what manner; and
(c) third, the reasons are required to inform the broader public, both because of the subject-matter of the decision, concerning a public resource, but also because it facilitates the understanding and application of the law. It is clear that decisions of the Land Court in relation to matters such as the present do have precedential value.
[97]Although the decision is a recommendation, in so far as both the MRA Minister and the administering authority under the EPA are concerned, the decision plainly has the capacity to affect, in a practical sense, the rights and interests of the parties concerned. In my view, it is appropriate that the standard of reasons required to be given by a Land Court member, for a decision to make a recommendation under s 269 of the MRA and s 191 of the EPA, is the same as that which the members, as judicial officers, would be required to give for other decisions they may be required to make. The distinction between “administrative” and “judicial” decisions, in this context is, in my respectful view, an artificial one, if it is relied upon to contend that something less than that would be appropriate. The commercial and personal interests of parties who are involved in proceedings such as this are considerable, not to mention the public interest, given the subject-matter.
[98]In my view, the principles which were summarised in Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [58]-[65], and the decision of the Land Appeal Court in Cidneo Pty Ltd v Chief Executive, Department of Transport and Main Roads (2014) 201 LGERA 395 at [47]-[50], apply equally to the obligation of a Land Court member to give reasons for the making of a recommendation under s 269 of the MRA and s 191 of the EPA. Relevantly, and without including the many cases cited as authority, in Cidneo at [49] Peter Lyons J summarised the position in the following way:
[338]I can see no reason why this would be impermissible.[232] The State Development Act makes provision for a proponent of a coordinated project to make an application for changes to be made to the conditions imposed or stated by the Coordinator-General, and the Coordinator-General also has the power to consider such a change of his or her own initiative. Once the Land Court’s objections decision under s 190 has been made, a copy of it must be given, by the Land Court, to both the MRA Minister and the State Development Act Minister (s 192). Those Ministers are then to give any advice to the administering authority (under the EPA) that they consider may help to make a decision about the application (s 193), following which the administering authority is required to make the decision. There is clearly a continuing cooperative approach, as between the MRA Minister, the State Development Act Minister and the administering authority under the EPA. In those circumstances, particularly where this is the only basis on which the Land Court would recommend refusal (preference for an inconsistent condition), it seems entirely reasonable and appropriate to allow for this process to occur.
[232] Cf the submission of OCAA at T 4-30; and NAC’s contrary submissions at T 5-49 to 5-50.
[339]The important point for present purposes is that s 190(2) does not have the effect of compelling the decision-maker to make a particular decision, in the exercise of the discretionary power under s 190(1). The use of language such as “compelled” and “no option” is demonstrative of a failure to exercise the discretionary power conferred on the decision maker.
No direct inconsistency in any event?
[340]It remains to deal with NAC’s argument that there is, in any event, no direct inconsistency between the condition as to noise limits preferred by the Land Court member, and that imposed by the Coordinator-General, because it is possible to obey both conditions.
[341]I agree with the reasoning of President MacDonald in Xstrata, that the word “inconsistent” in s 190(2) is to be construed having regard to its ordinary meaning. The parties did not contend otherwise. So the question is whether the condition preferred by the Land Court is inconsistent with (in the sense of contradicting, or lacking harmony with, or being incompatible with) the condition imposed by the Coordinator-General.
[342]In the particular context that this issue arises, NAC submits that a more stringent noise limit (preferred by the Land Court) does not contradict or lack harmony with a less stringent noise limit (imposed by the Coordinator-General), because compliance with the former necessarily involves compliance with the latter. Therefore, NAC submits, there is no direct inconsistency because it is possible to obey both conditions.[233]
[233] As NAC notes, the third respondent appears to support this construction (third respondent’s written submissions at [16] and [27]).
[343]But testing that proposition: although a proponent would obey the Coordinator-General’s condition, by complying with the Land Court’s recommended condition, the converse is not true. If the holder obeys the Coordinator-General’s condition, it does not comply with the Land Court’s recommended condition. If both conditions were included in the environmental authority, how is the holder of the authority to choose which condition to comply with? As Hayne J observed in Momcilovic v R (2011) 245 CLR 1[234] at [346] “[t]he need to make a choice between the [conditions] bespeaks antinomy: contradiction or contrariety”.
[234] Albeit in dissent as to the question of inconsistency in that case.
[344]Suggesting an answer to this conundrum, NAC submits that a condition which is more onerous will be the “driving condition” in the package of conditions that is imposed.[235] But there is no basis, in the legislation, for such a rule.[236] Apart from the effect of s 190(2) and s 205(2) of the EPA, there is no guidance as to which condition prevails (cf s 46(2) (in relation to mining lease conditions) and s 54E (in relation to other conditions) of the State Development Act). On the other hand, it is apparent, from the scheme of the legislative provisions, including the State Development Act and the EPA, that the very purpose of s 190(2) and s 205(2) is to establish the “rules” for conditions imposed on environmental authorities, by (or on the recommendation of) various entities throughout the decision-making process. The Coordinator-General’s conditions have primacy, in the sense that they must be included in the environmental authority, and no condition recommended by the Land Court, or imposed by the administering authority, can be inconsistent with that provision.
[235] T 5-48.5.
[236] Cf for example Coffs Harbour Environment Centre Inc v Minister for Planning (1994) 84 LGERA 324, the decision cited by President MacDonald in Xstrata at [42] in which Kirby P held that the term “inconsistency” in s 36 of the Environmental Planning and Assessment Act 1979 (NSW) was to be construed according to its ordinary meaning. Section 36 provided the “rule” for dealing with an inconsistency between environmental planning instruments.
[345]In terms of the ordinary meaning of the term, there is inconsistency between a condition that the level of noise generated by the mining activities during the evening does not exceed 35 dB (as proposed by the Land Court) and a condition that the level of noise at such times does not exceed 42 dB (as imposed by the Coordinator-General). A more stringent (lower) noise limit does contradict, and lack harmony with a less stringent (higher) noise limit. The two conditions deal with the identical subject-matter, and prescribe a different rule of conduct.[237] That is a clear case of inconsistency, which is the very thing s 190(2) is intended to prevent.
[237] See, by analogy, Re Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563 per Mason J.
[346]However, for the reasons already given, I find the Land Court member did err by failing to exercise the discretionary power conferred on him by s 190(1).
[347]I therefore find that ground 1(aii) has been established, but that the remaining parts of ground 1, and grounds 4 and 6 have not.
Inquiring into the DEHP and the current environmental authority
[348]NAC contends that, despite statements by the Land Court member to the contrary (for example at [566] and [571] of the Reasons) his Honour impermissibly conducted an inquiry into the conduct of the Department of Environment and Heritage Protection (DEHP) and purported to make findings about breaches of the existing environmental authority.
[349]These complaints are the subject of grounds 2 and 3 of the amended application. Ground 2 contends the Land Court member erred in finding that air quality and noise limits in NAC’s current environmental authority may have been or had been exceeded. Ground 3 contends the Land Court member erred by inquiring into and making findings about the past performance of the DEHP. NAC contends that in doing so the Land Court member acted outside the scope of the Court’s jurisdiction and, if within jurisdiction, the findings involve inconsistency and irrationality and are made without reference to or analysis of the applicable law, evidence or submissions.
[350]In so far as the argument about inquiring into the conduct of the DEHP is concerned, NAC emphasises [566] of the Reasons, in which the member said:
“There are a number of aspects of the actions that had been attributable to EHP throughout these preceding’s (sic) that I could make comment on, but as has been pointed out strongly by the submissions of the statutory party, this hearing is not an inquiry into the operations of the statutory party or anything of the like. I agree.”
[351]NAC also refers to the questioning by the Land Court member of Mr Loveday, the officer of the Department with delegated authority to make a decision in relation to the environmental authority amendment application,[238] and to the criticism of Mr Loveday’s evidence at [571] of the Reasons. NAC also refers to the member’s statements, in relation to a standard relating to air quality, at [634] of the Reasons, of concern at the Department’s failure to update NAC’s current environmental authority to refer to the appropriate standard, and his lack of confidence in the Department acting to amend the environmental authority in the future. The complaint is that this led the member to conclude that particular conditions should be included in the draft (amended) environmental authority, if it was granted.
[238] See NAC’s submissions at [206].
[352]In so far as the argument about inquiring into past compliance with the current environmental authority is concerned, NAC again points to the member’s statements, for example at [571] that “Of course, I am not here to judge or make findings as such relating to the current EA, and I will refrain from doing so…”, but then submits, in effect, that his Honour does precisely that, by reference to [1792] of the Reasons where his Honour says:
“While I do agree with NAC’s own evidence that it needed to ‘lift its game’ as regards its engagement with the community, the fact remains that there have been no convictions or show case notices issued against NAC; nor have there been any environmental nuisances proven as an absolute certainty to have occurred. Such proof of course requires process different to those undertaken by this Court as part of the objections hearing. That said, however, I am satisfied that exceedances of EA conditions have occurred from a time to time by NAC as part of its Stage 1 and Stage 2 operations and, further, that NAC has not been diligent in keeping a record of complaints made to it regarding issues such as excessive noise, dust, light spillage and the like.”
[353]NAC submits that the reference in the fourth line of this paragraph, to “environmental nuisances proven as an absolute certainty to have occurred” should be read as meaning proven before the Land Court member, in the proceedings before his Honour, to have occurred. I do not accept that as a fair reading of the paragraph. The very next sentence makes it clear his Honour has not purported to undertake that task himself.
[354]NAC also complains that his Honour has expressed the view that he is satisfied “exceedances” of the environmental authority conditions have, or may have occurred, in circumstances where:
1.The current environmental authority does not impose limits per se, either in respect of noise or air. Focussing on the noise condition, the authority is drafted in terms of a condition that “noise from the activity must not cause an environmental nuisance, at any sensitive place”. If there is a complaint, there is provision for monitoring to be undertaken, and if that monitoring demonstrates that the noise limits set out in the document are not being exceeded, the holder is not in breach of the condition;[239] and
2.His Honour has not referred to the evidence, and provided sufficient reasons for the conclusion that there have been “exceedances”.
[239] See exhibit 1, tab 44, pp 18-19.
[355]I am not persuaded any error under grounds 2 and 3 has been established.
[356]In so far as jurisdiction is concerned, the past performance of the applicant is expressly a matter the Land Court is required to have regard to, under s 269(4)(g) of the MRA. The Land Court is also required to consider what conditions are appropriate to be imposed on the mining lease and/or the amended environmental authority, if granted. In my view, the Land Court member’s consideration of both the past conduct of the Department, in its administration of the current environmental authority, and the past performance of NAC, were relevant matters to have regard to, within that context.
[357]In so far as the complaint about the Land Court member being satisfied that exceedances of the current environmental authority have or may have occurred is concerned, again focussing on noise:
1.Firstly, it is apparent that there are “noise limits” identified in the current environmental authority (for example, schedule D, tables 1 and 2). Notwithstanding the structure of the provisions (a prohibition on creating environmental nuisance, with monitoring to occur if there is a complaint, which is to determine if there are “exceedances” of the limits identified in schedule D, tables 1 and 2), it is not unreasonable or irrational, when referring to the evidence before the Court, from objectors who described their past experience of noise from the mining activities, and of NAC’s responses to complaints, together with the evidence of the experts, to observe that there have been “exceedances” from time to time.
2.Secondly, that comment needs to be read in the light of other parts of the Reasons, including:
(a) the summary of objections at [85] (in particular point 14 on p 23) and [86] (point 27 on p 28); and
(b) [720]-[727], and also [734]-[739] in relation to noise.[240]
[240] See also [587]-[590] in relation to dust, noting the member’s observation at [587], by reference in general terms to the evidence of some objectors that “it is quite possible EA limits with respect to dust and particulate matter have been exceeded”.
[358]Ultimately, this was not a matter on the basis of which the Land Court member would have recommended refusal of the mining lease applications (see at [1793] and [1824]). NAC submits it would have influenced the views his Honour expressed about what he regarded as appropriate conditions, in the event the approval was granted (referring for example to [1196], [1198] and [1199] of the Reasons). In my view, that is not unreasonable. Having said that, it is not apparent that his Honour’s findings in relation to past performance affected his conclusion as to the appropriate noise limits; as opposed to his Honour’s conclusion as to the form conditions in the amended environmental authority concerning air quality and noise should take, being based on NAC complying with strict limits for air quality and noise, rather than being complaint based, and providing for real time monitoring (see at [1199]).
[359]In that context, it might reasonably be thought that the pragmatic approach his Honour took to dealing with this issue in the Reasons was an appropriate one. In so far as particular evidence about noise is concerned, his Honour records, in a short-hand way, acceptance of a number of factual matters built into a question put by Mr Holt QC, for OCAA, to Mr Elkin, one of the noise experts (see at [726] and [727]). NAC did not contend, before me, that there was any error in the content of that question.[241] His Honour also referred to some aspects of the expert evidence, where there was agreement (at [722]-[725]). His Honour’s finding at [1792] that “exceedances of EA conditions have occurred from time to time by NAC as part of its Stage 1 and Stage 2 operations” is made in the context of a broader consideration of the past performance of NAC, in its dealings with complaints made by residents living in proximity to the mine. It can only be taken as a finding that the noise limits identified in the current environmental authority (noting NAC’s point about the proper construction of the authority) have been exceeded from time to time in the past. It is not, and ought not be taken to be, a finding that environmental nuisance, in breach of the current environmental authority (in the sense of an offence under the EPA), had occurred. His Honour expressly disavowed any such finding (at [571] and [1792]).
[241] OCAA also drew attention to references in its written submissions below (exhibit 1, tab 27), at [601], [602] and [626], to evidence of Mr Elkin, the noise expert called by NAC, in relation to exceedances of the noise limit identified in the current environmental authority.
Remaining grounds of review
[360]It only remains necessary to address ground 12. Grounds 14 and 15 deal with the apprehended bias and groundwater grounds, which I have already addressed above.
Procedural fairness
[361]Ground 12 contends the decision involved a breach of the rules of natural justice, in that the Land Court member made adverse conclusions in circumstances where he failed to properly put to NAC and NAC’s witnesses relevant concerns. In particular, this is contended in relation to:
1.The credit findings made against Mr Denney, and rejection of all of his evidence.
2.The findings or comments made about NAC acquiring land in Acland.
[362]As to the second matter, I have addressed this at [145]-[152] above. As a matter of fairness, such an assertion ought to have been put to a relevant witness for NAC, and/or counsel for NAC in the course of submissions. There was a breach of the rules of natural justice in that respect, but this is not a matter that affects the outcome of this review proceeding.
[363]As to the first matter, the findings about Mr Denney’s evidence, this is dealt with at [212]-[231] of the Reasons, culminating in a conclusion by the Land Court member that, on the basis of a number of factors, he was “extremely troubled by Mr Denney’s evidence, to such an extent that I afford it little or no weight”, save for the documents annexed to his affidavits, the majority of which were not challenged and are therefore able to be relied upon, save for one exhibit.
[364]NAC makes two complaints about the treatment of Mr Denney’s evidence. First, it contends that it was denied procedural fairness in circumstances where the member raised an issue about whether Mr Denney was being coached whilst giving oral evidence during the course of the hearing, which was addressed in a private session with the legal representatives, but then did not raise any continuing concern about it until [214]-[218] of the Reasons. It is submitted that his Honour ought to have raised his continuing concern with NAC’s legal representatives during the hearing, to enable further submissions to be made about it.
[365]The second complaint is that it was irrational to completely reject the whole of Mr Denney’s evidence, regardless of whether matters were controverted, or controversial, or corroborated.
[366]As to the first matter, the circumstances in which the coaching issue regarding Mr Denney was raised is addressed in Mr Geritz’s affidavit (filed 17 October 2017) at [3]-[10]. The first day of the hearing of evidence (following openings and a site inspection) was 16 March 2016. Mr Denney was the second witness called by NAC on that day. At the end of the court day, shortly after Mr Denney had started in cross-examination, the Land Court member invited the legal representatives for NAC and OCAA to see him about a matter, outside of court. A meeting then took place in the member’s chambers. Mr Geritz describes what occurred at this meeting (and this is not disputed by OCAA):
“7. The First Respondent:
(a) described two people sitting in the public gallery that he said he believed were representatives of the Applicant, firstly, a lady that he said was of Latin or Mediterranean appearance and secondly, a man, who the First Respondent said looked like a union official;
(b) said that these two people, the lady in particular, were nodding or shaking their heads indicating that they either agreed or disagreed with the propositions the witness was considering;
(c) said that the lady was also nodding or shaking her head when the First Respondent was making statements and because of this it was probably simply her nature to be demonstrative;
(d) said he was concerned that Mr Denney was looking at these people when providing his answers to questions with the suggestion that Mr Denney was taking cues from these people;
(e) said that he did not think that the gestures indicated that any coaching had actually occurred, and instead were more likely exuberance; and
(f) requested the lawyers and counsel for the Applicant to advise the two people, who he believed were representatives of the Applicant, to stop making any gestures that could be ostensibly perceived as influencing the witness giving evidence.
8. After the meeting in chambers concluded, I relayed the First Respondent’s concerns regarding the gestures to the relevant personnel.
9. Mr Denney continued to give evidence for a further five days.
10. After the meeting in chambers of 16 March 2016 referred to above, the issue was not mentioned again until the First Respondent raised it in his reasons, at paragraphs [214]-[219].”[242]
[242] Emphasis added.
[367]What the Land Court member said at [214]-[219] of the Reasons is:
“[214]Mr Denney has 40 years’ experience in mining in Australia and the United States of America. He held the role of Chief Operating Officer of New Hope for a period of 5 years. Observations that I made on numerous occasions led me to believe that Mr Denney may have been receiving coaching from the gallery of the Court. I raised my concern in a private session of lawyers representing parties. I informed them of my observations that prior to answering questions, Mr Denney was looking to a person or persons in the gallery, seemingly for direction. I further advised that I had seen two people nodding or shaking their heads when Mr Denney looked in their direction. His answers were either a yes whenever he saw a nod or a no whenever he saw a head shake.
[215]NAC’s legal representatives assured me that they would take the matter up immediately with those employees of NAC who were seated in the public gallery in the area to which Mr Denney was looking. The nodding and shaking of heads did not occur again during Mr Denney’s evidence.
[216]The question may be asked as to why I did not take immediate action against the members of the public sitting in the court room who I was concerned may have been coaching the witness. Firstly, none of the legal representatives suggested that it was necessary for such a course of action to be taken. Also, I could not be certain what I observed was not more in the nature of the person showing their own over-excited responses to questions themselves rather than deliberate coaching. Viewed with the benefit of hindsight, and having observed one of those persons in particular throughout a significant part of the hearing, my view is that that person at least was in all likelihood merely being over exuberant in their own reaction to questions, as I did observe the same reaction, not so much when witnesses were giving evidence in the future, but when counsel or one of the objectors were making submissions or statements to the court.
[217]At any rate, even though I consider on the balance of probabilities that what I observed as coaching may have only been exuberance, that still does not excuse Mr Denney. Even if he was not looking to the gallery for assistance as part of a prearranged coaching exercise, at the very least Mr Denney looked to the gallery to employees of NAC and observed their responses to questions before giving his own response, which invariably followed precisely the indication that he had seen. It was entirely inappropriate of Mr Denney to do this, and this factor must be taken into account in my assessment of Mr Denney as a witness.
[218]In this regard, I am surprised that NAC in its submissions did not touch upon the issue of coaching or any impact that viewing answers from the gallery may have had on Mr Denney’s credit, despite being aware of my concerns in this regard raised at the private session.
[219]There is another significant factor which is linked to the above. I have provided my observations as to Mr Denney’s evidence up to the time that I became concerned about issues of coaching. After that time, the nature of Mr Denney’s evidence changed. He was much more uncomfortable in answering questions. He hesitated and corrected himself, particularly when shown documentary evidence to show that answers he had given were not factually correct. In short, Mr Denney presented quite differently as a witness after he was unable to take any assistance from the gallery.”[243]
[243] Emphasis added.
[368]There are some discordant matters that emerge from the description of what transpired on 16 March 2016 (which, as noted, is not controversial as between NAC and OCAA) and what appears in these paragraphs of the Reasons. The issue was raised at the end of the first day of evidence (16 March 2016). Mr Denney was the second witness, and had just gone into cross-examination before court adjourned for the day. In that context, the member’s reference to “observations that I made on numerous occasions” (at [214]) is somewhat unclear. Presumably, that can only be observations made on 16 March 2016. It is not apparent what the issues were in respect of which the member was concerned that Mr Denney may have been looking to the public gallery for reassurance, before answering a question. Mr Denney went on to give evidence for a further five days. No further nodding or shaking of heads was observed. The member’s observations that he presented quite differently as a witness after he was unable to take any assistance from the gallery (at [219]) may well be explained by the fact that he was being cross-examined, presumably for most of that five days (as opposed to giving evidence in chief, on the first day).
[369]Quite apart from this matter, the Land Court member identified another source of concern regarding Mr Denney’s credit, because his affidavit was written in the first person, and contained the usual declaration at the end (that the facts and circumstances deposed to were within his own knowledge, save where identified as being based on information and belief), but his Honour formed the view that many of the things asserted by Mr Denney were not in fact within his own knowledge.
[370]OCAA submits that NAC was “overwhelmingly on notice” from the time of the private session, on the afternoon of 16 March 2016, of the member’s concerns in this regard, and submits they were also alluded to in the course of oral submissions on 7 October 2016,[244] which it says is a complete answer to the breach of natural justice complaint.[245]
[244] Exhibit 1, tab 16, T 86-90.
[245] T 4-47 to 4-48.
[371]The part of the exchange between the member and Mr Ambrose QC for NAC in oral submissions which OCAA points to is as follows:
“HIS HONOUR: Well, anyway, while we’re dealing with witnesses, I read with interest your analysis of all of the – all your witnesses. In a number of respects, my initial analysis was somewhat different, and I was – the main one to raise is Mr Denney. And I – as I mentioned at the time when I made observations regarding his evidence, which you’ve dealt with in part in your submissions, I notice, I still find it very difficult to give credit to anything much of what he said when he swore [in] the first person that it was all information within his own knowledge, did not in any way throughout the affidavit refer to the information being obtained from others but did in the witness box – I could – I’ve really gone on and on and on in the past with examples where Mr Denney was unsatisfactory. Where would your case be if I threw out all of his evidence?
MR AMBROSE: Are you serious? Throw out all of his evidence?
HIS HONOUR: Well, clearly where there’s a document that is not contested.”[246]
[246] Exhibit 1, tab 16, T 86-90. Emphasis added.
[372]If the emphasised part is to be taken to be a reference back to the private session on 16 March 2016, his Honour did not, on that occasion, inform NAC’s legal representatives that, as a result of the perceived interaction between Mr Denney and the people in the public gallery, on 16 March 2016, he would find it difficult to give credit to anything much of what Mr Denney said. He expressed a concern that Mr Denney was looking at people in the gallery and taking cues from them, said he did not think any coaching had actually occurred, but was more likely exuberance, and asked for something to be done about it, which it was.
[373]In my view, on balance, if the Land Court member was going to place significant weight on this issue (which it appears his Honour did, albeit as one of a number of factors), he ought to more clearly have put NAC on notice about that, and given it an opportunity to make submissions, given how the matter was addressed on 16 March 2016, and the fact that Mr Denney’s oral evidence then proceeded for a further five days, with no further issues arising. To the extent that his Honour considered it a surprising omission from NAC’s closing submissions, it was appropriate to alert counsel for NAC to this during the oral argument. There was a failure to afford procedural fairness in that respect.[247]
[247] See York v General Medical Assessment Tribunal [2003] 2 Qd R 104 at [2] and [30].
[374]But in a practical sense, it is difficult to determine what flows from that. There were clearly other reasons, of which NAC was on notice, which influenced the view his Honour ultimately formed as to the credibility of Mr Denney’s evidence.
[375]More broadly, in relation to the second complaint made by NAC, whilst it was a matter for the Land Court member to assess the credibility and reliability of the witnesses, and the weight to be given to any witness’ evidence, it is a fair criticism to say that simply rejecting all of the evidence of Mr Denney was a step too far. In so far as his affidavit or oral evidence dealt with uncontroversial, or uncontroverted matters, or was corroborated by other witnesses or documents in evidence, which the member did accept, an adverse finding as to credit ought not to have resulted in that evidence simply being rejected.[248]
[248] See, by analogy, Fox v Percy (2003) 214 CLR 118 at 128 [28]; and Putland v Nowak [2012] QCA 121 at [83] per Muir JA (Holmes JA and Mullins J agreeing).
[376]Once again, it is difficult to see what flows from this. Ground 12 contends that the outright rejection of Mr Denney’s evidence was unreasonable or irrational. In a procedural sense, I agree that it was unreasonable. In a judicial review context, however, this conclusion does not of itself provide a ground of review. In order to give rise to particular relief, it would be necessary to show that the rejection of the evidence resulted in some reviewable error in relation to the decision. That further step was not undertaken here.
Proposed Orders
[377]The relief sought by NAC in its amended application includes an order setting aside the decision, with effect from 31 May 2017, and an order referring the matter back to the Land Court for consideration and determination, by a member other than the first respondent, consistent with the reasons of this court and according to law. At the hearing, the parties agreed it would be appropriate for me to deliver my reasons in relation to the application, and then give the parties time to consider the reasons before making submissions as to the appropriate form of orders to be made.
[378]For the reasons set out above, I find the following grounds have been established, with the consequence that it will be appropriate to set aside the decision of the Land Court made on 31 May 2017 recommending that the mining lease applications be rejected, and that the application to amend the environmental authority also be refused (Reasons at [1879]):
1.Ground 10, in relation to groundwater.
2.Ground 7, in relation to intergenerational equity, consequent upon the conclusion in relation to ground 10.
3.Ground 1(aii) (by reference to particulars (i), (iiA) and (ii)), in relation to noise.
[379]It is also appropriate that an order be made referring the matter to which the decision relates back to the Land Court for further consideration, in accordance with these reasons and according to law, with appropriate directions (s 30(1)(b) of the JR Act) to limit the scope of further consideration only to such aspects of the matter as is necessary, having regard to these reasons, to provide a time frame for the further consideration, and to address any preparatory steps the parties consider may be necessary.
[380]I invite submissions from the parties in relation to the appropriate orders and directions, including in relation to the submission foreshadowed by NAC that the matter be referred back to a different member of the Land Court, and the matters addressed in the “statement of agreed course of action” following the administering authority’s decision of 14 February 2018 (exhibit 4). I will also hear the parties in relation to costs.
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