New Acland Coal Pty Ltd v Smith (No 2)

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SUPREME COURT OF QUEENSLAND

CITATION:

New Acland Coal Pty Ltd v Smith & Ors (No 2) [2018] QSC 119

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 Queensland

DELIVERED ON:

28 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 and 28 May 2018

JUDGE:

Bowskill J

ORDER:

THE ORDER OF THE COURT IS THAT:

1.       Leave is granted to the Applicant to file and serve the Further Amended Application for a Statutory Order of Review and Application for Review in the form provided to the Court on 19 March 2018 and made Exhibit 5.

2.       The decisions made by the Land Court on 31 May 2017 (Recommendation Decisions) recommending:

(a)     rejection of applications for ML50232 and ML700002; and

(b)     refusal of the application for amendment of environmental authority EPML00335713,

are set aside with effect from 31 May 2017.

3.       The decision made by the delegate of the Third Respondent on 14 February 2018 to refuse the application for an amendment of environmental authority EPML00335713 is set aside with effect from 14 February 2018.

4.       The matters to which the Land Court’s Recommendation Decisions relate are referred back to the Land Court, to be further considered, by a different member of the Land Court, in accordance with the following orders.

5.       For the purposes only of the further consideration in accordance with paragraph 4 and making of new recommendation decisions, the parties before the Land Court are bound by, and the Land Court is directed to proceed on the basis of, the findings and conclusions reached by the First Respondent, and set out in the Reasons of the First Respondent delivered on 31 May 2017, in relation to all issues before the Land Court at the original hearing, apart from those relating to the key issues of groundwater, intergenerational equity (as it relates to groundwater) and noise.

6.       For the purposes only of the further consideration in accordance with paragraph 4 and making of new recommendation decisions, in so far as the findings and conclusions reached by the First Respondent in relation to the key issues of groundwater and intergenerational equity (as it relates to groundwater) are concerned, the Land Court is directed to exclude these issues from the further consideration, on the basis that it is not within the Land Court’s jurisdiction, in this proceeding, to address the potential impacts of taking or interfering with groundwater in the area of the proposed mining lease.

7.       For the purposes only of the further consideration in accordance with paragraph 4 and making of new recommendation decisions, in so far as the findings and conclusions reached by the First Respondent in relation to the key…

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Details
Case
[2018] QSC 119
Decision Date

CaseChat Overview and Summary

The case of New Acland Coal Pty Ltd v Smith (No 2) involved a judicial review of decisions made by the Land Court of Queensland under the Mineral Resources Act 1989 and the Environmental Protection Act 1994. The applicant, New Acland Coal, sought to overturn recommendations made by the Land Court that rejected their mining lease applications and refused an application to amend an environmental authority. The court was required to decide whether the recommendations should be set aside and if the matters should be referred back to the Land Court for further consideration, potentially by a different member.

The court found that while there was no evidence of apprehended bias in the conduct of the Land Court member, subsequent conduct raised concerns that a fair-minded lay observer might apprehend bias. Additionally, the court criticised parts of the reasons given by the Land Court member for the recommendations. Given these findings, the court considered it appropriate in the interests of justice to set aside the recommendation decisions and refer the matters back to the Land Court for further consideration by a different member. The court also exercised its power under the Judicial Review Act 1991 to narrow the scope of the Land Court's further consideration to avoid unnecessary re-litigation or re-examination of issues. The court directed the Land Court to exclude certain issues from consideration and to further consider the issue of noise based on specific directions.

The court further addressed the issue of costs, noting that while New Acland Coal was successful in obtaining an order setting aside the Land Court's recommendations, it was not successful on all grounds of review. The court decided that each party should bear its own costs of the proceedings. The final orders included setting aside the Land Court’s recommendations and the decision of the delegate of the Third Respondent, referring the matters back to the Land Court for further consideration by a different member with specific directions regarding the scope of the further consideration. Each party was ordered to bear its own costs.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. Leave is granted to the Applicant to file and serve the Further Amended Application for a Statutory Order of Review and Application for Review in the form provided to the Court on 19 March 2018 and made Exhibit 5.

2. The decisions made by the Land Court on 31 May 2017 (Recommendation Decisions) recommending:

(a) rejection of applications for ML50232 and ML700002; and

(b) refusal of the application for amendment of environmental authority EPML00335713,

are set aside with effect from 31 May 2017.

3. The decision made by the delegate of the Third Respondent on 14 February 2018 to refuse the application for an amendment of environmental authority EPML00335713 is set aside with effect from 14 February 2018.

4. The matters to which the Land Court’s Recommendation Decisions relate are referred back to the Land Court, to be further considered, by a different member of the Land Court, in accordance with the following orders.

5. For the purposes only of the further consideration in accordance with paragraph 4 and making of new recommendation decisions, the parties before the Land Court are bound by, and the Land Court is directed to proceed on the basis of, the findings and conclusions reached by the First Respondent, and set out in the Reasons of the First Respondent delivered on 31 May 2017, in relation to all issues before the Land Court at the original hearing, apart from those relating to the key issues of groundwater, intergenerational equity (as it relates to groundwater) and noise.

6. For the purposes only of the further consideration in accordance with paragraph 4 and making of new recommendation decisions, in so far as the findings and conclusions reached by the First Respondent in relation to the key issues of groundwater and intergenerational equity (as it relates to groundwater) are concerned, the Land Court is directed to exclude these issues from the further consideration, on the basis that it is not within the Land Court’s jurisdiction, in this proceeding, to address the potential impacts of taking or interfering with groundwater in the area of the proposed mining lease.

7. For the purposes only of the further consideration in accordance with paragraph 4 and making of new recommendation decisions, in so far as the findings and conclusions reached by the First Respondent in relation to the key issue of noise are concerned:

(a) The parties before the Land Court are bound by the factual findings made by the First Respondent in relation to noise.

(b) The Land Court is directed to further consider the key issue of noise, in accordance with this court’s decision, delivered on 2 May 2018, and according to law, on the basis that the undisturbed factual findings as to noise stand, but on the basis of such further consideration of the evidence before the First Respondent, and any submissions, as the Land Court considers appropriate.

8. Subject to orders 5, 6 and 7, the further consideration of the matters, and making of new recommendation decisions in relation to applications for ML50232 and ML700002, and the application for amendment of environmental authority EPML00335713, is to be in accordance with any directions made by the Land Court.

9. Each party bear its own costs of the proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 2 May 2018 I published my reasons[1] for allowing the application by NAC for a statutory order of review of the decision of the Land Court of Queensland made on 31 May 2017.[2][1] New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88 (the decision). Abbreviations used in these reasons, have the same meaning as in the decision.[2] New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24. I did not make any orders on that occasion. I indicated that, having found ground 10 (in relation to groundwater), ground 7 (in relation to intergenerational equity) and ground 1(aii) (in relation to noise) of the application were established, I considered it appropriate:(a) 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; and(b) that an order be made referring the matter to which the decision relates back to the Land Court for further consideration, in accordance with my reasons and according to law, with appropriate directions (s 30(1)(b) of the Judicial Review Act 1991) to limit the scope of further consideration only to such aspects of the matter as is necessary, having regard to my reasons (at [378]-[379]). As foreshadowed in my decision, the parties subsequently filed submissions in relation to the orders and directions to be made, including in relation to whether the matter ought to be referred to a different member of the Land Court, and in relation to costs. A hearing in relation to those matters took place on 23 May 2017. As a result of some preliminary views articulated by me during the oral submissions of Mr Gore QC, on behalf of NAC, as to the issue of a different Land Court member, and the scope of directions for the further consideration of the matter by the Land Court (which was considerably narrower than proposed by the parties), each of the parties, by their representatives, expressed agreement with the approach I had in broad terms outlined. Accordingly, the need for further argument was significantly reduced. I indicated to the parties that I would prepare written reasons for the orders and directions I regard as appropriate in this matter, and circulate to them a draft of the proposed orders for their comments, with an opportunity for further submissions to be made if necessary. The draft orders, and a draft of these reasons to assist in considering the orders, were circulated to the parties on 24 May 2018. The orders made today reflect changes to the proposed orders agreed between the parties, or as a result of clarification sought by the parties, as explained below. It is appropriate that I briefly record the basis for orders 1 and 3. As noted in my decision at [63], 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.

Ratio Decidendi

Legal Principle Established

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