QGC (Infrastructure) Pty Limited v Chief Executive - [2016] QLC 27

LAND COURT OF QUEENSLAND

CITATION: QGC (Infrastructure) Pty Limited v Chief Executive
Department of Environment & Heritage Protection [2016] QLC 27

PARTIES: QGC (Infrastructure) Pty Limited
(applicant)

v

Chief Executive, Department of Environment & Heritage Protection
(respondent)

FILE NO: EPA174-13

DIVISION: General Division

PROCEEDING: Appeal

DELIVERED ON: 5 May 2016

DELIVERED AT: Brisbane

HEARD ON: 10 June 2014

HEARD AT: Brisbane

MEMBER: W L Cochrane

ORDER: 1. Appeal Dismissed

CATCHWORDS: Environmental Protection Act 1994 (Reprint 11A) Environmental Protection Regulation (Reprint 2F) Petroleum and Gas (Production and Safety) Act 2004 (Reprint 5G); Conditions of Approval; Prohibition

APPEARANCES:
Mr P L O’Shea QC with Mr J D Houston for the applicant, instructed by Corrs Chambers Westgarth.

Mr M D Hinson QC with Mr R Laidely for the respondent, instructed by the Litigation Unit of the Department of Environment and Heritage Protection.

This is the decision in respect of an appeal by the applicant QGC (Infrastructure) Pty Limited (“QGC”) against conditions imposed by the respondent Department of Environment & Heritage Protection (“DEHP”) in respect of an environmental authority (“EA”) issued pursuant to the provisions of the Environmental Protection Act 1994 (“EP Act”) in respect of petroleum pipeline licences issued pursuant to the Petroleum and Gas (Production and Safety) Act 2004 (“P&G Act”).
As appears from the notice of appeal filed in the Court the decision against which the appeal is brought is described in the following way:
“The decision contained in the Statement of Reasons (see Attachment 1) in relation to the decision to impose a condition on the Level 1 Environmental Authority (Chapter 5A activities) PEN105338512 other than a condition that is the same, or is to the same effect as the condition agreed to or requested, delivered by the Executive Director, Energy Resources, as delegate of the administering authority, Department of Environment and Heritage Protection, delivered 29 April 2013.
The grounds of appeal are identified as:
The applicant appeals against conditions (A1), (A1A) and (A1C) of the Environmental Authority on the grounds that they are:
•Beyond power; and / or
•Neither necessary nor desirable.
The relief sought in the appeal is that the applicants seeks amendment of the conditions to remove the limitations imposed by the conditions on the scope of petroleum activities which the applicant would otherwise be authorised to carry out.”

Factual Background

In or about July 2012 QCG made application to the then Department of Natural Resources and Mines (DNRM) for what is described as a “point to point” Petroleum Pipeline Licence (“PPL”) for a gas pipeline to run from a site described as “The Polaris” Field Compression Station (“FCS”) which is located west of Wandoan to the Woleebee Creek Central Processing Plant (“CPP”).
That application was made pursuant to the provisions of s 409 of the P&G Act and that application became referenced as PPL 175.[1]
[1] Exhibit 1, p. 183.
On 30 October 2012 QGC lodged an amendment to the application pursuant to the provisions of s 844 of the P&G Act.[2]
[2] Exhibit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QLC 27
Decision Date: 5 May 2016

CaseChat Overview and Summary

The matter before the court involved QGC (Infrastructure) Pty Limited challenging a decision made by the Chief Executive under the Environmental Protection Act 1994 and the Petroleum and Gas (Production and Safety) Act 2004. The dispute centred around the imposition of certain conditions in environmental approval documents issued for petroleum activities, which QGC argued were unnecessary and not in line with the statutory framework. The Chief Executive defended the imposition of these conditions, asserting they were necessary for the efficient and effective management of environmental regulation.

The legal issues before the court included whether the Chief Executive had the authority to impose the conditions in question and whether such conditions were consistent with the statutory requirements and objectives of the Environmental Protection Act 1994. The court had to consider the statutory provisions and the broader policies guiding the administration of environmental regulations, including the need for clarity and consistency in the approval process.

The court found that the Chief Executive had the statutory authority to impose the conditions in question. The conditions were deemed necessary to ensure that environmental authorities clearly specified the activities approved, thereby enhancing usability and avoiding confusion. The court emphasised that the conditions aligned with the overall scheme of the Environmental Protection Act and served the policy objectives of efficient and effective environmental regulation. The court concluded that the imposition of these conditions was lawful and appropriate, dismissing QGC’s appeal.

Accordingly, the court dismissed the appeal brought by QGC (Infrastructure) Pty Limited against the decision of the Chief Executive. The Chief Executive’s imposition of conditions A1, A1A, and A1C in the environmental approval documents for petroleum activities was upheld as lawful and consistent with the statutory framework and policy objectives.

Orders

Orders of the court

1. Appeal Dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As I apprehend the totality of Ms Lenz’s evidence she seemed to be telling the Court that the ERE unit was under-resourced and over-burdened with work that a consequence that it had to develop policies for administering environmental regulation of petroleum activities. It is worth repeating a number of other statements contained in Ms Lenz’s affidavit in addition to paragraphs 7 and 8 which are quoted above.[60][60] Exhibit 1, p 1051 – 1052.“15.In addition, clearly expressing what activities an environmental activity actually authorises is considered to enhance the overall usability of the authority. Users of environmental authorities regularly fall within a number of different categories. The people within those categories often have varied levels of experience and skillsets in terms of using these types of approval documents.17.Environmental authorities for petroleum activities tend to operate over many years; often decades. As a result, while the user categories identified above will tend to remain static, the actual users within those categories will often change a number of times throughout the lifecycle of an environmental authority. 18.In my experience, these constantly changing circumstances generate a significant amount of work for both ERE and industry members in ensuring that relevant users of environmental authorities properly understand the effect and operation of those authorities. This includes understanding what activities are, or are not, authorised to occur under them.20.It also avoids the need for users of environmental authorities to have to revisit application material to determine what the authority may or may not authorise. It is ERE’s experience over many years that application documents are often not drafted with the necessary certainty required for a statutory approvals. It is also the case, although I understand it is an issue to be determined in this proceeding, that approvals will often approve something in a way that is not exactly in accordance with what has been applied for. Thus, it is highly desirable for users of an environmental authority to simply be able to rely on its terms alone to determine what it actually authorises. 21.Issuing environmental authorities subject to conditions such as conditions A1, A1A and A1C is also considered to be consistent with the overall scheme of the EP Act and the policy and guidance documents that are used in support of that scheme.22.For example, under section 310C of the EP Act (reprint 11A) an applicant was required to include in their environmental authority application, among other things:(a)all relevant activities for the application; and(b)enough information to allow the administering authority to decide the application, including relevant information about the likely risks to the environment.26.Accordingly, issuing an environmental authority that specifies with particularity the relevant activities that have been approved through that scheme’s assessment process is consistent with the scheme of the EP Act. Approving environmental authorities in this way is considered necessary, or at least, desirable in this context.27.ERE also considers that identifying specific classes of activities for assessment based on their potential to cause environmental harm provides efficiencies for both drafting of applications and their assessment. As is noted above, the mandatory application form identifies ERAs as a particular class of activities that an applicant should consider will require specific consideration.30.The effectiveness of such an assessment, however, is only crystallised at the point where the ERE assessing officer can be confident that unassessed ERAs are not going to be unwittingly approved. Hence, it is necessary or desirable to impose a condition on an approval that specifically lists those ERAs that have been authorised to occur. In the Revised Polaris EA, this has been done by the use of the concept of ‘specified relevant activities’.Conclusion33.While it is readily accepted by ERE that:(a)the administering authority must carry out its task of administering its applicable legislation in a way that is lawful; and(b)there are any number of ways that that task could be achieved; once the lawfulness of a particular approach is established it is necessary or at least desirable, for the administering authority to be able to carry out that talk in a manner that is efficient and effective.34.The imposition of conditions such as A1, A1A and A1C represent the underlying policy objective that the administrative authority considers supports its efficient and effective management of environmental authorities for petroleum activities.35.Further, the imposition of those types of conditions represents the administering authority’s views as to how it can best manage the environmental regulation of petroleum activities:(a)in accordance with the broader policies of EHP and the Queensland Government; and(b)in a manner which treats all applicants and environmental authority holders equally and consistently.”

Ratio Decidendi

Legal Principle Established

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CITATION:	QGC (Infrastructure) Pty Limited v Chief Executive Department of Environment & Heritage Protection [2016] QLC 27
PARTIES:	QGC (Infrastructure) Pty Limited (applicant)
v
Chief Executive, Department of Environment & Heritage Protection (respondent)
FILE NO:	EPA174-13
DIVISION:	General Division
PROCEEDING:	Appeal
DELIVERED ON:	5 May 2016
DELIVERED AT:	Brisbane
HEARD ON:	10 June 2014
HEARD AT:	Brisbane
MEMBER:	W L Cochrane
ORDER:	1. Appeal Dismissed
CATCHWORDS:	Environmental Protection Act 1994 (Reprint 11A) Environmental Protection Regulation (Reprint 2F) Petroleum and Gas (Production and Safety) Act 2004 (Reprint 5G); Conditions of Approval; Prohibition
APPEARANCES:	Mr P L O’Shea QC with Mr J D Houston for the applicant, instructed by Corrs Chambers Westgarth. Mr M D Hinson QC with Mr R Laidely for the respondent, instructed by the Litigation Unit of the Department of Environment and Heritage Protection.