SUPREME COURT OF QUEENSLAND
CITATION:
Sunland Cattle Co Pty Ltd v Kingham & Ors [2021] QSC 287
PARTIES:
SUNLAND CATTLE CO PTY LTD
(applicant)
v
FLEUR KINGHAM - PRESIDENT OF THE LAND COURT OF QUEENSLAND(first respondent)
PEMBROKE OLIVE DOWNS PTY LTD
(second respondent)
MINISTER FOR NATURAL RESOURCES, MINES AND ENERGY(third respondent)
FILE NO/S:
BS No 9292 of 2020
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
8 November 2021
DELIVERED AT:
Brisbane
HEARING DATE:
9 December 2020, further submissions filed 10 and 14 May 2021
JUDGE:
Martin J
ORDER:
1. The application is dismissed.
2. I will hear the parties on costs.
CATCHWORDS:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Land Court recommended that the Minister grant four of the mining leases and that the fifth be granted with a reduced area – where the applicant submits that the Land Court was required to undertake an investigation into matters of public interest – the second respondent submits that the Land Court does not have a duty to investigate matters beyond the evidence presented to the Court – whether the Land Court failed to conduct the hearing as required by law
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – FAILURE TO CONSIDER – where the Land Court found, with respect to the impact on surface water users downstream of the mine, that “there is no evidence that other users will be adversely affected” – where the applicant submits that there was evidence about the likely adverse impacts on surface water users downstream – whether the Land Court’s decision failed to take into account a relevant consideration
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant submits that the Land Court had a duty to make enquiries beyond the evidence regarding the downstream user issues – where the applicant submits that the Land Court should have directed the experts to “meaningfully consider the issue” – whether the Land Court’s decision was unavailable or unsupported by the evidence before the Court
Judicial Review Act 1991
Land Court Act 2000
Migration Act 1958 (Cth), s 424
Mineral Resources Act 1989, s 265, s 268, s 269, s 271AUniform Civil Procedure Rules 1999, r 211
ABT v Minister for Immigration and Border Protection (2020) 269 CLR 439
ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107
Dunn v Burtenshaw (2010) 31 QLCR 156
Lonergan v Stilgoe [2020] QSC 86
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 25
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration v Yusuf (2001) 206 CLR 323
Oakey Coal Action…
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- Case
- [2021] QSC 287
- Decision Date
CaseChat Overview and Summary
The court considered the legal issues concerning the duty of the Land Court to investigate matters beyond the evidence presented and whether the decision was unreasonable. The court found that the Land Court did not have a duty to conduct its own investigations beyond the material presented by the parties. The court referenced previous cases and legislation to support this conclusion, including the decision in Minister for Immigration and Citizenship v SZIAI. The court further held that the decision made by the Land Court was not unreasonable as it was based on the evidence presented and the inferences drawn from it were supported.
The court ultimately dismissed the application, finding that the Land Court had not failed to take into account relevant considerations or acted unreasonably. The court also noted that the applicant had the opportunity to present evidence regarding the downstream water users but chose not to do so. The court ordered that the application be dismissed and that the parties be heard on costs.
Orders
Orders of the court
1. The application is dismissed.
2. I will hear the parties on costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The basis upon which Sunland advanced this ground is not supported by the proper construction of the relevant sections of the MRA. This ground must be dismissed.Second ground - the decision failed to take into account a relevant consideration Section 269(4)(j) requires the Land Court to take into account and consider whether the operations at the proposed mine will cause any adverse environmental impact. In dealing with that, the first respondent noted that the objections taken by the objector had narrowed considerably before and during the hearing. The focus was on water impacts. On the first day of the hearing, Sunland submitted that it wished to be heard only in relation to groundwater and surface water. Although it did not formally abandon or withdraw other objections, it did not contest expert evidence led by Pembroke on a large number of matters. Sunland confined its argument to groundwater and surface water issues. The first respondent commenced dealing with water issues by referring to the three joint expert reports relating to those issues. She concluded that the parties agreed that there were five broad issues in dispute relevant to water:(a)the reduction in flow duration in the Isaac River,(b)the impact of the causeway on the flow of the Isaac River,(c)flooding,(d)mine water quality, and (e)overland flow. Under the heading “Surface water”, the first respondent noted that one effect of the changes would be a loss of surface water from the Isaac River to the groundwater system. Her Honour went on to observe:“[131] Sunland holds a water licence with a nominal entitlement of 1,250 ML/yr and a mean annual diversion of 600 ML. Dr Johnson observed infrastructure on Old Bombandy that would enable Sunland to extract surface water from the Isaac River, although he saw no evidence that water had been taken under the licence. [132]In any case, Sunland is not authorised to take water under the licence unless the flow in the Isaac River immediately downstream of the point of take is at least 1,080 ML/day.107 The three surface water experts, Mr Roads, Dr Johnson and Mr McAlister, agree the groundwater drawdown will not affect Sunland’s ability to fully utilise this water licence.[133]There is limited evidence about other surface water extraction downstream from the mine. There are four other downstream surface water licences connected to a total of three properties on the Isaac River.109 There is no evidence about the conditions of these licences. However, their distance from the project is an important consideration. [134]Dr Johnson agreed with Mr Roads that the impact on surface water becomes less important to the overall function of the stream as you go downstream. He said: The impact of the loss [indistinct] the mines will reduce as we go downstream, as the catchment becomes bigger. So, at some point downstream, the impact becomes negligible. It’s small to begin with and, by the time we’re significantly downstream, it doesn’t register at all.[135]The three properties affected are located approximately 55 km to 79 km downstream of the project. They are well outside the zone affected by the groundwater drawdown, as modelled in the EIS. They are also beyond the 52 km modelled for the surface water loss. In the absence of evidence to indicate a likely impact, it is reasonable to assume that there will be negligible, if any, impact on surface water users 55 km, and more, downstream of the mine.” (emphasis added)