Australia: Did you know.... recent developments in planning and environment in Queensland
Planning & Environment Update

The latest 'climate change' challenge to the Alpha coal mine was dismissed by the Queensland Court of Appeal this week?

An appeal by Coast and Country Association of Queensland Inc against a decision to issue an environmental authority for a large coal mine in central Queensland has been dismissed by the Queensland Court of Appeal (Coast and Country Association of Queensland Inc v Smith & Ors [2016] QCA 242).

In the proceedings, brought under the Judicial Review Act 1991, the appellant argued that greenhouse gas emissions generated off-site from the transportation and burning of coal from the mine (known as 'scope 3 emissions') must be considered in assessing the proposal under the Environmental Protection Act 1994 (EP Act) and Mineral Resources Act 1989 (MR Act).

Whilst the appeal was unsuccessful, the potential relevance of scope 3 emissions was clarified. Key points include:

• scope 3 emissions are not relevant to considering whether any adverse environmental impact is caused by mining 'operations' under the MR Act (s 269(4)(j))
• scope 3 emissions may be a factor considered in determining whether the public interest is prejudiced under the MR Act (s 269(4)(k))
• although the majority judgment sought to limit considerations of climate change and greenhouse gas emissions under the EP Act to those resulting from mining activities authorised on land to which the mining lease relates, Justice McMurdo, President of the Court of Appeal, disagreed with this narrow interpretation, leaving the door open for further challenge
• the Land Court had found that the contribution of the mine to global greenhouse gas emissions would be negligible, and it was not open to the Court of Appeal to revisit this finding of fact.

It remains to be seen whether the appellant will pursue further legal action.

The move towards higher occupancy apartments in Brisbane is continuing?

A request to change some apartments within the approved 'Brisbane Skytower' from one to two bedrooms marks another example of a developer 'meeting the market' in a competitive environment.

The developer is seeking to reconfigure 51 of the units within the 90-storey tower to add an extra bedroom. Documents lodged with the request state that, whilst the converted apartments will be smaller than the typical two-bedroom units, they are more attractive given the opportunity they provide for two unrelated persons to occupy the apartment.

Brisbane City Council is yet to decide the request.

This follows another request that was recently made to change an approved development in West End by dramatically reducing the number of apartments in favour of larger apartments with more bedrooms. You can read our previous update about this development here.

There are opportunities in ecotourism?

The Queensland Government's push to develop more sustainable tourism ventures was bolstered this week with the announcement of its Eco-Tourism Plan 2016-2020.

The natural environment was cited as Queensland's competitive advantage in the tourism market. The focus of the new plan is to capitalise on that advantage by encouraging ecotourism development that showcases the environment and drives innovation and investment.

As part of the plan, the Queensland Government has endorsed the globally recognised EarthCheck program to certify tourism operators to achieve best practice standards in nature-based tourism.

The announcement confirms the Queensland Government's focus on tourism to stimulate the economy, following other recent announcements including plans to revitalise its leasehold resorts on the Great Barrier Reef.

The Queensland Planning & Environment Court handed down a decision awarding costs to Brisbane City Council this week?

Gray v Gympie Regional Council [2016] QPEC 49 – this was a successful application for costs made by the Council where the appellant had discontinued an appeal after her solicitor advised that she had little prospect of success. The Court found that, in circumstances where the appellant had effectively surrendered a weak case, it should pay the Council's costs given the wasted expense it incurred. The Court noted that the costs were awarded from a compensatory, not punitive, basis.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories