Australia: Qld Supreme Court breathes new life into proposed Stage 3 expansion of New Acland Coal mine

The Supreme Court of Queensland has overturned the Land Court's decision to recommend refusal of an amendment to New Acland Coal's environmental authority. This most recent decision reopens the door for the stage 3 expansion of the Oakey coal mine.

On 2 May 2018, the Supreme Court of Queensland delivered judgment in a judicial review proceeding (the Judicial Review Decision) that set aside previous orders made by the Land Court (the Merits Decision), and remitted the matter back to the Land Court for further consideration.

The Merits Decision had concerned an application by New Hope, the owner of the New Acland Coal (NAC) coal mine, to expand stage 3 of the mine. The Land Court heard objections about the application for the amendment of an environmental authority under the Environment Protection Act 1994 (Qld) (EPA) and the application for two mining leases under the Mineral Resources Act 1989 (Qld) (MRA).

THE BACKGROUND OF THE CASE

In May 2017, in the Merits Decision, the Land Court recommended refusal of stage 3 of NAC's mine at Oakey. See our 2017 article about the Land Court's lengthy decision here.

Substantially relying on that recommendation, a delegate of the Chief Executive, Department of Environment and Heritage Protection, issued its decision to refuse NAC's application to amend its environmental authority for the stage 3 expansion application in February 2018. See our short article about that decision here.

THE JUDICIAL REVIEW PROCEEDING

NAC made an application for judicial review of the Merits Decision. A judicial review proceeding does not consider a decision on its merits, but instead seeks to set aside the decision based on errors of law. The proceedings were brought on the following main substantive grounds:

  • apprehended bias;
  • lack of jurisdiction, an error of law and an improper exercise of power (by taking into account irrelevant considerations) in relation to matters of groundwater, because:
    • the potential impacts of taking and interfering with groundwater were to be addressed by provisions of the Water Act 2000 (Qld) (Water Act), which is outside the scope of the Land Court's jurisdiction; and
    • even if the impacts could be considered, it was not necessary for them to be fully considered as that would prejudge the outcome of approvals under the Water Act;
  • that the Land Court failed to properly interpret and apply the principle of intergenerational equity;
  • an error of law by failing to ask the right question (and other errors associated with following certain judicial decisions) in relation to noise limits; and
  • a breach of procedural fairness and the rules of natural justice, for a failure to put relevant concerns to certain witnesses.

On 2 May 2018, Supreme Court held that the following grounds had been established:

  • Ground 10 – groundwater: it was an error for the Land Court to decide it fully needed to consider groundwater issues when considering the MRA and EPA objections;
  • Ground 7 – intergenerational equity (consequent upon the conclusion in ground 10): the Land Court failed to properly interpret and apply the principle of intergenerational equity; and
  • Ground 1(aii) – noise

It then ordered that those grounds having been established, the Land Court decision be set aside and referred back to the Land Court for further consideration. The parties have been invited to make submissions about the proposed orders. NAC has intimated it would like orders remitting the matter back to the Land Court for hearing by a member other than the original Land Court member.

Her Honour Justice Bowskill noted (but made no conclusion about) her Honour Justice McMurdo's comments in Coast and Country Association of Qld v Smith [2016] QCA 242, where her Honour had expressed a view that when the Land Court is making its objections decision for the application, it must consider (amongst other things), the 'standard criteria' (s191 of the EPA).

Those include any 'Commonwealth or State government plans, standards, agreements or requirements about ...ecologically sustainable development'. McMurdo J noted that scope 3 emissions (i.e. not emissions caused by the physical operations carried out under the proposed mining lease but emissions that related to the transportation and burning of coal by others) should be considered by the Land Court when considering the standard criteria.

In the Judicial Review Decision, her Honour Justice Bowskill noted it was not necessary for the Supreme Court to determine in the context of the NAC judicial review application the question of construction raised by Justice McMurdo's, but that those 'comments leave that question open for consideration in the appropriate case'.

WHAT NEW HOPE FOR NAC?

The Judicial Review Decision does not result in an approval of the NAC stage 3 expansion (or even a recommendation for one). It does, however, mean there is now new hope for the stage 3 mine expansion, as the Land Court will have to reconsider the objections made under the EPA and the MRA in light of the findings in the Judicial Review Decision.

Most significantly, the objectors to the proposed NAC stage 3 expansion face certain challenges.

Transitional legislative provisions have the effect that before the stage 3 expansion can occur, NAC will need to obtain the relevant associated water licences to take or interfere with underground water under the Water Act. That means the taking or interfering with underground water (i.e. quantity) is beyond the scope of the Land Court's consideration during an objection hearing. However, the objectors may take some comfort that the Water Act process will continue to allow submissions and, if necessary, a hearing in the Land Court on the legislative requirements for these particular water licences.

The Merits Decision has been set aside and will be remitted to the Land Court, with a limited scope of further consideration to those issues. NAC had raised the idea of whether the matter should be remitted to a different member of the Land Court and the Supreme Court has invited submissions on that issue, as well as costs. However, her Honour Justice Bowskill noted that authorised activities under a mining lease could impact on groundwater quality issues, and those issues might be considered by the Land Court in an objections hearing.

While the Judicial Review Decision certainly will have the effect of reviving NAC's mining lease applications and amendment to its environmental authority, it will remain to be seen if or when all necessary approvals are issued for the stage 3 expansion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions