BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 9

LAND COURT OF QUEENSLAND CITATION: BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 9 PARTIES: BHP Coal Pty Ltd; QCT Mining Pty Ltd; Mitsubishi Development Pty Ltd; QCT Resources Pty Ltd; QCT Investment Pty Ltd; Umal Consolidated Pty Ltd & BHP Queensland Coal Investments Pty Ltd (appellants) v Chief Executive, Department of Environment, Science and Innovation (formerly Department of Environment and Science) (respondent) FILE NO: EPA503-23 DIVISION: General PROCEEDING: Appeal against an internal review decision DELIVERED ON: 13 May 2024 DELIVERED AT: Brisbane HEARD ON: 15 April 2024 HEARD AT: Brisbane MEMBER: WA Isdale ORDER: 1. Appeal allowed. 2. Under s 530, the Court acts pursuant to subsection (1)(c) and a. The Court sets aside the review decision. b. The Court returns the matter to the administrating authority who made the decision. c. The administrating authority is directed to proceed according to law in view of this decision that the application is a properly made application. -- 1 of 12 -- 2 CATCHWORDS: ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – APPEAL – where an administrative authority decided that an application for a Progressive Rehabilitation and Closure Plan was not properly made – where an internal review had occurred and reasons for a decision were given – where the parties were in dispute about what constituted an outcome for the land – whether compliance with s 754(3) obviates compliance with s 126C(1)(g) and (h) – whether the intention behind the statutory scheme was to allow for some exemptions in relation to land outcomes Environmental Protection Act 1994 (Qld) ss 126C(1)(d)(i), 126C(1)(g) and (h), 527, 528, 530, 750, 754(3) and (4), 755 Geldard v Western Downs Regional Council [2018] QLC 51, applied Sunland Group Ltd v Gold Coast City Council (2021) 274 CLR 325; [2021] HCA 35, applied APPEARANCES: S Holt KC and J Underwood of Counsel (instructed by Allens) for the appellants. J Horton KC and A Hellewell of Counsel (instructed by In- house Legal) for the respondent. Background [1] The appellants hold a permit, Environmental Authority EPML00561913, in relation to their black metallurgical coal-mining activities at what is referred to as Daunia Mine. It is in the Bowen Basin, not far from Moranbah. [2] The permit1 was given under the Environmental Protection Act 1994. The Act is administered by the respondent. [3] An application by the appellants for a proposed Progressive Rehabilitation and Closure Plan (PRC plan) for the mine was considered by the Chief Executive to not be a properly made application. The Chief Executive had required this PRC plan to be submitted in pursuance of the statutory and administrative regime applicable to the mine. [4] The appellants exercised their right to have the decision to give notice that the application was not properly made, internally reviewed. 1 Ex 1. -- 2 of 12 -- 3 [5] This internal review occurred, and on 12 October 2023, the decision and the reasons for that decision were given.2 [6] The delegate who reviewed the original decision confirmed it. It is from that review decision that this appeal is brought. The legal basis of the appeal [7] Appeals from decisions such as the present are provided for by Subdivision 1, Division 3, Chapter 11 of the Environmental Protection Act 1994. [8] The statutory provisions relevant to this appeal are brief and clear, so brief that it is worthwhile simply setting them out as they are self-explanatory. They are: 527 Nature of appeal The appeal is by way of rehearing, unaffected by the review decision. 528 Land Court’s powers for appeal In deciding the appeal, the Land Court has the same powers as the administering authority. 530 Decision for appeals (1) In deciding the appeal, the Land Court may— (a) confirm the review decision; or (b) set aside the decision and substitute another decision; or (c) set aside the decision and return the matter to the administering authority who made the decision, with directions the Land Court considers appropriate. (2) In setting aside or substituting the decision, the Land Court has the same powers as the authority unless otherwise expressly stated. (3) However, this part does not apply to a power exercised under subsection (2). (4) If the Land Court substitutes another decision, the substituted decision is taken for this Act, other than this subdivision, to be the authority’s decision. [9] The parties did not suggest that this Court should act under s 530(1)(b) if it is to be decided that the decision of the delegate should be set aside. It was instead accepted that in such a case the appropriate order would be one under s 530(1)(c). Proceeding in this way will allow the Court to, if necessary, remedy an error with the minimum intervention in a complex and ongoing administrative regime and maximise the rights of the parties by not displacing the respondent from the decision-making process where the respondent has special expertise and responsibility. 2 Affidavit of G.S. Mazucco affirmed 1 March 2024 Volume 2 P.238 ff. -- 3 of 12 -- 4 The conduct of the appeal [10] It became clear during the hearing of the appeal that the respondent was concerned to maintain good public administration by ensuring that community consultation was carried out effectively in full awareness of the particulars of the projected outcomes of the rehabilitation of the mine site. The submissions made on behalf of the respondent concerning the interpretation of the Act were directed towards that outcome. [11] The submissions for the appellants were also directed to the appeal being a question of statutory interpretation, their contention being that they have complied with the Act such that their required application was properly made. [12] The parties conducted the appeal so as to make efficient use of Court time and limit the dispute to what was necessary to resolve the appeal. Consideration of the appellants’ submissions [13] The appellants submit that there are two questions in this appeal: (a) Does the appellants’ PRC plan need to comply with s 126C(1)(g) and (h) of the Act? (b) Does it comply with s 126C(1)(d)(i) of the Act? Regarding question (a) [14] In essence, the provisions referred to in (a) concern, in this case, why there would need to be a void left on the site. The provision in (b) relates to how that would be consistent with the outcome of community consultation. [15] The respondent is concerned that the size of the projected void would be larger than that previously the subject of consultation. [16] The appellants submit that their PRC plan does not need to comply with the provisions in (a) because of s 754(3) of the Act. [17] They also submit that their PRC plan complies with the requirements of s 126C(1)(d)(i). -- 4 of 12 -- 5 [18] Accordingly, they submit that the Court should make an order under s 530(1)(c) of the Act. [19] The appellants point to correspondence to the effect that the respondent had previously agreed that they did not have to comply with sections 126C(1)(g) and (h) but that s 754 applied to their circumstances. This provision will be considered shortly. [20] The respondent has now resiled from that position. The fact of the respondent previously having held a different view to what it brought to this appeal does not impede it in now taking the position which it has. This Court is as unaffected by that as it is by the review decision and, as required of s 527, will consider the appeal as a rehearing, the parties having the benefit of that process which considers the matter afresh.3 [21] The appellants’ case is that they were not required to comply with s 126C(1)(g) and (h) because of s 754(3). This needs to be considered in its legislative context. Accordingly, it is useful to set out subsections (3), (4) and (5) of s 754 for examination. (3) The holder is not required to comply with a requirement under section 126C(1)(g) or (h) or 126D(2) or (3) for the proposed PRCP schedule for the plan in relation to land if— (a) an outcome for the land has been identified under a land outcome document; and (b) the outcome for the land is the same as, or substantially similar to, the outcome for the land if it were a non-use management area under a PRCP schedule. Example of an outcome for land— A residual void or pit authorised under an environmental authority may constitute the outcome for the land on which the void or pit is located, even though the environmental authority or any other land outcome document does not expressly state anything about the outcome for the land, other than authorising the void or pit. (emphasis added) (4) However, if the environmental authority or any other land outcome document does not state sufficient detail to identify either the location or area of the land to which the outcome relates, the proposed PRC plan must state— (a) if the area is not identified—how the total area of the land to which the outcome relates will be minimised; and (b) if the location is not identified—how the mining EA holder will ensure the location of the land to which the outcome relates minimises risks to the environment. 3 Geldard v Western Downs Regional Council [2018] QLC 51 [8]. -- 5 of 12 -- 6 (5) For subsections (3) and (4), if there is an inconsistency in land outcome documents for land, the document appearing first in the list mentioned in section 750, definition land outcome document prevails to the extent of the inconsistency. [22] It was submitted that there is compliance with subsection (3) as – (1) There is a land outcome document, which is the environmental authority. This is due to the definition of “land outcome document” in s 750 which, in item (a) of the definition is said to mean “an environmental authority” such as exists here. (2) The environmental authority identifies an outcome for the land. The outcome pointed to is that residual voids are authorised. In this regard, Condition E9 of the environmental authority is relevant. Condition E9 states – Residual void outcome Complete an investigation into residual voids and submit a report to the administering authority proposing acceptance criteria and landform design criteria for departmental review and comment. On acceptance of the criteria proposed in the Residual Void Management Plan, the criteria must be specified in the environmental authority. The investigation must at a minimum include the following: a) a study of options available for minimising final void area and volume; b) develop design criteria for rehabilitation of final voids; c) a void hydrology study, addressing the long-term water balance in the voids, connections to groundwater resources and water quality parameters in the long term; d) a pit wall stability study, considering the effects of long-term erosion and weathering of the pit wall and the effects of significant hydrological events; e) a study of void capability to support native flora and fauna; and f) a proposal/s for end of mine void rehabilitation success criteria and final void areas and volumes. These studies will be undertaken during the life of the mine, and will include detailed research and modelling. (3) The identified outcome must be the same as, or substantially similar to, a non- use management area. [23] In this regard the Court notes that s 754(5) provides that, in the event of inconsistency, the document that is first in the list in the s 750 definition of “land outcome document” prevails to the extent of the inconsistency. [24] As has been noted already, item (a) in this definition, the first in the list, is the environmental authority. -- 6 of 12 -- 7 [25] It is also observed here that Condition E9 of this authority follows Table E2, the reading of which assists in understanding Condition E9. Table E2 is in this form – Table E2 (Rehabilitation of Skoll Pit) Reporting Period Total Cumulative Established Rehabilitation Area (ha) Years 1 to 7 (inclusive)1 7 Years 8 to 11 (inclusive) 30 Years 12 to 15 (inclusive) 75 Years 16 to 25 (inclusive) 75 + Void2 NOTES: 1 Year 1 occurs upon commencement of overburden excavation in Skoll Pit 2 Rehabilitation of the final void includes reshaping of the high wall and low wall which must be consistent with the findings of the Void required by condition E9. [26] Table E2 refers to rehabilitation of a pit, “Skoll Pit”, and refers to a “Void” in the reporting period “Years 16 to 25 (inclusive)”. It also refers to “the final void” and “the Void required by condition E9” in Note 2 to that table. The Court further observes that Condition A1 of the environmental authority, the first condition, provides that – “This environmental authority authorises environmental harm referred to in the conditions.” When Table E2 is read with Condition E9, it is persuasive that the environmental authority authorises a final void, the details of which, such as its area, are to be decided in compliance with Condition E9. [27] The appellants submit that an outcome for the land has been identified in the environmental authority. They further submit that while the area of the outcome, the void, is not identified, that is not required. It is enough that the outcome is identified. [28] As to (3) in [22] above, it is submitted that a residual void is a classic example of a non-use management area. This point is addressed, the appellants submit, by the “Example of an outcome for land” in s 754(3). This example, the Court is satisfied, shows that the requirement has been met. [29] The appellants submit that reliance by the respondent on Exhibit 2, the Coordinator- General’s October 2009 evaluation report, would be erroneous. It refers to voids. For example, on page 112 it states that – At the completion of mining, most voids will have been progressively backfilled, however, a final void will remain. The depth and slope of the final void will be minimised… It also states, on the same page, that – -- 7 of 12 -- 8 “… the batters of the remaining final void will be cut back to a 1 in 6 slope.” [30] On page 116 of Exhibit 2, it is also stated that – “The rehabilitated final void… will be backfilled to an elevation of about…”. It is also stated there that – “Surface water run-off… will be directed into the rehabilitated final void…”. [31] The appellants submit that as s 754(3) applies, then those parts of s 126C that are set out there do not. It is not relevant therefore to refer to what might have been contemplated regarding, for instance, the size of voids, in the Coordinator-General’s report. Condition E9 being unambiguous, it is not necessary, or permissible, to use extrinsic material in order to interpret it.4 [32] The Coordinator-General’s 2009 report, in section 7.3.2 on page 27 thereof, referred to the proponent having made a commitment to minimising the final void size from a base case of 360 ha back to approximately 100 ha. Regarding question (b) [33] The requirement in the Act in this regard is the following – (1) A proposed PRC plan must— … (d) state the extent to which each proposed post-mining land use for land, or non-use management area, identified in the proposed PRCP schedule for the plan is consistent with— (i) the outcome of consultation with the community in developing the plan; [34] It is submitted that this requirement was met and that the delegate erroneously conflated the question of whether the application was properly made with the question of whether it should be approved, since the delegate, at paragraph 62 of their decision, stated that – “… I am not satisfied that genuine and transparent consultation with the community has occurred in the development of the proposed PRC plan.” [35] The Court observes that this makes clear that the delegate erroneously considered the perceived qualities of the consultation as distinct from the fact of it. 4 Sunland Group Ltd v Gold Coast City Council (2021) 274 CLR 325 [21], [58]. -- 8 of 12 -- 9 [36] The appellants have provided an updated table concerning community consultation. The appellants informed the Court that none of the stakeholders raised any objection to the PRC plan and submit that s 126C(1)(d)(i) has now been complied with. Consideration of the respondent’s submissions [37] On behalf of the respondent, it was submitted that the exemption in s 754(3) of the Act does not apply because the environmental authority does not “finally dispose”5 of the matter of residual voids, as distinct from setting a mechanism for doing so. There is, therefore, it is submitted, no outcome for the land as required for s 754(3) to apply. [38] It was submitted that Condition E9 of the environmental authority only provides a mechanism by which an outcome may be reached. Until it has been complied with, there is no outcome as required by s 754(3). [39] The Court observes that the example in s 754(3) provides that a void authorised under an environmental authority may constitute the outcome and that Condition E9 should be read with Table E2 which refers to “Void”, “…the final void…” and “the Void required by condition E9”. [40] The respondent submits that Condition E9 does not authorise any residual voids on the land. It leaves that to the respondent’s acceptance of the outcome of the process set up by Condition E9. [41] The Court has concluded that Condition E9 needs to be read with Table E2 (Rehabilitation of the Skoll Pit) and that a plain reading requires the conclusion that the environmental authority authorises a final void, the details of which are left to be worked out in time in accordance with Condition E9. This is the identified “outcome” required by s 754(3)(a). [42] Condition A1, referred to earlier, “authorises environmental harm referred to in the conditions.” The void is referred to in the conditions. [43] The example in s 754(3) makes it clear that a residual void as authorised here may constitute an outcome for the land identified under that land outcome document as defined in s 750, item (a) of the definition of that term. 5 Respondent’s submissions, paragraph 2. -- 9 of 12 -- 10 [44] Section 754(4) then may be called in aid if required. Condition E9 is clearly relevant to this. [45] The respondent draws attention to the fact that Exhibit 2 contemplates a much smaller area for the final void, 360 ha in the base case with an aspirational goal of approximately 100 ha.6 This is contrasted with the figure of 503 ha now contemplated by the appellants. [46] The Court notes in this regard that, as has already been discussed, the environmental authority is in the top position in the hierarchy established under s 750. The respondent submits that there is no operative inconsistency here as the appellants could have complied with all the land outcome documents with respect to the residual void. The Court is unable to accept this submission as what is now Exhibit 2 appears after the environmental authority in s 750. The environmental authority prevails over it. The reference in Exhibit 2 to specific void areas is inconsistent with the environmental authority which instead establishes a process that deals with the matter of voids. [47] The respondent submits that accepting the appellants’ contentions would have the result that it, the regulator, would be unable to properly and fully assess “the necessary matters,”7 and that assessment of a “vital component” of the project would be bypassed.8 [48] The respondent accordingly submits that s 176A, which relates to criteria for a decision on a PRC plan such as in contemplation here, would not apply to the extent of the matters in sections 126C(1)(g) and (h) or 126D(2) and (3) that concern the content of the PRC plan. It also directs attention to s 755(4), which provides for that outcome where s 754(3) applies. [49] This is not a matter which could be relevant to what is now before the Court as it is simply a legislative decision which the Parliament has enacted. Compliance with it is a legal requirement rather than a cause for concern. 6 Ex 2 P.27 7.3.2. 7 Respondent’s submissions, P.5 paragraph 33. 8 Ibid. -- 10 of 12 -- 11 [50] The submission that the legislation leaves a gap that could never have been intended9 is not persuasive. What has been enacted in s 754(3) is simply an exemption; this is a matter for the Parliament. [51] It is also urged on behalf of the respondent that Exhibit 2 sets out the extent to which Condition E9 of Exhibit 1 could allow for a residual void.10 [52] This submission cannot be accepted due to the primacy of the environmental authority established by s 750(a). [53] The submission that the application was not properly made, as it did not comply with s 126C(1)(d)(i), relates to the requirement that the PRC plan state the extent to which, a void, in this case, is consistent with the outcome of community consultation. [54] The respondent’s submission is that a failure here cannot be corrected so therefore the application was not properly made. This submission is not able to be accepted as it is contrary to sections 527 and 528 of the Act which require this matter to be considered afresh. [55] The appellants, while not accepting that the application fell short in this regard, have informed the Court that compliance has now been achieved.11 The Court accepts this submission. Consideration of the appellants’ reply submissions [56] The appellants emphasise s 754 of the Act, the relevant parts of which have been set out above. Conclusion [57] As has been progressively explained while considering the submissions made on behalf of the parties, s 754(3) applies in this case. The example given in subsection (3) is directly relevant to the present appeal. Section 14(3) of the Acts Interpretation Act 1954 provides that the example is part of the Act. [58] Accordingly, the appellants’ PRC plan does not need to comply with s 126C(1)(g) and (h). 9 Ibid Page 6 paragraph 37. 10 Ibid paragraph 40. 11 Appellants’ submissions P.24 paragraphs 55 to 62. -- 11 of 12 -- 12 [59] The PRC Plan now complies with s 126C(1)(d)(i). This question falls for determination now and is so determined. [60] It follows that the application is now properly made. Again, this falls to be determined now and is so determined. [61] The appeal must be allowed. Decision on appeal and Orders 1. Appeal allowed. 2. Under s 530, the Court acts pursuant to subsection (1)(c) and a. The Court sets aside the review decision. b. The Court returns the matter to the administrating authority who made the decision. c. The administrating authority is directed to proceed according to law in view of this decision that the application is a properly made application. -- 12 of 12 --