Anglo Coal (Callide) Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2013] QLC 20

LAND COURT OF QUEENSLAND CITATION: Anglo Coal (Callide) Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2013] QLC 20 PARTIES: Anglo Coal (Callide) Pty Ltd (applicant) v. Chief Executive, Department of Environment and Heritage Protection (respondent) FILE NO: EPA133-13 DIVISION: General Division PROCEEDING: Application for stay DELIVERED ON: 7 May 2013 [Ex tempore] DELIVERED AT: HEARD ON: Brisbane 7 May 2013 HEARD AT: Brisbane A/PRESIDENT: PA Smith ORDERS: 1. The operation of the original decision comprising a Notice to conduct or commission an environmental evaluation (ref GLT948/STAT764) directed to the applicant until the applicant’s rights of review and any later appeal have been determined is stayed. 2. The costs of today’s proceedings are reserved. CATCHWORDS: Practice and Procedure ― Stay application ― Duration of Stay ― whether any appeal period should be included ― no material against making broad stay order ― s.522 Environmental Protection Act 1984 Environmental Protection Act 1984 APPEARANCES: Mr D O’Brien of Counsel for the applicant Mr P Brown for the respondent SOLICITORS: Bowie Lawyers Litigation Unit, Department of Environment and Heritage Protection -- 1 of 7 -- 2 [This matter came on for mention as a result of an originating application filed in the Court on 3 May 2013; the matter was referred to the Land Court under section 522(1)(a) pursuant to Environmental Protection Act 1994. The application sought to stay the operation of a “Notice to Conduct or Commission an Environmental Evaluation” issued by the Chief Executive, Department of Environment and Heritage Protection. Ex tempore reasons were then delivered.] Background [1] By this Originating Application, Anglo Coal (Callide) Pty Ltd (the applicant) seeks an order pursuant to s.522 of the Environmental Protection Act 1994 (EP Act) to stay the operation of a ‘Notice to Conduct or Commission an Environmental Evaluation’ (the Notice) which was issued to it by the respondent purportedly pursuant to s.322 of the EP Act. [2] The stay is sought until the latter of the determination of a review of the decision to issue the Notice or any appeal to this Court from such a review. [3] The applicant (along with Anglo Coal (Callide No.2 Pty Ltd) is the holder of Environmental Authority MIN100507307 (EA) for the operation of mining activities at what is known as the Callide Mine. [4] The Callide Mine is operated pursuant to a number of mining leases and consists of a series of open cut coal mines. It is located outside of Biloela in Central Queensland. [5] On 9 April 2013, the respondent issued the Notice purportedly pursuant to s.322 of the EP Act. Section 322, as recently amended, provides: “322 Administering authority may require environmental audit about environmental authority (1) The administering authority may, by written notice (an audit notice) require the holder of an environmental authority to— (a) commission an audit (an environmental audit) about a stated matter concerning a relevant activity; and Examples of matters for paragraph (a)— 1 whether the conditions of the environmental authority have been complied with 2 the environmental harm a relevant activity is causing compared with the environmental harm authorised under the environmental authority 3 whether a plan of operations for an environmental authority complies with the conditions of the environmental authority 4 the accuracy of a final rehabilitation report given to the administering authority by the holder (b) give the administering authority an environmental report about the audit. (2) However, an audit notice may be given under subsection (1) only if the administering authority is reasonably satisfied the audit is necessary or desirable.” [6] Section 324 sets out the requirements for an audit notice: “324 Content of audit notice (1) An audit notice must state the following— (a) the name of the recipient; (b) if the notice if given under section 322—the environmental authority; (c) the matter for which the environmental audit is required; (d) that the recipient must, within a stated reasonable period— (i) commission the environmental audit; and (ii) give the administering authority an environmental report about the audit; (2) Also, an audit notice must be accompanied by or include an information notice about the decision to give the notice and to fix the stated period.” -- 2 of 7 -- 3 [7] Section 325 of the EP Act creates an offence for a person to whom an audit notice has been given not complying with the notice, unless the person has a reasonable excuse. [8] The grounds on which the Notice was issued were that: (a) there have been contraventions of the conditions of the EA for non-compliant releases of mine affected water from Dunn Creek Dam in that the water released exceeded authorised contaminate limits; (b) there have been contraventions of the conditions of the EA for non-compliant releases of mine affected water from Lake Gasteen Dam that exceeded authorised contaminate, flow and volume rates; (c) there has been a contravention of condition 31 of the EA for failure to provide an updated water management plan; and (d) these contraventions of the EA indicate ‘systematic deficiencies in the mine site’s water management practices’.1 [9] The Notice requires the applicant, as holder of the EA, to commission a third party environmental audit to ‘assess ongoing deficiencies in order to determine corrective actions to address the continued non-compliances’.2 [10] The Notice requires the following to be undertaken in relation to the water management systems, processes and plans: (a) provide an evaluation of water management systems, processes and plans to identify the factors and circumstances which have resulted in Anglo Coal (Callide) Pty Ltd’s non-compliance regarding water releases from the premises; (b) specify the standards or benchmark employed to evaluate compliance. The audit methodology should be based on the requirements specified in the EA and any other relevant standards; (c) quantify the environmental risk/s associated with all deficiencies identified; (d) details of mine site water management including but not limited to: (i) a study of the sources of contaminants (ii) a water balance model for the site (iii) a water management system for the site (iv) measures to manage and prevent saline drainage (v) contingency procedures for emergencies and (vi) a program for monitoring and review of the effectiveness of the water management plan. 1 See Affidavit of Leanne Meredith Bowie sworn 6 May 2013, Exhibit ‘LMB-2’ page 4. 2 Ibid. -- 3 of 7 -- 4 (e) detail recommendations to achieve sustained compliance with the EA in respect to water management. The audit report should include but not be limited to — (i) a description of any recommended capital works programs or other improvements to be carried out to achieve compliance with the EA; and (ii) having regard to the information gathered for this audit, an analysis of risks identified and a program to address those risks. (f) an environmental report on the audit must be prepared by a third party auditor and be accompanied by a statutory declaration by the recipient and the auditor. [11] On 2 May 2013, the applicant applied to the respondent pursuant to s.521 of the EP Act for an internal review of the respondent’s decision to issue the Notice (the Internal Review). The application contained detailed grounds of review, including that: (a) the Notice contained significant factual errors; and (b) the requirements in the Notice were neither necessary nor reasonable from an environmental or any other perspective. [12] The Internal Review seeks that the Notice be revoked. [13] The lodging of the application for Internal Review did not have the effect of staying the original decision to issue the Notice. [14] Under the EP Act, the respondent has 10 days from 2 May 2013 to make its decision on the Internal Review (Review Decision) and a further 10 business days thereafter to give notice of that decision to the applicant. The applicant then has 22 business days to appeal to this Court against the Review Decision. [15] On 3 May 2013, and with a view to securing the utility of the Internal Review and any appeal from that Internal Review, the applicant filed this Originating Application for a stay of the Notice until the latter of the determination of a review of the decision to issue the Notice or any appeal to this Court from such a review. The Dispute [16] The Court has been greatly assisted by Mr O’Brien and Mr Brown in not taking any unnecessary or time wasting stances by either party to only incur additional costs in this matter for no good reason. [17] In this regard they are both to be commended, in particular the position taken by the respondent, in agreeing to have the application heard at the mention today as the full hearing of the substantive application of the applicant for the stay. I ask that the Court’s comments in that regard be referred onto the Chief Executive by the respondent’s representative. -- 4 of 7 -- 5 [18] It is indeed pleasing when Government departments placed in the position that the respondent is in this matter, do not use the Court’s time and the processes of a Court proceeding to simply obstruct, delay, or to incur additional costs for all parties. [19] The core part of the argument that remains, given that the respondent accepts that on the affidavit evidence placed before the Court the applicant has made out the legal basis for granting of a stay, is simply the duration of time that it is appropriate for that stay to encompass. There are, in effect, two opposing viewpoints. The first is that the stay should operate during the time of any review being undertaken by the respondent as required by the EP Act and also any appeal that may flow to this Court arising out of the review decision. That is the position strongly put by the applicant. [20] The respondent contends that the period of time should only relate to the review decision and the time given by the legislation for the making of any appeal but not encompass the time for the hearing of the appeal itself. [21] While I have some sympathy with the position put forward by the respondent it is, of course, a matter of record, as pointed out by Mr O’Brien, that the respondent has not placed any material before the Court in support of its contentions in this regard and I can understand at this early point in the proceedings that that may indeed be a matter of some difficulty. Potential Environmental Harm [22] I note from the material that there are questions arising as between the parties as to the existence or otherwise of actual or potential environmental harm flowing from the alleged activities of the applicant and this is something that this Court must always take serious heed of. However, given the affidavit evidence placed before the Court as to the minimal environmental harm, if any, that has flowed as a consequence of any of its actions and, indeed, noting that the applicant contends that at least part of any environmental harm may have been occasioned by the actions of a third party, I am satisfied on balance in this matter that the case put by Mr O’Brien for the applicant should be allowed. [23] I do this, in particular, given the wording of s.522(2) of the EP Act which relevantly states that the Land Court may stay a decision to secure the effectiveness of a review and any later appeal to this Court. I am concerned that there are serious consequences that could flow to the applicant if the date of 20 August 2013 by which it is required to undertake certain activities in accordance with the respondent's notice was passed without it having undertaken those activities because of the existence of an appeal to this Court following a review decision. I would not like the situation to arise simply because of a technical gap in any orders that may occur which would render the applicant liable for the consequences that a breach would bring in circumstances where it is clearly not the intention of this Court nor I -- 5 of 7 -- 6 take it that of the respondent to have the applicant fall into technical breach during the time in which the decision is under review, and indeed, at least from the Court’s perspective, during the period of any appeal arising out of that review. Determination [24] Accordingly, I intend to make orders in the terms sought by the applicant but with this further proviso, and the proviso is this; clearly if an appeal is lodged against any review decision that is made in this matter, the expectation would be, given the normal practices of this Court in such matters, for the first review of that appeal to be listed by this Court within a short period of the appeal being filed. [25] If the respondent at that time has concerns regarding issues of serious environmental harm or other such concerns before it that it has not chosen to bring before the Court’s attention today, but those concerns crystallise as a result of the review and appeal process, then I would certainly encourage the Court to entertain any application that the respondent may seek to bring to review the decision that I make today to stay the operation of the original decision in the terms as proposed. [26] I understand, of course, that my proviso in this way is by no means legally binding and merely, in effect, stating little more than what rights the respondent has, but I wish it to be made clear to the Court in the event that another Member other than myself is hearing the matter in the future, that I have been mindful in making the orders in the manner I have today, of the consequences which may flow from making what could be a lengthy stay order. Specifically, I have taken the courteous and permissive response displayed today by the respondent into account in making the orders as sought by the applicant. [27] Accordingly, the orders of the Court will be that there shall be an order staying the operation of the original decision comprising a notice to conduct or commission an environmental evaluation reference GLT948/SCAT764 directed to the applicant until the applicant's rights of review and any later appeal have been determined. [28] The applicant seeks a further order that costs should be reserved to this application. Mr Brown has no submissions in that regard. Accordingly, I will further order that the costs of today be reserved. -- 6 of 7 -- 7 Orders 1. The operation of the original decision comprising a Notice to conduct or commission an environmental evaluation (ref GLT948/STAT764) directed to the applicant until the applicant’s rights of review and any later appeal have been determined is stayed. 2. The costs of today’s proceedings are reserved. P A SMITH MEMBER OF THE LAND COURT -- 7 of 7 --