Clark, Bexton, Lane & Ors, Environmental Protection Agency, Re [2005] QLRT 118

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Clark, Bexton, Lane & Ors, Environmental Protection Agency [2005] QLRT 118 PARTIES: In the Matter of Mining Lease No. 50200 and in the Matter of Environmental Authority MIM400147503 – Application by Barry Clark and Mark Bexton for mining lease and environmental authority and objections by Murray Lane and others to their grant. Environmental Protection Agency as statutory party in the matter of Environmental Authority MIM400147503 FILE NO: AML95/03 ENO96/03 PROCEEDING: Application for order as to validity of environmental authority (mining lease); to return application to the Environmental Protection Agency; for costs and, in the alternative, for particulars of application. DELIVERED ON: 30 August 2005 DELIVERED AT: Brisbane HEARING DATE: 29 August 2005 MEMBER: Kingham DP ORDER/S: 1. All applications are refused. (at [12] & [13]) 2. The costs of the application are reserved. (at [14]) CATCHWORDS: MINING – ENVIRONMENT – APPLICATION FOR ENVIRONMENTAL AUTHORITY – STANDARD MINING ACTIVITY – VALIDITY OF APPLICATION AND PROCESSING OF APPLICATION – PARTICULARS OF APPLICATION - COSTS - Environmental Protection Act 1994, ss 146, 147, Schedules 1A & 3 Environmental Protection Regulation 1998, Schedule 1 Mineral Resources Act 1989, ss 6, 6A, 234, 236 COUNSEL: Mr Skoien for the Applicants Mr McGrath for the Respondents -- 1 of 5 -- SOLICITOR/S: Tobin King Lateef for the Applicants Environment and Local Government Legal Services for the Respondents AGENT/S: Mr Pepper for the Environmental Protection Agency [1] KINGHAM DP: The Respondents sought orders to the effect that the application for the environmental authority and its processing by the Environmental Protection Agency (EPA) as a standard environmental authority, was not (or is no longer) valid and that it should be returned to the EPA to be processed as a non-code compliant application for a level 1 mining project. The Respondents also sought an order for costs, including reserved costs. In the alternative, they sought an order that the Applicants provide specified further and better particulars. The Applicants opposed all orders sought and asked that the costs of these applications are reserved. The EPA made submissions about the orders sought in relation to the application for and processing of the application for an environmental authority. It made no submissions as to the requests for an order for costs or for further particulars of the application. [2] I have concluded that, on the basis of the material before me, there is no inconsistency between the requirements of the Environmental Protection Act 1994 (EP Act) and the actions taken either by the Applicants or the EPA in relation to the subject application for an environmental authority (mining activities). Before stating the reasons for that conclusion it is necessary to describe the background to the Respondents’ applications. [3] The applications before the Tribunal are for a mining lease and for an environmental authority (mining activities) to allow the Applicants to mine sandstone in block or slab form for building purposes. After making that application, the Applicants applied to the Gatton Shire Council for a development approval under the Integrated Planning Act 1997 (IPA) over the same site to authorise it to operate a quarry. The quarry will involve two “environmentally relevant activities” (ERAs) which are “level 1” ERAs. These must be authorised under the EP Act. The development application is in progress, the EPA has been consulted by the Gatton Shire Council as required under IPA and, in due course, a decision on that application will be no doubt be made. [4] Chapter 5 of the EP Act makes special provisions for environmental authorities for “mining activities”. Other types of activities are regulated under other provisions of the EP Act, in this case Chapter 4. The scope of the definition of “mining activities” is, therefore, central to the Respondents’ applications. Mr McGrath, counsel for the Respondents, submitted that the ERAs covered by the development application are properly characterised as “mining activities”, as defined by s. 147 of the EP Act. More particularly, he relies on s147(2)(c)(i) which refers to an activity “that is directly associated with or facilitates or supports, an activity mentioned in paragraph (a) or (b)”. He argued that the ERAs are directly associated with, or facilitate or support, the mining of sandstone blocks. As such, they should be regulated under the environmental authority (mining activities) now before the Tribunal. -- 2 of 5 -- [5] The relevance of the ERAs being level 1 is that one of the criteria for standard mining activities prescribed in Schedule 1A of the EP Act is that the mining activities do not include a level 1 ERA. According to Mr McGrath, the consequence of this is that the application for the environmental authority (mining activities) has wrongly been made and processed as a standard mining activity. The EP Act was recently amended such that there are no longer standard and non-standard mining activities. The new terminology is of code compliant and non-code complaint authorities. Nevertheless, the point of distinction and the consequence appears to be the same for the purposes of the application. For a non-standard or non-code compliant authority, the applicant must provide a greater level of detail about the activity and the EPA must follow a different process. [6] Mr McGrath submitted that if the two ERAs fall within the definition of mining activities, the application has not properly made (because the required information has not been provided) or validly processed (because the wrong process has been used). However, he conceded that, if they do not fall within that definition, there is no question before me as to the validity of the application or the EPA’s treatment of it. [7] It appears that this application is before the Tribunal because the mine and the quarry will be conducted on the same site, albeit at different times and that, therefore, they are perceived by the Respondents as being integrally connected activities. The miners have to remove overburden material in order to reach the sandstone that can be mined in block form. It is understandable that they would seek to do this in a profitable manner, by way of quarrying, if possible. To that extent, they are obviously associated. However, the quarrying is not a necessary precursor to the mining. Depending on market circumstances and the nature, depth and quality of the resource, a miner may instead choose only to remove and store the overburden for subsequent rehabilitation of the site. Further, it is beyond doubt, in my view, that a miner could not obtain approval for a quarry under the Mineral Resources Act 1989 (MRA) and by way of an environmental authority (mining activities). [8] As for approval under the MRA, that Act provides for a mining lease to be granted for the purpose of mining minerals (s234). Minerals are defined to include “(2)(k) rock mined in block or slab form for building or monumental purposes” but to exclude rock “other than rock mentioned in subsection (2)(k)) if it is to be used or to be supplied for use, as sand, gravel or rock, whether intact or in broken form” (s.6). A mining lease could not be granted, therefore, to mine rock in any way other than in block or slab form and for building or monumental purposes. There is, however, limited authority conferred on the holder of a mining lease to use sand, gravel or rock on the mining lease area and for a purpose authorised by the mining lease (s.236). This authorisation specifically exempts the holder from a requirement under any Act, other than the EP Act, to obtain approval for that use. Clearly, any other use of such resource, such as to remove it from the mining lease and sell it, is not authorised by the MRA and is not so exempt. [9] As for authorisation under an environmental authority (mining activities), the relevant provisions (Chapter 5) only apply to “mining activities” (s.146). Section147 defines a mining activity as “(1)….an activity mentioned in subsection (2) that, under the Mineral Resources Act, is authorised to take place”. Mr Pepper, senior -- 3 of 5 -- legal officer of the EPA, and Mr Skoien, counsel for the Applicants, both submitted that the list of activities in s.147(2) serves to qualify, not expand the definition of mining activities in s147(1). That is, it is possible for an activity to be authorised under the MRA yet not be a mining activity within the meaning of s.147 of the EP Act, because it does not fall within the list of activities set out in subsection 2. However, the list of activities in that subsection cannot serve to expand the definition to encompass an activity that cannot be authorised under the MRA. I accept that submission. [10] I am satisfied that, if the proposed activities are activities that fall within the descriptions of the two identified ERAs, they are not mining activities as defined in s147. The two ERAs are: ERA 20 – extracting rock or other material…other than rock mined in block or slab form for building purposes….; and ERA 22 - Screening etc materials…other than under a mining tenement. Both ERAs, by their own terms, are confined to activities that fall outside the authorisation provided by the MRA. [11] ERA 20, by excluding the extraction of rock mined in block or slab form, reflects the definition of mineral in the MRA and applies only to the extraction of rock that does not fall within that definition. ERA 22 only applies to screening material other than under a mining tenement. Mining tenement is defined in Schedule 3 (definitions of mining tenement and mining lease) to include a mining lease granted under the MRA. [12] As the activities covered by both ERAs fall outside the authorisation conferred by the MRA they must fall outside the definition of s.147. Accordingly, the Respondents’ applications for orders as to the validity of the application and its processing and to require the application to be sent back to the EPA to be processed as a non-code compliant application are refused. [13] As to the particulars of the application, I note that some particulars have recently been provided and that some further detail about the Applicants’ proposed mining operation are included in expert reports and in other material filed in preparation for the hearing. The purpose of particulars is to fairly apprise the other party of the nature of the case to be met. I accept Mr Skoien’s submission that the Applicants have done that in this case. Mr McGrath submitted that the remaining particulars the Respondents require are the rate of extraction and the maximum depth of the mine. Mr Skoien observed that the Applicants had applied for a mining lease and an environmental authority which is not restricted by production levels or by mine depth. As such they took the risk that an objector would seek such restrictions or the EPA would propose them. I accept his submission that it is open to the Respondents to propose limitations on the scope of the activity if they consider that to be necessary to eliminate, limit or control any particular environmental impact. They are not disadvantaged in the preparation of their case by the Applicants choosing not to propose such restrictions. Accordingly, the request for an order for further particulars is also refused. [14] If successful, Mr McGrath requested an order in favour of the Respondents for costs pursuant to s.50 of the Land and Resources Tribunal Act 1999, including the costs reserved in this matter. The Respondents were not successful. There are already costs reserved in these proceedings. I accept Mr Skoien’s submission that it is appropriate to also reserve the costs of this application and I so order. -- 4 of 5 -- -- 5 of 5 --