Boral Bricks Pty Ltd & Mount, Re [2003] QLRT 108

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Boral Bricks Pty Ltd & D. Mount [2003] QLRT 108 PARTIES: Boral Bricks Pty Ltd (Applicant) & D. Mount (Objector) FILE NO: AML00015/2002 PROCEEDING: Application to strike out objection DELIVERED ON: 14 October 2003 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 14 October 2003 PRESIDING MEMBER: Koppenol P ORDER/S: Objection struck out. (at [9], [14]) CATCHWORDS: APPLICATION FOR MINING LEASE – APPLICATION TO STRIKE OUT OBJECTION – Whether objection expresses disapproval or complaint Mineral Resources Act 1989, ss 245(1)(h), 279(1)(a) Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49, applied Re Boral Bricks Pty Ltd and Dunlop & Ors [2003] QLRT 87, applied COUNSEL: N/A SOLICITORS: Ms Z. Farmer, for Boral Bricks Pty Ltd (Applicant) AGENTS: Mr D. Mount (on his own behalf) [1] This is an application by the applicant Boral Bricks Pty Ltd to strike out the remaining objection in this application for a mining lease. The remaining objection was lodged by Mr David Mount on 26 February 2002. Following the mediation of this and other objections which had been lodged but subsequently withdrawn or struck out, the issues raised in Mr Mount’s objection were reduced to 2, namely those relating to “transportation problems” and those relating to “access”. -- 1 of 4 -- Transportation [2] Mr Mount’s objection concerning transportation problems was in the following terms: “There is a major problem in moving the resource from its current location to the highway and thence to Darra. Raynbird Road is already used by resource heavy vehicles to transport hard rock and other associated materials from the regional resource area. Vehicle usage is inappropriate for the road and its surrounding area. Access from Raynbird Road to the Bruce Highway is also a major problem as the only available route is along Oakey Flat and New Settlement Road, both of which traverse Residential A land and are also used by school buses, domestic vehicles, cyclists, etc. Of a major concern in Road safety with the existing amount of resource heavy vehicles using this route from the regional resource to the highway. Other major concerns are air quality, effect on native fauna and flora, and water quality (both catchment and household domestic tanks). Refer TO – Page 23 of the Guardian Weekly Jan 11-17 2001 - copy attached Any additional resource material coming from this site would be a burden on ratepayers and the community due to the use of the local road network by the resource heavy vehicles, as well as having a detrimental effect on property values.” [3] It will be noted that the operative words in the first paragraph above are “major problem”—that is, Mr Mount was expressing the view that there was a major problem in trucking the resource to its destination. The second paragraph says that road safety is a “major concern”; that paragraph also refers to “other major concerns”, namely air quality, effect on native fauna and flora and water quality. [4] In earlier cases,1 I pointed out that the purpose of an objection lodged under the Mineral Resources Act 1989 (MRA) is to indicate disapproval or complaint about a proposed activity, relevantly the grant of the mining lease. Typically, an objector would express that view about one or more aspects of a proposed mining lease. Ms Farmer submitted that this objection did not express disapproval or complaint. [5] In my view, the wording used by Mr Mount in the paragraphs referred to above do not indicate in the relevant sense disapproval of or complaint as such about the grant of this mining lease—and specifically about the transportation problems said to be related to it. Mr Mount also did not indicate in those paragraphs that he opposed the grant of the mining lease and in fact I think it is fair to say that in his submissions, Mr Mount as much conceded that. The third paragraph referred to above says that transported additional resource materials would be a “burden on ratepayers and the community” due to the trucks’ use of the local roads and that having a detrimental effect on property values. Again I do not view that paragraph as indicating, in the relevant sense, disapproval of or complaint about the proposed grant of this mining lease. [6] Ms Farmer also drew my attention to a paragraph in the notice of objection headed: “My conclusion is as follows”. I understand that paragraph was not ultimately pressed by Mr Mount. However, its contents perhaps reveal the purpose behind the lodgment of this objection. That paragraph was in the following terms: 1 Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49, at [9]; Re Boral Bricks Pty Ltd and Dunlop & Ors [2003] QLRT 87, at [6]. -- 2 of 4 -- “This application should not be approved by any single Minister or any of his staff. It should instead be referred to the lead agency for the regional resource (Department of State Development) and a decision on the granting of the mine application be deferred pending a decision on the transportation of all resources from the designated regional resource area.” [7] It will be noted that the thrust of the paragraph is the mining lease application should be deferred pending a decision on certain other issues. I can appreciate Mr Mount’s concern as expressed by him today and on previous occasions; but the point is that a notice of objection which seeks the deferral of a decision on the granting of a mining lease application is not in my view an expression of disapproval or complaint (in the relevant sense) about the mining lease.2 [8] The only document which was referred to by Mr Mount in relation to transportation problems was an extract from The Guardian Weekly (a magazine published in England) from January 2001 which concerned the carcinogenic effects of the inhalation of diesel fumes by children in the vicinity of roads where heavy vehicles were used on a regular basis. Mr Mount submitted that there were also other documents which related to and supported his concerns as set out in that paragraph. However those documents were not referred to in those paragraphs and it would be necessary in the circumstances for a mining lease applicant to have to analyse the supporting documents which were lodged with the notice of objection and to determine for itself which parts of which document may have been relied upon in support of that aspect of the objection. That is not the way in which a notice of objection should be compiled,3 and in the present case that is an additional difficulty for the objector. [9] In these circumstances, I am not satisfied that the subject paragraphs indicate in the relevant sense disapproval of or complaint about this mining lease application and accordingly those paragraphs are struck out. Access [10] The other aspect of Mr Mount’s objection was under the heading “access”. Exhibit 15, a document prepared by Ms Farmer (for the applicant) and Mr Mount, contains an agreed summary of the extant grounds of objection. Mr Mount’s objection concerning access was expressed in the following terms: “The Caboolture Shire Council designation of Raynbird Road is as a Rural Collector. As such the maximum allowable number for all heavy vehicles is a limited percentage %, of which a percentage must be kept for local vehicles and % for transportation from the business (Boral using the regional resources material for profit) as the only access road. Currently the heavy vehicles using Raynbird Road from Boral property exceed the limit for a road designation as a rural collector. As such it would be illegal for any additional vehicles to utilise this transport route from the resource area. It has been recognised by resource operators that a 120 metre buffer zone each side of a transport route would be required to reduce the noise levels of heavy resource vehicles to an acceptable decibel level. No such buffer zone exists on any of the roads proposed to be used by the applicant. New Settlement Road is 34 metres wide and has not been designed for additional heavy vehicles. 2 Re Boral Bricks Pty Ltd and Dunlop & Ors [2003] QLRT 87, at [6]. 3 Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49, at [11]-[13], [15]-[16]. -- 3 of 4 -- Residents will suffer loss of amenity and property value, by virtue of increased heavy resources vehicle traffic on rural and residential roads. THUS mining approval at this point in time while expanding Boral’s profit potential, effects ratepayers housing profit potential and also Council view housing value. THIS can be confirmed by the Department of Natural Resources numerous Property value adjustment cases, recently done in this area …Refer to their records. Traffic along the road corridor generation from Boral Extractive is considered by the Council (CSC) in the long term to be inappropriate. Existing problems would be exacerbated by an increase in such traffic along this corridor.” [11] As will be seen from a perusal of those paragraphs, concern is expressed about the use of a number of public roads by the applicant’s vehicles after the mine commences. It is said that currently heavy vehicles using Raynbird Road from the applicant’s property exceed the limit for a road designated as a rural collector. It is then said that any additional vehicles would be illegal. Further comments are made the necessity of a 120m wide buffer zone and that residents will suffer loss of amenity and property values by reason of the increased vehicular traffic on the rural and residential roads. [12] These paragraphs are headed: “Section 35. Access.” It was accepted by Mr Mount that they relate to Question 35 in the mining lease application. Question 35 concerns the proposed access of the mining lease applicant to the mining lease property. The precise nature of that access is set out in s. 245(1)(h) of the MRA in the following terms: ‘245 Application for grant of mining lease (1) An application for the grant of a mining lease shall— … (h) describe and identify in the prescribed manner any land proposed to be used as access from a point outside the boundary of the mining lease acceptable to the mining registrar to land over which the mining lease is sought.” [13] I accept Ms Farmer’s submission that the “access” referred to in that context is different from the route proposed to be traversed by vehicular traffic to and from the mining lease area. In other words, the access to which s. 245(1)(h) is referring is access over private land and not access over public roads. Other sections of the MRA support that conclusion, in particular s. 279(1)(a) which concerns the determination of compensation between the mining lease applicant and “each person who is the owner of land the surface of which is the subject of the application and of any surface access to the mining lease land”. [14] Accordingly it is my view that Mr Mount’s objection concerning access is misconceived. On that basis, those paragraphs will be struck out. Other submissions were put to me concerning aspects of the notice of objection but having regard to the matters which I have already addressed, it is not necessary for me to address them. -- 4 of 4 --