Boral Bricks Pty Ltd & Dunlop & Ors, Re [2003] QLRT 87

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Boral Bricks Pty Ltd & M. Dunlop & Ors [2003] QLRT 87 PARTIES: Boral Bricks Pty Ltd (Applicant) & M. Dunlop & Ors (Objectors) FILE NOS: AML00015/2002 ENO00023/2002 PROCEEDING: Application to strike out objections DELIVERED ON: 28 August 2003 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 28 August 2003 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Various objections struck out (at [12], [20], [25], [29], [32], [34], [36], [38], [39]) 2. Matter adjourned to 12 September 2003 for further directions (at [40]) CATCHWORDS: APPLICATION FOR MINING LEASE AND ENVIRONMENTAL AUTHORITY – APPLICATION TO STRIKE OUT OBJECTIONS – Whether objections state grounds and supporting facts and circumstances Mineral Resources Act 1989, ss 252(4)(b), 260 Environmental Protection Act 1994, s. 217 Mineral Resources Regulation 2003, s. 17 Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49, applied Bloemen v Atkinson [1977] QdR 291, followed COUNSEL: N/A SOLICITORS: Ms Z. Farmer, for Boral Bricks Pty Ltd (Applicant) AGENTS: Ms L. Mount, Mr D. Mount, Mr P. Head and Mr A. Christie, for various objectors -- 1 of 8 -- Dr I. Wilson, for the Environmental Protection Agency Background [1] The applicant has sought to strike out a number of tenement and environmental objections which had been lodged by various parties. The applications were opposed by the objectors. The mining lease application seeks a lease of a 5.948ha area of freehold land at Narangba to mine clay for its ceramic properties. [2] Prior to this application, the parties, with the assistance of the tribunal, had successfully mediated all issues in dispute other than (a) in respect of the objection lodged by Mr Mount—truck, traffic and transport issues, and (b) in respect of all of the numerous other objections—the hours of operation of the applicant’s trucks on public roads. That has very substantially narrowed the remaining issues in dispute. [3] The objections the subject of the strike out applications will be addressed in turn. The headings used set out the name of the objector or the ground number that is in issue. Many of those grounds are common to many of the objections. Ms Mount’s objection [4] As I pointed out in Boral Bricks Pty Ltd v Caboolture Shire Council,1 it is a requirement of both the Mineral Resources Act 1989 (MRA)2 and the Environmental Protection Act 1994 (EP Act)3 that an objection to the grant of a mining lease or an environmental authority must set out the grounds of the objection and the supporting facts and circumstances relied upon. [5] In the present case, the relevant grounds of objection are set out as follows: “Grounds for Objection - Boral Clay Mining Lease Regional Resource Area Hardrock Haulage Steering Committee Related Entitles - Same Parent Company Transportation of Resource Vehicles Property Devaluation Other sources of product - Uneconomical to transport to Darra Lead Agency State Development and Caboolture Shire Council This would set a precedent regarding the regional area which would then by default by pass the Hardrock Haulage Steering Group and the Department of State Development and the Premiers Office. Checklist 28 states that this operation is in advance of the quarrying process. This then establishes a relationship to the extractive industries operation which is overseen by the Local Authority and is under an Environmental Relevant authority. The Entire regional resource area is in the scope of the Terms of Reference of the Hardrock Haulage Steering Committee.” 1 [2002] QLRT 49. 2 Section 260. 3 Section 217. -- 2 of 8 -- [6] Particular reliance was placed upon “Transportation of Resource Vehicles.” That was said by the objector to involve issues concerning the extant issue of hours of operation of trucks on public roads. For present purposes, it is important to bear in mind that the purpose of an objection is to indicate disapproval or complaint about a proposed activity, relevantly the grant of the mining lease and the environmental authority.4 In my view, a person reading those grounds and particularly that phrase would not know what is sought to be raised as an expression of disapproval or complaint about the proposed mining lease or environmental authority. The balance of the grounds are stated in almost a shorthand form and I have real difficulty in understanding what it is that the objector is objecting about. [7] After the grounds for objection, there is a heading entitled “Outcomes required from objection” and beneath that, the following appears: “Deferment of Mining Lease until such times as an outcome has been established from the Hardrock Haulage Study regarding transportation of resource from the entire regional resource area.” [8] That sentence envisages not the refusal of the grant of the lease but rather that consideration of it should be deferred until the hard rock haulage study has been completed. Attached to the “Grounds for Objection” is a page headed “Supporting Documentation for Objection to Boral Clay Mining Lease” and there then follows a list of sources: “Hardrock Haulage Study - Terms of Reference Working Party Key Operating Principles Natural Resources Property Notices Checklist 28 ERA Licence Permit from Caboolture Shire Council Caboolture Shire Council Road Hierarchy.” [9] As pointed out in the Caboolture Shire Council case,5 it is not open to an objector to refer, in broad and general terms, to other documents which are said to support the objection without being specific as to where in those documents the particular point that is sought to be raised is expressed. For example, in the working party key operating principles (referred to above), there may be particular pages or passages that in the view of the objector were relevant to the objection. But in my opinion, merely to refer to supporting documents in broad terms does not comply with the statutory requirement for the grounds of the objection to be set out as well as the supporting facts and circumstances. There is no heading entitled “Facts and Circumstances” in this document. One can only assume that those facts and circumstances were to be found in one or more of the supporting documents which are relied upon. [10] In the Caboolture Shire Council case, I followed a decision of Hanger CJ where an attempt was made to incorporate by reference the provisions of a deed into a pleading; his Honour said that:6 4 Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49, at [9]. 5 Ibid at [11]-[13], [15]-[16]. 6 Bloemen v Atkinson [1977] QdR 291, 295D-E. -- 3 of 8 -- “A plaintiff is not entitled to tell a defendant that his case is based on an identified document (which may contain five or fifty paragraphs—the number does not affect the principle) and leave the defendant to work out for himself what particular paragraph he thinks the plaintiff may be basing his case on. He is entitled to be told what the plaintiff says was the effect of the portion of the document which he relies on.” [11] This objection seeks to rely upon the contents (or some of the contents) of a number of documents. I cannot see that a mining lease applicant could reasonably be thought to be aware of which issues, and the facts and circumstances in relation to those issues, the objector is seeking to rely upon having regard to the terms of the objection. [12] In my view the objection is unintelligible. It leaves open for debate what are the grounds for objection and what are the facts and circumstances that that objector relies upon. In that state, there would be uncertainty even at the hearing stage as to precisely what it is that the objector is objecting to and which supporting facts and circumstances are relied upon. In those circumstances I will make an order striking out this part of the objection by Ms Mount. [13] It is unfortunate that the strike out issue has not been raised until now, but I see no grounds (and none have been drawn to my attention) which would satisfy me that the applicant is estopped from bringing this application at the present time. Ground 7 [14] In its mining lease and environmental authority application, the applicant declared in both Questions 16 and 32 that it is able to comply with the standard environmental conditions in the Code of Environmental Compliance for Mining Lease Projects (the code). [15] Although no specific mention was made in the application of road safety, air pollution, noise levels and water contamination issues, the statement by the applicant to which I have referred is a clear indication that the applicant believes that it is able to comply with all relevant code conditions concerning road safety, air pollution, noise level and water contamination. [16] As Dr Wilson helpfully submitted, if a mining lease and environmental authority applicant makes a statement in the terms in which Questions 16 and 32 are made and subsequently fails to comply with the code conditions, that applicant renders itself liable to prosecution and perhaps other penalties as well. [17] The grounds of objection here relevantly state: “7. Road safety, air pollution, noise levels, water contamination are all concerns not addressed by the applicant.” [18] That is not a statement that the applicant will not comply with those requirements, but rather that those issues are not expressly addressed by the applicant in its application for mining lease and environmental authority. In the circumstances, I am not satisfied that paragraph 7 constitutes an expression of disapproval or complaint, such as would be required to constitute a valid objection. -- 4 of 8 -- [19] Although the supporting facts and circumstances relied on set out 6 particular documents (and in some cases refer to page numbers), they are supporting 8 grounds of objection, only one of which (ground 7) is presently relevant. It would therefore be a matter for the applicant to have a look at those documents and pages and then to try to work out what it was that the objector was saying. That is not the procedure. The objector’s case must be clear. Here it is not. [20] In those circumstances, I do not regard paragraph 7 of the objection as a valid objection and accordingly it is struck out. Ground 28 [21] This ground of objection is misconceived. It relates to the non-provision of documents set out in Question 28(b) of the mining lease application, which is in the following terms: “CHECKLIST 28. The following must accompany this application: (a) … (b) A separate statement, acceptable to the Minister detailing the financial and technical resources of the applicant. (c) … (d) … (e) … .” [22] The objectors’ complaint here is that the information provided to them is “incomplete” in that the section (b) statement detailing the financial and technical resources of the applicant and which accompanied the application “has been removed from public copies”. It is also said that this “could hinder the public’s ability to fully respond” to the application. [23] The reason that the applicant’s statement of financial and technical resources has not been provided to the objectors is that it is not a publicly-available document. Section 252(4)(b) of the MRA relevantly provides that: “4. The applicant for the proposed mining lease must, within the relevant period, give each owner of the land the subject of the proposed mining lease or any other land necessary for access to that land, a copy of— (a) the certificate [of application]; and (b) the application for the mining lease, other than any part of it that states the applicants financial and technical resources.” [24] In addition, s. 17 of the Mineral Resources Regulation 2003 provides as follows: “17 Person may obtain copy of mining lease application (1) … (2) … (3) However, the mining registrar must not give the person [that is, a member of the public] a copy of a statement that accompanied the application for the mining lease if the statement contains information about the applicant’s financial or technical resources.” -- 5 of 8 -- [25] In the circumstances, there is a statutory requirement that this statement not be provided to either the landowner or the public—and if it is not provided to those persons it would not be provided to the objectors. This paragraph of the objection is accordingly struck out. Ground 5 [26] This ground is in the following terms: “5. The stated road to be used (Raynbird Road) is a Rural Collector and, as such, already has an exceeded limit of heavy resource vehicles. Noise levels are also exceeded. Any further heavy vehicle traffic on this road would exacerbate this problem.” [27] In my view ground 5 is stated in such a broad way that it could apply to the number, type or weight of the trucks or the noise emitted by them. It is suggested by the objectors that ground 5 is related to hours of operation and concern is expressed that the applicant should not operate its trucks on Rainbird Road prior to 7.00 am. The code deals with noise levels but I do not understand it to prohibit the use of trucks on site prior to 7.00 am. Indeed where the trucks concerned are registered vehicles in Queensland, it would appear that they would be able to operate prior to 7.00 am subject to all appropriate noise levels and other relevant requirements. [28] In its terms, I do not read ground 5 as related to the hours of operation of trucks. The applicant is obliged to comply with the code. If noise levels as provided for are exceeded, penalties and enforcement action could be taken against the applicant. [29] However in the circumstances, I do not regard this ground as indicating disapproval of or complaint about hours of operation of trucks. The fact that the supporting facts and circumstances relied upon are once again set out in a bibliography format does not, in my view, assist the objectors. Although reliance can be made upon attached documents, there needs to be a clear statement that the objectors, say, adopt and rely upon page whatever—it might be of a particular document and then the effect of that page should be set out so that there can be no doubt on the part of the applicant as to precisely what it is that the objector is saying in respect of the objection. In the circumstances, ground 5 is struck out. Ground 6 [30] I am asked to strike out paragraph 6 of the objection on the basis that it does not constitute a valid ground and does not relate to the hours of operation. That paragraph reads as follows: “6. To reach the Bruce Highway from Raynbird Road, only Oakey Flat and New Settlement Roads are available. Both of these traverse areas of Residential A land. All roads are used by school buses, domestic vehicles and cyclists.” [31] Paragraph 6 seems intended to be almost a cautionary paragraph to the effect that various roads are used by school buses, domestic vehicles and cyclists, and that if the trucks for this proposed mine were to traverse those roads, then from time to -- 6 of 8 -- time they will encounter school buses, domestic vehicles and cyclists—and naturally that raises issues of safety. [32] However I do not read paragraph 6 as expressing disapproval or complaint about hours of operation and accordingly in those circumstances, it will be struck out. Ground 8 [33] This ground reads as follows: “8. As no transport infrastructure exists, and the existing traffic corridor already exceeds noise and heavy resource vehicle volume limits, a decision on this application should be deferred pending a decision on the regional resource (via Department of State Development).” [34] As I read paragraph 8, it does not express disapproval or complaint about the application, but rather expresses the view that the decision should be deferred pending a decision of the Department of State Development. That is not an objection as such and accordingly ground 8 is struck out. Ground 35 paragraph 1 [35] This ground is in the following terms: “Raynbird Road is the only access road, The only egress for Raynbird Road is Oakey Flat Road and New Settlement Road.” [36] For the reasons that I gave in relation to Ground 6, it is my view that this ground does not constitute a valid objection and accordingly it is also struck out. Ground 35 paragraphs 2-6 [37] This ground reads as follows: “Previous testing of road noise at Raynbird Road gives decibel readings from the trucks carrying resources material exceeding the allowable decibel limits Boral conducted further noise tests on Raynbird Road in or around June 1999 organised by Mr Albert Johnson, operations manager, However, results are still awaiting publication. The end of Raynbird Road at Highlands Drive and Oakey Flat Road is zoned Residential A. The current decibel limit (63) for such a zoning is exceeded. No noise amelioration strategy has been adopted for Raynbird, Oakey Flat or New Settlement Roads, despite recommendations. Raynbird Road is a school bus route and therefore any increase in heavy resource vehicles could pose an increased safety risk. Residents will suffer loss of amenity.” [38] For the reasons that that I have given in relation to previous grounds, it is my view that paragraphs 2-5 do not indicate an expression of disapproval or complaint about -- 7 of 8 -- hours of operation of trucks on public roads. Accordingly those paragraphs are struck out. [39] As to the last paragraph, it is not said to be referable to hours of operation of the trucks. Objections to mining lease applications or environmental authorities should not be phrased in a way that requires the applicant to speculate as to what it is that is being asserted against them. In the circumstances, I do not regard that paragraph as referable to an objection concerning hours of operation of trucks on public roads. Accordingly, that paragraph is struck out as well. Further directions [40] As a result of the orders that I have made striking out grounds in various objections, I direct the parties to liaise with each other to clarify which issues remain for determination. The matter is adjourned for a further directions hearing at 10.00am on 12 September 2003. -- 8 of 8 --