Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Boral Bricks Pty Ltd v Caboolture Shire Council [2002] QLRT 49 PARTY/IES: Boral Bricks Pty Ltd (Applicant) v Caboolture Shire Council (Respondent) FILE NO/S: AML00015/2002 ENO00023/2002 PROCEEDING: Application for determination of validity of objection DELIVERED ON: 7 August 2002 DELIVERED AT: Brisbane HEARING DATE: 26 July 2002 PRESIDING MEMBER: Koppenol P ORDER/S: Both objections by the Caboolture Shire Council struck out. (at [17], [22]) CATCHWORDS: MINING LEASE APPLICATION – OBJECTIONS RE TENEMENT AND ENVIRONMENTAL AUTHORITY – WHETHER OBJECTIONS STATE GROUNDS AND SUPPORTING FACTS AND CIRCUMSTANCES – WHETHER ANOTHER OBJECTION INCORPORATED BY REFERENCE – Application for determination of validity – Whether objections should be struck out Environmental Protection Act 1994, s. 217 Mineral Resources Act 1989, s. 260 Bloeman v Atkinson [1977] QdR 291, followed Dare v Pulham (1982) 148 CLR 658, applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied COUNSEL: N/A SOLICITOR/S: Ms Z. Farmer, for the Applicant -- 1 of 8 -- Mr D. Kevin (King & Company), for the Respondent AGENT/S: Dr I. Wilson, for the Environmental Protection Agency Application [1] In this mining lease application, the Applicant has sought a determination as to whether or not the purported objection (the objection) lodged by Caboolture Shire Council (the Council) states any grounds of objection and facts and circumstances relied on by it in support of those grounds – and therefore whether the objection is a valid objection. The objection was made under both the Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EP Act). The MRA objection [2] Section 260 of the MRA relevantly provides as follows: “Objection to application for grant of mining lease 260. (1) An entity may, on or before the last objection day for the application, lodge with the mining registrar an objection in writing in the approved form. (2) . . . (3) An objection referred to in subsection (1) . . . shall state the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds. (4) . . . .” [3] In the present case, the objection was lodged with the mining registrar on or before the last objection day for the application. The objection was in writing and in the approved form. But the issue here is whether the objection to the proposed mining lease application stated “the grounds of objection and the facts and circumstances relied on by the objector in support of those grounds” – as required by s. 260(3). [4] The objection specified the grounds thereof, as well as the facts and circumstances relied on in support of the grounds, in the following terms: “Refer attached correspondence on Council letterhead”. [5] Attached to the objection was the following document: -- 2 of 8 -- FIGURE 1 -- 3 of 8 -- [6] I assume that the reference in Figure 1 to “CRASH Association Inc” was to an organisation called Citizens Rally Against Superquarries Haulage, which also lodged an objection to the subject mining lease application. A copy of CRASH’s objection was attached to the Council’s objection as received by the mining registrar. However a Council officer swore an affidavit in this matter, the effect of which was that only the Figure 1 document (and not a copy of the CRASH objection) was attached to the objection which was posted by the Council to the mining registrar. In any event, it is apparent that the Council’s objection referred to the Figure 1 document, which in turn referred to the CRASH objection. [7] The Council’s objection was forwarded to the mining registrar under cover of a letter dated 21 February 2002 from the Council. It read as follows: “Dear Sir Re: Public Notification for Environmental Authority (Mining Lease) Application Number 50186 Please be advised that Council, at its meeting on the 19 February 2002 (Item 2.1.9) considered the abovementioned and resolved the following: 1. Lodge a written submission to the Mining Registrar (Brisbane Mining District), Department of Natural Resources and Mines requesting the following issues to be considered in its assessment of the Boral Bricks Pty Ltd application, including, but not limited to: (i) environmental management issues; (ii) whether the erosion and sediment control measures of the operation will be effective in controlling the downhill runoff from the site. 2. Authorise the Chief Executive Officer (Manager Planning & Strategy) to include any further matters about the proposal if further information becomes available, to ensure such further matters are identified with the relevant administering authorities. And a further report be presented to Council. 3. Provide a copy of any submission to Boral Bricks Pty Ltd, PO Box 3062, Darra, 4076, the Environmental Protection Agency, the Hardrock Haulage Steering Committee and Pine Rivers Shire Council for their information and consideration. 4. Request the Mining Registrar (Brisbane Mining District), Department of Natural Resources and Mines to defer any decision regarding this application until the Rock Haulage route/method has been resolved. As part of Council’s submission, your attention is directed to Item 4 of Council’s resolution. This matter is considered an important matter that requires attention in the assessment of the application, given that transportation issues have been ongoing for some time. Furthermore, Council requested that the submission by Citizens Rally Against Superquarries Haulage (CRASH) Association Inc. be assessed and relevant comments made. Whilst the matters raised in their submission should be dealt with and assessed independently, some additional comments on their submission are attached to this correspondence for your information. -- 4 of 8 -- I trust the application will be assessed and the matters identified herein will be fully addressed in the assessment of the application by Boral Bricks Pty Ltd. Yours faithfully [signed] LEO JENSEN MANAGER PLANNING & STRATEGY” [8] As will be seen, the letter referred to the Council’s having resolved to lodge a written “submission” to the mining registrar, requesting that certain issues “be considered in its assessment of” the subject mining lease application. Relevantly, it also requested (a) the “Mining Registrar … to defer any decision regarding this application until the Rock Haulage route/method has been resolved”, and (b) that the submission by [CRASH] “be assessed and relevant comments made”. As I understood his submissions, Mr Kevin (for the Council) urged me to accept that those parts of the letter constituted a good objection. [9] The term “objection” is not defined in the MRA, but it is usually understood as an expression of disapproval or complaint.1 When the subject letter is examined, I am unable to view it as conveying disapproval of or complaint about the proposed mining lease. Rather, the letter merely requested the mining registrar to “consider” certain matters (paragraph 1), to “defer” a decision (paragraph 4) and to “assess” another objection (penultimate paragraph). Indeed the concluding words in the penultimate paragraph say that “some additional comments” on the CRASH “submission” are attached “for your [the mining registrar’s] information”. Those words hardly seem consistent with the concept of objecting to the mining lease application. [10] Mr Kevin also submitted that because the CRASH objection was expressly referred to in the Council’s letter and because the completed form of objection expressly referred to an attached Council memorandum which referred to the CRASH objection, then the CRASH objection was incorporated by reference into the Council’s objection. 1 Butterworths Australian Legal Dictionary (1997), p. 807. -- 5 of 8 -- [11] In Bloeman v Atkinson,2 a question arose as to whether the reference in a statement of claim to a particular deed incorporated that deed into the pleading. Hanger CJ held that it did not. In doing so, his Honour rejected the broad proposition that because a document is referred to in a statement of claim, it becomes part of it.3 Then, after noting the requirement for the material facts to be relied upon to be set out, his Honour said:4 “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.” [12] His Honour’s comments were perhaps a particular illustration of the principle that the function of pleadings is to furnish a statement of the case sufficiently clear to allow the other party to meet it, and to define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial.5 [13] Whilst allowing for the obvious differences between normal litigation and the Tribunal’s function in hearing a mining lease application and any objections, the fundamental need to set out a clear statement of a party’s case remains the same. That is essentially what a notice of objection is intended to do. Thus the grounds of the objection, and the facts and circumstances relied on in support of the grounds, must be set out. If they are not, or if they are set out unintelligibly, then in my opinion the legislative purpose will be frustrated such that the offending objection will be invalid.6 [14] Mr Kevin’s point, as I understood it, was that looking at the documents (that is, the Council’s letter, objection and memorandum) in a fair-minded way, they were reasonably capable of adopting the CRASH objection. Mr Kevin also told me that the Council’s objection went no further than the CRASH objection. Ms Farmer, for the mining lease applicant, submitted that the Council’s objection was unintelligible and did not set out any grounds or supporting facts and circumstances. 2 [1977] QdR 291. 3 Ibid, at 294G-295A. 4 Ibid, at 295D-E. 5 Dare v Pulham (1982) 148 CLR 658, 664. 6 See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390 [93]. -- 6 of 8 -- [15] As noted earlier, the Council’s objection and covering letter referred to a Council memorandum which itself referred to the CRASH objection. Nowhere did the Council expressly adopt the CRASH objection. The Council merely said (see Figure 1) that it had “no comment” or “no additional comment” about most of the CRASH objection. I am unable to understand what meaning that was intended to convey. The balance of the memorandum said that “matters should be assessed by the assessing authority”, that matters were “worthy of further consideration by assessing authorities”, that “further investigations are requested” about impacts and that the Council “concurs that the matter be held in abeyance until transportation issues are resolved”. Those comments hardly indicate disapproval of or complaint about the proposed mining lease. [16] Contrary to the statement of principle in Bloeman v Atkinson, the Council’s objection essentially left it to the Applicant to try to work out for itself what the Council may be saying in its objection. Even giving the broadest possible interpretation to the various Council documents previously discussed, I am quite unable to understand what they intend to convey. In short, the Council’s objection is unintelligible, in my view. It does not set out in any meaningful way the grounds of the objection or the supporting facts and circumstances. Any fair-minded reader of the Council documents would have no idea of what the Council’s objections to this mining lease application were, or of which (if any) parts of the CRASH objection the Council intended to adopt. So, as between this objector and the Applicant, the issues for decision have not been defined and the Applicant does not know the case it has to meet. [17] It follows that the Council’s objection is not a valid objection. Accordingly that objection is struck out. The EP Act objection [18] The Council’s objection was on a notice of objection form which related to both the MRA and the EP Act. The objection was made under both Acts, and was in the terms set out in paragraphs [4] and [5] above. The EP Act objection was to the environmental authority application for the subject mining lease application. -- 7 of 8 -- [19] Section 217 of the EP Act provides as follows: “217 Acceptance of objections (1) The administering authority must accept an objection if it— (a) is written; and (b) is signed by or for each entity (“signatory”) who made the objection; and (c) states the name and address of each signatory; and (d) is made to the administering authority; and (e) is received on or before the last day of the objection period; and (f) states the grounds of the objection and the facts and circumstances relied on in support of the grounds. (2) An objection that complies with subsection (1) is called a “properly made objection”. (3) The authority may accept a written objection even if it is not a properly made objection.” [20] Again, the key requirement for present purposes is that the objection is to state the grounds thereof and the facts and circumstances relied on in support of those grounds. [21] Ms Farmer submitted that this objection was unintelligible and failed to set out the grounds of the objection and the supporting facts and circumstances relied on. Mr Kevin’s arguments (as previously discussed) appeared to have been intended to apply to the MRA objection and also to the EP Act objection. Dr Wilson from the Environmental Protection Agency told me that the environmental objection had been accepted under s. 217(1) and not under s. 217(3). It was not submitted that the administering authority’s “acceptance” of the subject objection foreclosed the validity issue in favour of the Council, or ousted the Tribunal’s jurisdiction to determine that issue. [22] In my view, the issues concerning the validity or otherwise of the EP Act objection are materially similar to those addressed above in relation to the MRA objection. For the same reasons as set out above concerning the MRA objection, I regard the EP Act objection as invalid. Accordingly that objection is also struck out. -- 8 of 8 --