Claypave Pty Ltd, Re [2001] QLRT 69

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Claypave Pty Ltd [2001] QLRT 69 PARTIES: In the matter of Application for Mining Lease No. 50176 by Claypave Pty Ltd FILE NO: LXX40025/2001 PROCEEDING: Application for mining lease DELIVERED ON: 18 September 2001 DELIVERED AT: Brisbane HEARING DATE: 13 and 18 June 2001 PRESIDING MEMBER: Smith DP ORDER: I recommend to the Honourable the Minister for Natural Resources and Mines that ML 50176 be granted over the entire application area for the purpose and the term sought by the Applicant. (at [47]) CATCHWORDS: MINING – MINING LEASE – PAST PERFORMANCE – BOUNDARIES – SPOIL HEAPS – RECOMMENDATION Mineral Resources Act, ss. 245, 252, 252A, 269, 276 Environmental Protection Act 1994 s. 151 Sinclair v. Mining Warden at Maryborough and Anor (1975) 132 CLR 473, applied Beattie v. McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993, applied Aradon Pty Ltd [2001] QLRT 35, referred to Patrick Daniel McLoughlin and Rodney Keith Barrett [2001] QLRT 56, referred to COUNSEL: N/A SOLICITORS: N/A AGENT: Mr A. Jermyn for the Applicant -- 1 of 9 -- [1] SMITH DP: On 8 March 2001 Claypave Pty Ltd (hereafter referred to as “the Applicant”) lodged Mining Lease Application No. 50176 with the Mining Registrar, Brisbane District. The Application was lodged pursuant to section 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for the purpose of mining for clay, clay shale, fire clay, pottery clay and clay brick clay and reclaiming mineral from spoil heaps from past open cut coal mining activities by others. [2] No objections were duly lodged to the Mining Lease Application. [3] The Application was heard in Brisbane on 13 June 2001. Further evidence and a site inspection occurred at Ipswich on 18 June 2001. The matter was subsequently delayed while additional material was obtained, on my request, from the Mining Registrar, Brisbane. The Applicant was represented by Mr Allen Jermyn, a consultant to the Applicant. [4] Mr Jermyn gave evidence at the hearing. Evidence was also received from Fredrick Wehl and Alexander Riddell, both employees of the Applicant. My decision in this matter is principally based on their evidence and on the exhibits tendered by them. I have also relied upon the other material lodged by the Applicant with the Department of Natural Resources and Mines and provided by the Mining Registrar to this Tribunal and the Mining Registrar’s Report in relation to this application. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account in making my recommendation. [5] In considering this matter, I have also applied, where relevant Sinclair v. Mining Warden at Maryborough and Anor (1975) 132 CLR 473 and Beattie v. McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993. I have also considered the provisions of the Act, in particular sections 252, 269 and 276. [6] For the purpose of this decision, I set out below, in summary form, the criteria specified in section 269(4) of the Act that I have taken account of and considered in reaching my conclusions in this matter. I have broken the various -- 2 of 9 -- components of the evidence, the exhibits and other material into the subheadings listed below based on each criterion set out in section 269(4) of the Act. Section 269(4)(a) – Have the provisions of the Act been complied with? [7] On 8 March 2001, the Mining Registrar, Brisbane District, issued a Certificate of Application which was accepted by the Applicant on 8 March 2001. Pursuant to section 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application if satisfied that the applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the application. [8] Pursuant to s. 252A of the Act a Certificate of Public Notice was issued by the Mining Registrar on 19 April 2001. [9] I note that the underlying tenure is freehold and road and that the native title provisions of the Act are not applicable to this application. [10] In my opinion, save for an issue arising out of an Order to Comply by a Field Officer dated 15 February 2001, there is sufficient evidence of compliance with the provisions of the Act in respect to this application. Further, apart from the Order to Comply, no material was in evidence before me to indicate any non- compliance with any relevant provisions of the Act. Issues arising with respect to the Order to Comply are dealt with under the heading “Section 269(4)(g) – Has the past performance of the Applicant been satisfactory?” below. Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [11] The evidence and the exhibits show a large resource of clay within the Application area which can be successfully mined. This was confirmed by the site inspection. The application borders land currently subject to mining leases held and successfully worked by the Applicant. [12] In light of the material provided I am satisfied that the land applied for is mineralised. -- 3 of 9 -- Section 269(4)(c) - If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [13] The material before me reveals the Applicant’s proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources within the area applied for. Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape? [14] The surface area of the land has been determined by the nature of the resource and borders two roads, one a large highway. There is no evidence to indicate that the size and shape is not appropriate. [15] I am satisfied that the size and shape of the mining lease application is appropriate. Section 269(4)(e) -Is the term sought appropriate? [16] The term sought for this mining lease is 20 years. The material shows a considerable resource with significant levels of development. If anything, the evidence shows that a term considerably larger than 20 years will be required to extract all the resource. If the mining lease is granted, the Applicant can of course apply for a renewal. I am satisfied that the term sought is appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [17] Documents and evidence provided to the Tribunal leave me in no doubt that the Applicant has the financial capabilities to carry on the mining operations. [18] It is also clear from its current operations that the Applicant has the necessary technical capabilities to ensure both an efficient extraction of the minerals concerned, and their retail development. [19] I am satisfied that the requirements of this criterion are met. -- 4 of 9 -- Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [20] With respect to this criterion, I also rely on the evidence relating to section 249(4)(f) above. [21] The evidence shows that the Applicant has on two occasions had some difficulties regarding boundaries of its mining leases. [22] As regards the first problem, the evidence shows that this occurred many years ago and was satisfactorily resolved. On the material before me, both from the Applicant and from the Mining Registrar, Brisbane, I do not believe that any issue arises with respect to the first indiscretion by the Applicant. [23] The second issue is however of somewhat more concern. Exhibit 19 is a letter from the A/Field Officer, Brisbane District Office, Department of Mines and Energy to the Applicant, dated 15 February 2001, enclosing an Order to Comply. By the Order to Comply, the Applicant was directed, inter alia, to cease all mining activities in a depicted area. That area is included within the current application area. [24] Exhibit 20 is a letter from the Field Officer, Brisbane District Office, to the Applicant dated 15 March 2001 which advises that the Order to Comply has been satisfied. [25] From the evidence and my own observations on the site inspection, it is clear how the Applicant ran foul of the provisions of the Act. The Applicant’s mining activities are not the classic extraction of a resource from an area of land. Much of the land where the Applicant is currently operating has previously been subject to coal mining. As a result of the coal mining, large piles of coal mining spoil exist within the Applicant’s lease areas. The Applicant was not responsible for creation of the large areas of spoil. Although discarded for purposes of coal mining, the spoil heaps contain large quantities of clay extracted and used by the Applicant. By mistake, the Applicant went outside of its current lease area whilst extracting clay from part of one of the large spoil heaps which is predominantly located on the Applicant’s current lease area. -- 5 of 9 -- [26] The spoil heap referred to above had not only gone outside of the Applicant’s mining lease area, but had covered part of Whitwood Road, a dedicated but unmade road. It is clear from the evidence that the Applicant was not aware that the spoil heap placed by previous coal miners had extended into the area of Whitwood Road. As I indicated in re Aradon Pty Ltd1 mining without authority of a mining lease can have serious consequences. [27] It is the obligation of the Applicant to ensure that it at all times remains within the boundaries of a mining lease and it must accept both responsibility for, and the consequences of, any mistake that may occur in that regard.2 [28] Although undertaking activities outside of a lease area is a breach of the Act and something which must be taken seriously, it is my view that the circumstances of this particular matter somewhat excuse the Applicant for its error. [29] The previous coal mining activities have left the subject land seriously affected. The spoil heaps previously referred to have extremely steep, high sides. Work currently undertaken by the Applicant on spoil heaps within current mining leases as well as that proposed under the current application, will have the effect of reducing the size and number of the spoil heaps and, potentially, over an extended period of time, of removing the spoil heaps altogether. The nature of the spoil heaps left by others has directly caused the Applicant his difficulties. The Applicant ceased worked immediately it became aware of the precise boundaries and did everything requested of it by the Department. If this mining lease application is granted, the Applicant should have no further difficulties with respect to the spoil heaps. [30] Apart from the two instances referred to already, the evidence shows that the past performance of the Applicant has otherwise been exemplary. [31] In the circumstances, despite the issuing of the Order to Comply on the Applicant, it is my view that the past performance of the Applicant has been satisfactory in the circumstances. 1 [2001] QLRT 35 2 see, for example, in re Patrick Daniel McLoughlin and Rodney Keith Barrett [2001] QLRT 56 -- 6 of 9 -- Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [32] The exhibits show that there will be no disadvantage as there are no existing exploration permits or mineral development licences or existing applications for exploration permits or mineral development licences in respect of the land covered by MLA 50176 which are not wholly owned by the Applicant. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [33] As indicated previously, the land applied for has previously been the subject of coal mining operations. Substantial amounts of clay have been left in spoil heaps, as well as remaining in situ, following the coal mining operations. The evidence before me suggests that the proposed operations conform in all respects with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [34] As with virtually any mining operation, there will necessarily be environmental impacts. [35] As stated previously, the land has, at lease in part, been subject to previous coal mining activities. [36] A draft Environmental Authority was issued on 18 March 2001, which requires the Applicant to carry out activities in accordance with the Code of Environmental Compliance for Exploration and Mining Lease Projects. The application for an Environmental Authority was assessed as an “standard mining activity”.3 [37] I note that there was no objection to the terms of the draft Environmental Authority. I have reviewed the conditions of the Code and am satisfied that the Applicant’s commitments are addressed by the conditions of the Code. [38] In the circumstances of this application, I am satisfied that there will not be any adverse environmental impacts if this application is granted. -- 7 of 9 -- Section 269(4)(k) – Will the public right and interest be prejudiced? [39] The material before me indicates that, but for an unmade road and an easement containing power lines, there are no other public roads or other public utilities on the application area. Specifically with respect to the road on the application area, by letter dated 17 May 2001 under the hand of the Operations Manager, Ipswich District, Department of Natural Resources (sic), the Department stated that it has no objection to the road being included in the mining lease application area. [40] Likewise, Powerlink, by letter dated 5 February 2001, made no objection with respect to the easement area. [41] There appears to be no endangered flora or fauna within the application area. [42] The evidence presented before me also shows that there are no identified sites of historical interest or Aboriginal significance within the application area. If any such sites are identified, strategies for the protection or site avoidance can be implemented. I also note the requirements of various enactments protecting cultural heritage and note the requirements on the applicant pursuant to that legislation to protect any sites of indigenous significance should they be located during the mining operations. [43] I am satisfied that the public right and interest will not be prejudiced should this mining lease be granted. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [44] There was no evidence before me that indicated any good reason why this application should be refused. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [45] The materials show that the project is for the extraction of a valuable resource in accordance with the environmental authorities. The real potential exists to 3 Section 151 Environmental Protection Act 1994. -- 8 of 9 -- improve the land from its present condition which is the result, in part, of previous coal mining activities, including large spoil heaps. [46] I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [47] I recommend to the Honourable the Minister for Natural Resources and Mines that ML 50176 be granted over the entire application area for the purpose and the term sought by the Applicant. -- 9 of 9 --