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- Unreported Judgment
LAND COURT OF QUEENSLAND
Conway & Ors v Australia Pacific LNG CSG Transmissions Pty Ltd & Anor  QLC 26
Denis Campbell Conway
Jill Mary Conway
Olivia Jane Martin
Australia Pacific LNG CSG Transmissions Pty Ltd
ABN 52 138 156 466
Australia Pacific LNG Pty Ltd
ABN 68 001 646 331
Application to decide a dispute under the Mineral and Energy Resources (Common Provisions) Act 2014
17 July 2020
15, 16 & 18 June 2020
PG Stilgoe OAM
ENERGY AND RESOURCES – GAS – OTHER MATTERS – where the respondent resource authority holders constructed a gas pipeline on the applicant landowners’ grazing property – where the applicants complained to the respondents about the spread of African lovegrass on their property – where the respondents commissioned a weed survey to be carried out on the applicants’ property – where the respondents’ environmental scientists took a sample of a vulnerable ooline tree during that weed survey and sent it to the Queensland Herbarium for identification – where a flora survey trigger map was issued over part of the applicants’ property – whether the respondents were liable to compensate the applicants for having caused the trigger map to issue and, if so, what was the quantum of compensation payable – where the application was dismissed
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Mineral and Energy Resources (Common Provisions) Act 2014 s 81
Mineral and Energy Resources (Common Provisions) Regulation 2016
Nature Conservation Act 1992 s 4, s 5
Nature Conservation (Wildlife Management) Regulation 2006
Petroleum and Gas (Production and Safety) Act 2004
Comcare v Martin (2016) 258 CLR 467, cited
P Ambrose QC (instructed by Alroe Somers & O’Sullivan Solicitors) for the applicants
G Beacham QC, with D Quayle (instructed by Origin Energy Legal) for the respondents
- Resource companies operating in Queensland are often criticised for committing environmental damage. In this unique case, Australia Pacific LNG CSG Transmissions Pty Ltd and Australia Pacific LNG Pty Ltd (together APLNG) are being criticised for taking steps to identify and protect a vulnerable ooline tree present on Tecoma, a property owned by Denis Conway, Jill Conway and Olivia Martin (née Conway).
- The Conways submit that APLNG’s actions in identifying the ooline give them a right to compensation of almost $700,000.
- The Conways bought Tecoma in 2012 with the intention of growing leucaena, a leguminous plant which provides high protein fodder for cattle. The Conways knew that ooline existed on Tecoma; in fact, a large paddock in the south eastern corner of Tecoma is called “Ooline”. There were already restrictions on the Conways’ ability to clear vegetation on Tecoma, however, they determined that 10 of Tecoma’s 18 paddocks could be converted to leucaena.
- On 6 January 2014, the Conways and APLNG signed an Option for Easement and Conduct and Compensation Agreement (OECCA) which related to the proposed construction of part of the Eurombah Pipeline on Tecoma. APLNG exercised the option and the pipeline was built. It runs from north to south in the western third of Tecoma.
- APLNG also has petroleum leases, an authority to prospect and a petroleum lease application over the whole of Tecoma. On 5 June 2017, APLNG issued an entry notice pursuant to these Resource Authorities.The notice covered the whole of the land for the purpose of conducting a site survey “to determine if the site is suitable for development and to understand any constructability or practical constraints associated with developing the Land”. One of the activities identified in the entry notice was to conduct “Investigations and surveys … including, without limitation, environmental, flora and fauna …”. The notice was valid for 12 months.
- Claud Zappone and Tim Collins are both environmental scientists. They conducted a flora survey pursuant to the entry notice on 14 and 15 July 2017. They found what they thought was an ooline in the south eastern section of Tecoma in the Ooline paddock. They did not take a sample.
- On 4 August 2017, Mr Conway contacted APLNG complaining about the spread of African lovegrass, which he thought was due to APLNG’s activities adjacent to the Eurombah pipeline.
- In response, APLNG commissioned a weed survey. Aware that they had not taken a sample of the ooline in July, Mr Zappone and Mr Collins thought that the weed survey was an opportunity to rectify that oversight.
- Mr Zappone and Mr Collins undertook the weed survey on 12 August 2017. While they were on Tecoma, they revisited the ooline and took a sample. Mr Zappone sent that sample to the Queensland Herbarium, which confirmed that it was an ooline.
Some background about the vegetation protection mechanisms in place on Tecoma
- There are two regimes that protect vegetation on Tecoma.
- Some areas of Tecoma are designated as Category B – remnant vegetation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The ooline is located close to an area which has been designated a Matter of National Environmental Significance (MNES) since 2001. The particular area where the ooline is located is also an MNES and has been since 2001. The EPBC Act Protected Matters Search Tool indicates the presence of other MNES within a 10 km radius of the ooline (see Annexure A). Therefore, Tecoma has areas of vegetation that are nationally protected.
- A new, expanded or intensified agricultural development that is likely to have a significant impact on a nationally protected area requires an approval under the EPBC Act, and a flora survey is normally a prerequisite to obtaining that approval.
- The Nature Conservation (Wildlife Management) Regulation 2006 regulates Flora Survey Trigger Maps for Clearing Protected Plants in Queensland (FSTM). A FSTM will show where plants that are endangered, vulnerable or near threatened wildlife are present or are likely to be present (high-risk areas)and any buffer zone around a high-risk area in which clearing is not permitted. A FSTM must be reviewed at least every 12 months. The current version of the FSTM must be publicly available.
- Version 5 of the FSTM, which was the version in place immediately prior to Mr Zappone’s referral to the Queensland Herbarium, showed no protected plants on Tecoma (Annexure B).
- On 1 June 2018, Version 6 of the FSTM issued (Annexure C). Everything within a 2 km radius of the ooline identified by the Queensland Herbarium is shown as highrisk vegetation.
- On 26 June 2019, Version 7.1 issued (Annexure D). The area of high-risk vegetation largely mirrors the EPBC Act regulated vegetation management map with the addition of a small, isolated area to the west of the ooline.
- An area of high-risk mapping can be removed only if it is established that no Endangered, Vulnerable or Near Threatened (EVNT) species occur in either the high-risk area or within a 100 m buffer zone around the high-risk area. Again, that normally requires a flora survey.
- Senior Counsel for APLNG suggested that the Conways wanted to keep the ooline secret. That is a very strong allegation, and there is no evidence to suggest that the Conways did, in fact, intend to keep the ooline secret. However, the evidence of Wayne Moffitt, an ecologist engaged by the Conways, is of significant concern (my emphasis):
“(xi) This leaves a small group of highly sophisticated (primarily corporate) entities that may undertake flora surveys outside of the requirements of protected plants framework to determine obligations under the EPBC Act. If these entities engaged an environmental consultant to complete a flora survey, then there is potential for additional EVNT species to be discovered. However, as part of an EPBC Act-focused investigation, the entity could carefully brief the consultant to identify and document only those EVNT species that are also MNES. This would allow the landowner to remain “unaware” of the occurrence on EVNT species that are not MNES.
- (xii)If I was advising the Applicant in regard to the need for a Controlled Action Referral for the proposed development, then I would suggest that a referral could be avoided by:
Protecting and buffering all areas of Brigalow TEC and SEVT TEC (as was intended). Given the low intensity nature of the proposed development, I consider a 20m buffer sufficient;
Identifying and buffering all specimens of Ooline (as was intended by the proposed development). I consider a 20m buffer from individual specimens to be sufficient.
- (xiii)In this sense, there is some limited opportunity for flora surveys to identify EVNT species. However, the survey data would only be used to plan the set out of the proposed development at fine detail. The data would remain as confidential correspondence between the consultant and the Applicant. It would only be revealed to a third-party if the DAWE was undertaking a compliance investigation in regard to the proposed development, or it was willingly provided by the Applicant to a prospective purchaser to inform their due diligence investigations.
- (xiv)Discovery of additional Ooline (beyond that shown on the FSTM) does raise an issue of the Applicant being (or becoming) aware11 of an EVNT species beyond the FSTM trigger area. However, if each specimen is buffered by 100m, then there is no requirement to obtain a protected plants permit. While this creates a constraint for the proposed development around the EVNT specimens, it does not prohibit continued grazing. Most importantly though, the EVNT specimens remains known to only the landowner, and do not become a “beacon” on common environmental constraint mapping such as the FSTM and the VMSM. I understand that such beacons would affect the value of the Site. This is an issue to be considered further by the valuers in this matter.”
- In his evidence before the Court, Mr Moffitt said that, under Version 5, there was a low likelihood of finding an ooline because one would not be looking for it.
“(a) Gathering of information and community education etc.
- gathering, researching, analysing, monitoring and disseminating information [my emphasis] on nature;
- identifying critical habitats and areas of major interest;
- encouraging the conservation of nature by the education and cooperative involvement of the community, particularly landholders;
- (b)Dedication and declaration of protected areas […]
- (c)Management of protected areas […].”
- I fail to see how Mr Moffitt’s suggested course of action meets any of these criteria. It is of great concern that an ecologist considers it legitimate to structure the EPBC Act process to allow a landowner to be “unaware” of EVNT species on the land, to keep EVNT data confidential, not to reveal it to a third party, and to avoid an environmental “beacon” affecting land value. Horatio Nelson and his telescope would feel right at home in Mr Moffatt’s company. His approach to vegetation protection is to be discouraged.
The causes of action
- Initially, the Conways claimed damages on a number of bases: breach of the OECCA, going beyond the scope of the Entry Notice, breach of the Land Access Code, negligence, breaches of the Mineral and Energy Resources (Common Provisions) Act 2014, breach of the Mineral and Energy Resources (Common Provisions) Regulation 2016, breach of the Petroleum and Gas (Production and Safety) Act 2004 (P&G Act), and an action for trespass.
- By the close of the hearing, the Conways’ claim was restricted to a breach of the OECCA, compensation under s 81 of the Common Provisions Act either because of the alleged breach of the OECCA or under the terms of s 81 itself or, in the alternative, an action in trespass.
- At the hearing, the parties could not tell me the basis of the Land Court’s jurisdiction to decide a claim in trespass. After the hearing, counsel for APLNG provided written submissions (with which senior counsel for the Conways agreed) that s 363 of the Mineral Resources Act 1989 gives the Land Court jurisdiction for a claim in trespass. I do not need to decide this question given my findings in these reasons, but I do not disagree with that submission.
- APLNG has, properly, conceded that to establish a right to compensation under s 81 of the Common Provisions Act the Conways do not have to prove that there has been a breach by APLNG or that APLNG lacked authority to enter Tecoma, take the ooline sample or send it to the Queensland Herbarium. The question of APLNG’s authority is relevant only to whether there was a breach of the OECCA or whether APLNG trespassed on Tecoma.
- Regardless of the cause of action, the parties agree that the question of causation/remoteness is the same. The Conways also submit that the measure of damages is the same, regardless of the cause of action.
- Given that causation/remoteness is central to resolving this dispute, I should consider the issue first. If the Conways don’t establish causation under s 81 of the Common Provisions Act, where they do not have to prove fault or breach, it follows that they will not be able to satisfy me in an action for trespass.
- Section 81(1) makes APLNG liable to compensate the Conways for any compensatable effect they suffer caused by any authorised activities carried out by APLNG or a person authorised by it. “Compensatable effect” is defined to include diminution of the land’s value, diminution of the use made or that may be made of the land or any improvement on it, and any cost, damage or loss arising from the carrying out of activities under the resource authority on the land.
- The Conways submit that the event which caused them loss is the taking of the ooline sample and sending it to the Queensland Herbarium. They submit that it is not two separate acts. They submit that sending the sample to the Queensland Herbarium resulted in Version 6 which caused a diminution in the value of Tecoma.
- APLNG agrees that, if I apply the “but for” test to determine causation, the provision of the ooline sample to the Queensland Herbarium was connected with the imposition of Version 6. It submits, though, that s 81 should not be construed by applying the closest equivalent at common law. It referred me to the High Court’s comments in Comcare v Martin:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm.”
- APLNG submits that in applying Comcare v Martin I must look at the Common Provisions Act as a whole to determine the meaning of “caused by”.
- The main purposes of the Common Provisions Act are, relevantly, to consolidate particular provisions common to each of the Resource Acts and to assist in achieving the purposes of each of the Resource Acts. “Resource Act” includes the P&G Act. The Common Provisions Act is to be read and construed with, and as if it formed part of, the P&G Act.
- The main purpose of the P&G Act is to facilitate and regulate the carrying out of responsible petroleum activities and the development of a safe, efficient and viable petroleum and fuel gas industry in a way that, relevantly, manages the state’s petroleum resources in a way that has regard to the need for ecologically sustainable development.
- As can be seen from my discussion of the vegetation protection regime over Tecoma, the Conways’ agricultural activities and APLNG’s resource authority activities exist within a network of legislation aimed at protecting the environment. APLNG submits that the interpretation of “caused by” should be informed by that framework, and it would not be likely that the purpose of the access regime would be served by construing s 81 of the Common Provisions Act in a way that discourages preservation of the environment.
- An ecological survey is a preliminary activity and, therefore, an authorised activity under s 81. It is obvious that an ecological survey might reveal some pre-existing ecological condition that has adverse impacts for the landowner. A soil sample might show contamination of which a landowner was unaware. A water sample may reveal unacceptably high levels of a particular contaminant. A fauna survey might reveal the presence of an animal previously thought to be extinct. And a flora survey might reveal, as it did here, a vulnerable species.
- It cannot be the case that a resource authority holder can be responsible for loss occasioned by the revelation of an ecological condition that existed on the land regardless of the resource company’s activities.
- If, by taking a flora sample, Messrs Zappone and Collins caused the destruction of grazing habitat through erosion or the introduction of a weed, then the Conways would be entitled to compensation.
- However, the Conways’ “loss” through Version 6 was not triggered by the referral to the Queensland Herbarium, or even the report confirming that the tree was, in fact, an ooline. A team from the Department of Environment and Science (DES) considered a range of sources and within a rigorous framework when conducting a review of Version 5. The ooline was one of 3,287 new plants identified. The review of Version 5 was conducted across the state, not just on Tecoma. The comprehensive change to the mapping in Version 6 was approved by the Director of Conservation and Biodiversity Policy at DES. The presence of the ooline would have been revealed if the Conways had undertaken a flora survey before clearing, as contemplated by both the EPBC Act and the FSTM. To suggest that APLNG’s action in taking one sample on Tecoma produced the change in Version 6 is, frankly, absurd given the numerous people and steps involved in creating that document.
- The connection between the taking of the sample and the alleged loss is too remote to satisfy the test of causation.
What is the quantum of the loss?
- If I am wrong about the question of causation, I should decide the measure of the Conways’ loss.
- The valuers agree that the value of the 2 ha directly affected by the “discovery” of the ooline is $6,600/ha. They also agree that the value of this area is diminished by 50%.
- They do not agree that about any other loss. Shaun Salter, a valuer engaged by the Conways, says that there is an additional diminution in the value of Tecoma which he assesses at $400,000 plus GST. Tito Lando, a valuer engaged by APLNG, says there is no additional diminution in the value of Tecoma, but that the Conways will incur additional expense in experts’ fees giving a total loss of approximately $20,000 plus GST.
- The valuers agree that, if a purchaser applied a price discount of 5% or more because of a FSTM, it would probably show up in the comparable sales. They agree that the comparable sales show that a FSTM has no effect on the price a purchaser would pay for land so affected. They also agree that an analysis of the comparable sales, by inquiring of the purchasers, reveals that the FSTMs had no impact on the prices.
- Despite these agreements, Mr Salter thought that a discount of 2.5% to the balance of Tecoma was an appropriate discount for the presence of Version 7.1. He justified this discount in several ways. Firstly, he said that the selling agents he had spoken to would “assume” that there would be market resistance to a property with a FSTM. Secondly, he pointed to media coverage critical of the FSTM system. Thirdly, he relied on his own experience as a rural landowner and producer. Finally, he said that the discount accounted for the risk that the FSTM on Tecoma would revert from Version 7.1 to the much more restrictive Version 6.
- While it is true that this Court is not bound by the rules of evidence, and while it is true that this Court often allows valuers to act on hearsay evidence when analysing comparable sales, it is quite another thing to ask the Court to accept vague hearsay evidence from real estate agents as the basis for justifying a discount to the value of the subject land.
- The information that I have about the agents’ perceptions is not compelling. Two agents have never knowingly sold land subject to a FSTM but “assume” there would be market resistance. One agent said that he saw no evidence of resistance in one of the comparable sales and did not expect any in the current market. One agent believed there was some resistance, although he was the agent for a comparable sale in which there was no evidence of a discount or buyer resistance. The last agent said that he’d had three discussions with lawyers recently about this topic (the context of which was not disclosed) and he thought that, perhaps, there would be some resistance. That agent marketed one of the comparable sales in which the purchaser did not apply a discount because of the FSTM.
- The comparable sales evidence contradicts the agents’ belief. I prefer the evidence of the comparable sales.
- Similarly, the media “noise” is contradicted by the comparable sales. Looking at the media reports, I see that the criticisms are directed to Version 7, which designated areas such as the Gabba Stadium as high-risk areas but had no appreciable effect on Tecoma. Version 7.1 removed those anomalies. A briefing note to the Director General of the Department of Environment and Science notes that Version 7.1 “refines mapped areas to include only semi-natural/natural areas that contain remnant vegetation, high value regrowth, offsets and wetland areas”.
- When Mr Salter gives evidence as a landowner and producer, he steps outside his area of expertise and becomes simply a lay witness giving his opinion. Again, the comparable sales do not support his view.
- If there were any further need to dismiss Mr Salter’s evidence, it is to be found in his own calculations. He calculated the discount that would have applied if Version 6 were still in place at $720,000. Mr Lando agreed a discount would apply. Mr Salter’s calculation for the discount for the risk that there might be a reversion from Version 7.1 to Version 6 was $400,000, over 55% of the discount Mr Salter actually applied if Version 6 was in place.
- There is no evidence of any risk of reversion. As I have noted, the FSTM regime is regularly reviewed and any number of factors may result in a change. To ascribe the risk of change to one thing – the presence of Version 6 at some time in the past – is unsustainable.
- If there was a loss due to the activities of APLNG, and I find there was not, the quantum of that loss is limited to $20,000.
- Senior counsel for the Conways directed me to Mr Conway’s “heartfelt” evidence:
“‘It distresses me and my family that such ill-considered decisions are made in the absence of reliable scientific data and without any appreciation for the inconvenience, cost and heartache it causes for us as landowners.’”
- I have no doubt that the Conways are distressed by these events. Landowners expect to have total control over the way they manage their land. Unfortunately, the P&G Act and the Common Provisions Act give resource authority holders rights that override the interests of landowners. There is a balance between the operations of the resource authority holders and the operations of landowners which is difficult to get right.
- The Conways’ distress was compounded by the information APLNG provided during the course of this dispute. They think that APLNG should have provided information sooner. They think that APLNG was less than frank in its initial communications about the entry to land. They think that evidence of Messrs Zappone and Collins was contradictory and self-serving.
- I don’t necessarily agree that APLNG should have disclosed the fine detail of its entry onto Tecoma but I can see how its ex post facto justification did not instil confidence. Could the APLNG paperwork have been better? Yes. Could they have trained their environmental scientists better? Yes. Could APLNG have communicated better with Mr Conway? Probably yes. Would any of that have made a difference to this case? Probably not. The only thing that could have changed this case is if Mr Conway had been able to persuade Messrs Zappone and Collins not to engage with the Queensland Herbarium and make the location of the ooline public. As I have already commented, I do not consider such an action to be within the ambit of a competent and conscientious environmental scientist.
- The Common Provisions Act does not permit this Court to compensate parties for hurt feelings, disappointment, or anger at an environmental protection regime. The Conways’ application must fail.
- The application is dismissed.
- Any submission as to costs must be filed and served within 14 days of the publication of these reasons.
PG STILGOE OAM
MEMBER OF THE LAND COURT
 T 1-21, lines 30 to 31; T 1-23, lines 3 to 5; T 1-27, lines 45 to 46.
 “Entry notice for private land”, DCC15 to ex 5.
 Ibid 3.
 Ex 11, page 7.
 Department of Agriculture, Water and the Environment, Protected Matters Search Tool (Web page)
 Attachment 4 to ex 11.
 Nature Conservation (Wildlife Management) Regulation 2006 s 248.
 Ibid s 249.
 Ibid s 251.
 Ibid s 252.
 See Nature Conservation Act 1992 ss 78A, 78B and 79, and schedule dictionary (definition of “wildlife”).
 T 1-16, lines 7 to 9.
 Ex 11, pages 9-10. Footnotes omitted.
 T 2-25, lines 21 to 23.
 EPBC Act s 3(1)(a).
 Ibid s 3(1)(c).
 Nature Conservation Act 1992 s 4.
 Ibid s 5.
 “Submissions of the Respondents on the question of whether the Land Court has jurisdiction to adjudicate the claim in trespass”, filed by the respondents on 8 July 2020.
 Common Provisions Act s 81(4).
 Ibid s 81(4)(ii).
 Ibid s 81(4)(iii).
 Ibid s 81(4)(v).
 (2016) 258 CLR 467, 479 . Citations omitted.
 Common Provisions Act s 3(a).
 Ibid s 3(d).
 Ibid s 9.
 Ibid s 6(1).
 P&G Act s 3(1)(a)(i).
 “Metadata: Nature Conservation Act Protected Plants EVNT Flora Species Records Spatial Layer Ver 6”, subpoenaed document 67 from the Department of Environment and Science, hearing bundle page 3013.
 “Briefing Note – Director: Review and Update of Protected Plants Flora Survey Trigger Map”, subpoenaed document 31 from the Department of Environment and Science, hearing bundle page 3008, page 1.
 Ibid 3009.
 Ex 13, page 28; T 2-70, line 41; T 2-72, lines 1 to 11; T 2-78, line 40 to T 2-79, line 5.
 Ex 11, page 32.
 Ex 13, pages 10-22; T 2-68; T 2-69, lines 1 to 5.
 See annexure 6 to ex 13.
 Land Court Act 2000 s 7(a).
 T 2-58, line 42 to T 2-59, line 4; T 2-59, lines 14 to 27.
 Ex 24, page 1.
 Ex 13, page 25.
 T 2-60, lines 19 to 46.
 Ex 13, page 28; T 2-71, lines 11 to 39.
 “Closing Submissions on behalf of the Applicants”, filed by the applicants on 17 June 2020 .
- Published Case Name:
Conway & Ors v Australia Pacific LNG CSG Transmissions Pty Ltd & Anor
- Shortened Case Name:
Conway v Australia Pacific LNG CSG Transmissions Pty Ltd
 QLC 26
17 Jul 2020