- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
22 June 2012
8 May 2012
I declare void the decision of the first respondent to grant a part 5 permission pursuant to s 467 of the Act made on 17 February 2012 over Lot 5 WK 207 owned by the applicant.
ENERGY AND RESOURCES – GAS – PIPES AND MAINS – GENERALLY – where the second respondent has a point-to-point licence to build a pipeline which will pass over the applicant’s rural property – where the second respondent applied for a part 5 permission to enter the land owned by the applicant to construct or operate a pipeline – where the material before the Minister at the end of the consultation period did not accurately identify the land to which the part 5 permission related
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – GENERALLY – where the consultation notice did not specify the land over which part 5 permission was sought – where this information was only received two business days before the end of the 20 business days’ consultation period – whether the applicant was appraised of the land that was the subject of the application – whether the applicant was given sufficient opportunity to make submissions about the specific piece of land which was the subject of the part 5 permission application – whether there would have been a different result had the applicant been appraised of the subject land from the time of the delivery of the consultation notice
Judicial Review Act 1991 (Qld)
Petroleum and Gas (Production and Safety) Act 2004 (Qld)
Annetts v McCann (1990) 170 CLR 596
Hansen Yuncken Pty Ltd v Ian James Erickson  QSC 327
Kioa v West (1985) 159 CLR 550
Queensland Police Credit Union Ltd v Criminal Justice Commission  1 Qd R 626
Re Minister for Immigration and Multicultural Affairs; ex parte “A”  HCA 77
Upham v The Grand Hotel (1999) 74 SASR 557
Mr A J H Morris QC for the applicant
Mr S Hornemann-Wren SC, with Mr A Scott for the first respondent
Mr T P Sullivan SC, with Mr S S Hooper for the second respondent
Creevey Russell for the applicant
Crown Law for the first respondent
Corrs Chambers Westgarth for the second respondent
 This is an application for a statutory order of review – s 20 Judicial Review Act 1991 (Qld). Various grounds are advanced in the application. Nonetheless, counsel for the applicant conceded he could not succeed unless he showed that the first of them – which alleges a breach of the rules of natural justice in the making of the decision complained of – s 20(2)(a) Judicial Review Act – is made out. While he did not formally abandon them, he did not advance the other grounds in the application.
 QCLNG has permission – a point-to-point licence – to build a pipeline from the Surat Basin to Gladstone, a distance of several hundred kilometres. The pipeline will pass over the applicant’s rural property.
 Section 463(1) of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (the Act) provides:
“A person who holds, or who has applied for, a pipeline licence may apply for permission (a part 5 permission) to enter the area, or proposed area, of the licence to construct or operate a pipeline the subject of the licence or proposed licence.”
 A point-to-point licence is a variety of pipeline licence as defined. QCLNG applied for a part 5 permission to enter the land owned by the applicant to construct or operate a pipeline. Section 465 of the Act makes provisions for notice to, and consultation with, owners of land by an applicant for a part 5 permission. There is a consultation period of 20 business days’ minimum length. At s 467 of the Act it is provided that the Minister may, after the consultation period has ended, grant or refuse the part 5 permission sought, and may impose conditions on the part 5 permission. Section 468 of the Act provides that the Minister may grant a part 5 permission only if satisfied of certain things.
 In this matter, the following events occurred:
(a) 16.1.12QCLNG gave the applicant a consultation notice;
(b) 20.1.12QCLNG made an application to the Minister for a part 5 permission;
(c) 24.1.12QCLNG gave a copy of its application to the applicant’s lawyers;
(d) 14.2.12the applicant made a submission to the Minister objecting to the granting of the part 5 permission. This was the last day of the consultation period;
(e) 15.2.12supplementary submissions were provided to the Minister by QCLNG;
(f) 17.2.12the Minister decided to grant part 5 permission.
 The complaint advanced by the applicant is that he never received the material in the supplementary submission provided by QCLNG to the Minister on 15 February 2012, and in particular, the material in that submission which specifically identified the land over which the part 5 permission was sought.
 As already stated, QCLNG has a point-to-point licence. This is something obtained on application to the relevant Minister – see ss 409-410 of the Act. The Act contemplates that to obtain a point-to-point pipeline licence an applicant will, as part of the application, give the pipeline’s terminal points and a description of land in the area of the proposed licence – s 409(c) of the Act. If the licence is granted, the licence‑holder is obliged to construct the pipeline – s 412(1)(b) and s 419 of the Act.
 Granting a pipeline licence does not create an easement for the construction or operation of the pipeline – s 399(2). What is contemplated is that someone applying for a pipeline licence includes in that application a statement about how it intends to consult with owners of land over which the pipeline is to be constructed – s 409(d). Then, after a licence is granted, the licence-holder has an obligation to consult with owners of “access land” on which it wishes to carry out the authorised activities of the licence (for example, building a pipeline) – s 418. Eventually the point-to-point pipeline will be constructed and operated on “pipeline land for the licence” – s 401(1)(a). Pipeline land, as defined, is land which the licence-holder either: (a) owns; (b) holds an easement over; (c) has the owner’s permission to enter onto to construct and operate the pipeline, or (d) holds a part 5 permission over, allowing it to enter, construct and operate the pipeline – s 399(1). The idea behind the scheme is that during the s 418(1) consultations with the owners of land over which the pipeline will run, those land-owners either sell their land to the licence-holder; grant an easement to the licence-holder, or come to terms with the licence-holder, allowing it to construct and operate the pipeline. If none of those things occur, the licence-holder will need to seek a part 5 permission in relation to the land over which it has been unable to reach agreement with the owner.
 In this case, attempts to reach an agreement with Mr Baker failed and QCLNG applied for a part 5 permission – s 463 of the Act.
 Chapter 4, Part 5, Div 1, of the Act regulates applications for a part 5 permission. The applicant must submit an approved form which, inter alia, states the steps it has taken to either buy, buy an easement over, or come to terms with the owner of the land in question – s 464 of the Act.
 Section 465 of the Act provides:
“Notice to owners about application
(1)The applicant must give each owner of the land notice (a consultation notice) of the application.
(2)The consultation notice must describe the land and state—
(a)the purpose of the proposed part 5 permission; and
(b)any conditions the applicant proposes for the part 5 permission; and
(c)a period (the consultation period) during which—
(i)the applicant will consult with each owner about the proposed permission and the conditions; and
(ii)an owner may lodge submissions about the proposed part 5 permission and the conditions …
(3)The consultation period must end at least 20 business days after each owner has been given the consultation notice.
(4)The period may be extended by agreement between the applicant for the part 5 permission and the owner.”
 Section 467 gives the Minister power to grant or refuse the part 5 permission, with or without conditions.
 Section 468 of the Act then goes on to provide:
“Criteria for decision
(1)The Minister may grant the part 5 permission only if satisfied of each of the following—
(a)the applicant has given each owner of the land a consultation notice and the applicant has shown that each owner of the land has received the notice;
(i)the consultation period has ended and the Minister is reasonably satisfied the applicant has made reasonable attempts to consult with each owner of the land; or
(ii)before the end of the consultation period each owner of the land has—
(A)agreed to the grant of the part 5 permission; or
(B)given the applicant permission to enter the land;
(c)the applicant has decided the site of the pipeline or facility;
(d)it is reasonable to site the pipeline or petroleum facility on the land;
(e)the land the subject of the part 5 permission is the minimum area needed for the permission;
(f)the granting of the part 5 permission is in the public interest.
(2)In deciding the application any submissions lodged by an owner of the land during the consultation period must be considered.”
 Additionally, s 469 of the Act provides:
“Statement of proposed resumption may be included
The part 5 permission may include a statement that the State intends to resume the land the subject of the permission if the land is not, other than because of the permission, pipeline land or petroleum facility land for the licence, or proposed licence within 9 months after the permission takes effect.”
 The parties to this application were not at odds as to the general principles to be applied in determining it. What was in dispute was the practical effect of those principles, having regard to the Act and circumstances of this case. In Kioa v West Mason J said:
“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. … What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting. …
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”
 Broadly speaking it can be seen that a part 5 permission is obtained after an application is made; a consultation notice is given; reasonable attempts at consultation have occurred; the owner of affected land has had an opportunity to lodge a submission with the Department, and the Minister makes a decision. The process is not an adversarial one. It is an administrative process, not a judicial or quasi-judicial one. The Minister does not determine as between the applicant for a part 5 permission on the one hand, and a land-owner on the other, who is right and who is wrong, but makes a decision having regard to a number of matters including the application made by the pipeline licensee, and the owner’s submissions. The Minister decides the matter for himself or herself after giving appropriate consideration to material which the Statute mandates for consideration. Some matters, such as the public interest, are very broad and no doubt the Minister will, as appropriate, obtain his or her own information and seek his or her own advice as to such matters. It could not be thought that the Minister was limited to the information presented by the applicant licensee and the objecting land-owner.
 There is no statutory requirement that a copy of the application as lodged be provided to the land-owner. There is no statutory requirement that the submissions lodged by a land-owner be provided to the applicant licence-holder. There are matters such as the public interest – s 468(1)(f), and whether or not it is reasonable to site the pipeline on the land – s 468(1)(d), which may well be the subject of information and advice to the Minister which is not provided by, or to, either the applicant licensee or the land-owner. In this respect it is worthy of note that in the submission lodged by Mr Baker’s solicitors, what was said about the public interest consideration included, “Our client does not have the resources to either confirm or deny the benefits of QGC’s project to the public in general.”
 Having regard to the statutory provisions, I do not see that they create an obligation, such as might be found in adversarial or quasi-judicial proceedings, to ensure that both the licence‑holder and the land-owner are provided with all the information considered by the Minister and have the opportunity to comment on all the information provided to the Minister.
 However, as argued, the applicant Mr Baker does not in this application complain that he was not provided with all information which the Minister considered in deciding to grant the part 5 permission; nor does he complain that he was not given a chance to comment on it. He limits himself to one particular complaint. He says that the material before the Minister, as at the end of the consultation period, did not with any accuracy identify the land to which the part 5 permission related. That matter was only clarified after the end of the consultation period, between QCLNG and the Department, and as a result, he was never given an opportunity to make submissions about the specific piece of land the subject of the part 5 permission application.
 One might have thought that identifying the land the subject of the part 5 permission sought was a matter fundamental to an application for part 5 permission. The statutory provisions bear that out. In deciding an application for part 5 permission the Minister must be satisfied that: the applicant licence-holder has decided the site of the pipeline or facility – s 468(1)(c); it is reasonable to site the pipeline on that land – s 468(1)(d), and further, that the land the subject of the part 5 permission is the minimum area needed for the permission – s 468(1)(f). Section 465(2) provides that the consultation notice given to the land-owner must describe “the land”. In my view, that word “land” must mean the land the subject of the part 5 permission sought, or in other words, land which will become pipeline land if the part 5 permission is granted. The applicant and first respondent on this application both submitted that was the proper meaning of the word “land” in s 465(2). Having regard to the purpose of the provision; the provisions at ss 468(1)(c), (d) and (f), and the inutility of the Act’s prescribing that the consultation notice inform the land‑owner of the real property description of his entire lot or lots of land, my view is that the word “land” should be so read.
 The purpose of a part 5 permission application is to grant the pipeline licence-holder rights over what will become pipeline land, a very substantial interference with the proprietor’s rights. That interference has the potential to be even greater – see the provisions of s 469 (above) – and I note in this case that the applicant requested the Minister include a statement in the part 5 permission granted that the land would potentially be resumed.
 The owner of land the subject of a part 5 permission differs from someone in the position of the plaintiff in the matter of Upham v The Grand Hotel, to which I have made reference. The plaintiff in Upham was an objector in a town planning dispute. This role or status, was regarded by the Full Court in Upham as “significantly different” from the plaintiff in Kioa v West whose procedural rights were directly affected by the decision about which complaint was made. In this case, Mr Baker’s property rights were directly affected if a part 5 permission were granted. This must bear upon the scope and content of the requirements of natural justice in this particular case. There could be no utility in statutory provisions requiring that Mr Baker be consulted with, and be given an opportunity to lodge submissions about, land which the applicant licensee sought as pipeline land if Mr Baker was not properly appraised of what land was the subject of the application. Mr Baker needed to be appraised of this in order that the consultation notice, the consultation period, and the opportunity to make submissions to the Minister, amounted to a meaningful exercise.
Notice of Land the Subject of the Application
 Remarkably enough, the application lodged on behalf of QCLNG did not contain a precise description of the land over which part 5 permission was sought, either in words, or in the two maps which were part of the application. It contained the following statement:
“1.12In addition, QGC has already realigned the route of the pipeline on the Property (in accordance with Mr Baker’s requests), at significant extra cost, in order to accommodate Mr Baker’s future plans for the Property.”
 The realigned pipeline was nowhere shown on the material in the application and the map showing the original pipeline was at such a scale as to be meaningless to someone trying to ascertain where exactly the proposed pipeline land would run over Mr Baker’s property. The realigned pipeline is shown on the document which is exhibit 1A before me.
 The consultation notice sent to Mr Baker on 16 January 2012 also did not describe the land over which part 5 permission was sought.
 The s 465(2)(c) submission lodged by Mr Baker’s solicitors was seven pages long and raised many points. Most energy was devoted to complaining that Mr Baker did not have specific information as to details of the construction and operation of the pipeline, that is, to matters which do not concern me on this application. At page 5 of the submission Mr Baker said:
“(c)the applicant has decided the site of the pipeline or facility
The mapping provided by QGC does not accurately or adequately indicate where the pipeline will be located on the Property. Our client has not been provided with any specific survey details of the pipeline and the interests to be registered over his Property. We have, on numerous occasions, requested specific and final easement alignment details. To date the only information provided to our client has been mapping at insufficient scale to determine the exact location of the Pipeline.
QGC and our client have agreed to a Relocation of the pipeline corridor. Our client would have preferred a further realignment of the corridor but QGC was not willing to amendment [sic] its requisite approvals to facilitate our clients preferred alignment. However, the alignment was realigned to reduce some of the disturbance to our client’s Property after significant negotiation. However, the details of this realignment, in terms of detailed survey points are yet to be provided to our client. To our knowledge, QGC has not accurately pegged the corridor or the realignment despite our client being willing to facilitate such activities.”
 The submission on behalf of the land-owner was drafted by solicitors and the reference to subparagraph (c) and the heading in the above extract should be seen as a reference to s 468(1)(c) of the Act.
 Mr Baker’s solicitor filed an affidavit swearing that in about November 2011 he was provided, “with a map by the second respondent for an agreed realignment of the pipeline through” Mr Baker’s property. The map exhibited to his affidavit as answering this description is one which is similar to, but not identical with, the map which is exhibit 1A, that is, the two maps show two different locations of the proposed pipeline land.
 Mr Baker’s solicitor further exhibits an open offer by lawyers acting for QCLNG (not QCLNG’s current solicitors) to lawyers acting for Mr Baker during the consultation period under s 465(2)(c) of the Act. Under the heading, “Alignment” that letter of offer says:
“QGC made significant concessions to Mr Baker by agreeing to realign the route of the pipeline on the Property (within the corridor footprint of its infrastructure facility of significance approval) and agreeing to bury the pipeline deeper than originally intended, despite the significant extra cost QGC will incur as a result.
The alignment of the easement will be as agreed with your client. However, in the event that your client does not accept QGC’s offer, and the parties are unable to reach voluntary agreement, QGC may elect to request that the Coordinator General or Minister grant QGC the right to construct the Pipeline in accordance with the original route.”
 Solicitors for Mr Baker replied on 9 February 2012 saying:
“We note that QGC’s ‘open offer’ does not include the provision of stock fencing along the easement as has been previously offered in ‘without prejudice’ correspondence. It is our client’s instructions that the fencing of the easement is essential to the security of the property and the health and welfare and ongoing management of livestock. The current easement is for 40 metres. We believe that we have a general agreement of the location of the easement however precise details have never been provided to our client.”
 The next day, 10 February 2012, solicitors for QCLNG replied saying, “We note your comment that there is ‘general agreement of the location’ of the easement. We attach a plan showing the route in accordance with your request.” Attached to that letter was a map (M_11232_04) which shows the same pipeline detail as is shown on exhibit 1A, and shows the same geographical co-ordinates as shown on exhibit 1A. These co-ordinate points are a sufficiently precise description of the proposed pipeline land to enable it to be gazetted, and therefore I conclude they are sufficiently precise for the purpose of Mr Baker making meaningful submissions during the consultation period in the part 5 permission process.
 On 13 February 2012 solicitors acting for Mr Baker replied to the letter of 10 February 2012. This letter in substance raised concerns about lack of detail as to the construction of the pipeline and says, that in light of QCLNG’s failure to provide information as to the construction of the pipeline on the easement, and QCLNG’s unwillingness to negotiate in good faith as regards the easement agreement, Mr Baker had no option but to lodge a submission in objection to QCLNG’s part 5 permission application. Such an objection was lodged the next day, the last possible day under s 465(2)(c)(ii); the last day of the statutory consultation period.
Dealings Between the Department and QCLNG
 The Department’s briefing paper to the Minister said this as to the imprecision demonstrated in QCLNG’s part 5 permission application (in the context of Mr Baker’s objection):
“53.Mr Baker’s submission states that, in relation to the material supplied by QGC in its application (page 6):
(a)The mapping provided of the easement is inaccurate.
54.With regard to [53(a)], the original maps provided in the application were insufficient to decide the application. As such, departmental officers requested more detailed maps from QGC and these were provided, including shape files (email correspondence, 15 February 2011). However, it was open to Mr Baker to point out any inaccuracies he believes existed in the maps QGC provided.”
 In its supplementary submissions of 15 February 2012, QCLNG said:
“24.QGC has been asked by DEEDI to provide a map showing the original pipeline route, realigned route (final) and the easement area required for the part 5 permission indicating easement area dimensions, co-ordinates and a shape file of the easement.
25.The maps attached at tab 7 of this supplementary brief show both QGC’s preferred alignment route and the revised alignment route, easement area, coordinates and shape files. Shape files of the preferred alignment and revised alignment for the easement have been separately emailed … on 14 February 2012.”
The map referred to in this extract was the same as exhibit 1A.
 Having received the supplementary submissions of 15 February 2012, departmental officers emailed solicitors then acting for QCLNG saying:
“For the sake of clarity, can you please confirm that the area of QGC’s part 5 permission application is: a corridor 40 m wide centred upon the line segments joining the co-ordinates provided in the map, ‘QCLNG Export Pipeline proposed easement location’, dated 14/2/2012, Map No: M_10505_06 (provided at Attachment 7 to the supplementary submission).”
 Confirmation in those terms was provided later that day by solicitors then acting on behalf of QCLNG. It was not until this confirmation was received that the Department had a clear statement from QCLNG as to the land over which it sought part 5 permission. Not only did the original application not specify this land but when it was specifically asked by the Department, its first supplementary submissions of 15 February 2011 (notwithstanding their length) did not state this fundamental proposition.
 It was urged upon me that in deciding this dispute I should bear in mind that procedural fairness is not an abstract concept, but is essentially practical, the concern being to avoid practical injustice. It was said that at all material times Mr Baker well knew what the land was, over which part 5 permission was sought. If I were convinced that that were so, I would need to consider what, if any, practical injustice was done by the fact that the application to the Minister lodged by QCLNG and the consultation notice did not contain a description of the land over which part 5 permission was sought. However, I am not convinced on the material before me that Mr Baker did know what that land was, in sufficient time that it could be said he was afforded procedural fairness. He received a map similar to, but not identical with, exhibit 1A in November 2011. However, neither the application for part 5 permission nor the consultation notice stated that that was the land over which QCLNG made application for part 5 permission. Not only that, but the second paragraph of the letter of open offer, extracted at paragraph 29 above, and written towards the end of the consultation period, threatens that if Mr Baker does not come to terms with QCLNG, QCLNG will not seek part 5 permission in relation to the (still ill-defined) realigned pipeline route, but in relation to the original pipeline route. How such a thing could be said at such a late stage in the consultation period is difficult to understand. But at the very least, it must, objectively, raise doubts as to what land was the subject of the part 5 permission application.
 In his letter of 9 February 2012 to QCLNG’s solicitors, Mr Baker complains that he does not know the details of “the easement”, which I interpret as meaning the land over which part 5 permission is sought. On 10 February 2012, a Friday, two business days before the end of a 20 business day consultation period, he is provided for the first time with the accurate details of the land over which part 5 permission is sought. In his objection to the Minister, lodged two days later, he complains that he does not have the accurate details of this land. Whether this complaint is because the objection had been drafted before the receipt of the map sent on 10 February 2012, or for some other reason, I do not know.
 In this objection Mr Baker takes another point, that the pipeline route has not been pegged out on his property. Similarly, on this application Mr Baker swears:
“Prior to the 14 February 2012 and at the end of the ‘consultation period’ under section 465(3) of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (“the Act”), I was unable to accurately locate the alignment of the pipeline easement on my property because the mapping provided by the second respondent was of insufficient scale and detail.
… Additional information contained in the supplementary brief, namely GPS points, have never been demonstrated to me on the property and I am unable to confirm the accuracy of the provided GPS points and the agreed realignment of the pipeline easement on the property.”
 As I say at paragraph 31 above, once Mr Baker had a map in terms of exhibit 1A, I am satisfied that he had sufficient information to understand what land was the subject of the part 5 permission application. I do not think he had any right to have QCLNG peg the route of the pipeline over his property, or otherwise have the pipeline route or proposed part 5 land demonstrated to him on the ground. Nonetheless, I do think he had a right to be told precisely what land was the subject of the part 5 permission application. He complains that he was not told this, both in his objection to the Minister and in his affidavit. I find that he was, but only on 10 February 2012.
 By s 465(2), the consultation notice to be given to Mr Baker should have specified the land over which part 5 permission was sought. Even if I am wrong in my interpretation of the words “the land” in that subsection, my view would remain the same – a land-owner needs to know this in order to render the consultation mandated by the Act meaningful. The consultation period mandated by the Act is 20 business days. Mr Baker did not receive a most fundamental piece of information about the proposed part 5 permission until two business days before the end of the consultation period. The property is a rural one, near Eidsvold. The distance over which the pipeline is proposed to run across Mr Baker’s property is considerable. I am not persuaded that there was sufficient time for Mr Baker to understand the import of the information as to the proposed part 5 land in the two business days available to him. I am not persuaded that had Mr Baker been properly appraised of the subject land, as he should have been from the time of the delivery of the consultation notice, there might not have been a different result.
 In a sense the submissions in the briefing paper to the Minister highlight the lack of procedural fairness to him – see the extract at paragraph 33 above. The final sentence asserts that it was open to Mr Baker to point out inaccuracies in the maps attached to QCLNG’s application. As a matter of practicality that could not have been done given the scale of the maps, and in any case, the maps provided did not show the land over which part 5 permission was sought.
 I declare void the decision of the first respondent to grant a part 5 permission pursuant to s 467 of the Act made on 17 February 2012 over Lot 5 WK 207 owned by the applicant.
 I will hear the parties as to costs.
 t 43.
 Section 404 Petroleum and Gas (Production and Safety) Act 2004 (Qld).
 (1985) 159 CLR 550, 584-585. See also Annetts v McCann (1990) 170 CLR 596, 598-599.
 cf Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 -.
 Above, .
 Upham (above) -.
 These were dealt with in three subparagraphs on page 2 of the submissions and 16 subparagraphs on pp 2-3 of the submissions and then again at eight subparagraphs on pp 4-5 of the submissions.
 Ex parte Lam (2003) 214 CLR 1, 13.
 Hansen Yuncken Pty Ltd v Ian James Erickson  QSC 327 ; Re Minister for Immigration and Multicultural Affairs; ex parte “A”  HCA 77, , and see Queensland Police Credit Union Ltd v Criminal Justice Commission  1 Qd R 626, 632-634, per McPherson JA.
- Published Case Name:
Baker v Minister for Employment Skills and Mining & Anor
- Shortened Case Name:
Baker v Minister for Employment Skills and Mining
 QSC 160
22 Jun 2012
- White Star Case:
No Litigation History