Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd
[2025] QCA 87
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- Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd[2025] QCA 87
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Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd[2025] QCA 87
Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd[2025] QCA 87
SUPREME COURT OF QUEENSLAND
CITATION: | Pembroke Olive Downs Pty Ltd v Namrog Investments Pty Ltd [2025] QCA 87 |
PARTIES: | PEMBROKE OLIVE DOWNS PTY LTD ACN 611 674 376 (applicant) v NAMROG INVESTMENTS PTY LTD ACN 120 177 148 (respondent) |
FILE NO/S: | Appeal No 12172 of 2024 LAC No 3 of 2023 LAC No 1 of 2024 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave Land Court Act |
ORIGINATING COURT: | Land Appeal Court at Rockhampton – [2024] QLAC 2 (Crow J, Clarke DCJ, Acting Member of the Land Court and Member Isdale) |
DELIVERED ON: | 30 May 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 March 2025 |
JUDGES: | Boddice and Brown JJA and Crowley J |
ORDERS: |
|
CATCHWORDS: | STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where the respondent is an owner of land the subject of a recommended approval for mining leases to facilitate a large open cut coal mine – where the applicant applied for the mining leases – where, in the proceedings of the Land Appeal Court, the respondent sought declarations as to what constitutes “restricted land” under s 68(1)(b)(i)(A) of the Mineral Resources (Common Provisions) Act 2014 (“the Act”) – where the definition of “dam” and “an area used for a dam” is in dispute – where the Land Court construed “dam” narrowly as the dam wall and necessary supporting works – where the Land Appeal Court construed “dam” more broadly to include both the dam wall and the area of land impounding water – where the applicant seeks leave to appeal the decisions of the Land Appeal Court – whether the Land Appeal Court erred in adopting a broad interpretation of “dam” for the purposes of the Act – whether the broader construction created uncertainty contrary to the legislative purpose of the Act – whether the broader construction is consistent with the text, context and purpose of s 68 of the Act – whether leave to appeal should be granted Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), s 68 |
COUNSEL: | S C Holt KC, with K McAuliffe-Lake, for the applicant G A Thompson KC, with D A Quayle, for the respondent |
SOLICITORS: | Allens for the applicant McCullough Robertson for the respondent |
- [1]THE COURT: On 2 August 2024, the Land Appeal Court allowed appeals from the Land Court as to the proper construction of s 68(1)(b)(i)(A) of the Mineral and Energy Resources (Common Provisions) Act 2014 (the Act).
- [2]The applicant seeks leave to appeal the decisions of the Land Appeal Court, contending that its construction of that section was erroneous in law and that leave to appeal should be granted, having regard to the significant impact of that construction on access to mineral resources across Queensland.
- [3]For the reasons set out below, we would refuse leave to appeal. No error of law is established in the construction given the by Land Appeal Court to the relevant statutory provision.
Background
- [4]The decision of the Land Appeal Court arose in the context of proceedings brought by the respondent, as owner of land the subject of a recommended approval for mining leases to facilitate a large open cut coal mine.
- [5]The applicant applied for the mining leases.
- [6]In the course of the proceedings, the respondent sought declarations as to what is “restricted land” in the event of a grant of the mining leases.
Legislative provision
- [7]Section 68 of the Act provides:
“What is restricted land
- Restricted land, for a production resource authority or exploration resource authority, means—
- land within 200m laterally of any of the following—
- a permanent building used for any of the following purposes—
- a residence;
- a childcare centre, hospital or library;
- a community, sporting or recreational purpose or as a place of worship;
- a business;
- an area used for any of the following purposes—
- a school;
- a prescribed ERA, under the Environmental Protection Act, that is aquaculture, intensive animal feedlotting, pig keeping or poultry farming;
- an area, building or structure prescribed by regulation; or
- land within 50m laterally of any of the following—
- an area used for any of the following purposes—
- an artesian well, bore, dam or water storage facility;
- a principal stockyard;
- a cemetery or burial place;
- an area, building or structure prescribed by regulation.
- Restricted land, for a resource authority other than a production resource authority or exploration resource authority, means land within 50m laterally of any area, building or structure mentioned in subsection (1).
- However, despite subsection (1), land is only restricted land for a production resource authority if the use of the area, building or structure mentioned in the subsection started before the application for the resource authority was made.
- In this section—
exploration resource authority means a resource authority that is—
- an exploration permit or mineral development licence under the Mineral Resources Act; or
- an authority to prospect under the P&G Act; or
- an authority to prospect under the 1923 Act; or
- a geothermal exploration permit under the Geothermal Act; or
- a GHG exploration permit under the Greenhouse Gas Act.
place of worship means a place used for the public religious activities of a religious association, including, for example, the charitable, educational and social activities of the association.
production resource authority means a resource authority that is—
- any of the following under the Mineral Resources Act—
- a mining claim;
- a mining lease; or
- any of the following under the P&G Act—
- a petroleum lease;
- a pipeline licence;
- a petroleum facility licence; or
- a lease under the 1923 Act; or
- a geothermal production lease under the Geothermal Act; or
- a GHG injection and storage lease under the Greenhouse Gas Act.
water storage facility—
- means an artificially constructed water storage facility that is connected to a water supply; and
- does not include an interconnecting water pipeline.”
- [8]A question relevant to the declarations as to restricted land was what is a “dam”, for the purposes of s 68 of the Act. A second question is, what is the meaning of “an area used for a dam” within the content of that provision.
Land Court decision
- [9]The Land Court held that, although there are two common meanings of the word “dam”, the preferable meaning of “dam” in s 68 of the Act is “the physical barrier installed to hold back water”. That meaning was preferred to the other meaning, being the barrier and the water it contains, on the basis that s 68 needs specificity, is directed towards infrastructure and is directed to the integrity of that infrastructure, not its use.
- [10]The Land Court found that the words “an area used for [the purposes of …] a dam”, included the dam wall and the necessary works required to support that wall, but do not include the area of land over the surface of which water flows and supplies water to the dam, or a water course along which water flows and supplies water to a dam.
Land Appeal Court decision
- [11]The Land Appeal Court found that the word “dam” in s 68 of the Act, had the broader definition, namely, the barrier and the area of land storing the water contained by the barrier. That definition was to be preferred as the purpose of s 68 was to provide some small degree of protection for the rights of a landowner and the provision was therefore a remedial provision that ought to be construed beneficially, in the interests of the landowner. Further, the ordinary use of the word “dam” includes not only its infrastructure, but the area of pondage created by the dam wall. Finally, the inclusion by the legislature of the different terms, “artesian well”, “bore” and “water storage facility”, were supportive of a broader, rather than a narrower, interpretation.
- [12]In accepting that broader definition, the Land Appeal Court accepted that a consequence was that there remained uncertainty as to where a dam commenced and a water course ceased, but found that uncertainty ought not to be used to prefer a construction of the word “dam” which did not follow its ordinary natural meaning.
- [13]Accordingly, the Land Appeal Court allowed the appeal finding that for the purposes of s 68(1) of the Act:
“(a) the words “an area used for … [the purpose of a] dam” in s 68(1)(b)(i)(A):
- do include:
- the dam wall and the necessary works required to support the dam wall.
- the area of land over which water is impounded by the dam wall when the dam is at maximum capacity.
- the water impounded by the dam.
- but do not include:
- an area of land over the surface of which water flows and supplies water to a dam; or
- a watercourse along which water flows and supplies water to a dam.”
Consideration
- [14]The principles of statutory construction are not in dispute. The text of s 68 of the Act is to be considered, in its context and in light of its purpose, to ascertain the true meaning of its statutory text.[1]
- [15]The applicant submits that the Land Appeal Court erred in law in adopting a broader construction of the words “a dam”. The construction adopted by the Land Court was to be preferred, as its interpretation required no implication of words into s 68 of the Act and afforded an interpretation which was practical and consistent with the statutory purpose and the text of the provision, in the context of the legislation as a whole.
- [16]Contrary to the applicant’s contentions, the interpretation adopted by the Land Appeal Court provides a certainty of meaning consistent with the statutory text, both in its words and in its context in the legislation, as a whole, having regard to the purpose of the statutory provision.
- [17]First, the definition of the word “dam” commonly includes “a barrier constructed to hold back water and raise its level, forming a reservoir or preventing flooding”.[2]
- [18]Second, the Act is to be read and construed with, among other Acts, the Mineral Resources Act 1989, the principle objectives of which include minimisation of land use conflict and the encouragement of a responsible land care management with respect to, relevantly, mining.
- [19]Third, s 68 of the Act is directed to land “uses” such that the purpose of the restricted land provision is to remedy interference with land uses from mineral exploration.
- [20]Fourth, s 68 defines “restricted land”, relevantly, as not merely land within a specified distance of a dam, but as land within the specified distance of “an area used for” the purposes of a dam. The inclusion of the words “an area used for … the purposes of … a dam” is consistent with the restricted land being more than the dam wall. That construction particularly arises when regard is had to the identification of other water holding infrastructure, such as artesian wells, bores and water storage facilities.
- [21]Fifth, the Land Appeal Court’s interpretation is more consistent with the purpose of the legislative provision which is, as the Land Appeal Court found, a provision intended by Parliament to provide a degree of protection for the rights of a landowner. Remedial provisions of that nature are properly to be construed beneficially. A beneficial construction is one that is in the interests of the landowner.
- [22]Sixth, the narrower interpretation adopted by the Land Court, gives no meaning to the words “an area used for … the … purposes”. The interpretation of a statute ought to afford meaning to each of the words contained within the statutory provision.
- [23]Finally, contextual considerations support a conclusion that there is no uncertainty by reason of an adoption of the broader definition of the word “dam”. The water carrying capacity of the dam is ascertainable. That capacity is what provides its use. That definition is consistent with other parts of the provision which use “an area used for the purposes of” is equally applicable to other circumstances such as an area used for the purposes of a “school”, which is referable not merely to a school building but would extend to the grounds that surround it such as school ovals. Contextually, the broader definition is consistent with the area used for the purposes of a dam being more than the infrastructure of the barrier, as the barrier acts in combination with other features of the land to impound the water.
- [24]The broader definition is also supported by the history of the legislation and the introduction of “restricted land” in s 68 of the Act. The Explanatory Notes for the Mineral and Energy Resources (Common Provisions) Bill 2014, where the concept of “restricted land” was first introduced, stated that “restricted land (or equivalent) provisions … afford protections to landholders in relation to resource activities proposed to be undertaken adjacent to residences and other infrastructure.”[3] The provision was also introduced to remove “the regulatory burden associated with determining which rules apply to a particular resource authority and the individual activities under those authorities” and manage conflicts where co-existence was not possible.[4] In the second reading speech introducing the 2016 amendments,[5] relevant to the present case, which extended the definition of restricted land to include “land within 50 metres of a principal stockyard, dam, bore or artesian well and artificial water storage connected to a water supply”,[6] the amendment to the new restricted land framework was said to “provide certainty to landholders that key infrastructure vital to their operations will be protected.”[7] It represents a compromise between the competing interests.
- [25]As was submitted by the respondent, the nature of the infrastructure outlined in s 68(1)(b) involves infrastructure where the landholder has made a capital investment. This is consistent with the parliamentary intention to protect landholders key infrastructure under the amendments to s 68(1)(b) of the Act. To confine the definition of dam to the dam wall rather than the adopting the broader definition of dam which would protect the purpose for which it was constructed and where mining could occur in the area exceeding 50 metres laterally from the “physical barrier installed to hold back water” but within the area where the dam water is impounded, would serve no utility and not offer such protection.
- [26]The applicant contended for the narrower definition because adopting the broader definition would sterilise a large tract of land and potentially coal from an opencut mine, and impinge on such a mine for no purpose because the dam would be inaccessible and would not be able to be used in any event by the fact that the Act does not extend protection to waterways that would feed the dam or interconnecting water pipeline excluded from a “water storage facility”.[8] There are a number of reasons why this does not support a narrower definition of dam being adopted.
- [27]First, as was recognised by the Land Appeal Court, the provision cannot be construed on the basis of its effect on the broader definition of an open cut mine or the effect of an open cut mine on the matters falling within the “restricted land”.[9] An open cut mine is however only one example of a production resource authority or an exploration resource authority which is affected by s 68 of the Act. In any event, the mining lease for an open cut mine does not provide exclusive possession and the landholder can continue to use the land until it is no longer possible due to the nature of the mining operation.[10]
- [28]Secondly, after the mining lease has ceased, provision is made in the Act which ensures that the land can again be used for its original purpose prior to the mining lease being granted. While that may be deferred for a number of years the preservation of the infrastructure would support the rehabilitation of the land and facilitate it being used for its original purpose.
- [29]Thirdly, s 68(1)(b)(i) is directed to preserving infrastructure and the purpose for which the infrastructure is used. That would have been the subject of capital expenditure by the landholder. As was recognised in the second reading speech there are other mechanisms to protect matters such as waterways and water channels, included in the Water Act 2000 (Qld) and under environmental authorities.[11] Interconnecting water pipelines of a dam are protected to the extent they are within the 50 metre restricted land area.[12] The exclusion of interconnecting water pipelines otherwise is consistent with the compromise between the rights of resource companies and the landholders given the potential for the water pipelines to extend for several hundred kilometres.[13] That does not however support the narrower definition of the dam in s 68. These considerations support a conclusion that the Land Court erred in placing reliance upon infrastructure, rather than use, when favouring the narrower construction for the words “a dam”. Section 68, by its terms, differentiates between structures and areas used for the purposes of designated facilities.
Conclusion
- [30]No error of law is established in the interpretation given by the Land Appeal Court, to s 68(1) of the Act.
Orders
- [31]The Court orders:
- Leave to appeal be refused.
- The applicant pay the respondent’s costs of the application for leave to appeal.
Footnotes
[1]Thiess v Collector of Customs (2014) 250 CLR 664 at [22]–[23]; SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20], [41] and [64].
[2]Concise Oxford English Dictionary; Oxford Australian English Dictionary.
[3]The Explanatory Notes for the Mineral and Energy Resources (Common Provisions) Bill 2014 at p 5.
[4]“Mineral and Energy Resources (Common Provisions) Bill” 2014 at p 6.
[5]Which were introduced in response to the Infrastructure, Planning and Natural Resources Committee (Report No 26 of the 55th Parliament) “Mineral and Other Legislation Amendment Bill 2016” (Report no 26).
[6]Mineral and Other Legislation Amendment Bill Second Reading Speech, 4 May 2016 at p 1946.
[7]Mineral and Other Legislation Amendment Bill Second Reading Speech, 4 May 2016 at p 1942.
[8]s 68(1)(b)(i)(A) of the Act.
[9]Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd [2024] QLAC 2 at [10].
[10]See for example, Barrett v Weir and Gregcarbil Pty Ltd [2009] QLC 182 at [26].
[11]Mineral and Other Legislation Amendment Bill Second Reading Speech, 4 May 2016 at pp 1943-1944 and 1960.
[12]Mineral and Other Legislation Amendment Bill 2016 Explanatory Notes at p 9.
[13]Report no 26 at p 497.