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Baralaba Coal Pty Ltd (administrators appointed) v Stephenson[2015] QLC 49

Baralaba Coal Pty Ltd (administrators appointed) v Stephenson[2015] QLC 49

LAND COURT OF QUEENSLAND

CITATION:

Baralaba Coal Pty Ltd & Anor (administrators appointed) v Paul Stephenson and Chief Executive, Department of Environment and Heritage Protection [2015] QLC 49

PARTIES:

Baralaba Coal Pty Ltd (administrators appointed) & Wonbindi Coal Pty Ltd (administrators appointed)

(applicants)

 

v

 

Paul Stephenson

(respondent)

and

Chief Executive, Department of Environment and Heritage Protection

(co-respondent)

FILE NO:

EPA054-15

DIVISION:

General Division

PROCEEDING:

Objections decision under s 190 Environmental Protection Act 1994

DELIVERED ON:

15 December 2015

DELIVERED AT:

Brisbane 

HEARD ON:

23, 24 November 2015

HEARD AT:

Brisbane

MEMBER:

WA Isdale

RECOMMENDATION:

The application be approved on the basis of the draft environmental authority for the application.

CATCHWORDS:

Draft environmental authority – objections – hearing – recommendation – recommendation by Land Court

Environmental Protection Act 1994, ss 185, 188, 190, 194

State Development and Public Works Organisation Act 1971

State Development and Public Works Organisation and Other Legislation Amendment Act 2015, s 9

BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107

APPEARANCES:

P Ambrose QC for the applicants

P Stephenson, respondent in person

S Barclay for the co-respondent

SOLICITORS:

McCullough Robertson for the applicants

Background

  1. [1]
    Baralaba Coal Pty Ltd (administrators appointed) and Wonbindi Coal Pty Ltd (administrators appointed) (applicants) made application for an amended environmental authority relating to mining activity. A total of 26 submissions and three subsequent objection notices were accepted by the administering authority.
  2. [2]
    In accordance with s 185(1) of the Environmental Protection Act 1994 (the Act), the administering authority referred the objections to this Court for an objections decision hearing as referred to in s 188(1) of the Act.

The nature of the objections decision

  1. [3]
    Section 190(1) of the Act provides that the Court’s objections decision for the application “must be a recommendation to the administering authority”. The section goes on to set out what the recommendation must be; for instance that the application be approved on the basis of the draft environmental authority for the application, that it be approved on stated different conditions or that the application be refused. The Court may only make a recommendation; s 194 of the Act then requires the administering authority to make a final decision on the application.

The referral to the Land Court

  1. [4]
    The referral of objections to the Court under s 185 of the Act duly occurred and the relevant material was filed in the Court on 17 February 2015.
  2. [5]
    On 23 March 2015 the applicants filed a general application seeking to have some grounds of objection struck out. On 26 March 2015, two of the objectors, James Kenneth Stephenson and Claudia Stephenson advised the Court that they would not be proceeding and were withdrawing their objections. This reduced the number of objectors to one.
  3. [6]
    On 30 March 2015, the Court made orders to progress the hearing of the applicants’ general application and set it down for hearing on 22 April 2015. At the hearing the parties were ordered to make their final submissions in accordance with a timetable concluding on 6 May 2015.
  4. [7]
    On 30 June 2015 the Court reviewed the progress of the matter and, with the parties’ consent, set a further review of progress for 27 July 2015. Following a decision of the Supreme Court in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors,[1] an effect of which was to indicate that Members of this Court would be without the judicial immunity from suit in matters such as the present, the Court was prevented from progressing the matter from the date of the Supreme Court’s decision on 5 May 2015 until the Legislature passed Act 8 of 2015, which commenced on assent on 22 July 2015. That Act, the State Development and Public Works Organisation and Other Legislation Amendment Act 2015, provided, by s 9, that the usual protection and immunity would apply in administrative matters such as the present as if it were a court proceeding. This Court, as a result of the decision of the Supreme Court, was unable to proceed substantively with the present matter from 5 May until 22 July 2015 when legislation restored its freedom to proceed. Without the protection provided from 22 July 2015, an objective onlooker might have doubted the Court’s ability to make objective decisions when Members making those decisions could be sued by those affected by them.
  5. [8]
    On 27 July 2015, after the 11 week delay caused by the need for legislation to be passed to correct the anomalous legal position, the Court set a new timetable for progress and a date for hearing of oral submissions on the applicants’ general application. That hearing was set for 1 September 2015.
  6. [9]
    At that hearing, Queen’s Counsel for the applicants told the Court that the applicants wished to discontinue their general application, which they had filed on 23 March 2015.
  7. [10]
    The transcript from that day records, at page 3, the following:

“HIS HONOUR:  … Mr Ambrose, just to ensure that I have the picture clear it was your client that brought the application to have various grounds struck out in the objection. That was brought in [sic] some six months ago?

MR AMBROSE:  Yes.

HIS HONOUR:  And it’s now not being pursued?

MR AMBROSE:  That’s so.

HIS HONOUR:  All right. But you nevertheless now wish to have the matter dealt with as expeditiously as possible?

MR AMBROSE:  That’s so.”

  1. [11]
    The change of approach by the applicants and the arrival at that time of Queen’s Counsel representing them, along with the legislative change, allowed the substantive hearing to be progressed.
  2. [12]
    The respondent, previously legally represented, filed a notice in Court on 21 September 2015 that he was henceforth acting for himself. On 29 September 2015, he filed a general application seeking to reduce his participation to that of an objector who simply relies on his objection rather than one who participates fully in a contested hearing of his objections. On 15 October 2015 he advised the Court of a reversal of that decision and asked that his general application be withdrawn. The Court made appropriate orders on that same day.
  3. [13]
    With the scheduled hearing set to commence on 23 November 2015, the respondent filed a general application on 19 November 2015. The hearing dates had been set down in the Court’s orders of 1 September 2015. The respondent sought to have the hearing dates abandoned and new dates set, not earlier than 3 December 2015.
  4. [14]
    The progress of this matter, of which only some of the highlights have been set out, illustrates the Court’s active management of the task referred to it and the things which consumed time, as well as the sources of those things and how they were resolved.
  5. [15]
    When the hearing commenced on 23 November 2015, the general application to delay commencement of the substantive hearing was heard first and was dismissed, with reasons for that decision given extempore. The substantive hearing occupied two days of Court time.

What must be considered by the Court for the objections decision

  1. [16]
    Section 191 of the Act provides as follows:

Matters to be considered for objections decision

In making the objections decision for the application, the Land Court must consider the following—

  1. (a)
    the application;
  1. (b)
    any response given for an information request;
  1. (c)
    any standard conditions for the relevant activity or authority;
  1. (d)
    any draft environmental authority for the application;
  1. (e)
    any objection notice for the application;
  1. (f)
    any relevant regulatory requirement;
  1. (g)
    the standard criteria;
  1. (h)
    the status of any application under the Mineral Resources Act for each relevant mining tenure.

The “standard criteria” is defined in Schedule 4 of the Act.

  1. [17]
    The Court has considered all of these matters and in connection therewith derived much assistance from the 14 volumes of material provided by the statutory party, the co-respondent, which was represented at the hearing.

The project

  1. [18]
    The applicant companies are wholly owned subsidiaries of Cockatoo Coal Limited, a public company listed on the Australian Stock Exchange in 2005. The applicant companies appointed administrators on 16 November 2015.[2]
  2. [19]
    The amendment application for an environmental authority (EA) relates to the proposed expansion of the existing Baralaba Coal Mine, which is located about 5 km north of the township of Baralaba. The existing EA allows for extraction of coal up to 1 million tons per annum of run-of-mine coal. The proposed Baralaba North Continued Operations Project contemplates expanding production to 3.5 million tons per annum.
  3. [20]
    This is part of the Baralaba Expansion Project, a prescribed project under the State Development and Public Works Organisation Act 1971. The project includes a new Train Loadout Facility (TLOF). Coal would be trucked to this point.
  4. [21]
    On 18 December 2014 a draft EA was issued approving the amendment application and in essentially the same terms as the previous approval but up-dated to the latest form.

The grounds for objection

  1. [22]
    At the outset of the hearing, the Court devoted some time to ensuring that everyone present shared a common understanding of the exact terms of the objections before the Court as significant parts of objections previously made had been abandoned by the respondent. Despite this, final resolution of the extent and terms of the objections remaining for the attention of the Court was only achieved late on the second day of the hearing. The objections are as follows:

“The application for amendment of environmental authority (mining activity) for the Baralaba North Continued Operations Project (EPML00223213) should not be accepted and Draft Environmental Authority EPML00223213 should be withdrawn on the following grounds:

 General Objections

  1. The applicant, Cockatoo Coal Limited, faces severe financial distress, large losses and liabilities, a high risk of collapse of funding, and risks being placed in financial administration and liquidation;
  1. The applicant, Cockatoo Coal Limited (CCL) does not have the financial or technical capabilities to carry on mining operations at the proposed location of the activities;
  1. The proposed Project (Baralaba North Continued Operations Project) is not financially or economically viable;
  1. In the event that the Project is given permission to cause environmental harm, initially proceeds, and later fails financially, with the proponent being placed in financial administration and liquidation, liabilities and responsibilities for rehabilitation of the mine fall with the State;
  1. There is currently no effective regulatory regime at national or State level to adequately deal with the rehabilitation requirements of abandoned mines whose owners have been liquidated, and these abandoned mines are left with rehabilitation requirements unfulfilled;
  1. There is a high risk that the proponent will not be able to fulfil it’s rehabilitation requirements, and that, if approval is granted the mine site will be left with rehabilitation requirements unfulfilled;
  1. In order to satisfy the standard criteria, including the precautionary principle, intergenerational equity and conservation of biological diversity and ecological integrity, the above matters should be taken into consideration in any decision regarding the approval of this application for amendment of environmental authority.

 Economic Impacts

  1. Potential benefits of the project have been overestimated
  1. Potential costs and negative impacts of the project have been minimized or ignored
  1. The proponent presents an unrealistically optimistic case for the project financial viability, including low cost of production and capital, high coal prices, unreasonably optimistic view of ability to fulfil take-or pay contracts and accelerated timeframes for completion of approvals and infrastructure

…

Letter from Paul Stephenson to the Co-Respondent dated 3 July 2014:

Paul Stephenson

Wilga Vale, PO Box 210

Moura 4718

July 3, 2014

To The Chief Executive

Department of Environment and Heritage Protection

As part of the Baralaba North Continued Operations Project (BNCOP) EIS process, I wish to bring to your attention issues of concern relating specifically to the proposed coal train load-out facility planned 2.5km from Moura and coal haul route proposed to link Baralaba North mine to the planned TLOF.

The Introduction to the BNCOP EIS Executive Summary states:

This EIS considers the potential cumulative impacts arising from the BNCOP development in combination with the existing and approved operations in the immediate vicinity (i.e. Baralaba Coal Mine and approved Baralaba North/Wonbindi North Mine), and in the region (i.e. the Dawson Mine and other elements of the Baralaba Expansion Project including the proposed Baralaba South Project and proposed train load-out facility near Moura).

The BNCOP EIS material contains extremely limited information relating to many of these critical issues, stating that the TLOF proposal is subject to a separate assessment process. Numerous and serious concerns have been raised by businesses and community members regarding the TLOF and haul route. Following a thorough assessment, Banana Shire Council approved the TLOF project on May 28, subject to 113 conditions, put in place to address critical concerns. On June 19 the Coordinator Genera, [sic] with the approval of the Deputy Premier made a decision to step-in, taking control of decision-making regarding the project, removing appeal rights and authorising the Deputy Premier to remove or alter conditions placed on the project by Council.

The decision to step-in could only have been taken for the purposes of removing legitimate appeal rights and removing or altering conditions Council has put in placed [sic] for the projection of the community. Here I raise these issues as critical considerations to the EIS process to ensure that these important conditions are not removed.

The following information relates to the Material Change of Use application for the Cockatoo Coal/Wonbindi TLOF.

…

4.  The proposed haul route between the BNCOP mine and TLOF involves 100ton quad-trailer trucks transporting coal along public roads shared by regular traffic and kids on the school bus from Baralaba to Moura, with the trucks passing within 200metres of people’s houses every 6minutes, 24hours a day for the next 20years, posing a risk to the safety of other road users, potentially devastating impacts on property values, stock disturbance, lost productivity and interference with local business. Cockatoo Coal have stated they ‘don’t foresee the need’ for compensation to the people whose safety, businesses, houses and property values will be affected by the project. Further to this, the TLOF itself is in very close proximity to grazing lands across the highway, posing a significant risk of stock disturbance in combination with the haul route along the property’s boundary.

…

That compensation agreements with severely affected parties be made”

The respondent’s case

  1. [23]
    The respondent did not give or call oral evidence. He relied on his affidavit filed on 21 April 2015 which, inter alia, drew attention to Cockatoo Coal Limited’s announcement on 13 November 2014 that its securities were being voluntarily placed in a trading halt, it being suspended from quotation on the Australian Stock Exchange from 17 November 2014 to 10 February 2015 and other news items directed to its financial status.
  2. [24]
    When the co-respondent called Justin Graham Cagney, the delegate who considered the amendment application, the respondent showed Mr Cagney several documents and sought his responses to them. The first was an extract from Hansard of 14 April 2014 in which the Member for Indooroopilly referred to a loophole or black hole in environmental legislation relating to abandoned mines. This became exhibit 10. The next item, part of an abstract from what appears to be a 2012 conference paper, was relied on for its statement that there are more than 50,000 recorded abandoned mines in Australia. This became exhibit 11. Lastly, a single sheet of “UBS commodity price changes” and a two page “Steel Raw Material Outlook” was shown to Mr Cagney and his views sought. These became exhibit 12.
  3. [25]
    A central theme of the respondent’s case was that the applicants, currently in administration, may go out of business, leaving an abandoned mine a burden on the Queensland Government in relation to environmental remediation. He pointed to the current coal prices and questioned witnesses in relation to the financial viability of the applicant companies and the project generally. He did not challenge the technical capabilities of the applicants to carry on mining operations as they propose. In his closing address he expressed concern for the mental health of residents in the locality, should the project go ahead. He was also concerned that those adversely affected by the project ought to be properly compensated.
  4. [26]
    In cross-examination of witnesses, the respondent directed attention to exhibit 8, the 2015 Annual Report of Cockatoo Coal Limited, which controls the applicant companies, and to page 33 thereof in particular. Relevantly, it shows the following:

      2015 – in dollars  2014 – in dollars

Coal Sales revenue   69,520,177   81,532,272

Cost of sales    (76,844,032)   (92,175,069)

Impairment losses   (7,550,267)   (152,041,746)

Total comprehensive

Income (loss) for the year  (25,063,111)   (191,786,789)

  1. [27]
    The respondent devoted considerable time to cross-examination of the witnesses who were called but did not succeed in obtaining from any of them any concession which could be regarded as either strongly helpful to his case or strongly unhelpful to the applicants’ case. The respondent, a self-represented party, was on many occasions reminded by the Court of the need to ask clear and relevant questions and was extended considerable latitude in that regard both by the Court and, perhaps to a somewhat lesser extent, by counsel.

The evidence

  1. [28]
    The Court considered the affidavit of Martin Lackner filed on 27 August 2015. Mr Lackner is the company secretary of Cockatoo Coal Limited. He states that its market capitalisation on 26 August 2015 was $67.03 million and addresses the potential cost of a delay to the proposed project. This affidavit became exhibit 1.
  2. [29]
    Exhibit 2, in two bundles, is the affidavit of Brendan Joseph Dillon filed on 23 March 2015. This is his first affidavit. He is now the manager, corporate affairs and approvals for Cockatoo Coal Limited. He addresses the progress of the project up to that time.
  3. [30]
    Exhibit 3, also in two bundles, is Mr Dillon’s second affidavit, filed on 25 September 2015. At the time of exhibits 2 and 3, Mr Dillon was a senior environmental planner at Cockatoo Coal Limited. In this affidavit he addresses the standard criteria set out in s 191 of the Act and the objections as they then existed, before being reduced in scope to their present form. In relation to the public interest, he states that for the foreseeable future there will be a high international demand for coal which will provide significant revenue to the Commonwealth, State and Local Governments. The Court will form its own view on the public interest and the other matters which it is required to consider.  It will do so on the evidence presented.
  4. [31]
    The Court also considered the affidavit of Peter Charles Kane, the chief executive Officer of Cockatoo Coal Limited. This was filed on 25 September 2015 and became exhibit 4. Mr Kane asserts that the project is viable. It will allow for the continuation and expansion of the existing open cut coal mine. In relation to the required rehabilitation and financial assurance, he asserts his belief that there is no reasonable risk of the applicant companies or Cockatoo Coal Limited being unable to fulfil the rehabilitation requirements. He foreshadowed the availability of the 2015 Annual Report, which was provided at the hearing and which became exhibit 8.
  5. [32]
    The affidavit of Grant Dene Sparks filed on 19 November 2015 became exhibit 5. He is an official liquidator and one of the administrators of the applicant companies. He was appointed on 16 November 2015. Mr Sparks states that his intention is that the mine will continue to operate. He believes that if the EA amendment application is approved the production capacity of the mine will increase and so will the value of the applicant companies. Should his consent to the present proceeding be necessary, he gives it.
  6. [33]
    The affidavit of Justin Graham Cagney filed on 25 September 2015 became exhibit 6. Mr Cagney is the program manager (compliance) with the Department of Environment and Heritage Protection, Queensland. As has already been mentioned, he was the delegate of the administering authority in the case of the amendment application. His affidavit has 14 volumes of material exhibited to it, as has been noted.
  7. [34]
    Mr Cagney correctly points out that the respondent’s concerns about the TLOF needs to be understood as not related to the present amendment application. The TLOF was approved under a separate application and assessment process. The Court notes that despite this, the parties at the hearing did cooperate in not objecting to references to it. Mr Cagney addresses the objections in the wider form in which they then existed and does not see any of them as providing a proper basis to change his assessment.
  8. [35]
    For the purposes of its objection decision, the Court was taken by the parties to the evidence upon which they wished to rely. In addition to that, in order to properly perform its duty, all the material referred to in s 191 of the Act has been considered so that the objections decision is as fully informed as possible in the light of all of the material available to the Court. The 14 volumes of material provided with exhibit 6 have all been considered, whether or not any party drew the Court’s attention to any particular part of that material.
  9. [36]
    The Court had the benefit of exhibit 7, an A3 size indicative project layout depiction which provides good clarity and detail including tenure boundaries and proximity to the township of Baralaba.
  10. [37]
    Exhibit 9 comprises submissions relating to the Baralaba North Continued Operations project environmental impact statement. Exhibit 13 is a copy of the guideline relating to financial assurance under the Act. It states, inter alia, that carrying out activities on land without first giving financial assurance to the department may be treated as a breach of the environmental authority which could result in it being suspended or cancelled. Fines may apply as an alternative.
  11. [38]
    In evidence, Mr Kane expressed the view that while the applicant companies are currently in administration, he expects that a successful restructure will be able to be put in place in about three months. He points out that no staff have been laid off work and more staff have recently been hired. The evidence is that the financial assurance is being, and will continue to be, provided as required.
  12. [39]
    It is worth noting that the applicants expressed at the hearing a commitment to comply with recommendations that have been made in relation to off-lease transport infrastructure which was subject to a separate assessment and approval process. The relevant matters are set out on pages 95 and 96 of volume 12 of exhibit 6. This is the Environmental Impact Statement Report. It is a significant commitment and the relevant text is worth setting out. It appears at 5.10.8.9 of the report and is in the following terms:

“5.10.8.9     Transport conclusions and recommendations

All of the off-lease transport infrastructure required for the project (including the haul road upgrades, Dawson Highway overpass, new TLO and Moura Short Line Upgrades) has been subject to separate assessment and approval processes, with approval conditions under relevant legislation. Consequently, with one exception, recommended conditions for the off-lease transport infrastructure have not been included in this report. The only exception is coal dust management associated with the road and rail transport of coal from the project site. DTMR has advised that this issue has not been adequately captured by the conditions imposed in the separate approvals for the off-lease infrastructure, and there is also some overlap with the handling and transport of coal on the project site. Consequently, the coal dust management requirements have been included in the recommendations below.

DTMR requires the proponent to submit:  a revised road impact assessment (RIA); road-use management plan (RMP); infrastructure agreement; and a series of associated documentation for the use and management of the non-haul related road infrastructure associated with the project. The proponent must also obtain relevant permits and licences for the use of the state-controlled road network. These requirements are outlined in the recommendations below.

Recommendations

At least 6 months prior to the anticipated commencement of the project:

  1. submit a revised RIA that has been approved by an appropriately qualified person in accordance with the DTMR Guidelines for Assessment of Road Impacts of Development (2006) (GARID) including:

a. an updated transport generation summary table (refer to the recommended spreadsheet in Appendix 3) detailing project-related traffic and transport generation information for state and local roads

b. a pavement impact assessment using DTMR’s pavement impact assessment tools

c. an assessment of intersection performance and road safety (e.g. sight lines, adequacy of layout and design to accommodate the largest project vehicles)

d. an assessment of the increased risk of worker/driver fatigue

e. an assessment of how project-related road-use can be optimised to avoid school bus routes during peak operating times

f. details of the final impact mitigation proposals, listing infrastructure-based mitigation strategies, including contributions to road works, rehabilitation, maintenance and summarising key road-use management strategies, including:

i. ensuring the mine access to the public road is adequate to accommodate project construction and operational-phase traffic

ii. designing and constructing connections from the private haul road to both the Baralaba-Kooemba Road and Baralaba-Rannes Road in accordance with local government and DTMR standards.

  1. submit a road-use management plan (RMP) for the project that has been prepared in accordance with the DTMR Guide to Preparing a Road-use Management Plan, including:

a. a table listing RMP commitments providing confirmation that all works and road-use management measures have been designed and will be undertaken in accordance with all relevant DTMR standards, manuals and practices

b. optimised project logistics and minimised road-based trips on all state-controlled and local roads.

At least 3 months prior to the commencement of project construction:

  1. formalise arrangements about transport infrastructure works, contributions and road-use management strategies required under the impact mitigation program by submitting an infrastructure agreement, or other means, for example, a co-signed schedule of works and contributions agreed to by road authorities and the proponent, as identified in the revised RIA. These arrangement must incorporate the following:

a. project-specific works and contributions required to upgrade impacted road infrastructure and vehicular access to project sites as a result of the proponent’s use of state-controlled and local roads by project traffic

b. project-specific contributions towards the cost of maintenance and rehabilitation to mitigate impacts on state-controlled and/or local road pavements or other infrastructure

c. performance criteria that details protocols for consultation about reviewing and updating project-related traffic assessments and impact mitigation measures that are based on actual traffic volume and impacts, if previously advised traffic volumes and/or impacts change by 5% or more.

At least 3 months prior to the commencement of significant construction works or project-related traffic generation:

  1. submit detailed drawings of any works required to mitigate the impacts of project-related traffic to DTMR and the relevant local council/s for review and approval
  1. obtain all relevant licenses and permits required under the TI Act for works within the state-controlled road corridor, including road works approvals (s. 33 of the TI Act), approval of location of vehicular accesses to state roads (s. 62 of the TI Act) and approval for any structures or activities to be located or carried out in a state-controlled road corridor (s. 50 of the TI Act)
  1. obtain permits for any excess mass or over-dimensional loads for all phases of the project in consultation with DTMR’s heavy vehicles road operation program office, and the relevant local councils in accordance with the Transport Operations (Road Use Management) Act 1995
  1. finalise traffic management plans for the construction and commissioning of each site where road works are to be undertaken, including site access points, road intersections or other works undertaken in the state-controlled road corridor, in accordance with DTMR’s Guide to Preparing a Traffic Management Plan.

In relation to road and rail transport of coal and managing coal dust emissions, the proponent must:

  1. prepare a coal dust management plan comprising two parts:

a. Part 1:  control measures to effectively mitigate dust emissions from loaded and unloaded coal haulage trains when transporting coal via Aurizon’s rail systems (e.g. Moura Short-Line) in accordance with the aims, objectives and mitigation measures specified in the Aurizon Coal Dust Management Plan (2010)

b. Part 2:  control measures to effectively mitigate dust emissions from vehicles during loading coal on-site and hauling coal from the project site to the train load-out facility on public roads in accordance with the DTMR Smart Practice Guide:  Load containment requirements for haulage of coal on Queensland public roads (2014).”

  1. [40]
    The evidence was that no significant compliance enforcement action has been taken in relation to the current operations. No evidence was presented that any such action has been taken at all.
  2. [41]
    Mr Kane, when cross-examined, said that he had been chief executive officer of Cockatoo Coal Limited for about eight months. He was not informative about what might have occurred before his appointment but was clearly focused on the future. He was of the view that the impairment in the 2014 accounts was part of a cycle and not representative of a structural decline. He described the industry as very cyclical and was of the view that modest rises in coal prices would make the tenement profitable. In his view the present circumstances are no different to those of past cyclical movements in the coal market. He stated that some staff had been hired as recently as the week before the hearing and that no staff had been terminated. In relation to the cost of production, he said that costs may be high and that increased production would help to cut unit costs.
  3. [42]
    Mr Dillon gave an update to paragraph 22 of exhibit 2, filed on 23 March 2015. He advised that rail civil works are now 99 percent complete, TLOF civil works 98 percent complete and structural, mechanical and electrical works 99 percent complete. On behalf of Cockatoo Coal Limited, he gave an unequivocal commitment to undertake all eight of the recommendations which have been set out above. He stated that there has not been any action for any alleged breach of any conditions and that the financial assurance would be paid before a mining lease was approved. He said that compensation agreements had been entered into where, for instance, access was required onto land in connection with environmental monitoring equipment.
  4. [43]
    Mr Dillon’s affidavit, exhibit 3, addresses the standard criteria from paragraphs 25 to 41. Mr Dillon was clear in asserting that Cockatoo Coal Limited has the financial ability to meet the financial assurance conditions connected with potential site remediation costs.
  5. [44]
    Mr Cagney made clear that, if necessary, the co-respondent would let a contract to clean up the site. This would be paid for from the financial assurance. He also explained that the TLOF was not part of the presently relevant EA. His evidence made clear that an abandoned mine would potentially be a burden on the State only if the financial assurance, designed to be sufficient, was fully expended when more remediation remained to be performed. He agreed that there are historical abandoned mines in Australia and explained that the financial assurance was for the cost of remediation. This is a more recently introduced means of addressing remediation costs in advance. Exhibit 13, the guideline relating to financial assurance under the Act, was introduced into evidence through Mr Cagney who presented as a thorough, careful witness whose evidence the Court could rely on.

Concluding summary

  1. [45]
    The witnesses called on behalf of the applicants presented as truthful and, unsurprisingly, in favour of the application. Significantly, no effective inroads were made into their evidence when they were cross-examined. By choosing to give evidence in support of the applicants’ case they willingly exposed themselves to cross-examination and their evidence tested, which was of assistance to the Court.
  2. [46]
    Compensation is referred to as the last item in the objections. There was no evidence that any was currently outstanding.
  3. [47]
    The Court accepts the evidence in exhibit 3 in relation to the standard criteria and will forbear from repeating what is set out in the exhibit. As has already been mentioned, the Court had its attention drawn to items which the respondent chose to focus on and obtained his assurances that he had completely addressed the matters to which he wished to refer. As has also been mentioned already the Court additionally considered all the matters referred to in s 191 of the Act and all of the material put before it. It is neither necessary nor practical to set out in detail the material in the 14 volumes of exhibit 6. It is useful however to make some further comment in relation to the criterion of the public interest. The Court must look at what is put before it. There is only the one respondent before it with concerns. This is not a case where any other member of the public has come before the Court. There is no representation here on behalf of the relevant local government or any interest group. When it is considered that the present process was open for such potential inputs the absence of any but the one objector is indicative that there are no other public interest considerations upon which anyone wished to be heard. If some person or organisation wished to be heard, they could have come forward to this Court. In the circumstances, the evidence in relation to employment, economic stimulus, export earnings and royalties, as well as infrastructure improvements such as the planned road improvements, requires the Court to form the view that the proposed project will be in the public interest.
  4. [48]
    The Court is satisfied that there has been a full hearing of the objections and that none of them, on the basis of all of the evidence presented, has been made out. The evidence shows a thorough and vigorous assessment by the co-respondent and there was a dearth of evidence from the respondent. The consideration of the evidence presented leads to the conclusion that the draft environmental authority sufficiently addresses the risks to the environment. The evidence does not support a conclusion that Cockatoo Coal Limited does not have the financial or technical capabilities required. The applicant companies are in administration but a restructure is, on the evidence, reasonably likely to be put in place to allow the present condition to be remedied. The evidence is that, due to the financial assurance scheme, it is not likely that costs and responsibilities of site remediation would be borne by the State. The existence of the financial assurance scheme causes arrangements for remediation of abandoned mines at public expense to be of little if any significance. The financial assurance is to be used to pay for remediation in the case of this proposed project in the event that it needs to be called upon. The circumstances in the cases of historical mines are not persuasive in the present case where there will be a financial assurance provided for possible remediation costs.
  5. [49]
    The Court accepts the evidence in relation to the standard criteria, with the additional comments in regard to the public interest consideration.
  6. [50]
    The Court is satisfied, on the evidence provided, that the proposed project is financially and economically viable. It has certainly not been shown that it is not, as the respondent did not give or call any evidence to contradict that provided on behalf of the applicants. Exhibits 10, 11 and 12 were shown to witnesses but did not lead to any evidence which contradicted that given in Court.
  7. [51]
    There was no evidence that the potential benefits of the proposed project were overestimated or that the costs or negative impacts were minimised or ignored. Assertions by the respondent from the bar table are not evidence upon which the Court can rely. The same applies to the claim that the proponents of the scheme are unduly optimistic.
  8. [52]
    The evidence did support the proposition that quad-trailer trucks were prospectively in use on public roadways up to a maximum frequency of every six minutes and this would include passing as close as 200 metres from housing. The evidence relating to road safety did not go beyond Mr Kane’s evidence in cross-examination that there was a risk of road accidents just as there is on any other road. There was no evidence led to support the assertions made by the respondent about road safety, property value impacts, stock disturbance or interference with local business. The hearing was the occasion when the respondent had a very full opportunity to present such evidence if it existed. The location of the TLOF was said to bring with it a significant risk of stock disturbance. Noting what has already been said about that separate project, this is another matter upon which the respondent did not present any evidence.
  9. [53]
    Considering, as the Court must, the evidence produced before it when there was full opportunity to do so, the Court was not able to be satisfied that any objection by the respondent was made out.
  10. [54]
    The draft environmental authority, EPML00223213 dated 18 December 2014 is provided as part of exhibit 6. This is a 64 page document. The respondent did not suggest any different or additional conditions to be included in it. It is therefore unnecessary to further address this detailed document.

Objections Decision

  1. [55]
    The objections decision of the Court in this matter is a recommendation to the administering authority that the application be approved on the basis of the draft environmental authority for the application.

Recommendation

The application be approved on the basis of the draft environmental authority for the application.

WA ISDALE

MEMBER OF THE LAND COURT

Footnotes

[1]  [2015] QSC 107.

[2]  Exh. 5.

Close

Editorial Notes

  • Published Case Name:

    Baralaba Coal Pty Ltd & Anor (administrators appointed) v Paul Stephenson and Chief Executive, Department of Environment and Heritage Protection

  • Shortened Case Name:

    Baralaba Coal Pty Ltd (administrators appointed) v Stephenson

  • MNC:

    [2015] QLC 49

  • Court:

    QLC

  • Judge(s):

    Member Isdale

  • Date:

    15 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
BHP Billiton Mitsui Coal Pty Ltd v Isdale [2015] QSC 107
2 citations
Jump To
Cite 1 - [2015] QSC 107
Cite 2 - [2015] QSC 107

Cases Citing

Case NameFull CitationFrequency
Baralaba Coal Pty Ltd v Stephenson (No. 2) [2016] QLC 253 citations
1

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