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QGC (Infrastructure) Pty Limited v Chief Executive Department of Environment & Heritage Protection[2016] QLC 27

QGC (Infrastructure) Pty Limited v Chief Executive Department of Environment & Heritage Protection[2016] QLC 27

LAND COURT OF QUEENSLAND

CITATION:

QGC (Infrastructure) Pty Limited v Chief Executive Department of Environment & Heritage Protection [2016] QLC 27

PARTIES:

QGC (Infrastructure) Pty Limited

(applicant)

 

v

 

Chief Executive, Department of Environment & Heritage Protection

(respondent)

FILE NO:

EPA174-13

DIVISION:

General Division

PROCEEDING:

Appeal

DELIVERED ON:

5 May 2016

DELIVERED AT:

Brisbane 

HEARD ON:

10 June 2014

HEARD AT:

Brisbane

MEMBER:

W L Cochrane

ORDER:

  1. Appeal Dismissed

CATCHWORDS:

Environmental Protection Act 1994 (Reprint 11A) Environmental Protection Regulation (Reprint 2F) Petroleum and Gas (Production and Safety) Act 2004 (Reprint 5G); Conditions of Approval; Prohibition

APPEARANCES:

Mr P L O'Shea QC with Mr J D Houston for the applicant, instructed by Corrs Chambers Westgarth.

Mr M D Hinson QC with Mr R Laidely for the respondent, instructed by the Litigation Unit of the Department of Environment and Heritage Protection.

  1. [1]
    This is the decision in respect of an appeal by the applicant QGC (Infrastructure) Pty Limited (“QGC”) against conditions imposed by the respondent Department of Environment & Heritage Protection (“DEHP”) in respect of an environmental authority (“EA”) issued pursuant to the provisions of the Environmental Protection Act 1994 (“EP Act”) in respect of petroleum pipeline licences issued pursuant to the Petroleum and Gas (Production and Safety) Act 2004 (“P&G Act”).
  2. [2]
    As appears from the notice of appeal filed in the Court the decision against which the appeal is brought is described in the following way:

“The decision contained in the Statement of Reasons (see Attachment 1) in relation to the decision to impose a condition on the Level 1 Environmental Authority (Chapter 5A activities) PEN105338512 other than a condition that is the same, or is to the same effect as the condition agreed to or requested, delivered by the Executive Director, Energy Resources, as delegate of the administering authority, Department of Environment and Heritage Protection, delivered 29 April 2013.

The grounds of appeal are identified as:

The applicant appeals against conditions (A1), (A1A) and (A1C) of the Environmental Authority on the grounds that they are:

  • Beyond power; and / or
  • Neither necessary nor desirable.

The relief sought in the appeal is that the applicants seeks amendment of the conditions to remove the limitations imposed by the conditions on the scope of petroleum activities which the applicant would otherwise be authorised to carry out.”

Factual Background

  1. [3]
    In or about July 2012 QCG made application to the then Department of Natural Resources and Mines (DNRM) for what is described as a “point to point” Petroleum Pipeline Licence (“PPL”) for a gas pipeline to run from a site described as “The Polaris” Field Compression Station (“FCS”) which is located west of Wandoan to the Woleebee Creek Central Processing Plant (“CPP”).
  2. [4]
    That application was made pursuant to the provisions of s 409 of the P&G Act and that application became referenced as PPL 175.[1]
  3. [5]
    On 30 October 2012 QGC lodged an amendment to the application pursuant to the provisions of s 844 of the P&G Act.[2]
  4. [6]
    That amendment said:

“To provide for additional land in the application area, viz. to include an additional sub-block CHAR 1941 N.”[3]

  1. [7]
    That amendment contained supporting information including a colour map showing the proposed route of the pipeline. 
  2. [8]
    Subsequent to that, a further application was made in November 2012 for an associated water pipeline from a pond which was adjacent to the Polaris FCS to the Woleebee Creek CPP that was accompanied by the relevant required additional information and became application reference PPL 179.[4]
  3. [9]
    On 30 December 2012 QGC lodged an environmental authority application (“the EA application”) with the respondent for EA for a level 1 chapter 5A activity in respect of the two proposed resource authorities (i.e. the pipeline applications PPL 175 and PPL 179).[5]
  4. [10]
    Within the covering letter accompanying that application for an EA the following appears:[6]

“The following level 1 chapter 5A activities will be undertaken as part of this chapter 5A activity:

  • a petroleum activity that is likely to have a significant impact on a category A or B environmentally sensitive area.
  • a petroleum activity, other than a petroleum activity mentioned in items 1 - 7, that includes 1 or more chapter 4 activities for which an aggregate environmental score is stated.”
  1. [11]
    The application itself is a compendious document of approximately 500 pages (including appendices). 
  2. [12]
    It appears that the application itself complied with s 310C of the EP Act as accompanying the application were:[7]
  1. (a)
    An application form and a cheque for the prescribed fee;
  1. (b)
    Applicant suitability statement;
  1. (c)
    A Coal Seam Gas Water Management Plan;
  1. (d)
    A copy of the acknowledgment notices for the relevant resource authorities under the P&G Act.
  1. (e)
    A copy of the full company extracts; and
  1. (f)
    An Environmental Management Plan (EMP) which was said to comply with the requirements of s 310D of the EP Act.
  1. [13]
    The application was in an approved form issued by the respondent.
  2. [14]
    At question 3 of the form[8] the type of chapter 5A activity was identified as Polaris Gas and Water Pipelines.
  3. [15]
    Question 5 of the authorised form required the applicant to list the environmentally relevant activities for which an aggregate environmental score (AES) is stated that will be included in the proposed chapter 5A activities.  Applicants were also required to list any environmentally relevant activities that did not state an AES. 
  4. [16]
    No activities that did not state an AES were listed but the following activities were listed:[9]
  • ERA8 (3-b) Chemical storage
  • ERA15  Fuel burning
  • ERA16 (2)(d) Extractive activities
  • ERA17  Abrasive blasting
  • ERA18(b)  Boilder making or engineering
  • ERA38 (b) Surface coating
  • ERA43  Concrete batching
  1. [17]
    The activities proposed pursuant to the application are further clarified in section 2.5 of the EMP as being the following:[10]

“The following activities are included in this application for an EA for a level 1 chapter 5A activity:

  • clearing pipeline construction corridors of vegetation, referred to as right of way (RoW) for installation of pipes and access to the RoW;
  • excavation of pipe trenches, including the crossing of watercourses as necessary for the installation of the pipe;
  • pipe laying activities;
  • 33 kilovolt (kV) buried electricity transmission line and Fibre Optic Cable (FOC) installation and operation;
  • pipe lay down areas and distribution from these locations to the RoW;
  • restoration of the RoW, including sediment and erosion control measures within the RoW;
  • borrow pits for materials to be used in the construction of the pipeline and incidental activities;
  • erecting and operating temporary accommodation camps and administration facilities, including sewage treatment plants;
  • communication facilities both temporary and permanent;
  • potable water supply and / or transport of potable water;
  • water management;
  • fuel storage;
  • transport of plant, equipment and materials by road or rail;
  • installation and operation of a water trunkline;
  • installation and operation of a gas trunkline;
  • installation of cathodic protection beds and systems for the gas and water pipeline;
  • hydro testing, including the sourcing and disposal of test water and commissioning of the pipeline.
  • maintenance and surveillance activities during operations; and
  • decommissioning and rehabilitation.

Construction activities will commence once all permits, authorities and permissions have been granted and mobilisation activities have been completed.”

  1. [18]
    At section 3.10 of the EMP the applicant had notified the respondent in the following terms:[11]

“Notifiable Activities

Pursuant to Schedule 3 of the EP Act, the following notifiable activities are likely to be carried out under this EA:

1.    Abrasive blasting – carrying out abrasive blast cleaning (other than cleaning carried out in fully enclosed booths) or disposing of abrasive blasting material.

7.    Chemical storage (other than petroleum products or oil under item 29) – storing more than 10t of chemicals (other than compressed or liquefied gases) that are dangerous under the dangerous goods code.

23.    Metal treating or coating – treating or coating metal including, for example anodising, galvanising, pickling, electroplating, heat treatment using cyanide compounds and spray painting using more than 5L of paint per week (other than spray painting within a fully enclosed booth).

29.    Petroleum product or oil storage – storing petroleum products or oil –

  1. (a)
    in underground tanks with more than 200L capacity; or
  1. (b)
    in above ground tanks with –
  1. (i)
    for petroleum products or oil in class 3 in packaging groups 1 and 2 of the dangerous goods code-more than 2500L capacity; or
  1. (ii)
    for petroleum products or oil in class 3 in packaging groups 3 of the dangerous goods code-more than 5000L capacity; or
  1. (iii)
    for petroleum products that are combustible liquids in class C1 or C2 in Australian Standard AS 1940, ‘The storage and handling of flammable and combustible liquids’ published by Standards Australia – more than 25 000L capacity.” 
  1. [19]
    Upon receipt of the application the respondent sought additional information which was responded to by the applicant.  As far as I can see nothing turns upon either that information request or upon the response to it.[12] 
  2. [20]
    The respondent made a decision[13] on the application by a notice dated 26 March 2013.[14]
  3. [21]
    The EA issued to the applicant was given permit PEN105388512.  The EA contained a list of schedules of conditions including the following conditions:[15]

“Authorised Petroleum Activities

(A1) This Environmental Authority authorises only those petroleum activities listed in Schedule A, Table 1 – authorised petroleum activities and condition (A1C).

(A1A) In the carrying out of the petroleum activities, the number and maximum size for each of the specified petroleum activities listed in Schedule A, Table 1 – Authorised Petroleum Activities for each petroleum tenure must not be exceeded. 

Schedule A, Table 1 – Authorised Petroleum Activities

Resource Authority Number

Petroleum Activity

Maximum Size (where applicable)

Co-ordinates / Location (where applicable)

 

 

 

 

 

 

 

 

 

PPL 175

PPL 179

Installation and operation of pipeline within Gas Trunkline Right of Way (RoW)

 

 

 

 

 

 

 

 

 

81 ha

Start Point:  Polaris Field Compressor Station (Lot 46 on FT497)

 

End Point:  Woleebee CPP Trunkline (Lot 2 on FT394)

Installation and operation of pipeline within Water Trunkline RoW

Start Point:

Polaris Pump Station (Lot 46 on FT 497)

 

End Point:  Woleebee Creek Raw Water Pond (Lot 10 FT87)

Borrow Pits

27.5 ha

1 per block

Workspace outside of RoW

2.5 ha

 

TOTAL

111 ha

Environmentally Relevant Activities

(A1B) This environmental authority does not authorise environmental harm unless a condition contained in this environmental authority explicitly authorises that harm.  Where there is no condition, the lack of a condition shall not be construed as authorising harm.

(A1C) This approval authorises the carrying out of only the following specified relevant activities:

 (a) ERA8(3)(b) – chemical storage – storing more than 500 cubic metres of chemicals of class C1 of C2 combustible liquids under AS1940;

 (b) ERA15 – fuel burning operation using fuel burning equipment that is capable of burning at least 50kgs of fuel in an hour;

 (c) ERA38(b) – surface coating – coating, painting or power coating, using 100t-1000t in a year of surface coating materials.

Specified relevant activities in this context means an environmentally relevant activity that, but for being a Chapter 5A activity, would otherwise be an environmentally relevant activity under section 18 of the Act.”

  1. [22]
    The original schedule of conditions also referred to ERA 13 - Abrasive Blasting, ERA 18 (b) – Boiler Making or Engineering and ERA 43 – Concrete Batching but those environmentally relevant activities were deleted from the conditions subsequently.  They are not relevant to the decision which has to be made in this appeal.
  2. [23]
    The Level One Environmental Authority (Permit No. PEN105388512) had annexed to it as well as Schedule A the General Conditions in respect of some of which this appeal is brought a number of other schedules that dealt with more particular aspects of the operations they were:[16]

“Schedule B

Water 5

Schedule C

Regulated Structures 10

Schedule D

Land 11

Schedule [E]

Disturbance to land with biodiversity values 12

Schedule F

Environmental Nuisance 14

Schedule G

Air 19

Schedule H

Waste 24

Schedule I

Rehabilitation 25

Schedule K

Community Issues 29

Schedule L

Notification 30

Schedule M

Definitions 31”

  1. [24]
    It can readily be acknowledged that each of those Schedules deals with either an activity or an environmental value which is likely to require some sort of environmental protection. 
  2. [25]
    The applicant sought a review of the original decision pursuant to s 521 of the EP Act.[17]
  3. [26]
    In applying for review of the Original Decision the applicants sought a variation of the Original Decision by deleting or amending conditions (A1 and A1A) on the grounds that:
  1. (a)
    the scope of the respondent’s power to impose conditions limited by the requirement that the condition be “necessary or desirable”; and
  1. (b)
    “any power to impose conditions is also constrained by rules relating to lawfulness of conditions, including certainty.”[18]
  1. [27]
    By way of explanation or support for the variations which was sought the applicant submitted in its introduction to the application for a review as follows:[19]

“1.4 By notice dated 26 March 2013, received by email at 4.23pm on 28 March 2013, DEHP notified QGC of its decision to impose certain conditions on the Polaris PPL Project EA pursuant to section 310O of the EP Act, other than conditions that were the same, or to the same effect, as a condition agreed to or requested by QGC (Notice).  The Notice identified that the following imposed conditions had not been agreed, or were not to the same effect as conditions which had been agreed:  (A1), (A1A), (D9), (EE8(b), (I2), (I7), (8)(d)(iv), (19(a)(iv) and (I10).

1.5 Provisions of the Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 (Greentape Reduction Act), which amended the EP Act, commenced on 31 March 2013.  Pursuant to transitional provisions established in Chapter 13, Part 18 of the EP Act, the Polaris PPL Project EA is taken to constitute an environmental authority for a resource activity (s 690(2) of the EP Act).

1.6 The decision to impose conditions other than conditions that are the same, or to the same effect as a condition agreed to or requested by an applicant under section 310O of the unamended EP Act[20] is an ‘original decision’ in respect of which rights of internal review and appeal arise.[21]

1.7 The application form ‘Application for review of original decision’ invites an applicant for review to give reasons why each decision is considered unreasonable or inappropriate.

1.8 These submissions are in support of QGC’s internal review application in respect of the decision to impose conditions (A1) and (A1A) on the Polaris PPL Project EA.

1.9 Pursuant to section 521(5)(c)(ii), QGC seeks a variation of the original decision, to delete or amend conditions (A1) and (A1A) as identified below.

1.10 The scope of DEHP’s condition power is bound by the test of ‘necessary’ or desirable’.[22]

1.11 However, any power to impose conditions is also constrained by rules relating to lawfulness of conditions, including certainty.”[23]

  1. [28]
    The application for review was successful to a limited extent with some conditions being deleted or amended.
  2. [29]
    Conditions (A1), (A1A) and (A1C) remained within the revised Polaris environmental authority.

Statutory Framework

  1. [30]
    The statutory framework which underlies this dispute consists of a combination of the provisions of the Petroleum and Gas (Production and Safety) Act 2004 (Reprint 5G) (P&G Act) and the Environmental Protection Act 1994 (Reprint 11A) (EP Act). 
  2. [31]
    The EP Act is described (in s 3) as having the following object:

“The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).”

  1. [32]
    Section 4 of the EP Act identifies how the object of the Act is to be achieved and identifies three phases namely:
  1. “(a)
    phase 1—establishing the state of the environment and defining environmental objectives;
  1. (b)
    phase 2—developing effective environmental strategies;
  1. (c)
    phase 3—implementing environmental strategies and integrating them into efficient resource management;
  1. (d)
    phase 4—ensuring accountability of environmental strategies.”
  1. [33]
    Section 4(6) identifies how phase 3 which is what this appeal is concerned with in the following terms:

“Phase 3 is achieved by—

  1. (a)
    integrating environmental values into land use planning and management of natural resources; and
  1. (b)
    ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm; and
  1. (c)
    monitoring the impact of the release of contaminants into the environment; and
  1. (d)
    requiring persons who cause environmental harm to pay costs and penalties for the harm.”
  1. [34]
    Section 5 sets out the obligations of persons to achieve the object of the Act and provides:

“5 Obligations of persons to achieve object of Act

If, under this Act, a function or power is conferred on a person, the person must perform the function or exercise the power in the way that best achieves the object of this Act.”

  1. [35]
    It might readily be seen that the respondent’s involvement in this appeal reflects the obligations set out in s 5 of the EP Act.
  2. [36]
    The P&G (Production & Safety) Act 2004 is described as:

“An Act about exploring for, recovering and transporting by pipeline, petroleum and fuel gas and ensuring the safe and efficient carrying out of those activities, and for other purposes.”

  1. [37]
    Section 3 of the P&G Act identifies the main purpose of the Act including:

“3 Main purpose of Act

  1. (1)
    The main purpose of this Act is to facilitate and regulate the carrying out of responsible petroleum activities and the development of a safe, efficient and viable petroleum and fuel gas industry, in a way that—
  1. (a)
    manages the State’s petroleum resources—
  1. (i)
    in a way that has regard to the need for ecologically sustainable development; and
  1. (ii)
    for the benefit of all Queenslanders;”
  1. [38]
    The key concepts upon which this decision must focus are the concepts of a petroleum authority, a relevant resource authority, a relevant environmental authority, petroleum activities and authorised activities. 
  2. [39]
    All of those terms are defined at various places in the P&G Act and / or the EP Act. 
  3. [40]
    A “petroleum authority” is an authority issued pursuant to the Act and described in s 18 of the P&G Act.  (It might be noted here that the applicant in this determination places emphasis upon the presence of the “all” in relation to the authorised activities for the petroleum authority which includes a “pipeline licence”.[24]
  4. [41]
    The holder of a petroleum authority as described in s 18(2) of the P&G Act is entitled to carry out “an authorised activity” which in turn is defined as:[25]

“an activity that its holder is, under this Act or the authority, entitled to carry out in relation to the authority.”

  1. [42]
    Because of the effect of s 410(1)(a) of The P&G Act, petroleum licences are inextricably interwoven with the provisions of the EP Act.
  2. [43]
    Section 20 of the P&G Act identifies what are the conditions of a petroleum authority in the following terms:

“20 What are the conditions of a petroleum authority

  1. (1)
    The conditions of a petroleum authority are—
  1. (a)
    the conditions stated in it from time to time; and
  1. (b)
    the authority holder’s obligations under chapters 2 to 5; and
  1. (c)
    any condition of the authority under chapters 2 to 5; and
  1. (d)
    a condition that an authority holder must ensure each person acting for the holder who carries out an authorised activity for the authority complies with its conditions to the extent they apply to the carrying out of the activity.

Note—

For who may carry out an authorised activity for the holder, see section 563.

  1. (2)
    A condition mentioned in subsection (1)(b) or (c) is a mandatory condition of the authority.

Note—

If a Coordinator-General’s condition applies to a petroleum lease, pipeline licence or petroleum facility licence, or proposed petroleum lease, pipeline licence or petroleum facility licence, for a coordinated project, and the condition conflicts with a mandatory condition for that type of petroleum authority, the Coordinator-General’s condition prevails to the extent of the inconsistency. See sections 123A, 412A and 447A.”

  1. [44]
    For completeness a reference should also be made to s 21 of the P&G Act which relevantly provides:

“21 What are the provisions of a petroleum authority

  1. (1)
    A reference in this Act to an authority under this Act includes a reference to its provisions.
  1. (2)
    A reference in this Act to the provisions of the authority is a reference to its mandatory or other conditions and any thing written in it.”
  1. [45]
    The linkages between the P&G Act and the EP Act are illustrated by the provisions of s 309I of the EP Act which provides:

“309I Restriction

A person may apply for an environmental authority (chapter 5A activities) only if the person is the holder of, or the applicant for, a relevant resource authority for the application.”

  1. [46]
    Those two terms “relevant resource authority” and “resource authority” are defined in s 309D of the EP Act which provides:

“309D What is a relevant resource authority

(1)A relevant resource authority for a chapter 5A activity, an environmental authority (chapter 5A activities) or an application for, or about, an environmental authority (chapter 5A activities), is the resource authority, or proposed resource authority, to which the activity, environmental authority or application relates.

  1. (2)
    In this section—

 Resource authority means—

  1. (d)
    a petroleum authority granted under the P&G Act; or”
  1. [47]
    Section 410(1)(a) of the P&G Act provides:

“410 Deciding whether to grant licence

 (1) The Minister may—

 (a) subject to sections 411 and 412A, grant the applicant a pipeline licence only if—

  1. (i)
    the applicant is an eligible person; and
  1. (ii)
    a relevant environmental authority for the licence has been issued; and …”
  1. [48]
    In Schedule 2 of the P&G Act “relevant environmental authority” is defined in the following term:

“relevant environmental authority, for a petroleum authority, means an environmental authority under the Environmental Protection Act granted for all of the authorised activities for the petroleum authority that are environmentally relevant activities under the Environmental Protection Act.”

  1. [49]
    The EP Act has been amended on a number of occasions. 
  2. [50]
    Section 309A of the EP Act was inserted by Act 16 of 2012 which, inter-alia, inserted new chapters 5 and 5A. 
  3. [51]
    Act 16 of 2012 was assented to on 14 August 2012.
  4. [52]
    The original chapter 5A was inserted by Act 3 of 2009 (and amended by Act 47 of 2011 and Act 31 2010) which was assented to on 23 February 2009.
  5. [53]
    Section 309A of chapter 5 inserted by Act 3 of 2009 (and amended by Act 47 of 2011 and Act 31 of 2010) provided as follows:

“309A What this chapter is about

  1. ‘(1)
    This chapter provides for environmental authorities for environmentally relevant activities for which an environmental authority is required under section 426A, namely–
  1. (a)
    greenhouse gas storage activities; and
  1. (c)
    petroleum activities.
  1. ‘(2)
    An activity mentioned in subsection (1) is a chapter 5A activity.
  1. ‘(3)
    An environmental authority for a chapter 5A activity is an environmental authority (chapter 5A activities).”

“309C Levels for chapter 5A activities

Each chapter 5A activity must be prescribed under a regulation as a level 1 chapter 5A activity or a level 2 chapter 5A activity, depending on the risk of environmental harm.

309D What is a relevant resource authority

 (1) A relevant resource authority for a chapter 5A activity, an environmental authority (chapter 5A activities) or an application for, or about, an environmental authority (chapter 5A activities), is the resource authority, or proposed resource authority, to which the activity, environmental authority or application relates.

 (2) In this section—

resource authority means—

  1. (a)
    any of the following under the GHG storage Act—
  1. (i)
    a GHG exploration permit (also called a GHG permit);
  1. (ii)
    a GHG injection and storage lease (also called a GHG lease);
  1. (iii)
    a GHG injection and storage data acquisition authority (also called a GHG data acquisition authority); or
  1. (b)
    a geothermal tenure under the Geothermal Act; or
  2. (c)
    a 1923  Act  petroleum  tenure  granted  under  the Petroleum Act 1923; or
  3. (d)
    a petroleum authority granted under the P&G Act; or
  4. (e)
    a licence, permit, pipeline licence, primary licence, secondary licence or special prospecting authority granted under the Petroleum (Submerged Lands) Act 1982.

309E What is resource legislation

Resource legislation is any of the Acts mentioned in section 309D(2).

309F What is a relevant chapter 5A activity

  1. (1)
    A relevant chapter 5A activity, for a provision about an application for, or about, an environmental authority (chapter 5A activities) is a chapter 5A activity the subject of the application.
  1. (2)
    A relevant chapter 5A activity, for a provision about an environmental authority (chapter 5A activities), is a chapter 5A activity the subject of the authority.

309G What is a chapter 5A activity project

A chapter 5A activity project is all chapter 5A activities of the same type under the same resource legislation carried out, or proposed to be carried out, under 1 or more relevant resource authority for that type of chapter 5A activity, in any combination, as a single integrated operation.

Part 2 Applying for and obtaining environmental authority

Division 1 Preliminary

309H Definitions for pt 2

In this part—

person includes a body of persons, whether incorporated or unincorporated.

relevant place, for an environmental authority (chapter 5A activities), means a place, or a part of a place, to which the authority relates, but does not include premises, or a part of premises, used only for residential purposes.

submission period, for an application for an environmental authority (chapter 5A activities), means—

  1. (a)
    the submission period for the application under section 310H(1)(b) and (2); or
  2. (b)
    if  section 310J applies—any  new  submission period fixed under section 310J(3)(b).

Division 2  General provisions for applications

Subdivision 1 Restriction on who may apply

309I Restriction

A person may apply for an environmental authority (chapter 5A activities) only if the person is the holder of, or the applicant for, a relevant resource authority for the application.

Note—

A person can not apply for an environmental authority (chapter 5A activities) for the following activities because under section 309A(1)(b) they are not a chapter 5A activity—

  1. (a)
    geothermal exploration for any of the following—
  1. (i)
    exempt heat pump production;
  1. (ii)
    to evaluate the feasibility of exempt heat pump production;
  1. (b)
    geothermal production that, under the Geothermal Act, section 16 is not of a large-scale.

Subdivision 2 Chapter 5A activity projects

309J Single application required for chapter 5A activity project

  1. (1)
    This section applies to a person who may apply for an environmental authority (chapter 5A activities) for chapter 5A activities proposed to be carried out as a chapter 5A activity project.
  1. (2)
    The person may only make a single application for a single environmental authority (chapter 5A activities) for all relevant activities that form the project.
  1. (3)
    If any relevant chapter 5A activity for the application is a level 1 chapter 5A activity—
  1. (a)
    division  4 must  be  complied  with  for  all  of  the application; but
  2. (b)
    a submission under section 310K can not be made about any relevant chapter 5A activity that is a level 2 chapter 5A activity.
  1. (4)
    If the administering authority grants the application, it may issue—
  1. (a)
    1 environmental authority (chapter 5A activities) for all the activities; or
  2. (b)
    2 or more environmental authorities (chapter 5A activities) for the activities.

309K Single environmental authority required for chapter 5A activity project

  1. (1)
    This section applies if an environmental authority (chapter 5A activities) has been granted for a chapter 5A activity project.
  1. (2)
    The holder of the authority can not apply for a separate environmental authority (chapter 5A activities) for an additional chapter 5A activity proposed to be carried out as part of the project.
  1. (3)
    Subsection (2) applies whether or not the additional activity is proposed to be carried out under another relevant resource authority as part of the project.
  1. (4)
    This section does not prevent the holder from applying to amend or replace the environmental authority.

Subdivision 3 Joint applications

309L Application of sdiv 3

This subdivision applies if 2 or more persons (joint applicants) jointly apply for 1 or more environmental authorities (chapter 5A activities).

Division 4 Level 1 chapter 5A activities

310B Operation of div 4

This division provides the process to obtain, by application, an environmental authority (chapter 5A activities) for a level 1 chapter 5A activity.

310C Requirements for application

The application must—

  1. (a)
    be made to the administering authority in the approved form; and
  2. (b)
    describe—
  1. (i)
    each relevant resource authority for the application; and
  1. (ii)
    all relevant activities for the application; and
  1. (c)
    be supported by enough information to allow the authority to decide the application, including for example—
  1. (iii)
    relevant information about the likely risks to the environment; and
  1. (iv)
    details of wastes to be generated; and
  1. (v)
    any waste minimisation strategy; and
  1. (d)
    be accompanied by—
  1. (i)
    an environmental management plan that complies with section 310D; and
  1. (ii)
    the fee prescribed under a regulation.

310D Environmental management plan

  1. (1)
    The purpose of an environmental management plan is to propose environmental protection commitments to help the administering authority decide the conditions of the environmental authority (chapter 5A activities).
  1. (2)
    An environmental management plan must—
  1. (a)
    be in the approved form; and
  2. (b)
    describe each of the following—
  1. (i)
    each relevant resource authority for the environmental authority;
  1. (ii)
    all relevant activities the subject of the application;
  1. (iii)
    the land on which the activities are to be carried out;
  1. (iv)
    the environmental values likely to be affected by the activities;
  1. (v)
    the potential adverse and beneficial impacts of the activities on the environmental values; and
  1. (c)
    state the environmental protection commitments the applicant proposes for the activities to protect or enhance the environmental values under best practice environmental management; and
  2. (d)
    contain enough other information to allow the administering authority to decide the application and conditions to be imposed on the environmental authority (chapter 5A activities); and
  3. (e)
    address any other matter prescribed under an environmental protection policy or regulation.”
  1. [54]
    The parties agree that the relevant version of the EP Act for the purpose of this appeal was Reprint 11A.
  2. [55]
    The term “environmentally relevant activity” is defined in s 18 of the EP Act in the following terms:

“18 Meaning of environmentally relevant activity

An environmentally relevant activity is—

  1. (a)
    an agricultural ERA as defined under section 75; or
  1. (b)
    a mining activity as defined under section 147; or
  1. (c)
    a chapter 5A activity as defined under section 309A; or
  1. (d)
    another activity prescribed under section 19 as an environmentally relevant activity.”
  1. [56]
    Clearly it is 18(c) which applies in the present appeal.
  2. [57]
    Section 19 of the EP Act says the following about environmental activity:

“A regulation may prescribe an activity, other than an agricultural ERA, a mining activity or a chapter 5A activity, as an environmentally relevant activity if the Governor in Council is satisfied—

 (a) a contaminant will or may be released into the environment when the activity is carried out; and

 (b) the release of the contaminant will or may cause environmental harm.

  1. [58]
    The environmentally relevant activities are prescribed in the Environmental Protection Regulation 2008.
  2. [59]
    The term “petroleum activities” in the context of the current appeal is defined in schedule 4 of the EP Act to mean:

“(b) activities that, under the P&G Act, are authorised activities for a petroleum authority under that Act;

  1. [60]
    “Authorised activities” are not defined in the EP Act but, in Schedule 2 – Dictionary to the P&G Act “authorised activity” says “see section 22”.  Reference to s 22 of the P&G Act reveals as follows: 

“22 What is an authorised activity

  1. (1)
    An authorised activity, for a petroleum authority, is an activity that its holder is, under this Act or the authority, entitled to carry out in relation to the authority.”
  1. [61]
    Regard must also be had to the provisions of s 403 of the P&G Act which deals with incidental activities which may be carried out if they are found to be reasonably necessary for the construction or operation of the pipeline.
  2. [62]
    That section provides:

“403 Incidental activities

  1. (1)
    This section applies if, under section 401, a pipeline licence holder has the right to construct or operate a pipeline.
  1. (2)
    The holder may carry out an activity (an incidental activity) in the area of the licence if carrying out the activity is reasonably necessary for the construction or operation.

Examples of incidental activities—

1 constructing or operating plant or works, including, for example,

 bridges, powerlines, roads, trenches and tunnels

2 constructing or using temporary structures or structures of an

 industrial or technical nature, including, for example, mobile and

 temporary camps

3 removing vegetation for, or for the safety of, the pipeline

 construction or operation

Note—

See also chapter 5 (Common petroleum authority provisions) and section 20 (What are the conditions of a petroleum authority).

  1. (3)
    However, constructing or using a structure, other than a temporary structure, for office or residential accommodation is not an incidental activity.

Note—

For development generally, see the Sustainable Planning Act 2009, chapter 6 (Integrated development assessment system (IDAS)).”

The Issues

  1. [63]
    In an attempt, which I think was largely successful, to simplify the applicant’s contentions Mr O'Shea of Queen’s Counsel later went on to tell the Court:[26]

“Your Honour, in relation to the first, the question is was it petroleum activity. And the question is – well, construction of a pipeline is a petroleum activity. Now, if you want to construct a pipeline under this Act, that means you  need a Chapter 5A authority under the Environmental Protection Act.  The question is what is a petroleum activity, because that’s what you get an authority for? And we say the petroleum activity is constructing and operating the pipeline and anything reasonably necessary for that. So, to take an example – and in the environmental management plan you’ll see it referred to, if, for example, you need to have a chemical storage in conjunction with operation of the pipelines. There’s various chemicals that are needed. If that’s if you need to [do] that, and you need to store it, than [sic] that is an incidental activity, because it’s reasonably necessary for the construction of the pipeline. And we don’t see that there’s any dispute about that. That these various aspects of constructing a pipeline, such as chemical storage, that that is an incidental activity under 403(2) and therefore a petroleum activity under the Environmental Protection Act. Now I’m not entirely sure if I’ve answered your Honour’s question.”

  1. [64]
    He went on to say shortly after that dialogue:[27]

“So there are four different types of environmentally activities: an agricultural one, which is not relevant; and mining activity which isn’t relevant; or a Chapter 5A activity, as defined under 309(a), and we took your Honour to that a few minutes ago; or another activity prescribed under section 19 as an environmentally relevant activity. Then if you go to section 19, that refers to regulations, and they prescribe an activity other than one of the other three. And it’s probably worthwhile taking your Honour, at this point, to this. As an environmentally relevant activity, if the Governor in Council is satisfied that a contaminate will or maybe released, and the release may cause environmental harm. Now, those activities prescribed under section 19, they are the Chapter 4 activities. And, your Honour, the reason they’re called Chapter 4 activities is because they’re dealt with under Chapter 4 of this Act, and that commences at, I think, page 79 of the Act.”

  1. [65]
    Mr O'Shea agreed with me when I put this proposition to him:[28]

“So, in a sense, you say that the authority that you get for a petroleum activity is, in a sense, an overarching authority that permits a raft of things to be carried out, because they are all incidental to the prescribed activity of pipeline construction.”

  1. [66]
    I then enquired of Mr O'Shea:[29]

“Is it that simple a conflict?”

  1. [67]
    To which Mr O'Shea replied:[30]

“It is. Our learned friends say no: some of those incidental activities we can prohibit you from doing them. And we say there’s no power under the Environmental Protection Act to prohibit them. Your choice as an administering authority is either to refuse the application; if you say no, that sort of thing just can’t happen. Or, alternatively, to regulate. And we’ll be taking your Honour to the actual authority, and they regulate fuel burning. We say we’ve got no problem with that. You can regulate what sort of concentrations of gases, and it might cover monoxide and [indistinct]. You can do that, but what you can’t do is say yes, we’ll give you an environmental authority, but you can’t burn any fuel.”

  1. [68]
    There can be no dispute about the actual words contained within the statutes.  What is an issue in this appeal is what is the consequence of the correct construction of all of those provisions in both the P&G Act and the EP Act when they are read together in the context of the conditions (A1), (A1A), (A1B), and (A1C).
  2. [69]
    For its part the applicant contends that the conditions sought to be opposed by the respondent are unlawful for two reasons.  The first is that, according to the applicant, the respondent has no power to impose conditions on an EA which prohibit or limit, in a way that effectively prohibits, the activities authorised to be carried out under the P&G Act.  
  3. [70]
    Secondly, they say that the particular conditions were neither necessary nor desirable. 
  4. [71]
    Early in his submissions to the Court at the hearing of this matter Mr O'Shea of Queen’s Counsel said as follows:[31]

“Could I explain the ambit of the dispute; in condition A1, it says:

This environmental authority authorises only those petroleum activities listed in schedule A, table 1.

The important part of that is that that means that any petroleum activities which are not listed there are not authorised. And that’s really at the core of the dispute between the parties. The appellant says, “We need to have an environmental authority for all petroleum activities,” and the respondent can’t pick and choose which ones it approves. It has a choice either to refuse the environmental authority and, of course, it can impose conditions but it can’t prohibit the carrying out of petroleum activities. And we’ll have to develop that argument, of course. A1(a) then refers to installation and operation of pipeline within the gas trunkline right away and the appellant has no quarrel with that at all, it says that’s the appropriate thing to do. But then the difficulty is with condition A1(c), it says:

This approval authorises the carrying out of only the following specified relevant activities.

And, again, it’s the “only” word that’s important. And what’s referred to there is ERA83(b), 15 and 38(b). Now, what those activities are are what is known as chapter 4 activities.  And our contention, essentially, is what the respondent has to do is to assess the application, and in the course of doing that, it might see chemical storage, fuel burning operations, surface coating, it can assess those and place conditions on it. What it can't do is what A1 see purpose to do, which is to say any chapter 4 activities other than those specified here, you can't carry out. You don’t have any authority to do that. And really, we say that’s not – that is in the substance of prohibition of other chapter 4 activities. And we say that can't be done.  What the respondent has to do is to approve or refuse the application, and it can regulate how the activities are being carried out, but it can't prohibit what would otherwise be a valid petroleum activity.”

  1. [72]
    Having regard to the contents of the original Environmental Management Plan (EMP)[32] it is part of the applicant’s case that the EMP which accompanied the application put the assessing officer on notice as to all of the activities which were contemplated as part of the pipeline authority.[33]
  2. [73]
    Mr O'Shea also pointed to the power of the assessing officer to require information if there was any doubt about matters that required clarification.  He said:[34]

“And that really is the argument.  The information is all here.  It can be appropriately conditioned without this reservation which effectively prohibits some activities.”

  1. [74]
    The course which Mr O'Shea submitted was the appropriate one for the assessing authority to take was expressed by him in these terms:[35]

“And can we simply say while we’re here, your Honour, that what’s in here [i.e. Environmental Management Plan] is largely reflected in those conditions of the environmental authority we saw, which was effective containment measures and treatment in accordance with the appropriate Australian standard, and that’s what’s set out here. So we would say, that’s the appropriate way of dealing with it. You put in your environmental management plan where you say what you’re going to do. That then gets assessed. The authority either – the authority sets the conditions. It’s either happy with that and says, this is what you have to do or perhaps make some inquiries, or imposed additional requirements. We say that’s the way it should proceed. Your Honour, that, I think, is what we propose to do at this point on the basis that that, we hope, has given your Honour an indication of the points of dispute between the parties.”

  1. [75]
    The countervailing approach, that of the respondent.
  2. [76]
    Mr Hinson said:[36]

“Our learned friends, we submit, have really [mis]understood the conditions, and we’ve made it plain in our written submissions … it’s always been intended that the conditions identify the petroleum activities that are authorised to be carried out as including the core activities of construction and operation, incidental activities, and then in a separate category, those things which are, but for being part of a petroleum activity – those things which would be a chapter 4 activity, the ERAs. Your Honour will recall question 5 of the application form that your Honour was taken to a little while ago at page 160 required a listing out of all the ERAs that were required to be undertaken whether or not they had an aggregate environmental score, and your Honour might be wondering why the conditions refer to three only of them. The answer appears in the internal review decision, because at the time the internal review decision came to be made, some of these things had ceased to be ERA’s.…  [As a result of] amendment of regulation.”

  1. [77]
    And then later:[37]

“And your Honour will see here that, under section 410(1)(a), the Minister may grant a pipeline licence only if, under (ii), a relevant environmental authority for the licence has been issue[d]. The relationship between the two acts is that the applicant for a pipeline licence applies for the environmental authority first and the Minister may only grant the pipeline licence if the environmental authority exists, and section 412 provides in subsection (2) that the licence may state conditions.”

  1. [78]
    The provisions of s 412(2) are of significance.  They provide:
  1. “(2)
    Subject to section 413, the licence may also state—
  1. (a)
    conditions or other provisions of the licence, other than conditions or provisions that are—
  1. (i)
    inconsistent with the mandatory conditions for pipeline licences; or

Note—

For mandatory conditions, see division 4 (Key mandatory conditions for pipeline licences) and chapter 5, part 8 (General provisions for conditions and authorised activities).

  1. (ii)
    the same as, or substantially the same as, or inconsistent with, any relevant environmental condition for the licence; and
  1. (b)
    review days for the licence; and

Note—

For the consequences of a pipeline licence having review days, see division 7.

  1. (c)
    the day it takes effect.
  1. (3)
    However, the provisions of the licence may exclude or restrict the carrying out of an authorised activity for the licence.
  1. (4)
    If no day of effect is stated, the licence takes effect on the day it is granted.
  1. (5)
    This section applies subject to section 412A.”
  1. [79]
    Mr Hinson went on in his opening submissions to use an example to characterise the position of the respondent.  He said this, having given an example whereby there was some confusion about whether or not the applicant proposed to construct a sewerage treatment plant as part of the pipeline operation.  That matter was ultimately clarified, the sewerage treatment plant being an ERA which had not been identified in response to question 5 of the application form and ultimately the department did not assess the application as though it proposed a sewerage treatment plant.

“Now, if the applicant is right in its argument, the applicant can turn around tomorrow and establish a sewage treatment plant without any further authorisation. And we say, that’s wrong. You did not apply for an STP in your application. [We] have not approved it because you didn’t apply for it. You can’t simply turn around tomorrow and say we’ll operate an STP as part of this petroleum activity on the basis it’s an incidental activity and it’s therefore authorised. We say no, the more fundamental question is you didn’t apply for it. We have no power to approve it. So there is this tension between us about whether the department has prohibited something or whether it’s done no more than approve what was applied for and if it’s done no more than approve what it’s applied for, the appellant can have no complaint.

HIS HONOUR: So you’re really saying that its answer to question 5 on page 160 was inadequate.

MR HINSON: It’s not inadequate, as events have turned out. When the application came in, it did not identify an STP; [sewerage] treatment plan. The application form indicated they wanted to build one. That was later clarified and we’ve referred to this in the submissions and given your Honour a page reference - - -

HIS HONOUR: So that might be a bad example - - -

MR HINSON: Well, no. It’s an example that illustrates the point because we understand the applicant’s argument to be we’re not allowed to prohibit something which is in fact an incidental activity to the construction of a pipeline or the operation of a pipeline. What we say in response is no, we get an application that identifies the things you want to [ap]prove it for. As it turned out, you didn’t want approval for an STP. We haven’t approved it. But we haven’t prohibited you from carrying out an STP. We’ve simply done no more than give you an approval for what you’ve applied for. And that’s all we’ve done. And we say, properly construed, the conditions reflect the department’s intent to approve what was applied for, but to make it plain we’re not approving something that you haven’t applied.”[38]

  1. [80]
    The respondent in its submissions[39] has propounded an amended condition which they say approves everything which is referred to in the application save for a sewerage treatment plant and those activities which have ceased to be environmentally relevant activities because of subsequent amendments to the regulations so that there is no environmental authority required for them.[40]

Conditions A1, A1A and A1C could be amended along the following lines:

“This environmental authority authorises only those petroleum activities listed in Schedule A Table 1.

Schedule A, Table 1 – Authorised Petroleum Activities

Petroleum Activity

Maximum Size (where applicable)

Co-ordinates / Location (where applicable)

Construction and operation of gas pipeline within Gas Trunkline Right of Way (RoW) under PPL175.

 

 

 

 

 

 

 

 

 

 

81 ha

Start Point:  Polaris Field Compressor Station (Lot 46 on FT497)

 

End Point:

Woleebee CPP Trunkline (Lot 2 on FT394)

Construction and operation of water pipeline within Water Trunkline RoW under PPL179

Start Point:  Polaris Pump Station (Lot 46 on FT497)

 

End Point:  Woleebee Creek Raw Water Pond (Lot 10 FT87)

Incidental activities in the area of PPL175 that are reasonably necessary to be carried out for the construction and operation of the gas pipeline.

 

Incidental activities in the area of PPL179 that are reasonably necessary to be carried out for the construction and operation of the water pipeline.

 

 

In Schedule A Table 1 “incidental activities”:-

  1. (a)
    includes:-
  1. (i)
    the excavation and operation of borrow pits not exceeding a total area of 27.5 hectares and limited to one pit per block;
  1. (ii)
    workspace outside the right of way not exceeding 2.5 hectares in area;
  1. (b)
    does not include any activity described in Schedule 2 of the Environmental Protection Regulation 2008 other than:-
  1. (i)
    chemical storage, being storing more than 500 cubic metres of chemicals of class C1 or C2 combustible liquids under AS1940;
  1. (ii)
    fuel burning operation using fuel burning equipment that is capable of burning at least 50kg of fuel in an hour;
  1. (iii)
    surface coating, being coating, painting or power coating using 100-1000 tonnes in a year of surface coating materials.”
  1. [81]
    As can be seen by comparison with the original conditions set out in paragraph [21] above the changes to the condition are subtle bur for reasons set out below may be effective. 

The Evidence

  1. [82]
    The evidence adduced in the actual hearing was of relatively short ambit. 
  2. [83]
    The parties had agreed on a bundle of documents which was tended as Exhibit 1 and comprised the following 17 documents which are identified as Exhibit 1 with the relevant document number attached to it.
  3. [84]
    The 17 documents included in Exhibit 1 comprised:

No.

Document

Date

A

Resource authorities and application material

1

Application for pipeline licence (Form PPL-01A), for Petroleum Pipeline Licence 175

20 April 2012

2

Letter from QGC to Department of Natural Resources and Mines regarding amendment to application for Petroleum Pipeline Licence 175

18 October 2012

3

Application for pipeline licence (Form PPL-01A), for Petroleum Pipeline Licence 179

29 October 2012

4

Petroleum Pipeline Licence 175

5 April 2013

5

Petroleum Pipeline Licence 179

2 April 2013

B

Environmental Authority application material

 

6

Letter from QGC to DEHP, attaching Application for an Environmental Authority for a Chapter 5A Activity, comprising:

  • Appendix 1:  Application Form & Cheque
  • Appendix 2:  Suitability Statement
  • Appendix 3:  DNRM Acknowledgement Notices
  • Appendix 4:  Company Extracts
  • Appendix 5:  Environmental Management Plans

30 November 2012

7

Information Request from S Tarte, Department of Environment and Heritage Protection, (DEHP) to QGC Pty Limited

22 January 2013

8

Letter from QGC to DEHP, attaching:

  • Response to Information Request for Environmental Authority Application Polaris PPL PEN105388512

1 February 2013

9

Email from K Smith (DEHP to C Billington (QGC), attaching:

  • Draft conditions for the “Polaris PPL” (undated); and
  • Condition negotiation template, dated 6 March 2013

6 March 2013

10

Email from C Billington (QGC) to K Smith (DEHP), attaching:

  • QGC’s comments on the Polaris PPL EA Application, dated 6 March 2013

15 March 2013

C

Environmental Authority and Internal Review documents

11

Environmental Authority PEN105388512

26 March 2013

12

Information Notice EHP to QGC (with internal review and appeal rights information sheet)

28 March 2013

13

QGC (Infrastructure) Pty Limited’s (QGC) Internal Review Application and Submissions on Internal Review

11 April 2013

14

DEHP Notice of Decision on Internal Review and Reasons for Decision

Undated

15

Environmental Authority PEN105388512 (as altered by Internal Review Decision)

29 April 2013

  1. [85]
    Exhibit 1 also contained within it a document 16 an affidavit of Kimberley Smith,[41] filed by the respondent together with an affidavit of Anne Lenz[42] also filed by the respondent. 
  2. [86]
    Of those two deponents only Ms Lenz was required for cross-examination. 
  3. [87]
    Prior to Ms Lenz being called for cross-examination Mr Hinson told the Court that he wished to attempt to summarise the respondent’s proposition with two propositions. 
  4. [88]
    The first of those propositions was that the respondent did not refuse any activity applied for.  The second proposition was that if the respondent had refused any activity applied for it did have the power to do so. 
  5. [89]
    As a counter point to those propositions Mr Hinson told the Court that so far as he apprehended the applicant’s case it was that what had been done, in the first place, amounted to a refusal or a prohibition and secondly that if it did that there was no power reposed in the respondent to do so. 

The Evidence of Ms Lenz

  1. [90]
    Ms Lenz, in her affidavit[43] describes herself as the Executive Director of Energy Resources and Enforcement Services (ERE) which is a branch of the respondent. 
  2. [91]
    She is responsible for leading the Energy Resources and Enforcement branch and ensuring that it administers the legislation that is responsible for in an efficient and effective way.
  3. [92]
    She says, in her affidavit that there are significant time and resource constraints which impact on ERE’s ability to achieve this day to day.[44]  She goes on to describe a lengthy list of areas of responsibility for that particular unit.
  4. [93]
    In her affidavit she says as follows:[45]

“4. A significant part of ERE’s role is to develop policies and procedures that appropriately facilitate the above responsibilities.  ERE’s approach to this part of its role is to seek to ensure that the policies and procedures it develops are:

 (a) lawful;

 (b) efficient and effective;

 (c) in accordance with the broader policies of EHP and the Queensland Government; and

 (d) applied consistently to all persons applying for, or acting under, environmental authorities.”

  1. [94]
    Ms Lenz was the person who conducted the internal review of the original decision.[46] 
  2. [95]
    She acknowledged that the review she conducted was constrained by the requirements of Reprint 11A of the EA Act, in particular s 310B. 
  3. [96]
    Under cross-examination she acknowledged the apparent completeness of the material which accompanied the application.[47] 
  4. [97]
    Ms Lenz also acknowledged that, in assessing an application if the assessor was not satisfied that there was enough information to allow assessment to occur the assessor could require further information.[48]
  5. [98]
    Ms Lenz was also taken to s 310M of the Act and acknowledged that that particular provision gave her the authority, the power to grant or refuse the application.[49]
  6. [99]
    She was then taken to s 310N of the EP Act which provides:

“In deciding whether to grant or refuse the application, the administering authority firstly must comply with any relevant regulatory requirement and, secondly, subject to that must consider each of the following [listing a number of matters to be considered].”

  1. [100]
    She was then taken through the list of matters to which consideration must be given.[50]  She acknowledged that all of those matters were worthy of and required consideration.
  2. [101]
    Ms Lenz acknowledged having regard to the defined term best practice environmental management as set out in s 21 of the EP Act but that was not a simple concept and that the assessor was required was required to consider how any proposed activity was being managed to achieve an ongoing minimisation of environmental harm, not just up front but ongoing and to then consider what’s being done through cost effective measures. 
  3. [102]
    She acknowledged that that required a careful and thorough assessment of the particular activity that was being planned for.[51]
  4. [103]
    Later in her cross-examination Ms Lenz acknowledged that the EPM document was a detailed document with a lot of detail about individual areas within it and that she was required to consider that pursuant to ss (b) of s 310N.[52] 
  5. [104]
    It was put to Ms Lenz that in her assessment:[53]

“You would consider the types of conditions that you would impose at the same time as you’re considering whether you’re going to grant or refuse the application?”

  1. [105]
    Ms Lenz responded:[54]

“Yes, that’s correct. You’d think about the nature of the receiving environment, the activities, the impacts on them, the measures that have been proposed in terms of controlling those risks or impacts to the environment, whether or not those risks or impacts are capable of being conditioned and that’s when you get to your conditioning point and presuming all those things line up for each of the activities that’s where you approve or refuse mines at the end.”

  1. [106]
    In cross-examination Ms Lenz was taken to paragraph 8 of her affidavit which needs to be read in conjunction with paragraph 7.  Those paragraphs state:[55]

“7. I consider the imposition of conditions A1, A1A and A1C on the Revised Polaris EA are necessary, or at least desirable, as the imposition of those conditions contributes to the overall efficiency and effectiveness of the environmental authority.

  1. It is also consistent with ERE’s policy objectives for these types of conditions, which are designed to enhance and maintain the efficiency and effectiveness of environmental authorities for petroleum activities.  These objectives are that:
  1. (a)
    principal activities which are authorised to occur under an environmental authority are clearly identifiable in the environmental authority, along with any constraints that apply to them;
  1. (b)
    all incidental activities (being activities that are reasonably required to carry out the authorised principal activities) are taken to be authorised to occur in conjunction with their related principal activity, save for where an incidental activity is a “specified relevant activity”;
  1. (c)
    specified relevant activities which are authorised to occur under the environmental authority are to be expressly authorised within the environmental authority; and
  1. (d)
    where a principal activity and / or specified relevant activity is not expressly authorised, that principal activity and / or specified relevant activity is not authorised to occur under the environmental authority.
  1. There are a number of reasons why ERE considers conditions that are imposed in accordance with the above policy objectives assists in the overall efficiency and effectiveness of environmental authorities for petroleum activities.  I discuss these in more detail below.”

Paragraph 9 is also relevant.

  1. [107]
    Ms Lenz acknowledged that there no documents recording policy objectives referred to by her in her paragraph 8. 
  2. [108]
    She told me in response to a question as to where the words in her paragraph 8(a)(b)(c) and (d) come from:[56]

They come from a – basically a model condition that we use in relation to the table, I think, that’s in dispute in this hearing about how we determine, I suppose, the types of activities that we then place and authorise.”

  1. [109]
    It appeared from her evidence that the conditions applied by her to the review were taken from other existing environmental authorities which themselves did not reflect any particular written and clearly articulated policy document which spoke about objectives.[57]  
  2. [110]
    In an attempt to explain the application of the “policy objectives” Ms Lenz said:[58]

“What I’m saying there is that we have a policy objective of efficiency and effectiveness and in relation to how we operate within the energy assessments area that has expressed itself by virtue of that particular condition.”

  1. [111]
    I remain unsure as to what explanation actually means. 
  2. [112]
    Ms Lenz continued:[59]

“What I said to you was that there are high level policy objectives of efficiency and effectiveness which are written down, but there is no departmental document which then says the way to translate the policy objectives of efficiency and effectiveness in exactly the way that we have. No. That doesn’t exist.”

  1. [113]
    As I apprehend the totality of Ms Lenz’s evidence she seemed to be telling the Court that the ERE unit was under-resourced and over-burdened with work that a consequence that it had to develop policies for administering environmental regulation of petroleum activities.  It is worth repeating a number of other statements contained in Ms Lenz’s affidavit in addition to paragraphs 7 and 8 which are quoted above.[60]

“15. In addition, clearly expressing what activities an environmental activity actually authorises is considered to enhance the overall usability of the authority.  Users of environmental authorities regularly fall within a number of different categories.  The people within those categories often have varied levels of experience and skillsets in terms of using these types of approval documents.

  1. Environmental authorities for petroleum activities tend to operate over many years; often decades.  As a result, while the user categories identified above will tend to remain static, the actual users within those categories will often change a number of times throughout the lifecycle of an environmental authority. 
  1. In my experience, these constantly changing circumstances generate a significant amount of work for both ERE and industry members in ensuring that relevant users of environmental authorities properly understand the effect and operation of those authorities.  This includes understanding what activities are, or are not, authorised to occur under them.
  1. It also avoids the need for users of environmental authorities to have to revisit application material to determine what the authority may or may not authorise.  It is ERE’s experience over many years that application documents are often not drafted with the necessary certainty required for a statutory approvals.  It is also the case, although I understand it is an issue to be determined in this proceeding, that approvals will often approve something in a way that is not exactly in accordance with what has been applied for.  Thus, it is highly desirable for users of an environmental authority to simply be able to rely on its terms alone to determine what it actually authorises. 
  1. Issuing environmental authorities subject to conditions such as conditions A1, A1A and A1C is also considered to be consistent with the overall scheme of the EP Act and the policy and guidance documents that are used in support of that scheme.
  1. For example, under section 310C of the EP Act (reprint 11A) an applicant was required to include in their environmental authority application, among other things:

 (a) all relevant activities for the application; and

 (b) enough information to allow the administering authority to decide the application, including relevant information about the likely risks to the environment.

  1. Accordingly, issuing an environmental authority that specifies with particularity the relevant activities that have been approved through that scheme’s assessment process is consistent with the scheme of the EP Act.  Approving environmental authorities in this way is considered necessary, or at least, desirable in this context.
  1. ERE also considers that identifying specific classes of activities for assessment based on their potential to cause environmental harm provides efficiencies for both drafting of applications and their assessment.  As is noted above, the mandatory application form identifies ERAs as a particular class of activities that an applicant should consider will require specific consideration.
  1. The effectiveness of such an assessment, however, is only crystallised at the point where the ERE assessing officer can be confident that unassessed ERAs are not going to be unwittingly approved.  Hence, it is necessary or desirable to impose a condition on an approval that specifically lists those ERAs that have been authorised to occur.  In the Revised Polaris EA, this has been done by the use of the concept of ‘specified relevant activities’.

Conclusion

  1. While it is readily accepted by ERE that:

 (a) the administering authority must carry out its task of administering its applicable legislation in a way that is lawful; and

 (b) there are any number of ways that that task could be achieved;

  once the lawfulness of a particular approach is established it is necessary or at least desirable, for the administering authority to be able to carry out that talk in a manner that is efficient and effective.

  1. The imposition of conditions such as A1, A1A and A1C represent the underlying policy objective that the administrative authority considers supports its efficient and effective management of environmental authorities for petroleum activities.
  1. Further, the imposition of those types of conditions represents the administering authority’s views as to how it can best manage the environmental regulation of petroleum activities:

 (a) in accordance with the broader policies of EHP and the Queensland Government; and

 (b) in a manner which treats all applicants and environmental authority holders equally and consistently.”

  1. [114]
    Mr O'Shea sought to clarify what was contained in Ms Lenz’s paragraph 8 (particularly 8(d)) and the following passage of cross-examination is relevant to that issue:[61]

“Now, can I suggest to you that – and we can do it by reference to your affidavit – including a condition, such as condition D, does not add to the clarity of an environmental authority?---So which condition D, sorry?

8D?---Is this back at paragraph 8 of my affidavit, is that eight – does that mean – yeah?

Yes. That’s correct?---Why wouldn’t that add to clarity, sorry?

And particularly, you say – what you’re saying at 8D is where a specified relevant  activity is not expressly authorised – sorry – I have to go back. These conditions depend on defining a specified relevant activity. Correct?---Yes.

And that specified relevant activity is defined by reference to chapter 4 activities?---Yes. That’s correct.

So what then happens is that these conditions say all incidental activities are authorised unless it’s a chapter 4 activity?---Yes. That’s correct.

And I’m suggesting that having that sort of condition doesn’t add to clarity?---So on  the context of the application that’s made, and the context of the activities that are identified as authorised activities and then a reasonable construction of what activities might be incidental to those, the reason why we pull out those specified relevant activities is because we’ve got a process under the legislation where governor and council says they will or may release contaminates and they will or may cause harm. So by including them in the application form and then including them here, they’re – for want of a better term – dead sitters of things that we’re very concerned about in respect of environmental harm. That doesn’t resolve, though, the applicant of any obligation through the application process at law to identify any of their activities that have the potential to cause harm and then be assessed and conditioned. All of the activities that are then through that process and are then conditioned and authorised don’t – aren’t necessarily specified relevant activities, which is why we have authorised incidentals. So if there is something that is being done that hasn’t been specifically identified in the application as part of that activity – that authorised petroleum activity – then, no, it has not been considered assessed and authorised. I’m not quite sure if I’m quite understanding your question but.”

Can I suggest to you then that this condition, which you add here in little D, simply adds a level – adds another issue which is we’re doing something which is incidental to our chapter 5A activity, we now have to decide whether otherwise that would be a chapter 4 activity. Because if so, it’s prohibited?- No. That’s not how it operates.  So it operates in conjunction with the application form. The reason why we ask people to specifically identify those, to be honest, is to give them a little bit of help because if they are doing any of those activities – because of the nature of those activities and the fact that they do have that level to cause environmental harm by virtue of having gone through that process with governor and council, then we would just want to make abundantly sure that they have identified those in their application as a relevant activity for the purposes of the application. That’s doesn’t – that’s not an exclusive list, though - - -[62]

And I suggest whether or not in the course of that activity, there is something which, in another circumstance might be a chapter 4 activity, is not a legitimate concern of the administering authority?---They cause environmental harm so, yes, they are a legitimate concern in terms of the assessment.  And I suggest that you address them as aspects of the chapter 5A activity - - -?---Yes.  That’s correct. ---and you don’t identify then by reference to chapter 4?---Yes. That’s correct.  We’re not saying that chapter 4A, like – sorry, chapter 4. We’re not saying they’re chapter 4 activities at law, but we’re saying that if those activities are being carried out, by their nature, they have that harm causing potential so therefore they’re relevant for the purposes of our application and our assessment. There’s no doubt that those activities are part of where they can be considered incidental to authorised petroleum activities as a petroleum activity, if that makes sense.”[63]

  1. [115]
    The crux of the differences which exist between the applicant and the respondent are probably typified by the following exchange between Mr O'Shea for the applicant and Ms Lenz. 
  2. [116]
    The questions were asked in the context of the obligations of the licencing authority in considering the applications lodged by the applicant and the activities which were identified in the course of that lodgement.[64] 

“My suggestion to you is that what you need to do then is to look at those activities.  You then either grant an authority for a chapter 5A activity [or] you don’t and you regulate how they’re to be carried out if you think that’s appropriate. But what you don’t do is to prohibit activities which, in other circumstances, might be chapter 4 activities?---But if - - -  Because you simply don’t need to do that if you’ve done the proper assessment of  these activities?---But if they haven’t been applied for we can’t approve them, though, which is the point of that condition.  Accepting that. If it’s not applied for, that’s true?---Yes. If they’re not applied for, we can’t approve them. That’s right.  And so I suggest that adding something like your paragraph D does not clarify the environmental authority. It simply raised another issue which can arise and which can be complex?---I think it does clarify the environmental authority. There are multiple purposes for what we use that list for, including financial assurance calculations, fee calculations, in terms of activities that are authorised. So there’s – you know, there are multiple purposes apart from the authorisation in the first instance that we then use the way that that table is constructed.”

  1. [117]
    In the course of intervening in the cross-examination I sought to clarify from Ms Lenz her comments about the ERE’s “Policy Objectives”.
  2. [118]
    I put to her, in the context of some high level policy the existence which she acknowledged,[65] that what they constituted was an aspirational policy to achieve some conditions, some outcomes and that those aspirational ambitions were to enhance and maintain the efficiency and effectiveness of environmental authorities for petroleum activities. 
  3. [119]
    Ms Lenz acknowledged that that was correct articulation of her evidence.
  4. [120]
    Ms Lenz also conceded that the items identified in paragraph 8(a), (b), (c), and (d) were those objectives.
  5. [121]
    I then put to Ms Lenz the following:[66]

“I’m somewhat struggling with the notion that if those (a), (b), (c) and (d) – I’m giving you a chance to clarify and help me here - with the notion that if (a), (b), (c) and (d) are objectives, how objective then becomes the condition. Could you help me with that.”

Ms Lenz’s response was to say

“Maybe objective is not quite the right [term], to be frank.”[67]

  1. [122]
    She went on, by way of clarification, to say:[68]

“In hindsight, maybe I've chosen the wrong term to be honest. So the objectives or the objective is the efficiency and effectiveness, and those things there are the way that we say those objectives are expressed in the way that we do environmental authorities. So whether you're – I've meant objectives in the sense that that's what we’re trying to achieve to allow us to get the efficiency and effectiveness stuff. But if I've misstated that the wrong way, what I'm trying to say is that that's driven the drafting of those conditions, and behind that is the efficiency and effectiveness, which is about clarity, consistency and all those other things that are mentioned as well.”

  1. [123]
    I then asked Ms Lenz as to whether aspirations 8(a), (b), (c), and (d) related directly to anything identified in the application form or in the draft EMP to which she responded:[69]

“No. So the reason why we've come up with the term “specified relevant activity”, which is effectively in – commonly known, I suppose, as chapter 4 ERAs was because of that confusion about people saying to us “Well, you can't regulate chapter 4 ERAs. And we’re saying, “Well, we’re not trying to regulate them in that way, what we’re saying is, if you're conducting a petroleum activity, and as part of that petroleum activity, if you wanted to conduct any of these other activities, which are known harm causing activities, then you need to tell us about those. So from a drafting point of view, it was suggested that we come up with the term “specified relevant activity”. It’s another term which probably complicates things sometimes, but---”

  1. [124]
    In that passage her evidence Ms Lenz sought to clarify the use of the term “specified relevant activity” which she had conceded as a term created by the Energy Resources Enforcement Service. 
  2. [125]
    She acknowledged that not one of the defined terms under the Act.
  3. [126]
    It is noteworthy that at no point did Ms Lenz feel obliged to identify from whom the suggestions to which she referred emanated.
  4. [127]
    Mr O'Shea then moved to cross-examining Ms Lenz about the assessment process.
  5. [128]
    At paragraphs 27 and 28 of her affidavit Ms Lenz spoke in the following terms:[70]

“ERE also considers that identifying specific classes of activities for assessment based on their potential to cause environmental harm provides efficiencies for both drafting of applications and their assessments.  As is noted above, the mandatory application form identifies ERAs has a particular class of activities that an applicant should consider will require specific considerations.  The approach of relying on an applicant to specifically identify certain classes of activities, such as ERAs, that it seeks approval for provides efficiencies in drafting applications in that it enables an applicant to ensure each of these activities has sufficient information to support a favourable outcome in the assessment.”[71]

  1. [129]
    Ms Lenz continued:

“The effectiveness of such an assessment, however, is only crystallised at the point where the ERE assessing officer can be confident that unassessed ERAs are not going to be unwittingly approved.  Hence, it is necessary or desirable to impose a condition on an approval that specifically lists those ERAs that have been authorised to occur.  In the revised Polaris EA, this has been done by the use of the concept of ‘specified relevant activities.”

  1. [130]
    At no point in her evidence did it become clear or explained with any clarity why it was that ERAs might be unwittingly approved in circumstances where the assessing authority had the power and opportunity to seek further information as to what was contemplated in the context of the application as a whole. 
  2. [131]
    Ms Lenz’s affidavit then went on to explain that the conditions as imposed in the present case were not at all inconsistent with other environmental authorities which had been issued by the respondent. 
  3. [132]
    Her finishing proposition was:[72]

“Due to the obvious efficiency this provides, it is necessary, at least desirable, for environmental authorities to be issued in a form that is consistent with current ERE policy.”

  1. [133]
    Section 403 in its reference to “incidental activities” in a noteworthy way does not, by way of example, identify “incidental activities” which are also environmentally relevant activities as that term is used in Chapter 4 of the EP Act nor “incidental activities” which are listed in Schedule 2 to the Environmental Protection Regulation.
  2. [134]
    Had the draftsperson formulating s 403 of the P&G Act it was at all times open to them to clarify incidental activity by referring to incidental environmentally relevant activity. 
  3. [135]
    None of the exemplars given in the note to s 403 of the P&G Act appears in the list of Schedule 2 Activities.
  4. [136]
    Vegetation removal for example would seem likely to fall within the aegis of the Vegetation Management Act 1999.
  5. [137]
    Similarly, constructing structures of an industrial or technical nature such as mobile or temporary camps would probably fall requiring compliance with things like the Building Act 1975, Building and Fire Safety Regulation 2008, Building Regulation 2006 and the Work Health and Safety Act 2011.
  6. [138]
    In answer to a further question Ms Lenz made I think an important point when she said, speaking of activities which might be Chapter 4 activities but for the effect of Chapter 5A:[73]

“But if they haven’t been applied for we can’t approve them, though, which is the point of that condition.”

  1. [139]
    Later in the cross-examination Mr O'Shea put the following to Ms Lenz considering Schedule G:[74]

“Now, can I suggest to you that there’s no need for fuel burning to be measured – sorry – to be mentioned in a conditional A1C, because fuel burning is in fact regulated by schedule G?---Yes. The reason why we put our reasons, which are gone through in my affidavit and other places, as to why we pull them out and put them at the front. But in terms of the regulation of the emissions, and in terms of the harm that's potentially then caused by that activity, it’s then in the relevant schedule that applies to the potential impact. So for fuel burning equipment, it’s in the Air Schedule. So yes.

Can I suggest to you that if you have some aspect of a petroleum activity like fuel burning, it should be authorised and then regulated into fashion like schedule G, if that's appropriate?---Sorry. Can you just repeat the first part. If you think that fuel burning should be?

  1. [140]
    Having extracted from Ms Lenz a concession that an activity like fuel burning could be regulated in something Schedule G Mr O'Shea went on to suggest to Ms Lenz that there was no need for it to be in a condition like A1C to which she responded:[75]

“The reason why it’s included in a condition like [A1C] is so that it’s clear the extent of the activities that were assessed and approved as part of the application, so there’s no ambiguity in relation to that.”

  1. [141]
    He bought similar propositions to her in respect of Chemical Storage and Surface Coating.
  2. [142]
    Mr O'Shea then took Ms Lenz to task about the broad nature of some conditions and the fact that other activities did not appear to be caught up by specific conditions.  That is illustrated by the following contained within the transcript of the hearing when Mr O'Shea was asking her about powder coating of welding on pipes:[76]

“That's right. Now, in fact, there are no conditions which regulate that aspect of the activities?---It depends, I suppose, in particular the impacts and whether or not they're contained in any of the other general conditions. So there’s activity – there’s conditions in relation to discharge of contaminants to land and to water and to air. And so dependant on the activity and how they carry it out, they can be captured by those general conditions. But in respect of – if your question is, is there any specific conditions in relation to surface coating, then no, there’s no.

And as you point out, there are general conditions which would affect this operation, including the release of contaminants?---Yeah. That's correct. So an example of them is found on page 836, contaminant release?---Yes. That's correct. And so this is regulating contaminant release. Correct?---Yes.  And isn’t it contaminant release, or the opinion about contaminant release by the governing council, that's the basis for chapter 4 activities?---Yes. That's correct.

So aren’t these general conditions in fact doing the work that you think has to be done by prohibiting chapter 4 activities?---So I think in terms 5 of why we pull the conditions out at the front, and we name the actual activities that have been assessed and approved as part of the application, it’s not in relation to the harm that's authorised by those particular activities, they then – that then happens in subsequent conditions, as you’ve pointed out, in the environmental authority. So the reasons for pulling those conditions out, or those names of those activities out, is around the certainty of what's been assessed and approved in relation to this particular application, so that a person doesn’t have to go back to the application material, the application form, the environmental plan, any correspondence that was exchanged between the parties, any information requests that were made to understand the breadth of activities that have been assessed and conditioned. 

Can I suggest to you that, in fact, what you're supposed to do is to assess chapter 5A activities, the petroleum activities. That’s the activity which you have to assess, and that can be very broad indeed?---Yes. That can be very broad. 

And I suggest there’s no point in picking out chapter 4 activities, because the accidental encounter with a chapter 4 activity is not something which the authority is required to take into account when assessing a chapter 5A application?---Because those activities are known to cause harm, they're relevant for the purposes of if they're being carried out as a petroleum activity, then they must be identified in the application.[77]

  1. [143]
    I sought clarification from Ms Lenz as to whether she agreed with the proposition put by Mr O'Shea that the assessment activities only involved activities that were identified in the application and that the assessment process did not go beyond those kinds of activities. 
  2. [144]
    Ms Lenz responded:[78]

“No. That's correct. We assess the identities – we assess the activities identified as being proposed to be carried out by the proponent in their application. If we attempted to try and assess every single potential activity that could be a petroleum activity, it would not only would the proponent not be doing those things, but it would be there forever and a day, because there could be multiple instances of how that activity could be done, and in multiple locations.”

  1. [145]
    There then followed a passage of cross-examination in which I think everyone became confused.  Ultimately it was clarified by Ms Lenz saying:[79]

“I think you asked me, should – is it – are we capable of prohibiting – which what would be a chapter 4 ERA. My answer was that, if they weren’t in that list, and my answer is, that if they're not part of the application, and we haven’t assessed and approved them, then they're not part of that list. And so, I suppose, by implication, they're prohibited. But it’s because they haven’t been applied for.” 

  1. [146]
    Re-examination of Ms Lenz by Mr Hinson was commendably brief he simply enquired:[80]

“Mr O'Shea asked you about prohibiting chapter 4 activities. Can you identify chapter 4 activity that was mentioned in the application that was refused or prohibited by your decision?”

To which Ms Lenz responded:

“No. I can't.”

  1. [147]
    In his submissions Mr O'Shea for the applicant pointed out, explaining his client’s case in a summary sort of way that s 310O of the EP Act is a permissive provision providing as it does that the administering authority may impose the conditions on the environmental authority (Chapter 5A activities) it considers are necessary or desirable.[81] 
  2. [148]
    The section goes on to identify some conditions which must be included and then others that may be included.  Significantly 310O(3) provides specifically that ss (1) is not limited by ss (3). 
  3. [149]
    In his oral submissions Mr O'Shea was keen to point out that upon his interpretation of that section it is a statutory fetter on the ability of the authority to impose conditions insofar as:[82]

“They have to be conditions that it considers to be necessary or desirable.”

  1. [150]
    The cross-examination of Ms Lenz left open (but in my opinion not conclusively) that part of the approach of the assessing authority which resulted in the environmental authority conditions being expressed the way they were was to achieve administrative efficiencies. 
  2. [151]
    It seems to me to be a relatively straightforward flow of logic to find that anything identified in Schedule 2 to the EP Regulations is a relevant activity for the purpose of s 310C of the EP Act.
  3. [152]
    I did not understand the applicant’s case to include a contention that a pipeline activity could not necessarily involve an activity identified in Schedule 2 to the Regulation.
  4. [153]
    As Mr O'Shea has contended in his submissions, the obligation on the assessing authority is to carry out a full assessment and a shortage of resources was not justification for avoiding the statutory obligations to do just that because of administrative convenience.
  5. [154]
    Finally Mr O'Shea drew the Court’s attention to the authorised petroleum activities referred to in Condition A1 and in particular the reference to borrow pits with an area of 27.5 ha and an approval for one borrow pit per block.
  6. [155]
    There were five blocks identified in the application.[83]
  7. [156]
    I had earlier made an order (3 March 2014) that the respondent was to make disclosure of all documents relevant to its consideration of its conditions A1, A1A and A1C of the Environmental Authority; and the decision to impose conditions A1, A1A and A1C of the Environmental Authority.
  8. [157]
    No documents were disclosed which evidenced any such consideration, assessment or decision.
  9. [158]
    Mr O'Shea says, I think fairly:[84]

“There is really no basis demonstrated, in the light of what is said in the environmental management plan for limiting this to the estimate, which at firstly is a general estimate without giving the flexibility which is referred to there, which may well be needed if the rock source just turns out to be not available or in smaller outcrops or whatever it might be.  And that’s where we say its significant, your Honour, that there are no documents showing consideration of these conditions.  Because this limitation of one per block is contained in those conditions.”

  1. [159]
    Mr Hinson used the example of ERA 16 which is extractive as screening activities to make his point about the merging of Chapter 4 activities into a Chapter 5A activity in some circumstances.  He said as follows:[85]

“Your Honour will see ERA 16 is described in subsection 1 as consisting of any of the following. And then subsection 2 says, the relevant activity does not include extracting material under an environmental authority chapter 5A, activities. So here is yet another example of something that is an ERA. If carried out in its own right as a separate independent activity is subject to chapter 4; if it’s carried out as a component of, or an element of petroleum activities or some other chapter 5 activity, it takes on the character of a chapter 5A activity rather than a chapter 4 activity.”

  1. [160]
    The issue of the number of borrow pits or their area is not able to be resolved on the basis of the evidence presently before the Court.
  2. [161]
    That is just an example of some of the difficulties with both the amount of detail provided in the application and draft environmental plan and the associated documentation. 
  3. [162]
    Mr Hinson in is oral submissions highlighted what he says was a flawed argument advanced by the applicant:[86]

“That a definition in the P&G Act which says the environmental authority is one granted for all the authorised activities, controls the construction of the EP Act and says you must, under the EP Act, issue an environmental authority for all those activities.  You’ve got no choice.  You can’t pick and choose.  You can’t approve some; you can’t approve others.  That’s a flawed argument for the reasons we identify in paragraph 40 of our written submissions.”

  1. [163]
    Within the respondent’s submissions the following appears:[87]

“The applicant’s submissions that all activities must be approved of or the environmental authority refused (paragraph 50) rests on a misunderstanding of the legislative scheme.  The applicant relies (paragraphs 45(b) and 49 (c)) on the P&G Act definition ‘relevant environmental authority’ as one granted for all authorised activities for the pipeline authority that are environmentally relevant authorities under the EP Act.  The P&G Act definition is relevant to s 410 of the P&G Act which describes when a pipeline licence under that Act may be granted.  It is not relevant to, and does not inform the construction of the administering authority’s decision making powers under the EP Act.”

  1. [164]
    As a corollary proposition (which I accept) Mr Hinson goes on to point out that the decision making powers of the administering authority under the EP Act are contained wholly within the EP Act and there is no evidence which suggests that the P&G Act in any way overwhelms the provisions of the EP Act.[88]
  2. [165]
    In addition, there are the provisions of s 310M of the EP Act which provides that the administering authority, while obliged to consider the application within particular periods has to decide to grant or refuse the application. 
  3. [166]
    If it does not refuse it the application then s 310O becomes relevant and it provides at ss(1) that the administering authority may impose the conditions on the environmental authority it considers are necessary or desirable. 
  4. [167]
    Once again, because of the failure to disclose any documentation revealing how the conditions were developed or the considerations underlying the presence of those conditions in the approval, it is impossible to say whether they are either necessary or desirable. 
  5. [168]
    There is also the impact of the relatively important s 309K of the EP Act which provides that a single environmental authority is required for a Chapter 5A activity project and that the holder of an authority cannot apply for a separate environmental authority for an additional Chapter 5A activity proposed to be carried out as part of the project. 
  6. [169]
    That section goes on to provide that its effect does not prevent the holder of an environmental authority from applying to amend or replace the environmental authority. 
  7. [170]
    In my opinion that makes clear the desirability that any application for an environmental authority should identify with clarity all environmentally relevant activities proposed to be carried out.
  8. [171]
    It is only if that occurs that the assessing authority will be fully informed of all proposed activities which are contemplated in the project and accordingly, it is the only context in which the assessing authority can decide whether to refuse or approve the application and if it approves it, what relevant conditions ought be imposed upon it.
  9. [172]
    Mr Hinson was also keen to draw the Court’s attention to the provisions of Schedule 5 to the Environmental Protection Regulation 2008 which makes clear that the proposed activity is a Level 1 Chapter 5A activity, being a petroleum activity that includes one or more Chapter 4 activities for which an aggregate environmental score is stated.
  10. [173]
    At the time the application the application was made it included seven environmentally relevant activities.[89]
  11. [174]
    I do not consider it unreasonable that, in a project of the scale of what is here proposed, a proponent should be required to go in detail through all of the environmentally relevant activities which are identified in Schedule 2 to the Environmental Protection Regulation 2008 and identify with some degree of particularity which or any of those environmentally relevant activities are likely to be carried out in the course of the project.
  12. [175]
    A proponent might be assumed to have a more detailed knowledge of what is proposed than any other party and its obligation, in my view, is to reveal with a high degree of particularity what is in fact proposed. 
  13. [176]
    The prospect of oversight by an applicant is addressed in s 309K(4) of the EP Act which, as pointed out above, entitles an applicant or the holder of an authority from applying to amend or replace the environmental authority. 
  14. [177]
    The addition of a previously overlooked or undetected environmentally relevant activity would be, to my mind, such an amendment. 
  15. [178]
    In his written submissions to the Court Mr O'Shea on behalf of the applicant drew the Court’s attention to the decisions in Pyx Granite Company,[90] Fawcett Properties Limited[91] and the Australian case of Lloyd v Robinson[92] as establishing that a statutory power to annexe conditions to an approval does not extend to a power to prohibit or to impose conditions which facilitate the achievement of some unrelated ambition.  A refusal is of course is not a prohibition on some particular activity.
  16. [179]
    The approach taken by Ms Lenz, having fair regard to the evidence honestly given by her, is coloured by an ambition to achieve administrative efficiency. 
  17. [180]
    However I have also come to the view that fairly read the conditions proposed by the respondent do not amount to a prohibition upon environmentally relevant activities other than those referred to in the approval and are within the power of the assessing authority. 
  18. [181]
    The applicant has the comfort of an ability (see s 309K(4)) to apply to amend the environmental authority. 
  19. [182]
    Mr Hinson for the respondent drew the Court’s attention to the decision in Weston Aluminium v Environment Protection Authority[93] where it was said in the context of the New South Wales Environment Protection Authority and the Environmental Planning and Assessment Act and a licence to import aluminium dross where it was said:[94]

“A development consent thus hinged about the application made by the parties seeking consent.  It was the application that marked out the boundaries of the consent sought.  The consuming authority responded to what was sought by granting a refusing consent and, if consent was granted, doing so either unconditionally or subject to conditions.

  1. [183]
    That dicta of the High Court of Australia seems apposite in the present case. 
  2. [184]
    Mr Hinson also drew the Court’s attention to Sericott Pty Ltd v Snowy River Shire Council[95] where similar sentiments to the High Court decision were expressed. 
  3. [185]
    In that case Beazley JA said:[96]

“The consent granted, can of course, be no wider than the application to which it relates.”

  1. [186]
    Mr Hinson also drew the Court’s attention to the High Court in Country Roads Board v Neale Ads Pty Ltd.[97]
  2. [187]
    The Country Roads Board case however involved consideration of a power which clearly included the words “to prohibit” and I find little assistance from that case.
  3. [188]
    Mr Hinson also referred to a number of other cases but because of the view which I have reached in this matter it is unnecessary for me to refer to those cases.  Save to acknowledge that they establish the proposition that a power to refuse carries with it by necessary implication, a power to refuse in part.[98] 
  4. [189]
    Towards the end of his submissions Mr Hinson summarised the respondent’s case in the following terms:[99]

“Your Honour, can I say these two points in conclusion; the appellant’s case, we submit, rests on a false premise that authorised activities as defined by the Petroleum and Gas Act cannot be prohibited under the Environment Protection Act. We submit that that’s wrong; that activities the subject of a chapter 5A application may be prohibited under the Environmental Protection Act either wholly or in part for the reasons we have submitted. We submit here, in fact, there was no prohibition. All we simply did was approve what was asked for. And the second proposition is this; that the activities in the Environmental Authority application are those which are assessed. If an activity is not included in that application, it’s not considered. Why would the administering authority say, “I wonder if they’re going to put a sewerage treatment plant in” or “I wonder if they’re going to do some electricity generation?” The administering authority works off the application. In front of it, it can approve what’s in that application, but nothing more. It may prohibit or refuse part or all of what’s been applied for. And to the extent that there is some lingering debate about our characterisation of the PAG Act as subordinate to the EP Act, we use that description in a sense described in paragraph 42 of our submissions and we simply mean by that this; that the Environmental Authority is issued first and it determines the scope of the petroleum licence that is later issued, not the other way around. It’s not the case that the whole range of things that might be done under the Petroleum and Gas Act are the subject of an application under the Environmental Protection Act and must all be approved.”

  1. [190]
    While I have found in favour of the respondent I also observe that the Schedule in Condition (A1A) is, at best, equivocal with respect to the matter of “borrow pits” and fails to make allowance for the exigencies of the situation and allow for any flexibility to the applicant as is the location, number and size of the various borrow pits.
  2. [191]
    The amended condition proposed by the respondent, save that there does not seem to be any justification for limiting the borrow pits to one per block on circumstances where the activity covers an area of 81 ha and the pipeline is 25.3 km long,[100] seems to address some of the concerns of the applicant.
  3. [192]
    Similarly the issue of fuel burning operations is acknowledged by Ms Lenz to be adequately covered by the provisions of Schedule G to the conditions so that it seems appropriate to allow the parties some opportunity to confer us to how those conditions should be articulated (if at all).
  4. [193]
    I should finally note, with respect to the grounds of appeal relating to whether the conditions were either necessary or desirable, that there was really no evidence led either in support of or aimed at contradicting that proposition, save for what was said in the affidavit of Kimberly Raine Smith which was filed by the Respondent. Ms Smith was not required for cross-examination.
  5. [194]
    I will hear from the parties as to the form of the final orders.
  6. [195]
    The appeal, however, should be dismissed.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1]  Exhibit 1, p. 183.

[2]  Exhibit 1, p. 53.

[3]  Ibid.

[4]  Exhibit 1, p 182.

[5]  Exhibit 1, p 155.

[6]  Ibid.

[7]  Exhibit 1, p 155.

[8]  Exhibit 1, p 159.

[9]  The significance of level 1 and level 2 chapter 5A activities is explored in the section of this decision which considers the relevant legislation; Exhibit 1, p 160.

[10]  Exhibit 1, p 210.

[11]  Exhibit 1, p 222 – 223.

[12]  Exhibit 1, p 680.

[13]  Exhibit 1, p 747.

[14]  Exhibit 1, p 678.

[15]  Exhibit 1, p 831 – 832.

[16]  Exhibit 1, p 830.

[17]  Exhibit 1, p 798.

[18]  Exhibit 1, p 805.

[19]  Exhibit 1, p 804 – 805.

[20]  Now see section 172(2)(a) of the amended EP Act.

[21]  See section 519 and Schedule 2 of the EP Act (amended).

[22]  Section 310O of the unamended Act and s 203 of the EP Act.

[23]  See for example: Roads Corporation v McCarthy [2004] VSC 369 [55]-[58]; Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308 [61]; Capital Airport Group Pty Ltd v Director-General, New South Wales Department of Planning (No 2) [2011] NSWLEC 83 [80]-[81]; Charalambous v Ku-ring-gai Council [2007] NSWLEC 510 [30].

[24]  P&G Act s 18(1)(f).

[25]  P&G Act s 22.

[26]  T (Transcript) 2 – 14 Line (L) 20 – 35.

[27]  T 2 – 15 L 26 – 37.

[28]  T 2 – 17 L 39 - 43.

[29]  T 2 – 17 L 46.

[30]  T 2 – 18 L 1 – 9.

[31]  T 2 – 8 L 33 – T 2 – 9 L 11; T 2 – 10 L 18 - 27.

[32]  Exhibit 1, p 155.

[33]  T 2 – 25 L 12 – 16.

[34]  T 2 – 25 L 16 – 20.

[35]  T 2 – 25 L 36 – 46.

[36]  T 2 – 26 L 14 – 34.

[37]  T 2 – 26 L 46 – T2 – 27 L 5.

[38]  T 2 – 28 L 40 – T 2 – 29 L 24.

[39]  Exhibit 3, p 10.

[40]  T 2 – 30 L 33 – 37.

[41]  Exhibit 1, p 870.

[42]  Exhibit 1, p 1050.

[43]  Exhibit 1, p 1050.

[44]  Exhibit 1, p 1050 para 2.

[45]  Exhibit 1, p 1051 para 4.

[46]  Exhibit 1, p 811.

[47]  T 2 – 36 – T 2 – 38.

[48]  T 2 – 38 L 44 – 46 and s 556 of the EP Act.

[49]  T 2 – 39 L 23 – 25.

[50]  T 2 – 39 L 45 – T 2 – 40 L 3.

[51]  T 2 – 42 L 18 – 19.

[52]  T 2 – 44 L 20 – 26.

[53]  T 2 – 44 L 46 – T 2 – 45 L 1.

[54]  T 2 – 45 L 1 – 6.

[55]  Exhibit 1, p 1051-1052.

[56]  T 2 – 48 L 4 – 7.

[57]  T 2 – 48 L 9 –25.

[58]  T 2 – 48 L  41 – 43

[59]  T 2 – 49 L 3 – 6.

[60]  Exhibit 1, p 1051 – 1052.

[61]  T 2 – 49 L 2 – 50 L 13.

[62]  T 2 – 50 L 31 – 42.

[63]  T 2 – 51 L 7 – 21.

[64]  T 2 – 51 L 23 – 42.

[65]  T 2 – 52 L 10 – 15.

[66]  T 2 – 52 L 25 – 28.

[67]  T 2 – 52 L 28.

[68]  T 2 – 52 L 41 – T 2 – 53 L 2.

[69]  T 2 – 53 L 7 - 16.

[70]  Exhibit 1, p 1055.

[71]  Ibid.

[72]  Exhibit 2, p 1056.

[73]  T 2 – 51 L 30 – 31.

[74]  T 2 – 55 L 27 – 39.

[75]  T 2 – 56 L 1 – 4.

[76]  T 2 – 56 L 33 – T 2 – 57 L 26.

[77]  T 2 – 56 L 33 – T 2 – 57 L 26.

[78]  T 2 - 58 L 6 – 11.

[79]  T 2 – 58 L 31 – 36.

[80]  T 2 – 59 L 13 – 15.

[81]  T2 – 76 L 39 – T2 – 77 L 10.

[82]  T 2 – 77 L 12 – 13.

[83]  Exhibit 1, p 153.

[84]  T 2 – 84 L 39 – 46.

[85]  T 2 – 87 L 3 – 10.

[86]  T 2 – 89 L 30 – 36.

[87]  Exhibit 3, p 11, para 40.

[88]  Exhibit 3, p 12, para 42.

[89]  Exhibit 1, p 160.

[90] Pyx Granite Company v Ministry of Housing and Local Government (1958) 1 QB 554.

[91] Fawcett Properties Limited v Buckingham Shire Council (1961) AC 636.

[92] Lloyd v Robinson (1962) 107 CLR 142.

[93] Weston Aluminium v Environment Protection Authority (2007) 82 ALJR 74.

[94]  Ibid [14].

[95] Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66.

[96]  Ibid [46].

[97] Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126.

[98]  See Grant v Pine Rivers Shire Council & Ors (2006) QPELR 112; Addicoat v Fox (No.2) (1979) VR 347; Charles & Howard Pty Ltd v Redland Shire Council (2007) QCA 200.

[99]  T 3 – 27 L 22 – 30.

[100]  Exhibit 1, p 219.

Close

Editorial Notes

  • Published Case Name:

    QGC (Infrastructure) Pty Limited v Chief Executive Department of Environment & Heritage Protection

  • Shortened Case Name:

    QGC (Infrastructure) Pty Limited v Chief Executive Department of Environment & Heritage Protection

  • MNC:

    [2016] QLC 27

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    05 May 2016

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
Addicoat v Fox (No 2) (1979) VR 347
1 citation
Jump To
Cite 1 - (1979) VR 347
Botany Bay City Council v SAAB Corp Pty Ltd [2011] NSWCA 308
1 citation
Jump To
Cite 1 - [2011] NSWCA 308
Capital Airport Group Pty Ltd v Director-General [2011] NSWLEC 83
1 citation
Jump To
Cite 1 - [2011] NSWLEC 83
Charalambous v Ku-ring-gai Council [2007] NSWLEC 510
1 citation
Jump To
Cite 1 - [2007] NSWLEC 510
Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200
1 citation
Jump To
Cite 1 - [2007] QCA 200
Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126
1 citation
Jump To
Cite 1 - (1930) 43 CLR 126
Fawcett Properties Ltd. v Buckingham County Council (1961) AC 636
1 citation
Jump To
Cite 1 - (1961) AC 636
Grant v Pine Rivers Shire Council & Ors (2006) QPELR 112
1 citation
Jump To
Cite 1 - (2006) QPELR 112
Lloyd v Robinson (1962) 107 CLR 142
1 citation
Jump To
Cite 1 - (1962) 107 CLR 142
Pyx Granite Co. Ltd. v Ministry of Housing & Local Government (1958) 1 QB 554
1 citation
Jump To
Cite 1 - (1958) 1 QB 554
Roads Corporation v McCarthy [2004] VSC 369
1 citation
Jump To
Cite 1 - [2004] VSC 369
Sericott Pty Ltd v Snowy River Shire Council (1999) 108 LGERA 66
2 citations
Jump To
Cite 1 - (1999) 108 LGERA 66
Cite 2 - (1999) 108 LGERA 66
Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74
2 citations
Jump To
Cite 1 - (2007) 82 ALJR 74
Cite 2 - (2007) 82 ALJR 74

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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