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  4. Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No 3) - [2018] QLC 20

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Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No 3)[2018] QLC 20

Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No 3)[2018] QLC 20

LAND COURT OF QUEENSLAND

CITATION:

Springsure Creek Coal Pty Ltd v Arcturus Downs Limited & anor (No 3) [2018] QLC 20

PARTIES:

Springsure Creek Coal Pty Ltd

(applicant)

v

Arcturus Downs Limited

(objector)

Chief Executive, Department of Environment and Science

(statutory party)

FILE NOs:

MRA116-14 & EPA117-14 (MLA70486)

MRA196-14 & EPA197-14 (MLA70502)

DIVISION:

General Division

PROCEEDING:

Hearing of applications for mining leases and objections; Objections to application for environmental authority

DELIVERED ON:

2 July 2018

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 18 May 2018

HEARD AT:

On the papers

MEMBER:

WL Cochrane

A/PRESIDENT:

PG Stilgoe

ORDERS:

  1. I make the following recommendation, pursuant to s 222(1) of the Environmental Protection Act 1994, to the Administering Authority for the Environmental Protection Act 1994 –
  1. (a)
    I recommend that the environmental authority for MLA70486 be issued in the terms of the draft amended environmental authority EPML00961613 filed 8 May 2018 and further amended by this decision, per annexure 1 to this decision.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where the areas under the mining lease and environmental authority applications are subject to the Strategic Cropping Land Act – where environmental authority cannot issue until strategic cropping land protection decision has been made – where strategic cropping land decision has been made – where compliance with strategic cropping land protection conditions is required to satisfy compliance with environmental authority conditions – where environmental authority conditions unclear as to standard to which land is required to be rehabilitated in accordance with strategic cropping land decision – whether amendments to environmental authority conditions can provide clarity to standard of rehabilitation required

Environmental Protection Act 1994 (Qld) (Reprint no. 11A) s 222(1)

Springsure Creek Coal Pty Ltd v Arcturus Downs Limited & anor (No. 2) [2018] QLC 8

APPEARANCES:

Sparke Helmore for the applicant

DA Skennar QC (instructed by Alroe & O'Sullivan Solicitors) for the respondent

S Barclay of Counsel (instructed by In-house Legal, Department of Environment and Science) for the statutory party

  1. On 12 April 2018, I recommended the grant of MLA70486 and MLA70502 subject to the draft environmental authority (EA) conditions relating to the standard of rehabilitation of Strategic Cropping Land being amended to provide clarity about the standard of rehabilitation contemplated.[1]
  2. The Chief Executive of the Department of Environment and Science (the Statutory Party) provided draft amended conditions and submissions as to the significance of the changes.[2] Both parties have objections to the draft amendments. Arcturus Downs has a general objection that the proposed amendments do not, in fact, provide any clarity to the standard of rehabilitation. Springsure Creek has more specific objections, which I will address in turn.

New Condition Jxx

  1. Condition Jxx requires Springsure Creek to develop a Soil Conservation Management Plan and a Soil Stripping, Stockpiling and Reinstatement Plan prior to the commencement of mining activities.[3]
  2. Springsure Creek submits that the condition is unnecessary because the Strategic Cropping Land (SCL) Protection Decision[4] already provides for a Soil Conservation Management Plan and a Soil Stripping, Stockpiling and Reinstatement Plan. The SCL Protection Decision conditions apply to all land within the mining lease, not just the SCL land.[5]
  3. Conditions 5 to 10 of the SCL Protection Decision provide for a Soil Conservation Management Plan prior to the commencement of the mining operations.[6] Conditions 11 to 15 provide for a Soil Stripping, Stockpiling and Reinstatement Plan.[7] The conditions are detailed in their requirements and scope. I do not see that the proposed Condition Jxx adds anything to the SCL Protection Decision. The addition of proposed Condition Jxx is unnecessary.

Amended Condition J2

  1. Amended Condition J2 mandates that topsoil must be strategically stripped ahead of mining in accordance with the Soil Conservation Management Plan and Soil Stripping, Stockpiling and Reinstatement Plan.[8]
  2. Because I have found that Condition Jxx, which imposes the requirement for these plans, is unnecessary, the reference in J2 can only be a reference to the plans provided under the SCL Protection Decision.
  3. Even so, as Springsure Creek pointed out,[9] the experts involved in this dispute were unanimous that soil stripping in areas affected by subsidence was not an appropriate rehabilitation strategy. For that reason, Springsure Creek submits that the amended condition is inappropriate.
  4. The SCL Protection Decision requires that Springsure Creek comply with the most recent Soil Stripping, Stockpiling and Reinstatement Plan endorsed by the Chief Executive.[10] Springsure Creek can submit a revised Soil Stripping, Stockpiling and Reinstatement Plan, which can appropriately address the soil conditions and ‘on ground’ experience as mining progresses. If the experts change their minds, and soil stripping is appropriate, the SCL Protection Decision conditions will provide adequate protection. The amendment should not be accepted.

Amended Conditions J4 and J6

  1. The proposed amendment to Condition J4, which relates to topsoil management, deletes the requirement to vegetate stockpiles, reduce the height of stockpiles and reuse stockpiles.[11]
  2. Springsure Creek agrees with the amendment.[12] Given there are unlikely to be any stockpiles, I agree that the amendment to Condition J4 is acceptable.
  3. Condition J6 is amended to require that:[13]

“Rehabilitation must be taken without unnecessary delay, or as soon as possible. So as to minimise the amount of time land is out of production or not in a suitably stable form, rehabilitation must commence as soon as it is safe and practical to do so after the causative disturbance has ceased, and once there are no further physical or biological impediments to the successful rehabilitation of the subject area of land.”

  1. Again, Springsure Creek agrees with the proposed amendment.[14] Unlike its predecessor, the draft includes guidance as to when the rehabilitation should start in clear terms. I agree the Condition should be amended as proposed.

New Condition Jxy

  1. This proposed condition provides that rehabilitation work must be completed on or before a specific date in 2068.[15]
  2. Springsure Creek objects to the condition because it assumes the date on which the mining leases will commence, even though there are still some hurdles to overcome before the Minister may grant the lease, including the question of compensation.[16] I agree that there is a risk that the Minister may not approve the leases this year. The better approach is that the works be completed on or before a date linked to the start of the leases.
  3. Springsure Creek also objects to the 30-year limit because the term of the lease may well be extended. It submits an alternative condition that rehabilitation work must be completed on or before the date 50 years after the granting of the EA.[17]
  4. Springsure Creek has applied for a 30-year lease. It may well seek an extension. It might also require extra time to rehabilitate the subject land. Both of those factors are matters of conjecture. The condition should be drafted on known facts. If Springsure Creek applies for an extension of the lease, it can also apply for an amendment of this condition. That application will be informed by its actual experience in rehabilitation works undertaken to that date.  The appropriate condition should be:

Rehabilitation work must be completed on or before the date 30 years after the granting of the environmental authority.

Amended Condition J9

  1. The existing condition J9 requires a Post Closure Management Plan to be developed and approved at least 18 months prior to the finalisation of coal mining on site. The proposed amendment requires the plan to be developed prior to commencement of mining activities.[18]
  2. Springsure Creek points out that Condition J9 applies to the whole of the MLA, not just the area containing SCL land. It also points out that the SCL Protection Decision does not require a Post Closure Management Plan. It considers the requirement for a Post Closure Management Plan so early as ‘extremely premature’. Springsure Creek also submits that, because my decision related only to the SCL land, the proposed amendment is outside scope and should not be considered.[19]
  3. The Statutory Party filed submissions in support of its proposed amendment but it does not explain why the change has been made. Condition J10 sets out what must be included in the Post Closure Management Plan.[20] It does not address rehabilitation specifically, but it requires a plan for the operation, monitoring and maintenance of water, erosion, slope stability and vegetation cover. They are not matters which, in my view, can be the subject of a plan prior to commencement of mining or, indeed, commencement of rehabilitation.
  4. Given the comprehensive requirements for a Soil Conservation Management Plan, which deals with rehabilitation, I cannot see how bringing forward a Post Closure Management Plan clarifies the parties’ expectations and obligations concerning the SCL land.
  5. The proposed amendment should be rejected.

Appendix 1 and Figure 2

  1. The changes to Appendix 1 purport to impose different levels of rehabilitation to different areas of the subject land.[21] At first blush, that seems like a good idea.
  2. The problem is that neither party agrees with Figure 2, which sets out the categories of land to which the changed requirements refer.
  3. Arcturus Downs suggests that, because the areas in Figure 2 are different from the areas referred to in the SCL Protection Decision, the proposed amendments are likely to cause ongoing inconsistency and confusion, rather than clarify the position.[22]
  4. Springsure Creek submits that the dataset the Statutory Party used, ‘Agricultural Land Audit – Queensland Agricultural Land Class A and B – Queensland’ (DAF Land Audit), is inappropriate:[23]
  1. (a)
    “the mapping outputs were not expected to be at a scale suitable for localised planning”
  1. (b)
    The outputs “were expected to be at a scale suitable for planning at the regional level…”
  1. (c)
    “The Audit produces maps and information suitable for strategic state-wide and regional planning. It does not map specific locations or  provide  information  at  a  level  suitable  for  identifying development opportunities at local or fine scale level (such as for individual local governments or individual properties).”
  1. (d)
    “At the scale at which most land units have been mapped, they general contain a mix of soils with varying characteristics and hence a range of ALCs. Where one ALC accounts for more than 70% of the area, the unit was assigned a single ALC.”
  1. (e)
    “For Audit purposes mixed units where either the dominant or subdominant class was A, were treated the same as pure units of Class A”
  1. (f)
    “…this simplification resulted in an over-estimation of potential…”

(citations omitted)

  1. Springsure Creek submits that the original Figure 2 was based on a very detailed ‘on the ground’ assessment of the individual soil units which was specifically targeted to allow planning at the micro level. That assessment identified areas of ALC Class C whereas the consequence of using the DAF Land Audit is that the entire area the subject of the project is mapped as ALC Class A.[24]
  2. Further, Springsure Creek submits that the data underpinning the proposed Figure 2 is outdated.[25] The Statutory Party submits that the land classes in Figure 2 have been updated in accordance with the most recently available land class data set of January 2014.[26]
  3. Springsure Creek submits that the source of the Statutory Party’s data is the Technical Report annexed to the Queensland Agricultural Land Audit. Table 2 of that report sets out the data sources used to map land use. QLUMP was the data source for broadacre cropping. The technical report notes that, for much of the state, the only mapping available is from a baseline dataset of land use in 1999. Springsure Creek submits that the GTES data, which was based on samples collected in 2013, is more current and, therefore, to be preferred.[27]
  4. Unfortunately, the Statutory Party did not provide a copy of the source of the data set that was updated to January 2014. As a recent Practice Direction concerning mining objection hearings makes clear, it is not for me to search for evidence that the parties do not provide.[28]  The only evidence I have indicates that the dataset the Statutory Party relied on is not as current as the GTES report. For that reason, I prefer the GTES report.
  5. Springsure Creek also points out that the Technical Report records that the nominal scale of QLUMP is 1:100,000 in the pastoral zone whereas the GTES report is mapped on a scale of 1:50,000, thereby providing greater detail about land quality.[29] I accept the submission and agree that the GTES report is to be preferred.
  6. Springsure Creek submits that there is no need for the conditions to refer to a static map because the ground conditions and land suitability may change over time. It reminds me that mining will take place over 30 years, and it will be at least 15 years before it starts mining on Arcturus Downs, so there is a risk the plan will become obsolete. Springsure Creek would prefer that rehabilitation be assessed by reference to the class of land immediately prior to disturbance.[30]
  7. Although there is a risk that the plan may become obsolete, I am not persuaded that rehabilitation should not be fixed to the class of land assessed at the commencement of the lease. Many things may happen. Arcturus Downs may not be the owner of the land in 15 years’ time. Perhaps a mining company will own the land, who will have less incentive to maintain high quality agricultural land. Perhaps the effects of climate change will render this land less likely to be suitable for broadacre cropping. Perhaps new agricultural techniques will make the land more suitable for broadacre cropping, or even more intensive farming. But the purpose of the EA conditions is to preserve the land as it exists at the start of the mining lease. If circumstances change then, with the benefit of actual evidence rather than speculation, Springsure Creek can apply to amend the conditions to refer to a different plan.
  8. Substituting the GTES report plan should also allay Arcturus Downs’ concerns about inconsistent conditions between the SCL Protection Decision and the EA conditions. That plan forms part of the SCL Protection Decision; by importing it into the EA conditions, there will be no scope for inconsistency.

Orders

  1. I make the following recommendation, pursuant to s 222(1) of the Environmental Protection Act 1994, to the Administering Authority for the Environmental Protection Act 1994 –
  1. (a)
    I recommend that the environmental authority for MLA70486 be issued in the terms of the draft amended environmental authority EPML00961613 filed 8 May 2018 and further amended by this decision, per annexure 1 to this decision.

PG STILGOE

ACTING PRESIDENT OF THE LAND COURT

ANNEXURE 1

  1. Condition J4 be amended to read:

Topsoil and subsoil must be managed to ensure stability and to minimise the release of contaminants.

Removing:

by:

  1. a)
    vegetating stockpiles;
  2. b)
    reducing the height of stockpiles; and
  3. c)
    re-using stockpiles as soon as possible following disturbance.
  1. Condition J6 be amended to read:

Rehabilitation must be taken without unnecessary delay, or as soon as possible. So as to minimise the amount of time land is out of production or not in a suitably stable form, rehabilitation must commence as soon as it is safe and practical to do so after the causative disturbance has ceased, and once there are no further physical or biological impediments to the successful rehabilitation of the subject area of land.

Replacing:

Rehabilitation must commence progressively as areas become available in accordance with the Plan of Operations.

  1. Condition Jxy be added as amended below:

Rehabilitation work must be completed on or before the date 30 years after the granting of the environmental authority.

  1. In Appendix 1, references to ‘Figure 2: Springsure Creek Coal Project Final Rehabilitated Landform’ to be replaced with ‘Figure 6: Existing Land Suitability – GQAL’, meaning:

Figure 6 found at page 190 of the GTES Soil Suitability Assessment Report (marked as exhibit 3, volume 6, tab 36).

The references to:

  1. (a)
    Area A and B will be references to areas marked as Class A and B respectively (i.e. support the best possible class of agricultural land)
  2. (b)
    Area C be removed
  3. (c)
    Area D and E will be references to areas marked as Class C1 and C3 respectively (i.e. its predevelopment condition)

For example:

Certification by an appropriately qualified and experienced person that the final land form represents the QGAL criteria as per the following areas on Figure 6: Existing Land Suitability – GQAL:

  1. (a)
    Class A: support the best possible class of agricultural land
  2. (b)
    Class B: support the best possible class of agricultural land
  3. (c)
    Class C1: its predevelopment condition
  4. (d)
    Class C3: is predevelopment condition.

Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No 3) [2018] QLC 20

Footnotes

[1] Springsure Creek Coal Pty Ltd v Arcturus Downs Limited & anor (No. 2) [2018] QLC 8.

[2] Statutory Party’s submissions filed 4 May 2018 and attached Amended draft environmental authority.

[3] Amended draft environmental authority filed 4 May 2018, Schedule J at page 37.

[4] Ex 3, vol 4, tab 17.

[5] Ex 3, vol 4, tab 17, page 585.

[6] Ex 3, vol 4, tab 17, pages 585 – 588.

[7] Ex 3, vol 4, tab 17, pages 588 – 589.

[8] Amended draft environmental authority filed 4 May 2018, Schedule J at page 37.

[9] Applicant’s submissions filed 18 May 2018 at [9].

[10] Condition 14 at Ex 3, vol 4, tab 17, page 589.

[11] Amended draft environmental authority filed 4 May 2018, Schedule J at page 37.

[12] Applicant’s submissions filed 18 May 2018 at [10].

[13] Amended draft environmental authority filed 4 May 2018, Schedule J at page 37.

[14] Applicant’s submissions filed 18 May 2018 at [10].

[15] Amended draft environmental authority filed 4 May 2018, Schedule J at page 37.

[16] Applicant’s submissions filed 18 May 2018 at [11] – [12].

[17] Applicant’s submissions filed 18 May 2018 at [13] – [14].

[18] Applicant’s submissions filed 18 May 2018 at [13] – [14].

[19] Applicant’s submissions filed 18 May 2018 at [16] – [18].

[20] Amended draft environmental authority filed 4 May 2018, Schedule J at page 38.

[21] Amended draft environmental authority filed 4 May 2018, Appendix 1 at pages 43 – 66.

[22] Objector’s submissions filed 18 May 2018 at [5 a)].

[23] Applicant’s submissions filed 18 May 2018 at [21] – [22].

[24] Applicant’s submissions filed 18 May 2018 at [23] – [24].

[25] Applicant’s submissions filed 18 May 2018 at [27] – [28].

[26] Statutory Party’s submissions filed 4 May 2018 at [1].

[27] Applicant’s submissions filed 18 May 2018 at [27] – [28]. The GTES Report is filed as Ex 3, vol 6, tab 36.

[28] Land Court Practice Direction 4 of 2018, at 10.

[29] Applicant’s submissions filed 18 May 2018 at [29] – [31].

[30] Applicant’s submissions filed 18 May 2018 at [34] – [36].

Close

Editorial Notes

  • Published Case Name:

    Springsure Creek Coal Pty Ltd v Arcturus Downs Limited & Anor (No 3)

  • Shortened Case Name:

    Springsure Creek Coal Pty Ltd v Arcturus Downs Limited (No 3)

  • MNC:

    [2018] QLC 20

  • Court:

    QLC

  • Judge(s):

    P G Stilgoe

  • Date:

    02 Jul 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QLC 812 Apr 2018Arcturus Downs Ltd's application to dismiss Springsure Creek Coal Pty Ltd's applications for mining leases and environmental authorities dismissed; recommendation made that mining leases and environmental authorities sought by Springsure Creek be granted (subject to submissions as to varied conditions): Member Stilgoe.
Primary Judgment[2018] QLC 2002 Jul 2018Final decision as to conditions of draft environmental authority granted to Springsure Creek Coal Pty Ltd: Member Stilgoe.
Primary Judgment[2019] QSC 8402 Apr 2019Application for a statutory order of review of [2018] QLC 8 and [2018] QLC 20 dismissed: Lyons SJA.

Appeal Status

No Status

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Arcturus Downs Ltd v Stilgoe [2019] QSC 84 5 citations
1

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