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Metroof Limestone Pty Limited v Rockhampton Regional Council[2019] QLC 49

Metroof Limestone Pty Limited v Rockhampton Regional Council[2019] QLC 49

LAND COURT OF QUEENSLAND

CITATION:

Metroof Limestone Pty Limited v Rockhampton Regional Council & Anor [2019] QLC 49

PARTIES:

Metroof Limestone Pty Limited

ACN 609 806 911

(applicant)

 

v

 

Rockhampton Regional Council

(non-active objector)

 

Noel Timothy Connor & Gladys Rae Merle Connor

(non-active objectors)

FILE NO:

MRA122-19 (MLA 100192)

DIVISION:

General Division

PROCEEDING:

Hearing of application for mining lease and objection

DELIVERED ON:

20 December 2019

DELIVERED AT:

In chambers

HEARD ON:

10 December 2019

HEARD AT:

Rockhampton

MEMBER:

PG Stilgoe OAM

ORDER:

I recommend that the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, grant the application for Mining Lease 100192 in whole.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the applicant applied for a mining lease to mine limestone – where the objectors to the mining lease did not elect to be active parties in the hearing – where the close proximity of an environmentally sensitive area of vegetation led to a variation of environmental authority – whether the mining operations affected the nearby low order rural road – whether there were any surface water or groundwater issues which affected the neighbouring property

Environmental Protection Act 1994 s 319

Mineral and Energy Resources (Common Provisions) Act 2014 s 63

Mineral and Energy Resources (Common Provisions) Regulation 2016 reg 26

Mineral Resources Act 1989 s 269(4)

APPEARANCES:

No appearance by the applicant

No appearance by the objectors

  1. [1]
    Metroof Limestone Pty Limited has applied for a mining lease on Lot 12 on SP 273049 approximately 40 km west of Rockhampton, off Donovan Road, Wycarbah (the MLA). The MLA covers 39.65 ha plus an additional 8000 m2 for the access track. Metroof intends to mine, crush, screen and bag limestone and supply it to nearby underground coal mines. Metroof also recognises a potential to supply limestone and dolomitic limestone to agricultural industries in Central Queensland. It wants a 20 year lease.
  1. [2]
    Noel and Gladys Connor live on a nearby property, separated from the MLA by Donovan Road. Their property has been in the family for three generations. Until recently, the property on which the MLA is located was also part of their family holdings, but age and ill-health forced them to sell. Their property is their sole source of income and they do not want the mine to affect the productivity of their land. They objected to the grant of the lease on these grounds:
  1. The effect on groundwater, the “heavy use of available water in the area” and damage to aquifers. They are concerned that heavy rain will cause limestone particles to wash from the MLA to their property. They are concerned that the run off will contaminate the aquifer. They say that limestone mining can affect groundwater conditions, lowering the water table and changing how water flows through rock formations. They don’t want their water supply to be affected.
  1. Possible sinkholes which the Connors submit occur through the removal of limestone.
  1. That open cut mining defaces the land.
  1. They are concerned that, if explosives are used to free the limestone, it will create noise and dust pollution. They say that the use of machinery on the mine site will also contribute to the noise and dust pollution.
  1. They are concerned about the presence of trucks on Rosewood Road.
  1. [3]
    The Connors chose not to be active parties[1] and have not filed any evidence in support of their position.
  1. [4]
    The Rockhampton Regional Council also objected to the proposed grant of the MLA. It assumed that Metroof would use Donovan and Rosewood Roads to haul its material from the MLA to market. The Council noted that these roads are lower order rural roads, the pavement design for which is not designed for continuous heavy vehicle loads. It noted that the roads have a very low level of trafficable flood immunity. It also identified several road safety issues:
  1. Several vertical crests with sub-standard sight distance.
  1. The narrow formation of the road at 4.5 m does not allow two vehicles to pass safely.
  1. There are horizontal curves with tight radii and vegetation obstructing sight lines.
  1. Some sections have a 10% vertical grade, which exceeds the AUSTROADS standards for road design.
  1. Some floodways are single lane only and have poor approach sight distance.
  1. [5]
    Save for a site inspection which I conducted on 10 December 2019, the parties were content for the court to consider the objections, and the recommendation to be made to the Minister, on the basis of the material filed and without the need for an oral hearing. As I made clear to Mr McFarlane, the representative for Metroof, nothing he said to me on the site inspection forms part of the evidence which I will consider in determining my recommendation.
  1. [6]
    Regardless of the limited scope of the objections, I must take into account all those matters referred to in s 269(4) of the Mineral Resources Act 1989 (MRA).
  1. [7]
    There is no suggestion that Metroof has not complied with the provisions of the MRA,[2] that the land and surface area is not of an appropriate size and shape,[3] that the proposed term of 20 years is not appropriate[4] or that Metroof’s past performance is anything except satisfactory.[5]
  1. [8]
    Metroof has commissioned test pits and a report from Stuart Haywood[6] to determine the extent of the mineral deposit. Through this material, Metroof has calculated a resource of approximately 300,000 tonnes of <3% silica grade soft limestone for rock dust purposes, an inferred target of rock dust quality soft limestone of approximately 600,000 tonnes and agricultural limestone of an additional 400,000 tonnes.[7] I am satisfied that the ML is sufficiently mineralised[8] and that there will be an acceptable level of development and utilisation of the resource.[9]
  1. [9]
    Metroof has provided material to support its financial and technical capacity to conduct the proposed activity.[10] I am satisfied that it does have the necessary capacity.
  1. [10]
    There is no suggestion that the MLA will disadvantage the rights of any other existing or potential permit or licence holders.[11]
  1. [11]
    The state of the roads is a matter for consideration when looking at the public right or interest.[12] The Council’s concerns about road safety, as mentioned in its objection, are justified. En route to the site inspection I observed that the road is narrow, poorly formed in parts, and has numerous blind corners and crests.
  1. [12]
    However, Council is now satisfied that the application of Mineral and Energy Resources (Common Provisions) Act 2014 s 63, which requires a consultation and a compensation agreement if the volume of traffic reaches a “notifiable road use” (10,000t/annum on a local government road),[13] will address its concerns.[14] To ensure public safety into the future, Metroof must engage a suitable engineering consultant and liaise with Council. I am satisfied that, if this action is taken, the right and interest of the public will be protected. I am also satisfied that compliance with this requirement will sufficiently address the Connors’ concerns about the presence of trucks on Donovan Road.
  1. [13]
    Both the Connor land and the land on which the MLA sits is used for cattle breeding and fattening. The Connors’ objections involve questions of sound land use management,[15] adverse environmental impact,[16] and appropriate land use.[17]

Water

Surface Water

  1. [14]
    The ESA risk assessment report prepared by ecosure dated August 2018 notes that because the mining activity will expose no more than 2 ha of ground at any time, direct interference with surface flows will be minimal. It notes, and I observed, that the MLA is an elevated plateau. The current overland flow tends to the south-west to an intermittent creek which flows to the north-west. There is another intermittent creek to the north-east.[18] The likelihood of sheet flow to the west, directly onto the Connor land is, in my view, low.
  1. [15]
    Ecosure noted that the land surrounding the MLA has good groundcover so it expected that surface water flow would be relatively low. At the site inspection I observed that, after a period of severe drought, the groundcover appeared patchy, however I accept that in seasons with adequate rainfall the groundcover will be sufficient to retard surface flow.
  1. [16]
    Ecosure predicts that, in a heavy rain event or prolonged wet season, the mine pit will fill, overflow through a sediment dam and continue to flow across the area maintaining normal surface flows.
  1. [17]
    At the site inspection I observed that there is a natural depression and two drainage channels, one on either side of Donovan Road, between the proposed lease area and the Connor land. I also observed that Donovan Road, as one would expect, is raised. Therefore, surface water from the MLA would only enter the Connor land if the natural depression was filled, the drainage channel on the MLA side of Donovan Road was filled, the road was overtopped, and the drainage channel on the Connor side of Donovan Road was also overtopped. In my view, it would be an extreme weather event that would create those conditions.
  1. [18]
    Calcium carbonates can cause salinity when exposed limestone receives rainfall. Therefore, there is potential for localised salinity from pit water discharge. Ecosure notes the possibility of localised accumulation of salts on the surface but says that the low solubility of the salts mean that it is likely to remain in situ.
  1. [19]
    I note condition A6 of the environmental authority (EA); that Metroof must install and monitor adequate banks or diversion drains to minimise sedimentation of any watercourse. I also note that Metroof is under a general duty to take reasonable or practical measures to prevent or minimise harm.[19]
  1. [20]
    In view of the conditions imposed by the EA, and the topography of the mine area, I accept ecosure’s assessment that the MLA will not adversely affect surface water flow or quality.

Groundwater

  1. [21]
    There are three Department of Natural Resources Mines and Energy (DNRME) ground water monitoring bores within 2.5 km of the mining lease.
  1. [22]
    Metroof drilled test boreholes at 17 - 20 m depth, which is below the excavation limit of 4 m, and encountered no groundwater. The proposed mine is situated over 12 m above the nearest known groundwater aquifer, and it appears that there is no connection between the proposed mine and that aquifer. Therefore, I consider there is a very low risk of contamination and a very low chance that mine activity will impact on the amount, availability or quality of the groundwater.
  1. [23]
    The existence of the DNRME bores will enable monitoring of impacts, if any.

Dust

  1. [24]
    Condition A2 of the EA states that Metroof must ensure that the area and duration of disturbance to land and vegetation is minimised. The note to Condition A2 states that disturbance can be minimised by altering work practices to avoid or minimise the generation of dust.
  1. [25]
    Condition A3 states that Metroof must not cause an unreasonable release of dust. Whether or not the release of dust is unreasonable depends on the characteristic of the dust, its intrusiveness and where the effect of the release can be noticed.
  1. [26]
    Ecosure notes that the mining method to be employed is relatively low impact, so dust creation should be relatively low. Ecosure also notes that prevailing wind directions in the locality will prevent dust moving towards any environmentally sensitive area. Ecosure considers the consequences from dust will be low, however notes that Metroof will implement appropriate dust suppression protocols.
  1. [27]
    In its additional applicant information, provided on 22 February 2019, Metroof stated that the nearest residence was 10 km north-east of the MLA. On my inspection, it was clear that there were no residences in the general vicinity.
  1. [28]
    I am satisfied that any dust impact can be adequately managed through the EA conditions.

Noise

  1. [29]
    Condition A4 of the EA states that Metroof must not cause unreasonable noise at a noise sensitive place. A noise sensitive place is defined in the EA; the only relevant definition is “a dwelling”. I have already noted that the closest dwelling is 10 km away.
  1. [30]
    The EA adopts the definition of “unreasonable noise” used in section 18 of the Environmental Protection (Noise) Policy 1997, which makes reference to the characteristics of the noise, its intrusiveness, the time at which it is made, where it can be heard and other noises ordinarily present at the place where it can be heard. Even if Metroof is blasting and drilling it is unlikely that the noise generated from the mining activity will have an adverse impact on a dwelling located 10 km away.

Subsidence

  1. [31]
    Ecosure acknowledges that localised land subsidence could occur. The proposed MLA area is relatively small and the mining activity at any one time will be limited to 2 ha at a time. Any subsidence that does occur must be the subject of rehabilitation and, presumably, will be the subject of compensation between the landowner and Metroof.
  1. [32]
    I cannot see how subsidence would affect the Connor land or the use of the land generally for cattle production.

Visual amenity

  1. [33]
    The mining will take place on a plateau to a depth of 4 m. The overburden will be placed in two windrows, close to the pit. Based on my observations from the site inspection, I consider that the proposed mine will be difficult to see from the road. It may be visible from elevated positions in the surrounding countryside but, on balance, I am not persuaded that the impact of the MLA is of sufficient scale to create a serious blot on the landscape, given the few people who live there, the rural nature of the landscape (with sheds and other infrastructure) and the low potential for tourist or pleasure traffic. Again, I note that the nearest residence is approximately 10 km away. The mine will be a very small distraction to a viewer from that distance.

Environmental issues

  1. [34]
    Previous studies had shown that approximately 14.5 ha of the MLA was within 1 km of a Category B endangered vegetation environmentally sensitive area (ESA), meaning that the MLA could not comply with EA standard condition A13.2. Appendix 3 of the standard EA adopts the definition of Category B Environmentally Sensitive Area from the Environmental Protection Regulation 2008.
  1. [35]
    Therefore, ecosure prepared an ESA risk assessment for an EA variation on behalf of Metroof.
  1. [36]
    Condition A13.2 of the EA was then varied from the standard form EA by a general condition G3, which has the effect of reducing the distance precluding activities from being carried out within proximity of a Category B ESAs from 1 km to 500 m in respect to mining activities.
  1. [37]
    The Category B vegetation had been mapped as regional ecosystem (RE) 11.11.14,[20] an endangered Acacia harpophylla (brigalow) forest. Ecosure assessed that only 3.1 ha within 1 km of the MLA was consistent with that mapping. It took the view that the remaining vegetation was in fact RE 11.11.1 (ironbark and rosewood), and that therefore most of the vegetation would be remapped as “least concern RE11.11.1”. Ecosure thought that the vegetation was variable, but generally of lower habitat quality due to the lack of canopy and shrub layers. Ecosure noted the dead trees which indicated clearing at some time in the past. Ecosure states that the ground survey suggests that the majority of the vegetation would be not be classified as an environmentally sensitive area.
  1. [38]
    I accept ecosure’s assessment and I am satisfied that there are no environmental considerations that would prevent the grant of the MLA.

Conclusion

  1. [39]
    The exercise to be undertaken pursuant to s 269(4) of the MRA is not to “tick and flick” each of the matters and recommend for or against a grant on the basis that one, or more, of the criteria is not met. Rather, I am required to consider the factors holistically. None of the considerations lead me to a conclusion that the MLA should not be granted. Upon considering the above, I recommend that MLA 100192 be granted.

Order:

I recommend that the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, grant the application for Mining Lease 100192 in whole.

PG STILGOE OAM

MEMBER OF THE LAND COURT

Footnotes

[1]See Practice Direction No 4 of 2018 – Procedure for Mining Objection Hearings, 30 April 2018.

[2]MRA s 269(4)(a).

[3]MRA s 269(4)(d).

[4]MRA s 269(4)(e).

[5]MRA s 269(4)(g).

[6]Ex 1.

[7]Ex 1, p 4 of document: application for mining lease “Metlime”.

[8]MRA s 269(4)(b).

[9]MRA s 269(4)(c).

[10]MRA s 269(4)(f).

[11]MRA s 269(4)(h).

[12]MRA s 269(4)(k).

[13]Mineral and Energy Resources (Common Provisions) Regulation 2016 reg 26.

[14]Ex 2.

[15]MRA s 269(4)(i).

[16]MRA s 269(4)(j).

[17]MRA s 269(4)(m).

[18]Ex 1, document: ESA risk assessment by ecosure dated August 2008.

[19]Environmental Protection Act 1994 s 319.

[20]References to REs are based on the Department of Environment and Science’s Regional Ecosystem Description Database.

Close

Editorial Notes

  • Published Case Name:

    Metroof Limestone Pty Limited v Rockhampton Regional Council & Anor

  • Shortened Case Name:

    Metroof Limestone Pty Limited v Rockhampton Regional Council

  • MNC:

    [2019] QLC 49

  • Court:

    QLC

  • Judge(s):

    Stilgoe OAM

  • Date:

    20 Dec 2019

Appeal Status

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

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