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MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation[2024] QLC 16

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation[2024] QLC 16

LAND COURT OF QUEENSLAND

CITATION:

MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 16 

PARTIES:

MacMines Austasia Pty Ltd

ACN 088 853 114

(appellant)

v

Chief Executive, Department of Environment, Science and Innovation

(respondent)

FILE NO:

EPA043-23

PROCEEDING:

Appeal against internal review decision under the Environmental Protection Act 1994

DELIVERED ON:

13 August 2024

DELIVERED AT:

Brisbane

HEARD ON:

13 May 2024

Submissions closed 6 June 2024

HEARD AT:

Brisbane

MEMBER:

JR McNamara

ORDERS:

  1. The review decision be set aside to the extent that it relates to:
  1. the Coordinator-General’s Report having lapsed;
  1. there being a failure to comply with s 125(1)(n) of the Environmental Protection Act 1994 (Qld); and
  1. there having been a failure to comply with s 125(1)(c) of the Environmental Protection Act 1994 (Qld).
  1. I otherwise confirm the review decision that the 2022 EA Application is not ‘properly made’ on the basis that it does not comply with the following:
  1. section 125(1)(l) of the Environmental Protection Act 1994 (Qld); and
  1. section 126A of the Environmental Protection Act 1994 (Qld). 

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – LAND AVAILABLE FOR EXPLORATION OR MINING PURPOSES – ENVIRONMENTAL PROTECTION LEGISLATION – where the appellant appeals against an internal review decision under the Environmental Protection Act 1994 – where the mining project was declared a coordinated project for which an environmental impact statement is required – where the appellant lodged a mining lease application and site-specific application for an environmental authority and then subsequently withdrew the mining lease application – where the Coordinator-General published a report evaluating the environmental impact statement – where the appellant lodged a new site-specific application for an environmental authority – whether the application is a properly made application – whether the application describes all the environmentally relevant activities – whether the application is required to include an assessment of the likely impact of each ERA – whether application does include an assessment of the likely impact of each ERA – whether the application complies with the requirements for particular resource projects

Environmental Protection Act 1994 ss 125, 126A, 127, 128, 524

Environmental Protection Regulation 2008

Environmental Protection Regulation 2019

State Development and Public Works Organisation Act 1971 ss 34D, 47C, 54, 54A, 54B 54D, 54E

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 23 CLR 27, applied

Icon Energy Limited v Chief Executive, Department of Resources [2023] QSC 277, applied 

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, applied

R v A2 (2019) 269 CLR 502, applied

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, distinguished

APPEARANCES:

B Tobin (solicitor), Hall and Wilcox, for the appellant

JM Horton KC, with JP Pemberton (instructed by Clayton Utz) for the respondent

  1. [1]
    The question for resolution in this matter is whether a particular application for an environmental authority (EA) was a properly made application.  It concerns a project known as the China Stone Coal Project in the Galilee Basin.  The respondent says it was not a properly made application. The appellant says it was.  A ‘not properly made application’ will lapse if an applicant does not take action for the application to be properly made.[1]

Background

  1. [2]
    On 31 October 2012, the China Stone Coal Project was declared a coordinated project for which an Environmental Impact Statement (EIS) is required pursuant to s 26(1)(a) of the State Development and Public Works Organisation Act 1971 (Qld) (SD Act) (as at 2 March 2012) (2012 SD Act).[2]  
  1. [3]
    On 9 January 2013, the Coordinator-General (CG) released the terms of reference for the preparation of a draft EIS for the China Stone Coal Project.[3]
  1. [4]
    The following applications were lodged for the China Stone Coal Project:
  1. applications for mining leases ML70514, ML70515, ML70516, ML70517, and ML70518 (the 2014 ML Applications);[4] and
  1. a site-specific application for an environmental authority (2014 EA application).[5]
  1. [5]
    On 3 February 2014, the 2014 EA application was determined by the respondent to be properly made in accordance with s 127 of the EP Act.
  1. [6]
    The draft EIS was published for public consultation in 2015 and a joint request was made for advice from the (then) Commonwealth Department of Environment on water matters for the project.
  1. [7]
    On 9 October 2015, the Independent Expert Scientific Committee provided an advice, containing its opinions, in response to specific questions posed by the CG in the joint request for advice (IESC Advice).[6]  The respondent says the IESC Advice identified deficiencies in the appellant’s groundwater and surface water modelling,[7] and suggested further information be obtained.[8]  The respondent says that many of these deficiencies were also identified later in the Coordinator-General’s report, dated 22 November 2018, with reference to the IESC advice.[9] 
  1. [8]
    On 6 November 2015, the CG requested that the appellant submit additional information on several matters.[10]
  1. [9]
    On 22 August 2017 and 8 March 2018, respectively, the appellant submitted:[11]
  1. an amended environmental impact statement; and
  1. an addendum to the environmental impact statement.

(together, the AEIS)

  1. [10]
    On 8 March 2018, the CG accepted the appellant’s draft environmental impact statement (Appellant’s EIS) as the final EIS, pursuant to s 34A(1)(b) of the SD Act.[12]
  1. [11]
    On 22 November 2018, the CG prepared a report evaluating the Appellant’s EIS (CG Report).[13]  The CG Report contained imposed, stated and recommended conditions. The CG Report included the statement: “This report will lapse 4 years after the date this report is publicly notified”. That is, 22 November 2022.
  1. [12]
    The CG Report noted that the appellant would need to obtain statutory approvals from Commonwealth, state and local government jurisdictions before the project could proceed.[14] A list of the core approvals required is at Table 4.1 of the report. The following passage from the CG Report is quoted in the Respondent’s Statement of Facts and Issues (Respondent’s SFI),[15] and is admitted by the appellant:[16]

“As the project’s mine design has yet to be finalised, a full set of stated conditions for the draft EA has not been included in Appendix 2. Before the EA application is publicly notified, the proponent must provide more information to DES related to groundwater, surface water, the power station (or alternate power supply) and sewage treatment as specified in my imposed conditions, in Appendix 1, related to these matters. DES will be required to develop further conditions related to these matters for inclusion in the draft EA in consultation with the proponent before it is publicly notified. Additional conditions developed by DES for inclusion in the final EA or a future amendment to the EA must be consistent with my stated conditions in Appendix 2.”

  1. [13]
    On 5 March 2019, the appellant abandoned the 2014 ML Applications.[17]
  1. [14]
    On 27 May 2019, the respondent advised the appellant that, as the 2014 ML Applications had been abandoned:
  1. the 2014 EA Application was invalid;
  1. the invalidation did not change the outcome of the CG Report on the EIS; and
  1. the appellant would need to submit a new EA application in order to progress the project.[18]
  1. [15]
    On 14 November 2022, the respondent met with the appellant and provided advice on application requirements.[19] After the meeting, the respondent emailed the appellant and provided links to Department guidelines, being the ‘Progressive Rehabilitation and closure plans’;[20] ‘Requirements for site-specific and amendment application – underground water rights’;[21] and, ‘Reef discharge standards for industrial activities’.[22]  The email said: “It is recommended that you provide the information prior to lodging the EA Application as required in the Coordinator-General’s Evaluation report.”  Specific conditions were identified by schedule reference.
  1. [16]
    On 16 November 2022, the appellant lodged another application for a mining lease for the China Stone Coal Project.[23]
  1. [17]
    On 18 November 2022, the appellant lodged a site-specific application for a new EA for ML 700074 (2022 EA Application). It comprised the EA application form and project description document and gave links to the State Development website containing the EIS documentation and the CG Report.[24]
  1. [18]
    On 22 November 2022, the appellant paid the accompanying fee for the 2022 EA Application.[25]
  1. [19]
    The 2022 EA application did not contain the further information identified in the CG Report’s Appendix 1 Conditions and as recommended by the respondent in the 14 November 2022 email correspondence.[26]
  1. [20]
    The appellant admits it did not provide any further information but denies it was “required” to:

“either before, or as part of its 2022 EA Application because, on the proper construction of the CG Appendix 1 Conditions, the information was not required to be given at that time”.[27]

The dispute

  1. [21]
    The dispute concerns the operation of s 125 and s 126A of the EP Act which set out the requirements of a properly made application. In particular, the exceptions that can apply where the CG has evaluated an EIS and applied conditions to each relevant activity, and where the CG has declared the project a coordinated project. The dispute centres on a question about the way two subsections of s 125 are to be read and how they operate.

The 2022 EA Application – original decision and review decision

  1. [22]
    The respondent assessed the 2022 EA Application and completed the internal ‘Assessment of properly made application for an environmental authority’ checklist on 6 December 2022 (the Assessment Report).[28] 
  1. [23]
    The respondent:
  1. issued a ‘Not properly made application’ notice;[29]
  1. decided that the EA Application was not a properly made application (Original Decision); and
  1. gave the appellant a notice pursuant to s 128(2) of the EP Act that stated:
  1. the administering authority was satisfied that the 2022 EA Application was not properly made;
  1. the 2022 EA Application was not properly made because the requirements of ss 125(1)(l), 125(1)(n) and 126A(2) of the EP Act had not been met;
  1. the action the administering authority was satisfied the appellant should take for the 2022 EA Application to be a properly made application;
  1. the appellant must give written notice to the administering authority that the actions have been taken by 23 January 2023 (the Notice); and
  1. if the appellant did not give the Notice by 23 January 2023, the 2022 EA Application would lapse under s 129 of the EP Act.
  1. [24]
    The notice also stated that, in order to comply with s 125(1)(c), an application must describe all environmentally relevant activities (ERAs) for the application, and listed ERA 56, ERA 60, ERA 61 (Waste Incineration and Thermal Treatment) and ERA 64 as activities that were either no longer activities under the Environmental Protection Regulation 2019 (Qld) (EP Regulation 2019) or have specific thresholds, or descriptions, that do not correspond with the 2022 EA Application.[30] As noted at [53] below, ERA 61 was not listed in the 2014 EA Application but was included in the 2022 EA Application.
  1. [25]
    On 16 December 2022, the appellant lodged an application for a review of the Original Decision (Application for Review).[31]
  1. [26]
    On 20 December 2022, the appellant made a request to the respondent to extend the date by which the appellant was required to give the Notice to 23 March 2023.[32]
  1. [27]
    On 22 December 2022, the respondent agreed to extend the date the appellant was required to give the Notice to 23 March 2023.[33]
  1. [28]
    On 6 February 2023, the respondent:[34]
  1. made a decision on the Application for Review, pursuant to s 521(5)(c) of the EP Act;
  1. decided to confirm the Original Decision (Review Decision); and
  1. gave notice to the appellant of:
  1. the Review Decision; and
  1. the reasons for the Review Decision, which included, amongst other things, that the respondent agreed with the assessment made by the original decision maker.

Narrowing the issues

  1. [29]
    In making the Original Decision and the Review Decision, the respondent found that the CG Report had lapsed at the time the 2022 EA Application was lodged.[35] Since making the Original Decision and the Review Decision, the respondent:
  1. has conceded that:[36]
  1. the CG Report had not lapsed when the 2022 EA Application was lodged;
  1. as the CG Report had not lapsed, the 2022 EA Application was not required to comply with s 125(1)(n) of the EP Act; and
  1. the Review Decision ought to be set aside to the extent that it relates to:[37]
  1. the CG Report having lapsed; and
  1. there being a failure to comply with s 125(1)(n) of the EP Act.
  1. has maintained that the 2022 EA Application is not ‘properly made”, but on the basis that it does not comply with the following:[38]
  1. section 125(1)(c) of the EP Act;
  1. section 125(1)(l) of the EP Act; and
  1. section 126A (specifically, ss 126A(2)(c)(iv), 126A(2)(d), 126A(2)(e) and 126A(2)(f)) of the EP Act.
  1. [30]
    In correspondence dated 22 March 2024, the respondent said it now no longer agitates some matters raised in its 12 May 2023 Statement of Facts and Issues and in its 14 March 2024 written submissions.[39]  The matters the respondent “no longer agitates” are:
  1. in relation to s 125(1)(c) of the EP Act, the respondent no longer presses non-compliance with respect to ERAs 56, 60, and 64;
  1. in relation to s 125(1)(l) of the EP Act, the respondent no longer presses non-compliance with respect to:
  1. the Northern Seasonal Wetland, as identified in paragraph 39(d)(vi) of the Respondent’s SFI;
  1. the offset area, as identified in paragraph 39(d)(vii) of the Respondent’s SFI; and
  1. paragraph 39(d)(i) of the Respondent’s SFI, to the extent it alleges an insufficient ‘assessment’ of the subsequent dependency of its users of shallow groundwater.
  1. in relation to s 126A of the EP Act, the respondent no longer presses non-compliance with respect to:
  1. the insufficiency of discussion of the avoidance, mitigation and management measures considered and adopted to address impacts associated with taking, or interference with, underground water other than the use of compensation agreements and offsets, as identified in paragraph 37(d)(iv) of the Respondent’s SFI; and
  1. paragraph 39(d)(i) of the Respondent’s SFI, to the extent it alleges an insufficient “assessment” of the subsequent dependency of its users of shallow groundwater.
  1. [31]
    The respondent set out in its 15 March 2024 Outline of Submissions and in its Outline of Oral Argument, handed up at the commencement of the hearing, the matters it says fail the basic requirements of a properly made application. They are:
  1. The failure to describe all ERAs for the application in a material way (s 125(1)(c)) by failing to describe ERA 61 (Waste incineration and thermal treatment);
  1. The failure to include assessments (falling short of s 125(1)(l)), specifically in relation to:
  1. groundwater dependent stygofauna and shallow groundwater;
  1. power station and greenhouse gases;
  1. sewage treatment – odour;
  1. surface water; and
  1. highwall drainage.
  1. The failure to ‘state’ important matters (falling short of s 126A) in respect of:
  1. groundwater dependent stygofauna and shallow groundwater;
  1. groundwater modelling;
  1. groundwater quality; and
  1. cumulative groundwater impacts.
  1. [32]
    The respondent says if the Court finds that the 2022 EA Application did not comply with any of the s 126A(2), s 125(1)(l), or s 125(1)(c) requirements, the Court ought to find that the 2022 EA Application was not ‘properly made’ in accordance with s 127 of the EP Act.
  1. [33]
    The overarching submission is that the EIS did not do what it needed to do; it was incomplete and was found by the CG to be incomplete; and it is not saved by anything the CG did and was, in fact, impugned by the CG. The respondent says the CG was unable to evaluate certain matters which led the CG to “impose” conditions, however the CG had no lawful capacity to “impose” conditions in this case.

The appeal

  1. [34]
    The appellant appeals against the Review Decision of a delegate of the respondent made on 6 February 2023.[40] The Review Decision confirmed the original decision made on 6 December 2022,[41] by which:
  1. it was decided that the appellant’s application for a site-specific EA was not a “properly made application” within the meaning of the EP Act; and[42]
  1. the respondent issued a notice to the appellant pursuant to s 128(2) of the EP Act setting out, amongst other things, the reasons why the 2022 EA Application was not “properly made”.
  1. [35]
    By s 127 of the EP Act, an application is a “properly made application” if it complies with Chapter 5, Part 2, Division 3 of the Act (Division).
  1. [36]
    The appellant says the 2022 EA Application complies with the Division and is a properly made application. Specifically:
  1. the 2022 EA Application complies with s 125(1)(c) - the requirement to describe all ERAs for the application;
  1. section 125(1)(l), which requires a site-specific application to include an assessment of the likely impact of each ERA, does not apply because the 2022 EA Application falls within the exception in either ss 125(3) or 125(6) of the EP Act;
  1. alternatively, the 2022 EA Application complies with s 125(1)(l);
  1. the 2022 EA Application complies with s 126(A) (requirements for site-specific applications – particular resource projects).
  1. [37]
    The Land Court’s jurisdiction to determine the appeal is derived from s 524 of the EP Act. Section 524 provides that “a dissatisfied person who is dissatisfied with the review decision may appeal against the decision to the Land Court”. The appellant is a “dissatisfied person”, as the applicant for an EA application.[43] The relevant review decision is a decision made pursuant to s 128(2) of the EP Act.
  1. [38]
    Section 527 of the EP Act provides that “the appeal is by way of rehearing, unaffected by the review decision”. The effect of ss 527 and 530, which provides that the Court may set aside the decision and substitute another decision, is that the appeal is an appeal de novo.

The framework for the assessment process

  1. [39]
    The EP Act adopts a “stages” framework to the assessment process for applications for EAs. The stages are application, information, notification, and decision. However, not all stages or all parts of a stage apply to all applications.[44] This approach is not unique.  For example, the Queensland Development Assessment System has five stages: application, referral, information request, public notification, and decision.  Similarly, depending on the type of development application, not all stages, nor all parts of a stage, apply.
  1. [40]
    Something common to the scheme under the EP Act and the Planning Act 2016 (Planning Act) is that, to progress beyond the application stage, an application must be properly made, and that the information stage provides an opportunity to ask the applicant (of a properly made application) for more information.[45]
  1. [41]
    The phrase “properly made application” appears in the Planning Act.[46] It also appeared in the now repealed Sustainable Planning Act 2009[47] and the Integrated Planning Act 1997.[48] However, the Planning Act provides for a discretion to accept a non-compliant application in certain circumstances, that is, an application may be accepted as properly made where the application is not in the approved form or accompanied by documents required under the form.[49] 
  1. [42]
    In contrast, an application for an EA under the EP Act is a properly made application only if it complies with Chapter 5 Division 3 of the EP Act.

The application stage – the operation and effect of ss 127 and 128

  1. [43]
    Section 127 provides that an application for an EA “… is a properly made application if it complies with this division” (Chapter 5 Division 3) – relevantly s 125 ‘Requirements for applications generally’, and s 126A ‘Requirements for site-specific applications – particular resource projects and resource activities’.
  1. [44]
    Section 128 applies if an application is not a properly made application and lists the things that must be stated in the notice given to an applicant. They include the reasons the administering authority is satisfied it is not a properly made application and the action the administering authority is satisfied the applicant must take for the application to be properly made.
  1. [45]
    Neither ss 127 or 128 identify any criteria when determining whether an application complies with the requirements of the EP Act, in contrast to the function of the final decision maker under ss 176 or 194B who must have regard to a specific set of criteria.
  1. [46]
    I accept that ss 127 and 128 should be read together, “both speak of whether an application is properly made and that is different from actually assessing substantively, the application itself”.[50]
  1. [47]
    It is agreed and I accept that the assessment under s 127 is a preliminary one; that s 127 is a gateway provision – it carries basic thresholds about what applicants must include in EA application.
  1. [48]
    I will address the following questions in order:
  1. Did the 2022 EA Application comply with the requirements of s 125(1)(c)?;
  1. Do the exceptions to the requirement to provide the information described in s 125(1)(l) apply?;
  1. Did the 2022 EA Application comply with s 125(1)(l)?; and
  1. Did the 2022 EA Application comply with the requirements of s 126A(2)?
  1. Did the 2022 EA Application comply with the requirements of s 125(1)(c)?
  1. [49]
    The subsidiary issues are:
  1. what s 125(1)(c) requires to be established as a matter of law and fact; and
  1. whether the 2022 EA Application satisfies those requirements.
  1. [50]
    Section 125(1)(c) of the EP Act imposes a requirement that an EA application “describe all environmentally relevant activities for the application.”
  1. [51]
    The appellant says the question that arises is what “describe” means in the context of s 125(1)(c) of the EP Act. They say the “crux” of the respondent’s complaint is that the 2022 EA Application did not “correctly” describe the ERAs for the application. The basis for this assertion, they say, is a comparison between the 2014 EA Application and the 2022 EA Application.[51]
  1. [52]
    The respondent says it is prepared to accept the appellant’s approach of focussing on the ERAs described in the present application and assessing them against the requirements of s 125(1)(c).[52]
  1. [53]
    They say that ERA 61 shows the application was not properly made. ERA 61 – Threshold 1 – ‘Waste Incineration and Thermal Treatment’ was not listed in the 2014 EA Application as an ERA but was included in the 2022 EA Application.
  1. [54]
    The EIS documentation submitted with the 2022 EA Application identified this as ‘incinerating waste vegetation, clean paper or cardboard’.[53] The respondent says the description used by the appellant in the EIS documentation for ERA 61 threshold 1 (incinerating waste vegetation, clean paper or cardboard), accords with the now repealed Environmental Protection Regulation 2008 (EP Regulation 2008), which was in force at the time the EIS was submitted but is no longer in force (having been superseded by the EP Regulation 2019). The EP Regulation 2019, in force when the 2022 EA Application was submitted, does not contain a cognate threshold for ERA 61 as was present in the EP Regulation 2008 – it now has three sub-thresholds, none of which were described by the appellant in the EA Application, EIS material or CG Report.
  1. [55]
    Accordingly, they say that the appellant’s failure to describe ERA 61 with reference to the current, in force, threshold means it failed to describe the ERA and, in a way that is material, that the 2022 EA Application did not comply with the requirements of s 125(1)(c) because not all ERAs for the application had been described.
  1. [56]
    Neither s 127 nor s 128 identify any criteria or threshold to be applied in determining whether the application complies with the requirements of the EP Act. It is an initial exercise, not an evaluative assessment. Section 125(1)(c) requires only that the application describe all ERAs, that is, “identify” or “give an account of” the ERAs for the application.
  1. [57]
    It would appear that what was threshold 1 and 2 in the EP Regulation 2008, is now threshold 1 in the EP Regulation 2019, that is, matters concerning general waste. Threshold 1 in the EP Regulation 2008, in fact, had no ‘aggregate environmental score’ assigned, which might suggest it was to be read with threshold 2.
  1. [58]
    In my view, despite the description lacking reference to the EP Regulation 2019 and thresholds in force, the application did adequately describe the relevant ERA. The 2022 EA Application did comply with the requirements of s 125(1)(c).
  1. Do the exceptions to the requirement to provide the information described in s 125(1)(l) apply?
  1. [59]
    Subsection 125(1)(l) requires a site-specific EA application to include extensive information including the likely environmental values, impact, risks, and risk minimisation strategies.
  1. [60]
    However, subsection 125(1)(l) information is not required:
  1. where the CG has evaluated an EIS for each relevant activity … and there are CG conditions that relate to each relevant activity … and an assessment of the environmental risk of each relevant act would be the same … (s 125(3)(a)(ii), (b));
  1. where the CG has declared the project the subject of the application is a coordinated project for which an EIS is required (s 125(6)).

The appellant

  1. [61]
    The appellant submits that: the application of the exemption in s 125(6) is a threshold issue and once the China Stone Coal Project was declared a coordinated project that threshold was met, and the exception triggered which means the 2022 EA Application is not required to comply with s 125(1)(l) of the EP Act. They say that this is consistent with the approach in Project Blue Sky,[54] Alcan,[55] and A2,[56] and on the plain reading of s 125(6)(c); that any other construction would require words to be written into s 125(6) to take into account the circumstance where the EIS is not completed;[57] and that if parliament had intended that the exception would only apply where an EIS was not completed, the words could readily have been inserted into the provision.
  1. [62]
    The appellant says, in contrast, s 125(3) only permits the exception to apply where the CG’s report has imposed conditions for each relevant ERA and an assessment of the risk stays the same.

The respondent

  1. [63]
    The respondent says that the obligations in s 125(1)(l) are engaged, and that the exceptions in s 125(3) or (6) do not apply.[58] They say s 125(6) is in conflict with s 125(3) and cannot operate at its expense; that s 125(6) looks ‘prospectively’ that is, before the CG Report, and s 125(3) takes effect after the CG has considered an EIS and issued a report.
  1. [64]
    The respondent says that on the proper construction of s 125(6), the exception is directed to a circumstance in which an EIS is not complete.[59]  
  1. [65]
    There is no dispute that the CG has evaluated an EIS for the China Stone Project. The CG Report contains a series of conditions on the China Stone Project. There is, however, a dispute as to whether there are conditions that relate to each ERA (to satisfy s 125(3)(a)(ii)) and whether the assessment of the environmental risks of each activity is the same as the assessment in the EIS.
  1. [66]
    Before answering the question as to whether the exceptions to the provision of information required by s 125(1)(l) apply, it is necessary to consider the nature of the CG’s evaluation and the nature of the conditions that relate to each relevant activity.

The CG’s conditions

  1. [67]
    The respondent says the 2022 EA Application lacks certain information requested by the CG to address deficiencies in the EIS and AEIS.[60] They say the CG was unable to evaluate certain matters which meant the CG could not “state” conditions, rather the CG sought to impose conditions. However, they say “there is no such thing as CG imposed conditions where an EA is involved”.[61] The CG can “state” conditions where “persuaded the high thresholds are made out”, can “recommend” conditions where not, but cannot “impose” conditions. They say “imposed conditions” intrude on the space which is left to the Department of Environment, Science and Innovation (the Department). 
  1. [68]
    It was submitted that what were described as “imposed” conditions in fact required the appellant to give the Department further information about matters including groundwater and surface water. This, the respondent says, did not excuse the appellant from the statutory requirement to provide that information with the 2022 EA Application. The respondent says that rather than “a saving”, the “imposed” conditions are a condemnation of the EIS and confirmation that it is “unassessable”, that is, not properly made.
  1. [69]
    They say in any event, in one respect at least,[62] the time required by the CG for the appellant to provide the information had passed at the time the 2022 EA Application was made, but without that material being included.

Where the parties diverge

  1. [70]
    The appellant says that s 127 does not call for an assessment of the quality or correctness of the information provided – whereas the respondent says s 127 requires consideration beyond the mere presence of information: it requires the decision maker to be satisfied that the requirements of ss 125 and 126A are met.
  1. [71]
    The appellant cites the decision of Brown J in Icon Energy Limited v Chief Executive, Department of Resources (Icon)[63]  as “instructive”. In that matter the administering authority refused to accept an application to renew an Authority to Prospect on the basis it did not comply with the statutory requirement to “address” certain matters. Describing the relevant section as a “gateway provision”, Brown J rejected the argument that “address” required an assessment or evaluation of the quality of the information provided.
  1. [72]
    The respondent says Icon concerned a different statute (the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (PG Act)) with quite different language.  The relevant section of the EP Act calls for an evaluative assessment by the Minister whereas the decision provision under the PG Act was by the Chief Executive. There were two different decision makers at different stages for different decisions.  In Icon the Court found it was the Minister who was to consider this criterion and the Chief Executive was only to consider whether it was addressed – that is, present in the application. Here, the decision maker for the ‘properly made application’ and the final decision maker is the same. The PG Act uses the term “address” whereas the EP Act provisions require the inclusion or stating of technical matters.
  1. [73]
    I accept the view that s 127 read with s 128(2) of the EP Act does call for the decision maker to form an opinion – for the administering authority to be “satisfied”. In Icon, the Court held that ss 842(1)-(2) of the PG Act did not call for the formation of an opinion – contrasting s 842(3) which did call for an assessment[64] – which the respondent in this matter submits is in terms which accord with s 128(2) of the EP Act.
  1. [74]
    The respondent also notes that, unlike s 842 of the PG Act, s 128 is susceptible to a merits review. The Court in Icon found the lack of merits review important in concluding the decision there did not support an evaluative assessment at the threshold stage.[65]

Can any deficiency be remedied?

  1. [75]
    In my view the ‘information stage’ is to be employed only to clarify the information provided as part of an EA application which complies with ss 125 and 126A (application stage) for the purpose of a final decision, not to permit an applicant to remedy a deficient application. An EA application must meet the standard required by the statutory provisions.
  1. [76]
    This conclusion is reinforced by s 128(2)(k) which requires the administering authority to give the applicant of a ‘not properly made application’ a notice stating the action the applicant must take for the application to be properly made. It is not something left to the information stage.

Is the fact that the 2014 EA application was accepted as being properly made relevant?

  1. [77]
    Having received and considered submissions on this issue I accept that the fate of the 2014 EA Application does not assist in determining whether the 2022 EA Application was properly made.
  1. [78]
    I accept that the 2014 assessment report is different from the 2022 EA Application documentation, which included the completed EIS material and the CG Report. This is material because all allegations of non-compliance with ss 125 and 126A (except the allegation regarding the describing of ERAs pursuant to s 125(1)(c) EP Act) are based upon deficiencies identified by the CG in the EIS material – which material was not, and could not, have been before the decision maker of the 2014 EA Application.

The “imposed” conditions

  1. [79]
    The question arises as to the extent to which the appellant has complied with the requirements of a properly made application if the CG has “imposed” conditions about certain subject matter. The appellant contends that these matters are remedied (or will be remedied) when the requirements of the imposed conditions are met. The respondent says that the appellant cannot rely upon them to avoid meeting the requirements of a properly made application.
  1. [80]
    The CG report was prepared pursuant to s 34D of the SD Act. Section 34D provides (emphasis added):
  1. This section applies if the Coordinator-General decides under section 34A(1)(b) to accept the draft EIS as the final EIS.
  1. The Coordinator-General must prepare a report evaluating the EIS.
  1. In evaluating the EIS, the Coordinator-General may—
  1. evaluate the environmental effects of the project and any other related matters; and
  1. state conditions under section 39, 45, 47C, 49B, 49E or 49G; and
  1. make recommendations under section 43 or 52; and
  1. if division 8 applies to the project—impose, under that division, conditions for the undertaking of the project.
  1. After completing the report, the Coordinator-General must—
  1. give a copy of the report to the proponent; and
  1. publicly notify the report.
  1. [81]
    Section 47C(1)(a) in Division 6 of Part 4 (Relationship with Environmental Protection Act) says the CG report for the EIS for the project may ‘state’ conditions for the proposed environmental authority. Relevantly therefore it would appear that a report evaluating an EIS may ‘state’ conditions in accordance with s 34(D)(3)(b) and s 47C(1)(a).
  1. [82]
    The conditions ‘stated’ pursuant to s 34D(3)(b) and s 47C(1)(a) are different to the conditions ‘imposed’ pursuant to s 34D(3)(d). The power to impose conditions under s 34D(3)(d) is only enlivened if division 8 of Part 4 of the SD Act applies to the project.
  1. [83]
    To this the respondent notes that Division 8 of Part 4, the heading of which reads ‘Application of Coordinator-General’s report if no relevant approval’, applies to the extent that, relevantly, division 4, subdivision 2 and divisions 5, 6, 6A and 7 do not apply to the project.[66] As noted above, s 47C(1)(a) is in Division 6 of Part 4, the provision that permits the CG to ‘state’ conditions for a proposed environmental authority.
  1. [84]
    On this analysis the power to ‘impose’ conditions is only enlivened to the extent that there are no ‘stated’ conditions addressing that aspect of the approval, that is they arise only in circumstances where the CG was not in a position (not able) to ‘state’ a condition after ‘evaluating the environmental effects of the project’”.
  1. [85]
    The specific power to ‘impose’ conditions is found in s 54B of the SD Act. It provides:
  1. Subject to section 54C, the Coordinator-General’s report for the EIS or IAR for the project may impose conditions for the undertaking of the project, and state when they take effect.
  1. A condition imposed in the report is an imposed condition for the undertaking of the project.
  1. If there are imposed conditions for the undertaking of the project, the Coordinator-General may, for any imposed condition for the undertaking of the project, nominate an entity that is to have jurisdiction for the condition

…

  1. [86]
    Section 54D addresses the effect of imposed conditions. Section 54D(3) which provides that EP Act s 493A (when environmental harm or related acts are unlawful) applies “to the undertaking of the project as if the imposed conditions were development conditions under that Act for a development approval” means that imposed conditions are to be treated as though they are conditions of an EA. Section 54E SD Act provides that if an imposed condition is inconsistent with a condition of an approval that applies to the undertaking of the project, the imposed condition prevails to the extent of the inconsistency.
  1. [87]
    In this matter the CG Report imposed various conditions to facilitate the proper assessment of the project by the Department for the purposes of the (potential) EA approval.[67] The respondent says this means the EA application submitted with the EIS and the CG Report identifying these “deficiencies”, that is the CG’s inability to assess specific matters due to there not being sufficient information, “raises the same questions for the respondent decision maker and this Court”.
  1. [88]
    The appellant contends that these matters are remedied (or will be remedied) when the requirements of the imposed conditions are met. The respondent’s submissions at [50]-[54] of their outline can be summarised as follows:

Section 127 requires an assessment of the information contained within the EA Application submitted – not information that may be provided at a later stage.

The EP Act is not concerned with ‘imposed conditions’, rather it only acknowledges ‘Coordinator-General’s conditions’[68] - imposed conditions in a CG Report are (merely) matters which must be ‘taken into consideration’[69] by the decision maker.  The decision maker does not forgo a proper assessment merely because imposed conditions may require information to be provided at a later date.

Irrespective, the requirements of Schedule 7, Condition 3 regarding a baseline groundwater monitoring program to be developed no later than 120 days after the date of the CG evaluation report for approval to the administering authority have already fallen due, on 22 March 2019.

Enforcement of imposed conditions is irrelevant to the question whether information required under the EP Act has been satisfied – particularly in the case where the CG report identifies gaps in evaluation and the Respondent identifies matters the Appellant must provide as a result of the gaps; and

The Imposed conditions show the deficiencies in the EA Application and the information needed for the application to be capable of assessment.

  1. [89]
    The respondent submits that the requirements outlined in the imposed conditions are a basis to identify, and know, the deficiencies of the 2022 EA Application.[70] “They are deficiencies that subsist and must be corrected to the extent required of a properly made application” at the application stage.
  1. [90]
    I accept the analysis and conclusions of the respondent in this regard. The so-called ‘imposed’ conditions identify and highlight deficiencies in the 2022 EA Application and the information provided, which meant the CG was unable to assess specific matters. To be capable of assessment the deficiencies and the information gaps identified by the CG needed to be addressed in the application. It is an inadequate response of the appellant to say the matters will be remedied when the requirements of the ‘imposed’ conditions are met. I accept the submission of the respondent that s 127 requires an assessment of the information contained in the EA application submitted – not information that might be provided at a later stage.

Was the s 125(6) exception engaged?

  1. [91]
    The respondent says the appellant approaches its construction of s 125(6) in isolation of s 125(3) and the overlapping nature of those provisions, instead relying upon an amendment to s 139 as context to support its construction.
  1. [92]
    The heading to s 139 says: “Information stage does not apply if EIS process is complete”. Section 139(2), an amendment to s 139, says that the information stage will not apply only if the s 125(1)(l) matters have been provided through the EIS or in another way. This is understood by the appellant to mean that the information stage will apply even if the EIS process is complete if the matters in s 125(1)(l) have not been provided. They say it provides the administering authority with an opportunity to ask for further information needed to assess the application. Then, where the exception in s 125(6) is engaged and the administering authority is of the view the relevant information to address the matters in s 125(1)(l) has not been provided in the EIS, the administering authority has the ability to request the information to address s 125(1)(l) during the assessment of the EA application. The appellant concludes that the exemption in s 125(6) is not limited to circumstances where an EIS has not been completed or the CG has not completed an evaluation of the EIS and issued a report.
  1. [93]
    When s 125 is construed as a whole, it is apparent there is a conflict between subsections (3) and (6). In the usual course such conflict must be ‘alleviated … by adjusting the meaning of the competing provisions’.[71]  Sub-sections (3) and (6) overlap in their operation, both providing the same exemption to the s 125(1)(l) requirements for an application involving an EIS under the SD Act.
  1. [94]
    I accept the description of subsection (6) as having broad application as it only requires to be satisfied that:
  1. the application be for a ‘site specific application’;
  1. the CG has declared the project the subject of the application a coordinated project for which an EIS under the Act is required.
  1. [95]
    In contrast, subsection (3) has a narrower application requiring, relevantly that:
  1. the CG has evaluated the EIS for each relevant activity the subject of the application and there are CG conditions that relate to each relevant activity; and
  1. an assessment of the environmental risks of each relevant activity would be the same as the CG evaluation.
  1. [96]
    The conflict arises because an EA application for a project that has been declared a coordinated project for which an EIS is required will always engage subsection (6). Without construing subsection (6) to resolve this conflict, a literal reading would render subsection (3) and its specific requirements, otiose.
  1. [97]
    As noted already the respondent submits that the proper approach is to construe subsection (6) as being prospective, and subsection (3) as applying to an application for an EIS that has already been completed, that is, already evaluated.
  1. [98]
    Textual support for this construction is found in subsection (6)(c) and the words ‘for which an EIS under that Act is required’, suggesting, temporally, that the EIS is required but is yet to be completed. Subsection (6)(a) references the “starting of an EIS process” while subsection (6)(b) talks of circumstances where it is “decided that an EIS is required”. Read together, this lends further support to the conclusion that these processes are not complete.
  1. [99]
    Subsection (6) was introduced in the Environmental Protection and Other Legislation Amendment Act 2020 (Qld). The explanatory notes provide:

If an EIS is to be completed, then the EIS will be used to inform any required PRCP and will provide more detailed information on likely impacts on environmental values, so these should not need to be provided in the initial application documents. The EIS will need to be completed before the end of the information stage of the application, and so information on impacts on environmental values and the proposed PRCP can be provided at that point of the application process.

  1. [100]
    The explanatory note to the Environmental Protection and Other Legislation Amendment Act 2014 (Qld) (EPOLA Act), which introduced subsection (3) in its current form provides:

This clause also amends section 125 so that the general application requirements do not apply to the extent that the application relates to conditions that have been imposed through the Coordinator-General’s report through the evaluation of an EIS under the State Development and Public Works Organisation Act 1971. Currently, this section applies if the EIS process under the Environmental Protection Act 1994 has been completed. This exemption is being extended to an EIS under the State Development and Public Works Organisation Act 1971, but only to the extent the application relates to conditions that were imposed through the Coordinator-General’s report. This is because the Coordinator-General’s report may not have assessed some aspects of the project, and information may be required for the administering authority to assess those aspects.[72]

  1. [101]
    I accept the principal of statutory interpretation that words are not read in isolation as if they can have meaning without context.[73]  I accept that the context offered by these explanatory notes shows that subsection (6) was not intended to operate at the expense of subsection (3). Rather, as the respondent submits, subsection (6) was designed to operate prospectively and that upon completion of the EIS process it gives way to the specific requirements of subsection (3). This construction is also harmonious with s 139 of the EP Act which operates, generally, irrespective of whether either subsection (3) or (6) is engaged. I reject the appellant’s submission concerning the interpretation of s 139(2) in support of its construction of s 125(6).
  1. [102]
    The effect is that s 125(6) has no operation here. For the appellant to avail itself of an exception under s 125, it must satisfy s 125(3).

Was the s 125(3) exception engaged?

  1. [103]
    There is no dispute that, in this case, the CG has evaluated an EIS for the China Stone Project. There is, however, a dispute as to whether there are conditions that relate to each ERA and, if so, whether the assessment of the environmental risks of each such activity is the same as the assessment in the EIS.
  1. [104]
    The s 125(3) exception applies where the CG has evaluated an EIS for each relevant activity. The term ‘relevant activity’ is defined as ‘the [ERA] the subject of the application’.[74]  The exemption, therefore, requires that the CG has evaluated an EIS for each ERA the subject of the application.
  1. [105]
    The respondent lists the ERAs: ERA 13 Mining Black Coal; ERA 8 Chemical Storage; ERA 14 Electricity Generation; ERA 31 Mineral Processing; ERA 56 Regulated Waste; ERA 60 Waste Disposal; ERA 61 Waste Incineration and Thermal Treatment; ERA 63 Sewage Treatment; and ERA 64 Water Treatment.[75]
  1. [106]
    The section continues: upon evaluation of the ERAs by the CG, there are ‘Coordinator-General’s conditions that relate to each relevant activity’. The note to the s 205(2) EP Act definition of the term ‘Coordinator-General conditions’ for the purposes of Chapter 5 EP Act says: “In evaluating an EIS under the State Development Act, the Coordinator-General may state conditions mentioned in s 34D(3)(b) of that Act”.
  1. [107]
    Section 34D(3)(b) of the SD Act says the CG may state conditions under s 47C of the SD Act. Section 47C says the CG report for the EIS for the project may state conditions for the proposed EA. Most relevantly, s 34D of the SD Act clearly differentiates between stated conditions, recommendations, and imposed conditions. The latter (imposed conditions) might only be imposed if division 8 of the SD Act applies. In the context of division 8, in imposing a condition/s the CG may nominate an entity that is to have jurisdiction for the condition.[76]
  1. [108]
    The appellant, in further submissions filed 28 May 2024, says it is an unduly constrained interpretation of the definition of CG’s conditions to only reference “stated” conditions, made under s 34D(3)(b) of the SD Act, as applying to s 125(3). The appellant says it is supported by the approach of Kingham P in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [77] “where the draft environmental authority contained a condition imposed by the CG under s 54B of the SD Act, as well as stated conditions”.[78] The appellant also says “this broad approach” (to s 205(2)) was also taken by the Court in Hancock Coal Pty Ltd v Kelly & Ors and Department of Environment and Heritage Protection (No. 4)[79] where the decision considered both stated and imposed conditions in a CG report.
  1. [109]
    The respondent in their Further Submissions in Reply, filed 6 June 2024, says the relevant paragraph in Waratah ([522]) gives the impression that Kingham P considered that imposed conditions were caught by s 205(2) EP Act. They submit that the construction of s 205(2) was not a matter that truly confronted the Court for determination and the paragraph should be treated as obiter.  They say the decision in Hancock is of no assistance – it merely identifies that imposed conditions were put in place in that case.  I agree.  The passage from Waratah is obiter and it appears to me to be inconsistent with the plain reading of s 205(2), and Hancock simply confirms that, in the right circumstances, conditions may be imposed.  
  1. [110]
    It is my view that the s 125(3) exception would only operate if the CG Report contained stated conditions for an ERA after an evaluation by the CG.
  1. [111]
    Support for this conclusion is found in the explanatory note for section 125(3), which states that the exemption only applies to the extent that the application relates to conditions that were imposed through the CG’s report through the evaluation of an EIS. This is because the CG’s report may not have assessed some aspects of the project, and information may be required for the administering authority to assess those aspects’.[80]
  1. [112]
    Although the explanatory note uses the term ‘imposed’, the context of the CG report confirms that the conditions referred to are stated conditions following the evaluation of an EIS. Indeed, as discussed in paragraphs [82]–[90], it is stated conditions and not imposed conditions that are made following the evaluation of the environmental effects of a project in an EIS.
  1. [113]
    I accept that the proper inquiry calls for more than an assessment of whether some conditions have been ‘stated’ for an ERA; it requires consideration of the evaluation undertaken by the CG and the conditions themselves.
  1. [114]
    In that regard, when the CG Report was completed, the mine design was yet to be finalised and there was a lack or insufficiency of information to enable the CG to include a full set of stated conditions. It was clear that the appellant must provide further information in relation to matters including groundwater, surface water, the power station and sewage treatment; and that the CG could not evaluate nor state conditions for sewage treatment, power station combustion emissions, odour, power supply, surface water, highwall drainage impacts and mitigation measures, and groundwater-dependent ecosystem impacts. The CG Report included what it describes as ‘imposed’ conditions to address these matters.
  1. [115]
    The respondent says that only stated conditions are relevant to the s 125(3) exception. Not imposed or recommended conditions.
  1. [116]
    This must be the correct meaning of s 125(3). In circumstances where the CG could not evaluate because of a lack of information, to the extent there were conditions ‘stated’, they were not stated based on an evaluation.
  1. [117]
    This applies to a number of matters, and I set out here two examples only.
  1. [118]
    In respect of sewage treatment, the following is said:

The EIS states that the use of treated effluent in areas of human contact would be avoided. Sludge from the treatment process would be collected by a licensed waste contractor and transported to a sewage treatment plant for treatment and disposal.

Submissions on the draft EIS raised concerns that the sewage management system has not been adequately described. Due to these concerns and the lack of background information on the proposed sewage management system, Appendix 2 does not contain sewage conditions for the draft EA. I have imposed a condition (Appendix 1) requiring the proponent to provide sewage management system information to the administering authority for the EA, prior to it publicly notifying its draft EA application, to allow a full assessment and development of sewage conditions for inclusion in the draft EA.[81]

  1. [119]
    In respect of surface water quality, the following is said:

The EIS does not provide sufficient information to determine the full extent of surface water impacts on the downstream environment resulting from controlled discharges of mine-affected water. Accordingly, I have imposed a condition (Appendix 1) requiring the proponent to provide DES with baseline water quality and flow monitoring data for the North Creek receiving environment to determine appropriate compliance and flow monitoring locations, release limits and contaminant trigger levels required for the development of draft EA conditions, prior to public notification of the draft EA.[82]

  1. [120]
    Referring to conditions without regard to the CG evaluation (or inability to evaluate) contained within the CG Report ignores the proper operation of the exception.
  1. [121]
    The appellant says that where it is asserted that the assessment of the environmental risks would not be the same the respondent has not identified how the assessment of the environmental risks has changed. They say that there has been no change in the scope of the China Stone Project since the CG’s Report was issued and no change between the ERAs assessed within the CG’s Report and those now applied for in the 2022 EA Application. However, this ignores the fact that, where there was an inability to assess risk in the first place, it would be impossible to say that an ‘un-assessable’ risk has or has not changed.
  1. [122]
    I am not satisfied that the 2022 EA application falls within the exception in s 125(3). It cannot be said that the CG evaluated the EIS for each relevant activity the subject of the EA. The 2022 EA Application is required to comply with s 125(1)(l) of the EP Act.
  1. Did the 2022 EA Application comply with s 125(1)(l)?
  1. [123]
    Section 125(1)(l) requires an applicant to include in its application for an EA an “assessment” of the likely impact of each relevant activity on the environmental values. The assessments must include the matters listed in subsections 125(1)(l)(A)-(E). Those matters call for a description of the environmental values, details of any emissions or releases, a description of the risk and magnitude of impacts, details of management practices to prevent or minimise adverse impacts, and how the land will be rehabilitated after each relevant activity ceases.
  1. [124]
    The appellant says s 125 sits within the application stage, a gateway stage, and its purpose is to set out general requirements which must be addressed in an EA application. The decision maker’s task in deciding whether an application is properly made does not call for an evaluative judgment of the quality or sufficiency of the information provided. They say it is the applicant’s assessment of the impacts, not the decision maker’s. Adequacy, correctness and sufficiency is for the final decision maker during the decision stage.
  1. [125]
    The appellant accepts the CG conditions required the appellant to provide information – but say that there is no express or implied requirement imposed by s 125(1)(l) for the applicant to include in an EA application information required by conditions imposed by the CG. It need only meet an “assessment” of the impacts on environmental values including the matters in s 125(1)(l)(A)-(E). They say any failure to provide the information required by a CG condition is a failure which may result in a deficiency in the adequacy or quality of the assessment, but it is nevertheless an assessment. They say whether the information is or is not adequate is not the point, all that is required is that the applicant include an assessment of the impacts on environmental values – which has been done.
  1. [126]
    The respondent, in its Outline of Submissions at [104]-[121], sets out where it says the appellant failed to include assessments required by s 125(1)(l). The areas are: groundwater dependent stygofauna and shallow groundwater; power station and greenhouse gases; sewage treatment – odour; surface water; and highwall drainage.
  1. [127]
    The appellant says that the EIS, the AEIS as well as the CG Report contains information amounting to an assessment of the impacts of the ERAs on each of the relevant environmental values. Annexure A to the appellant’s submissions sets out the respondent’s position concerning each of the respondent’s “complaints” and the CG condition “that addresses that complaint”. Although I was not taken to the content of the Annexure in the hearing, I was told that it was a “useful summary of where we say we’ve complied with the requirements …”.[83]
  1. [128]
    The 2022 EA application says in respect of groundwater dependent stygofauna and shallow groundwater that there was limited potential for significant stygofauna assemblages to occur within the project area based upon sampling from 15 bores; opined, based on a number of studies, that the groundwater was not conducive to stygofauna and the alluvium which is conducive to stygofauna is not present in the project area; and because of these conclusions did not include an assessment of the impacts of the groundwater dependent stygofauna but concluded the project would not have an impact on groundwater dependent ecosystems (GDEs) as there is no shallow groundwater to support GDEs on or near the project. 
  1. [129]
    However, the CG Report identified “deficiencies” due to a single round of sampling, not in accordance with best practice guidelines. As a result, the CG imposed conditions (Schedule 2 Condition 4 and Schedule 8, Conditions 1 and 2) requiring the impacts of the project to be identified.
  1. [130]
    It was submitted and I accept that the appellant failed to satisfy s 125(1)(l) because it did not include an assessment of the impacts of the project on the environmental values of groundwater dependent stygofauna (s 125(1)(l)(i)(A)) nor the risk and likely magnitude of impacts (s 125(1)(l)(i)(C)).
  1. [131]
    In relation to the power station and greenhouse gases, ERA 14, and the proposal for a coal-fired power plant, the CG Report said at page 62:

“… Given the significant GHG emission contribution of the power station, I consider that the EIS has not demonstrated the need for a coal-fired power station on the mining lease, compared to alternative power supply options or a combination of coal-fired generation with other generation technologies such as solar, diesel and waste coal mine gas, that could produce less GHG emissions. As renewables have a shorter lead time and there is potential for battery storage, I consider that it is credible for the proponent to look at these options.”

  1. [132]
    As for greenhouse gases, the CG Report, at page 61, states:

“Submitters on the draft EIS raised concerns regarding potential impacts of GHGs on human health and existing land uses, terrestrial and aquatic habitat by GHG emissions, and the impacts of GHG emissions on climate change. While the EIS estimated the types and quantity of GHG emissions from the proposed project, the EIS did not assess what the potential impacts of GHG emissions would be on matters such as climate change, human health or terrestrial and aquatic habitat values. I am not satisfied with the EIS impact assessment related to GHG emissions and I have discussed this further in the following mitigation measures section.”

  1. [133]
    I accept that the 2022 EA Application failed to provide an assessment with respect to the power station and GHG emissions because it did not include any assessment of the need, and comparison to alternative power supply options. In that regard, it failed to include an assessment of the likely impacts of ERA 14 on environmental values or management practices to prevent or minimise adverse impacts including alternative methods of power generation.
  1. [134]
    The 2022 EA Application did not include an assessment of combustion emissions from the proposed power station separately from the project’s overall emissions. It failed to include an assessment which, per s 125(1)(l(i)(B), contains “details of any emissions or releases likely to be generated by each relevant activity”, and an assessment on the potential impacts of GHG emissions on climate change. The CG Report at page 63 said: “The EIS identified the GHG emissions without assessing the potential for GHG emissions to have an impact on human health and existing land uses, and terrestrial and aquatic habitat” and any assessment of the cumulative impacts of GH emissions on these environmental values.[84]
  1. [135]
    In respect of all assertions of “deficiency”, the appellant says that: the 2022 EA Application provided the relevant assessment; that if a “sufficient” assessment was required, any insufficiency was addressed by a relevant imposed condition; and complaints of adequacy or quality of the information are not a sufficient reason to assert non-compliance.
  1. [136]
    The other ‘deficiencies’ identified by the respondent concern ‘Sewage Treatment – Odour’; ‘Surface Water’; and ‘Highwall Drainage’. They are similarly framed by the respondent, and similarly resisted by the appellant.
  1. [137]
    In respect of odour which might come from sewage treatment (ERA 64) the CG Report, at pp 53-54, says:

“However, our submission on the EIS raised concerns that odour transmissions from sewage treatment works had not been considered in the assessment. Adequate information was not provided in the EIS regarding proposed sewage treatment. Therefore I have imposed a condition requiring the proponent to provide additional information …”. 

The respondent says “adequate” information was not provided.

  1. [138]
    As for surface water, the concern is the likely impacts on North Creek and the Great Barrier Reef. The CG Report at p 202 states:

“The receiving water quality and flow data information required to determine flow triggers and water quality release limits (for North Creek) was not provided within the EIS for my assessment … As a result there is currently insufficient receding water quality … I’ve imposed a condition to provide the baseline water quality and flow monitoring data.”

And, at p 213, the CG’s conclusion:

“I am not satisfied that the EIS has provided sufficient information to determine the full extent of cumulative surface water impacts on the downstream environment resulting from controlled discharges of mine-affected water. Accordingly, I have imposed a condition (Appendix 1) requiring the proponent to provide DES with baseline water quality and flow monitoring data for North Creek to determine appropriate compliance and flow monitoring locations, release limits and contaminant trigger levels, required for the development of draft EA conditions, prior to public notification of the draft EA application.”

  1. [139]
    The respondent says that, in relation to s 125(1)(l)(i)B, the respondent met with the appellant prior to the lodgement of the 2022 EA Application and provided relevant information in the form of a guideline “in order that this might be avoided ”.[85]
  1. [140]
    Finally, a highwall drainage infrastructure channel is proposed in the EIS to provide flood protection for the operating pits and remain in place as a flood mitigation measure after mine closure. In relation to impacts and mitigation measures, the CG Report says:

“The EIS did not address the impact of the drainage channel on the movement of ground-dwelling fauna protected as part of the proposed Biodiversity Offset Strategy. In addition, the EIS did not provide for measures to allow the movement of fauna from the adjoining Moray Downs offset area across the highwall drainage area for foraging, access to water or roosting sites.”[86] 

This, the respondent says, also demonstrates that the basic requirements of s 125(1)(l) are not met.

  1. [141]
    The deficiencies highlighted in [136] to [140] were not adequately or sufficiently addressed in the 2022 EA application.
  1. [142]
    In my view for any purported assessment to meet the provision’s requirements it must contain adequate, correct and sufficient information because s 125(1)(l)(A)-(E) call for matters of substance. The assessment is an assessment of the likely impact of each relevant activity on the environmental values. The matters in s 125(1)(l)(A)-(E) are not perfunctory. They call on the appellant to have done work in evaluating the effect of the activities on the environmental values. An assessment requires an opinion or judgment formed by assessing. The CG Report details the shortcomings and provides a guide for what is required, and informed by that, and with the additional information provided by the respondent to assist with the lodgement of the application, the appellant failed to meet the standard of a properly made application.
  1. [143]
    The requirements of s 125(1)(l) are not met.
  1. Did the 2022 EA Application comply with the requirements of s 126A(2)?
  1. [144]
    There is no dispute that, because the application involves the exercise of underground water rights for a resource activity for which the relevant tenure is a mining lease, s 126A applied to the EA application.
  1. [145]
    The respondent submits that the 2022 EA Application did not comply with s 126A(2) of the EP Act – specifically ss 126A(2)(c)(iv), and (d)-(f).
  1. [146]
    Section 126A(2) requires the EA application to state relevantly:
  1. for each aquifer affected, or likely to be affected, by the exercise of underground water rights—
    1. a description of the aquifer; and
    2. an analysis of the movement of underground water to and from the aquifer, including how the aquifer interacts with other aquifers and surface water; and
    3. a description of the area of the aquifer where the water level is predicted to decline because of the exercise of underground water rights; and
    4. the predicted quantities of water to be taken or interfered with because of the exercise of underground water rights during the period in which resource activities are carried out;
  1. the environmental values that will, or may, be affected by the exercise of underground water rights and the nature and extent of the impacts on the environmental values;
  2. any impacts on the quality of groundwater that will, or may, happen because of the exercise of underground water rights during or after the period in which resource activities are carried out;
  3. strategies for avoiding, mitigating or managing the predicted impacts on the environmental values stated for paragraph (d) or the impacts on the quality of groundwater mentioned in paragraph (e).
  1. [147]
    The respondent says the 2022 EA Application did not, as required by the CG Appendix 1 Conditions, provide:
  1. a reviewed groundwater numerical model which is to be used for a groundwater assessment report to be submitted to the respondent for approval and be approved prior to the public notification of the EA;
  1. a baseline groundwater monitoring program developed and certified by an appropriately qualified person and submitted to the respondent no later than 120 days after the date of the CG Report for approval to be incorporated into the groundwater management and monitoring program.
  1. [148]
    The appellant’s contention is that, at the application stage of the inquiry, nothing further is required than a basic assessment of whether the matters contained in s 126A are ‘stated’ in the application. The assessment of the quality or otherwise of the information provided is ultimately a matter for the final decision maker.
  1. [149]
    The respondent contends that ‘stating’, although a low threshold taken on its own, does require sufficiency. To ‘state’ means ‘to declare definitely or specifically; to set forth in proper or definite form; to say; or to fix or settle, as by authority’.[87] The respondent says the word as used in s 126A, is in connection with doing tasks that call for more than a mere statement; it requires - in the specifics of s 126A(2)(a)-(f) - work to have been done by the appellant, the culmination of which is the statement.
  1. [150]
    As to the meaning of “state” as it appears in s 126A the appellant says (in this context) the ordinary meaning of “state” is to provide information which addresses each of the criteria in the subsections that follow. The word “state” does not import notions of evaluation or opinion and consequently does not elevate the information into a particular quality or sufficiency.
  1. [151]
    The requirements are summarised as follows:
  1. Subsection (2)(c)(iv) requires the identification of the aquifer and for the Appellant to have predicted quantities of water;
  1. Subsection 2(d) requires an identification of the environmental values and the likely impacts to those environmental values caused by the exercise of underground water rights;
  1. Subsection (2)(e) focuses on the impacts on the quality of groundwater during and after the activity is carried out. It calls for the appellant to understand the groundwater quality prior to activities (baseline data) and the impacts the activities may have on that groundwater;
  1. Subsection (2)(f) requires the appellant to make known its strategies for addressing the impacts identified in subsections (d) and (e).
  1. [152]
    The appellant says the EIS and AEIS provided information directed to sections 126A(2)(c)(iv) and 126A(2)(d) to 126A(2)(f) of the EP Act. This information was supplemented by the CG Report which also contained assessments relevant to sections 126A(2)(c)(iv) and 126A(2)(d) to 126A(2)(f) of the EP Act. The respondent accepts that “deficiencies” identified with groundwater modelling in the EIS were considered by the CG to have been addressed by the AEIS, however some remained unresolved.
  1. [153]
    Those “unresolved” matters include uncertainty with the groundwater model predictions and that drawdown impacts could have been underestimated,[88] low confidence in the predictions of regional extent and magnitude of depressurisation post-mining (primarily due to the modelling procedure used for the EIS)[89], and, therefore, predicted impacts to landowner bores are uncertain.[90] 
  1. [154]
    In relation to groundwater modelling, the CG Report included conditions in Schedule 7, Condition 1 requiring the groundwater model to be revised – and then to be used to prepare a groundwater assessment report. However, the same EIS material was submitted in support of the 2022 EA Application. It failed to state, for each aquifer affected by the project, the predicted quantities of water to be taken or interfered with. In my view it is not sufficient to simply state predicted quantities but provide no information to support the predicted quantities. To say it is a prediction in name but not in substance is an accurate description.
  1. [155]
    As to groundwater quality, the CG Report states:

“The EIS does not include a sufficiently detailed baseline assessment to accurately represent groundwater quality characteristics and variability and to identify future changes in groundwater quality caused by the project …”. 

  1. [156]
    The 2022 EA Application, supported by the EIS material and CG Report, failed to submit representative groundwater quality characteristics for groundwater affected by the project. Groundwater quality is an environmental value – to assess the value the appellant must know its baseline quality to identify the relevant environmental value of the water for the purposes of s 126A(2)(d). The 2022 EA Application did not state the environmental values and impacts - recognised by imposed condition Schedule 7, Condition 3 which required a baseline groundwater monitoring program to produce groundwater datasets over a two-year period to remedy the deficiencies. The appellant says there was no obligation to provide the baseline groundwater monitoring program at the time of lodging the 2022 EA application. However, a baseline groundwater monitoring program was to be submitted to the respondent no later than 120 days after the date of the CG Report – due 22 March 2019. It wasn’t.
  1. [157]
    In relation to the cumulative groundwater impact, the CG Report noted a project to the north (Hyde Park Coal Project) was not considered in the EIS, and four other proposed coal projects in the Galilee Basin with publicly available information would enable inclusion of those projects in a cumulative assessment. While the applicant considered the impacts minimal, the CG Report did not agree and required assessment. The 2022 EA Application does not state the likely impacts caused by the cumulative effects of groundwater drawdown - a failure to state what is required by s 126A(2)(d).
  1. [158]
    The appellant says:
  1. there is no express or implicit requirement imposed by section 126A(2) of the EP Act for the applicant to include, in any EA application, information required by conditions imposed by the CG. The only requirement is that information be provided that states the information required by section 126A(2) of the EP Act; and
  1. even if there was an express or implicit requirement to provide information stated in the CG’s conditions, any failure to provide the information required by a CG condition is a failure which may result in a deficiency in the adequacy or quality of the “assessment” of the impacts of ERAs on environmental values and is not relevant for the purposes of section 126A of the EP Act.
  1. [159]
    The appellant says, to the extent the respondent complains that the appellant did not provide sound groundwater modelling, sufficient baseline groundwater data, or sufficient consideration of any likely cumulative impacts on environmental values to support predicted quantities of proposed water to be taken or interfered with as a result of the exercise of underground water rights, the appellant understands the complaint to be directed to section 126A(2)(c)(iv) of the EP Act.
  1. [160]
    As noted already, section 126A(2)(c)(iv) of the EP Act requires an applicant for an EA application to state (for each aquifer affected, or likely to be affected, by the exercise of underground water rights) the predicted quantities of water to be taken or interfered with because of the exercise of underground water rights during the period in which resource activities are carried out. The appellant submits that the 2022 EA Application states the predicted quantities of water affected and complies with section 126A(2)(c)(iv) of the EP Act.
  1. [161]
    In the context of s 125, I noted earlier in these reasons that the respondent says adequate, correct, and sufficient information is required to meet the s 125 requirements because the provision calls for matters of substance. In my view the same applies in respect of s 126A.
  1. [162]
    I note that, in s 125(1)(c), an applicant is to “describe” all ERAs, that is identify or give an account of. In s 125(1)(l) an applicant is to give an “assessment” of matters in s 125(1)(l)(A)-(E). While s 126A requires the applicant to “state” particular matters, those matters are expressed in qualitative and sometimes quantitative terms, that is, the predicted quantities, the environmental values affected, the impacts on groundwater, and the strategies for avoiding, mitigating or managing the predicted impacts on environmental values. These things must be set forth.
  1. [163]
    To the extent the respondent’s complaints concern specific instances in which it says the appellant has failed to comply with section 126A(2), the appellant says the EIS, AEIS, as well as the CG Report contain the relevant information necessary to address each of those instances. Annexed to their submissions was Annexure B which contains each of those references. They say that whether the information is or is not adequate is not to the point. All that is required is for the appellant to include information stating each of the matters set out in sections 126A(2)(c)(iv) and 126A(2)(d) to (f).
  1. [164]
    In the circumstances of this application it is an inadequate answer to say that the CG conditions mean that any information gaps will be addressed at a later stage and that the information will be available prior to the decision stage in the assessment process.
  1. [165]
    I accept that the requirement to ‘state’ matters is a low threshold – however, it requires more than re-stating information already determined to be insufficient, incomplete, or inadequate. It is not sufficient for the purposes of s 126A.

Conclusion

  1. [166]
    Having completed a rehearing of this matter, it is my decision that the application for environmental authority A-EA-NEW-100348498 is not a properly made application under s 125(1) and s 126A of the EP Act. The application failed to provide information required by s 125(1)(l) and s 126A.

Orders

  1. The review decision be set aside to the extent that it relates to:
  1. the Coordinator-General’s Report having lapsed;
  1. there being a failure to comply with s 125(1)(n) of the Environmental Protection Act 1994 (Qld); and
  1. there having been a failure to comply with s 125(1)(c) of the Environmental Protection Act 1994 (Qld).
  1. I otherwise confirm the review decision that the 2022 EA Application is not ‘properly made’ on the basis that it does not comply with the following:
  1. section 125(1)(l) of the Environmental Protection Act 1994 (Qld); and
  1. section 126A of the Environmental Protection Act 1994 (Qld).

Footnotes

[1]Environmental Protection Act 1994 (Qld) (EP Act) ss 128(2)(e), 129.

[2]The China Stone Project was a “significant project” immediately before the commencement of the Economic Development Act 2012 (Qld) (ED Act) and is therefore taken to be a coordinated project within the meaning of the 2012 SD Act, and for the purposes of s 125(6). The Coordinator-General, under s 26(1)(a) of the SD Act, declared the China Stone Project a coordinated project for which an EIS under that Act is required.

[3]Ex 1 COM.0008; COM.0002.

[4]Respondent’s Statement of Facts and Issues dated 12 May 2023 (Respondent’s SFI) at [4(a)]; Appellant’s Amended Statement of Facts and Issues in Reply (Amended Reply) at [3(a)].

[5]Respondent’s SFI at [4(a)]; Amended Reply at [3(b)]; Ex 1 MAC.0003 and MAC.0002.

[6]COM.0004.

[7]COM.0004 [1]-[5], [7], [9], [11], [14], [16], [18], [24]-[25], [27]-[28], [31]-[38], [40], [42]-[47], [50]-[52], [55], [58], [60], [62]-[63], [67], [69]-[70], [74], [77], [82], [85], [87].

[8]COM.0004 [5], [9], [12], [19]-[20], [24]-[25], [27], [36], [39], [41], [44], [46]-[48], [51(a)], [52]-[53], [60]-[61], [70], [73], [78]-[80], [83] and [84].

[9]COM.0005, 141-142, 156-160, 169, 175, 177, 179-183, 186, 208, 213, 215-216, 218, 220.

[10]Respondent’s SFI [10]; Amended Reply [9]; COM.0005, 18.

[11]Respondent’s SFI [11]-[12]; Amended Reply [9].

[12]Amended Notice of Appeal filed 31 March 2023 [3] (ANOA); Respondent’s SFI [3(a)].

[13]Ex 1, COM.0005.

[14]COM.0005, 20.

[15]Respondent’s SFI [17(d)].

[16]Amended Reply [15(d)].

[17]Respondent’s SFI [18]; Amended Reply [16].

[18]Respondent’s SFI [20]; Amended Reply [18].

[19]Respondent’s SFI [21]; Amended Reply [20]; DES.0007. 

[20]DES.0004.

[21]DES.0005.

[22]DES.0008.

[23]ANOA [6]; Respondent’s SFI [3(a)].

[24]Respondent’s Outline of Submissions filed 15 March 2024 [15] (Respondent’s Outline of Submissions); Respondent’s SFI [23]; Amended Reply [21]; Ex 1, MAC.0063.

[25]ANOA at [8]; Respondent’s SFI at [3(a)].

[26]Amended Reply [22].

[27]Amended Reply [22(a)(ii)].

[28]Respondent’s Outline of Submissions [17]; DES.0009.

[29]Ex 1, DES.00008.

[30]As noted at [30], the respondent no longer presses non-compliance with respect to ERAs 56, 60, and 64.  That is, only non-compliance with respect to ERA 61 is in issue.

[31]ANOA [23]; Respondent’s SFI at [3(d)].

[32]ANOA at [24]; Respondent’s SFI at [3(d)].

[33]ANOA at [25]; Respondent’s SFI at [3(d)].

[34]DES.0011.

[35]DES.0008; DES.0011.

[36]Respondent’s SFI [32]-[33].

[37]Ibid [41(b)].

[38]Ibid [34], [37]-[40].

[39]DES.0012.

[40]DES.0011.

[41]DES.0008.

[42]Amendments to s 125 of the EP Act since the Review Decision are not material to this Appeal. References are to the version of the EP Act at the time submissions were made.

[43]EP Act s 520(1)(b).

[44]Example – subject to s 150 of the EP Act, public notification applies to an EA application if it involves a mining activity relating to a mining lease (s 149). However, if no progressive rehabilitation and closure plan was notified (s 150(1)(b)(ii)) the notification stage does not apply. Accordingly, the notification stage does not apply to the appellant’s EA application.  The respondent acknowledges that the CG’s approach in making imposed conditions and setting timeframes for compliance by reference to public notification is not readily explicable.

[45]See also Development Assessment Rules v1.3 dated 11 September 2020.

[46]Planning Act s 51(5).

[47]Section 261.

[48]Section 2.5B.66.

[49]Planning Act s 51(4)(c)-(d).

[50]Appellant’s Outline of Submissions filed 2 February 2024 [27].

[51]Appellant’s Outline of Submissions filed 2 February 2024 [61]-[62].

[52]Respondent’s Outline of Submissions [61].

[53]MAC.0062, 4.

[54]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 (McHugh, Gummow, Kirby and Hayne JJ) (Project Blue Sky).

[55]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 23 CLR 27 (Alcan).

[56]R v A2 (2019) 269 CLR 502 (A2).

[57]EP Act s 125(6) uses the language “for which an EIS under [the SD Act] is required”.

[58]Respondent’s Outline of Submissions [12].

[59]Respondent’s SFI [39(a)(ii)].

[60]They say s 125(3) is not engaged because it is only engaged if the CG report contained ‘stated’ conditions, not ‘imposed’ or ‘recommended’ conditions. They say that because not enough information was provided, the CG could not “state” conditions for everything that was to be evaluated.

[61]The CG can only make imposed conditions where division 8 applies to the project. Per s 54A, division 8 applies ‘to the extent that… division 6… do[es] not apply to the project.’. Section 47B provides that division 6 ‘applies if the project involves a proposed environmental authority under the [EP Act]’.

[62]A baseline groundwater monitoring program was to be developed no later than 120 days after the date of the CG evaluation report for approval to the administering authority, that is 22 March 2019.

[63][2023] QSC 227.

[64]Ibid [73(d)].

[65]Ibid [73(c)].

[66]SD Act s 54A(b).

[67]Respondent’s Outline of Submissions [47].

[68]EP Act sch 4.

[69]SD Act s 54.

[70]Respondent’s Outline of Submissions [55].

[71]Project Blue Sky, 381-382.

[72]Explanatory Note, Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) 60-61.

[73]Construction, Forestry, Maritime and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192, [3] (Allsop CJ).

[74]EP Act sch 4.

[75]Ex 1 MAC.0063.

[76]SD Act s 54B(3).

[77][2022] QLC 21(Waratah).

[78]Appellant’s Further Submissions [27].

[79][2014] QLC 12, [76] (Hancock).

[80]Explanatory Note, Environmental Protection and Other Legislation Amendment Bill 2014 (Qld) 60-61.

[81]COM.0005, 70-71.

[82]COM.0005, 207.

[83]T1-9, line 47.

[84]EP Act s 125(1)(l)(i)(C).

[85]T1-39, line 10 – 11.

[86]COM0005, 47.

[87]Respondent’s Outline of Submissions [124]; Macquarie Dictionary (9th ed, 2023) ‘state’.

[88]COM.0005, 162.

[89]COM.0005, 167.

[90]COM.0005, 170.

Close

Editorial Notes

  • Published Case Name:

    MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation

  • Shortened Case Name:

    MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation

  • MNC:

    [2024] QLC 16

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    13 Aug 2024

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
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 23 CLR 27
2 citations
Jump To
Cite 1 - (2009) 23 CLR 27
Cite 2 - (2009) 23 CLR 27
Attorney-General v GFC [2023] QSC 277
1 citation
Jump To
Cite 1 - [2023] QSC 277
Construction, Forestry, Maritime and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192
1 citation
Jump To
Cite 1 - [2020] FCAFC 192
Hancock Coal Pty Ltd v Kelly (No. 4) [2014] QLC 12
1 citation
Jump To
Cite 1 - [2014] QLC 12
Icon Energy Limited v Chief Executive, Department of Resources [2023] QSC 227
1 citation
Jump To
Cite 1 - [2023] QSC 227
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v A2 (2019) 269 CLR 502
2 citations
Jump To
Cite 1 - (2019) 269 CLR 502
Cite 2 - (2019) 269 CLR 502
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21
2 citations
Jump To
Cite 1 - [2022] QLC 21
Cite 2 - [2022] QLC 21

Cases Citing

Case NameFull CitationFrequency
MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3) [2024] QLC 211 citation
1

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