Chief Executive, Department of Environment and Heritage Protection v Alphadale Pty Ltd

In this matter, the court of appeal deals with the power of the Land Court to order a stay of an original decision made under Sch 2 of the Environmental Protection Act 1994 where the appellant appeals against an internal review of that original decision. The relevant section in this case was s 522 of the Act which deals with appeals against a decision as to the amount of ‘financial assurance’ to be paid by the holder of an environmental authority. The respondent had applied for an internal review of the decision which confirmed the original decision.  The respondent appealed against the review decision to the Land Court. The Land Court refused to grant a stay. On appeal the Land Appeal Court allowed the appeal and granted a stay on the basis of s 7A of the Land Court Act 2000.   The Court of Appeal held that the Land Appeal Court erred in finding that it had the power under s 7A of the Land Court Act to order a stay unconstrained by s 522(2) of the Act.  Section 522(2) was the sole source of a power to stay an original decision made under Sch 2 of the Act.  Further, there was no power to order a stay of a review decision.

Fraser, Gotterson and McMurdo JJA

26 September 2017

The respondent, Alphadale Pty Ltd, held an environmental authority issued under the Environmental Protection Act 1994 (the Act) for its “Big Rush” mining project. [72]. As a condition of the environmental authority, Alphadale was required to provide “financial assurance”, a form of “financial security against the potential burden to the State of having to rehabilitate, restore and protect the environment because of some harm caused by activity on the site”. [72]. In 1996, Alphadale provided financial assurance in an amount of $175,536. [72]. In March 2016, a delegate of the Department of Environment and Heritage Protection (“the Department”) decided that the total cost of rehabilitation was $4,345,852.42 and that financial assurance in the amount $4,170,316.42 was to be paid by Alphadale in the form of a bank guarantee. [7], [72].

Alphadale applied for an internal review of the delegate's decision. [8], [74]. In April 2016, the original decision of the delegate was confirmed by the internal review. [9], [74]. In May 2016, Alphadale filed a notice of appeal in the Land Court of Queensland against the review decision. [10], [74]. In June 2016, Alphadale applied for a stay of the delegate's review decision. [11], [75].

Section 522 of the Act provides that if an application is made for review of an original decision mentioned in Sch 2, Pt 1 of the Act the Land Court may “stay the decision to secure the effectiveness of the review and any later appeal to the Land Court”. Section 522A, however, provides that a decision about the amount of financial assurance required under a condition of an environmental authority may not be stayed unless at least 75 per cent of the financial assurance has been provided.

The Member held that s 522 of the Act conferred a power on the Land Court to order a stay of the original decision, including as modified or varied by the internal review. [21]. He rejected an argument that s 522 was “limited only to stays pending the determination of an internal review and not thereafter”, and therefore did not consider any other possible sources of power to grant a stay. [21]. However, the Member refused to grant a stay on the basis that Alphadale had not provided the requisite 75 per cent of the financial assurance. [23], [77].

Alphadale appealed to the Land Appeal Court, which allowed the appeal and granted the stay. [12], [78]. The Land Appeal Court held that s 522A did not apply to Alphadale's application because once an appeal against a review decision was commenced, the only power to grant a stay of it was that conferred by s 7A of the Land Court Act 2000. [24]. Section 522, in contrast, only permitted the Land Court to stay the original decision and not a subsequent review decision. [24].  In this context, an original decision is one made on a Sch 2 matter.  A review decision is a decision which reviews, confirms or revokes an original decision. [38].

The Chief Executive of the Department appealed to the Queensland Court of Appeal. [13]. Gotterson JA (with whom Fraser JA agreed), after a survey of the legislative history, said that the “consistent and clear legislative intention” was that s 522(2) was to be “the sole source of power for the Land Court to stay an original decision … not only during a review of the original decision but also during an appeal against a review decision”. [61].

His Honour therefore held that the Land Appeal Court had erred in concluding (i) that s 522(2) is not “the source of power to order a stay of an original decision, as confirmed or varied on review, once an appeal against a review decision is instituted”, and (ii) that s 7A of the [Land Court Act] empowers the Land Court to grant a stay pending appeal unconstrained by s 522A. [62].  The Land Appeal Court erred in ordering a stay in purported reliance upon s 7A of the Land Court Act. [69]. His Honour also explained that it was correct for the member of the Land Court to have refused the application for the stay because the stay sought was not of the original decision but of the review decision and the Land Court had no power to order a stay of a review decision. His Honour noted for completeness that the Land Court would also have been correct in refusing an application for a stay of the original decision because Alphadale had not fulfilled the condition in s 522(A). [67]–[68]. 

The appeal was allowed. [70]. McMurdo JA would have dismissed the appeal. [72]–[99].

J English