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QUEENSLAND

QUEENSLAND LAND AND RESOURCES TRIBUNAL DECISIONS* Re New Oakleigh Coal Pty Ltd v Hardy & Ors ([2003] QLRT 24 (Smith DP)) Background The applicant sought to extend its mining operation. A total of 112 objectors made a total of 356 separate objections to the application. The number of objections militated against each being considered on an individual basis. Smith DP therefore categorised them as conveniently as possible and dealt with each issue individually. They were categorised as relating to noise, dust, vibration and light nuisance. Smith DP concluded that a significant issue highlighted by the hearing was the difference between scientific analysis and human sensory perceptions in relation to the nature of many of the objections. Throughout the decision, Smith DP noted that whilst the evidence of the various objectors may have been honest and sincere, it did not sufficiently contradict the scientific evidence to convince him that the mining lease application should be refused. However, in some instances Smith DP recommended that various conditions be amended or inserted in order to address the concerns of the objectors. Precautionary Principle Counsel for the applicants submitted that the EP Act did not require the Tribunal to consider the application of this principle. Smith DP, however, held that on the correct construction of s 223(c) of the EP Act, the term "standard criteria" includes the principles set out in the National Strategy for Ecologically Sustainable Development which, in turn, refers to the precautionary principle. As a consequence the principle was therefore applicable. The precautionary principle essentially states that where there are threats of serious or irreversible environmental damage to an area, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent environment degradation. Smith DP applied the principle to an objection relating to groundwater. Evidence presented by an objector was that the initial impact of mining in the area had been to dry up the sub-surface groundwater which the objector stated had not been the case in living memory. The scientific evidence was to the effect that there was no disturbance caused by blasting or other mining activities. Whilst noting the likelihood that the groundwater problems were the result of the drought and not related to the mining operations, Smith DP applying the precautionary principle held that further analysis and monitoring should be recommended and incorporated into the various conditions imposed upon the lease. Indigenous Cultural Heritage The members of the panel (the matter was heard by Smith DP, Dr E Fesl, and Mr D Webster) expressed some concerns relating to the Cultural Heritage Assessment undertaken by the applicant in preparation for the hearing. The panel was concerned with the extent of the consultation with the Jagera People. As a result, the panel felt that the cultural survey may not have been as

* Richard Brockett, Research Officer to the Presiding Members, Land and Resources Tribunal. The full text of these cases can be accessed via the LRT's website: www.lrt.qld.gov.au


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comprehensive as it should have been. However, noting deficiencies in Queensland's indigenous cultural heritage legislation, Smith DP stated that he was unable to take the issue any further save to make a copy of the judgment available to the relevant authorities. Papillon Mining and Exploration Pty Ltd v Maddock ([2003] QLRT 36 (Kingham DP)) Background This was an application for the preliminary determination of a question. The application was made by a group of 28 objectors and was supported by the EPA. The question was posed in the following terms: "Whether the Environmental Protection Act, properly construed, allows the applicant in these proceedings to seek changes to, appeal in relation to, review or otherwise agitate to challenge the conditions in the draft environmental authority given by the administering authority statutory party to the applicant under s 208 of the Environmental Protection Act?" Kingham DP noted that the question was drawn much more broadly than it was argued. Submissions centred on whether, once an application for an environmental authority was properly referred to the Tribunal, the applicants are able to propose alternative conditions to those included in the draft environmental authority. The question was held by Kingham DP to be suitable for determination as a separate question1 on the basis that there were no factual disputes and the question would "assist in the more efficient resolution of the matters in issue" and that the question is "capable of final answer and capable of being answered in accordance with the judicial process."2 Arguments The objectors submitted that if the applicants were able to propose, submit or agitate for conditions which differ from those of the draft environmental authority, the express prohibitions on such actions contained within s 216(2) of the EPA would be negated. The applicants submitted that a distinction should be drawn between the provisions dealing with the processing of standard applications by the EPA and the provisions which deal with the objections decision hearing before the hearing of the Tribunal. Decision Kingham DP accepted the submissions of the applicants that the relevant provisions were those relating to an objections decision hearing. Consequently, once the application is referred, the objections are not determinative of the scope of the hearing before the Tribunal in relation to issues under the EP Act. This should be contrasted with the alternative situation under the MRA which does limit evidence and submissions which may be made. It was noted by the Deputy President that it would be unreasonable for the Tribunal to be required to consider the application without the full participation of the parties and that it would be in the best interests of the parties for this to occur. Further, it would be an artificial construction of the provision if one of those parties were to be restricted from participation in that process. On these grounds, Kingham DP rejected the interpretation contended for by the objectors and answered the question in this manner: "The Applicants are entitled in these proceedings to propose

1 2 Rule 483 Uniform Civil Procedure Rules 1999. Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 358.


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alternative conditions to those in the draft environmental authority given by the EPA under s 208 EP Act." Redhead v MB & JH Joyce ([2003] QLRT 37 (Kingham DP)) Background The applicant had applied for and been granted a mining lease to mine sandstone on the freehold property owned by Mr & Mrs Joyce. The parties had been unable to agree upon compensation within the statutory time limit established by s 279(5) MRA and the matter was therefore referred to the Tribunal for determination. Valuation Evidence The only valuation evidence that the Tribunal had to examine was that presented by the landowner. The valuer calculated the loss to the value of the property on the entire area subject to the lease. The miner submitted that the area should be smaller than this but was not precise about what that area should be. Further, he supported this submission by stating that he only intended to have one quarry face active at any one time and that he was only interested in mining two specific areas. Kingham DP held that this evidence was inconsistent with that contained in documents and affidavits filed by the miner in support of his original application. The value of the land was assessed at its highest and best use on the basis of a recent offer made by SEQ Water Board in relation to a nearby property of similar size. It took into consideration that only subdivisions of no less than 100/ha had prospects of success. This was consistent with current zoning for the area. The valuer calculated the "before" value as being $2,000/ha. This was greater than that of the equivalent offer made for the nearby property. The "after" value, taking into consideration the unlikelihood of subdivision consequent upon the mining leases, was calculated as $1,000/ha. An existing mining lease is located on the property. The valuer had prepared two reports. In the first one, the impact of this mining lease was included in the calculations for the "before" value but excluded the "after" value. The second valuation report removed this from both the "before" and "after" calculations. The evidence was that the existing mining lease had a significant impact on the property in terms of dust and noise nuisances. Kingham DP held that the "before" value must take this impact into account and thereby she was unable to accept the valuation report. Decision Following the Land Court's decision in Wills v Minerva Coal,3 Kingham DP held that the correct interpretation of s 281 MRA is that the matters set out in the section are concepts to be taken account of in determining compensation, rather than specific heads of compensation requiring discrete and separate treatment to arrive at an accumulated figure. Kingham DP stated that valuation is a matter of estimation and discretionary judgment and that she was not obliged to accept the single valuation presented in evidence.4 On the basis that the valuation had been prepared without consideration of the impact of the existing mining lease on

3 4

(1998) 19 QLCR 297. Per Koppenol P in Armstrong v Salmon [2002] QLRT 104 at [20] citing Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 381; Minister v Ryan (1963) 9 LGRA 112, 114; Minister for Lands v Ferguson (1969) 48 LVR 9, 11.


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the "before" value of the property, Kingham DP rejected the $2,000 figure and adopted the figure of the SEQ Water Board offer for the neighbouring property, amounting to $1,526/ha. Compensation was therefore determined to be a total of $517,842.82 which included compensation for the costs of preparing the compensation claim and the additional 10% for the compulsory nature of the grant of the mining lease pursuant to s 281(4)(e).

TASMANIA ELECTRICITY SUPPLY INDUSTRY AMENDMENT ACT 2003* The Electricity Supply Industry Amendment Act 2003 (Tas) received Royal Assent on 9 May 2003. The Act includes a number of significant amendments to the Electricity Supply Industry Act 1995 (Tas) (the Principal Act). The purpose of the Amendment Act is to add to the existing legislative framework for regulating Tasmania's participation in the National Electricity Market (NEM) resulting from the Basslink project (see second reading speech, House of Assembly Hansard Tuesday 8 April 2003 - Part 2 pp 35-125). In particular, it deals with the issue of retail competition in the electricity sector in Tasmania. Section 46 of the Amendment Act adds a new section 8A to the Electricity - National Scheme (Tasmania) Act 1999, which provides that the National Electricity Code applies in Tasmania, subject to any jurisdictional derogations authorised by the Australian Competition and Consumer Commission (ACCC). The Amendment Act is a component of the Tasmanian Energy Reform Framework, the aim of which is to facilitate competition in both the electricity generation and the electricity retail sectors. In particular, the Act allows for conferral of certain of the Tasmanian Electricity Regulator's powers and functions on the ACCC (section 9 of the Amendment Act; a new Division 7 in Part 2 of the Principal Act). This includes the power to make a price determination for transmission in Tasmania (section 16C of the Principal Act). The Amendment Act also:

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appoints the Tasmanian Electricity Regulator as Tasmania's jurisdictional regulator, as required under the National Electricity Code (section 25 of the Amendment Act; section 6 of the Principal Act); enables the National Electricity Market Management Company Limited (NEMMCO) to perform the system controller function in Tasmania (section 11 of the Amendment Act; section 34A of the Principal Act. This task is currently performed by Transend Networks Pty Ltd); requires the Hydro-Electric Corporation to publish information relating to its energy production capability (section 36 of the Amendment Act; section 22 of the Principal Act).

The Tasmanian government has stated that its intention is to introduce competition to large customers first, followed by full retail competition after four years. However, it has yet to decide whether contestability should be extended to small commercials and households (see second reading speech, House of Assembly Hansard Tuesday 8 April 2003 - Part 2 - pp 35-125). The Act requires Aurora Energy Pty Ltd to continue to supply non-contestable customers (section 38 of the Amendment Act; section 25 of the Principal Act) and enables it to be appointed as the Retailer of

* Dianne Nicol.