New Acland Coal Mine Case

The litigation against the New Acland Coal Mine involved a major and lengthy hearing in the Land Court of Queensland, followed by judicial review and a subsequent appeal.

Background to the case

The New Acland Coal Mine is located amidst farmlands on the Darling Downs, 35 km north-west of Toowoomba in Queensland.

It is operated by New Acland Coal Pty Ltd (NAC), a wholly-owned subsidiary of the New Hope Group.

Stage 1 of the mine commenced operations in 2002. It expanded to Stage 2 in 2005 and by 2012 the mine produced 5.09 million tonnes of thermal coal per annum (Mtpa).

NAC applied in 2007 for Stage 3 of the mine to produce 9 Mtpa of coal from new pits to the south of the existing mine.

In Queensland, the major approvals required for large mines (or expansions of existing mines) under State and Federal legislation are:

• a mining lease under the Mineral Resources Act 1989 (Qld) (MRA);
• an environmental authority under the Environmental Protection Act 1994 (Qld) (EPA); and
• approval under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

Stage 3 of the New Acland Mine required two mining leases under the MRA for the additional area of land to be mined and an amendment to the existing environmental authority under the EPA. A map showing the land affected by the three stages of the mine is available here.

A range of other approvals may be required depending on the nature and location of a mine and its associated infrastructure, such as a water licence to extract groundwater or surface water under the Water Act 2000 (Qld).

The Queensland Coordinator-General declared Stage 3 of the mine a “significant project” in 2007 (the term for this designation later changed to being a “coordinated project”) under the State Development and Public Works Organisation Act 1971 (Qld) (State Development Act). This legislation provides an environmental impact statement (EIS) process for large projects but does not actually approve the projects occuring. An EIS under it is fed-back into other approval processes such as under the MRA and EPA.

The EIS process for the mine commenced in 2007 but stalled in 2012 when the then (Newman-LNP) Queensland Government announced it did not support the project due to the damage the mine would cause to prime agricultural land.

A revised, smaller Stage 3 project was proposed – reducing the proposed mine output to 7.5 Mtpa – and re-evaluated under the State Development Act. The Queensland Coordinator-General issued a report in December 2014 recommending the revised Stage 3 project be approved.

Concurrently with the Queensland assessment of the mine, it was assessed under the EPBC Act using a bilateral agreement and subsequently approved by the Commonwealth Environment Minister in early 2017.

The applications for the mining leases and amendment of its existing environmental authority for the mine under Queensland law were the subject of an objections hearing in the Land Court of Queensland.

Objections to the mine expansion

Over 30 objections were made by surrounding farmers and landholder groups to the revised Stage 3 proposal when it was publicly advertised for objections under the MRA and EPA in 2015.

The focus here is on the objection of a landholder group, the Oakey Coal Action Alliance (OCAA), which was one of 12 objectors who actively participated in the objections hearing in the Land Court.

OCAA objected to the mining lease and the amendment of the existing environmental authority for Stage 3 of the mine on numerous grounds, in summary including:

• groundwater depletion
• noise
• air quality
• economic benefits of the mine were overstated
• loss of agricultural land being contrary to intergenerational equity
• poor past performance of NAC and
• prejudice to the public interest.

A mammoth trial

The Land Court of Queensland hears objections to a mine under the MRA and EPA.

The objections to the revised Stage 3 expansion of the mine were referred to the Land Court in 2016 and Member PA Smith was assigned to the hearing. He was a very experienced judicial officer who had heard many cases against proposed mines in the past, including the proposed Alpha Coal Mine.

The large number of objectors and complex evidence in the case led to a mammoth trial, the longest in the 120 year history of the Land Court.

The hearing took almost 100 sitting days, during which almost 2,000 exhibits containing many tens of thousands of pages of material, and well in excess of 2,000 pages of submissions were received by the court. 28 expert and 38 lay witnesses gave evidence.

Member Smith ultimately recommended the applications for the mining leases and the amendment to the environmental authority be rejected in New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection (No. 4) [2017] QLC 24, delivered on 31 May 2017.

In summary, the major reasons for recommending the mine be rejected included because:

• the inadequacies of the groundwater modelling and, consequently, the unacceptable risks to groundwater for surrounding farmers
• the make-good agreements for landholders who may be affected were inadequate and practically impossible for landholders to enforce
• the impacts of the mine on land in the top 1.5% of agricultural land in Queensland meant that approval would not provide for intergenerational equity
• neighbouring landholders had experience unacceptable noise levels in the past and conditions requiring lower noise limits could not be imposed because to do so would be inconsistent with conditions imposed by the Coordinator-General.

Matthew Stevens, a senior business writer with the Australian Financial Review, described the judgment as “eye-opening and deeply concerning” and an “unqualified and brutally humiliating courtroom failure …” for the New Hope Group.

Judicial review overturns decision

On 15 June 2017 NAC filed an application for judicial review in the Supreme Court of Queensland seeking to have the Land Court’s decisions recommending rejection of the mining lease applications and refusal of the amendment of the environmental authority declared invalid, quashed and set aside based on 15 grounds, 3 of which were later abandoned. The remaining grounds were, in summary:

• ground 1 – the Land Court’s reasoning on noise & the Coordinator-General’s conditions;
• ground 2 – consideration of possible breaches of NAC’s current EA;
• ground 3 – inquiry into past performance of DEHP;
• ground 4 – consideration of the EPP (Noise) and the appropriate level of evening and night operations;
• ground 6 – consideration of the Xstrata case;
• ground 7 – whether intergenerational equity is a mandatory consideration;
• ground 9 – consideration of intergenerational equity under the MRA;
• ground 10 – groundwater is irrelevant to consider under the EPA and MRA;
• ground 12 – breach of natural justice;
• ground 13 – apprehended bias;
• ground 14 – unreasonableness & irrationality;
• ground 15 – sufficiency of reasons regarding groundwater.

Pending the outcome of the judicial review application, NAC applied for a stay of:

• the Land Court’s decisions;
• the pending decision of the Minister administering the MRA on whether to approve or refuse the mining leases; and
• the pending decision of the Chief Executive administering the EPA on whether to approve or refuse the amendment of the environmental authority.

NAC’s application for these stays was dismissed by Applegarth J on 23 June 2017.

Bowskill J heard the judicial review application on 19-23 March 2018 in the Supreme Court at Brisbane. Her Honour indicated on 2 May 2018 that she would allow the application on the basis of:

• ground 10, in relation to groundwater quantity not being within the jurisdiction of the Land Court to consider in an MRA and EPA objection hearing;
• ground 7, in relation to intergenerational equity, consequent upon the conclusion in relation to groundwater (ground 10);  and
• ground 1(aii) in relation to noise and inconsistency with the Coordinator-General’s conditions.

Final orders were made on 28 May 2018, remitting the matter to the Land Court for rehearing before a different member but largely on the basis of the findings of fact made by Member Smith (excluding groundwater quantity issues).

Environmental authority refusal set aside

On 14 February 2018, the Department of Environment and Science (DES) made a final decision to refuse the environmental authority amendment application for the project. That decision was enveloped in the judicial review proceedings against the Land Court’s decision and was subsequently set aside when NAC succeeded in those proceedings.

Rehearing in Land Court

Following Bowskill J’s decision to set aside Member Smith’s decision, a new member of the Land Court (President Kingham) reheard the applications within the constraints imposed by Bowskill J on 2-4 October 2018.

On 7 November 2018, President Kingham delivered her decision on the rehearing and recommended (in essence) that:

• NAC must apply to the Coordinator-General to lower:
  • the evening (6-10pm) noise limit from 42dB to 35dB;
  • the night (10pm-7am) noise limit from 37dB to 35dB; and
  • apply the new noise limits from the commencement of the environmental authority.
• Subject to the Coordinator-General and DES lowering the noise limits in the draft environmental authority, the environmental authority and mining leases be approved with amendments to the conditions reflecting the reasons of the Court (e.g. adding a new condition F9 that “The holder must make all noise monitoring data publicly available, online, and in real-time”).
• If the noise limits are not lowered, the applications be refused.

On 2 February 2019 the Coordinator-General granted NAC’s application to change the noise conditions as recommended by the Land Court.

Appeal pending

On 30 May 2018 OCAA appealed against Bowskill J’s decision to the Queensland Court of Appeal.

OCAA’s (10-page) outline of argument is available here.

The appeal is listed for hearing on 27 & 28 February 2019.