Environmental Law Australia

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, ultimately leading to recommendations that the expansion of the mine be rejected.

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:

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 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 challenge to 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.

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.

A hearing of the judicial review application is expected to be held later in 2017 but no dates have yet been allocated to it.

Key documents

Applications & EIS

OCCA objections

Expert reports on noise

  • [links to noise reports yet to be uploaded]

Expert reports on groundwater

  • [links to groundwater reports yet to be uploaded]

Expert reports on economics

  • [links to economics reports yet to be uploaded]

OCAA closing submissions

Decision of the Land Court

Decision on costs

Judicial review application

Thanks to OCCA, represented by the Environmental Defenders Office (Qld) Inc, for providing its documents for use in this case study.

Media reports about this case

Acland coal mine: Queensland Land Court recommends scrapping expansion, ABC News, 30 May 2017.

Court recommends $900m New Acland mine be rejected, The Guardian, 31 May 2017.

Court rejects New Acland mine expansion, Sydney Morning Herald, 31 May 2017.

Lawyers win major battle in Qld coal war, Lawyers Weekly, 31 May 2017.

Land court decision rocks New Acland Mine, Chinchilla News, 31 May 2017.

Landholders celebrate New Acland decision, Queensland Country Life, 1 June 2017.

How New Hope earned its Acland smack-down, Financial Review, 1 June 2017.

Oakey left shocked at Land Court ruling on Acland mine, Courier Mail, 2 June 2017.

New Hope says it’s not giving up on controversial $900m expansion of Acland coal mine, Courier Mail, 16 June 2017.

New Hope accused judge of ‘bias’, Queensland Times, 23 June 2017.