Environmental Law Australia

New Acland Coal Mine Case

The litigation against Stage 3 of the New Acland Coal Mine involved a mammoth hearing in the Land Court of Queensland, judicial review, an appeal, a successful High Court challenge and two rehearings in the Land Court.

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 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 occurring. 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.

First 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 dismissed and cross appeal allowed

On 30 May 2018 OCAA appealed and NAC cross appealed (contingent on OCAA’s appeal being allowed) against Bowskill J’s decision to the Queensland Court of Appeal.

OCAA’s appeal focused principally on Bowskill J’s reasoning that the Land Court did not have jurisdiction to consider the impacts of the mine on groundwater.

NAC’s cross appeal claimed Bowskill J was wrong to find the Land Court’s decision was not affected by apprehended bias.

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

The appeal and cross appeal were heard by the Court of Appeal (Sofronoff P, Philippides JA, and Burns J) on 27 February – 1 March 2019.

On 18 September 2019 the Court of Appeal delivered its reasons for dismissing the appeal and allowing the cross appeal (i.e. the Court of Appeal found that the Land Court’s decision was affected by apprehended bias).

On 1 November 2019 the Court of Appeal made its final orders. It declared NAC had not been afforded procedural fairness but left the subsequent decisions to grant the EA in place. It ordered OCAA pay NAC’s costs of the proceedings before Bowskill J and the appeal.

High Court grants special leave to appeal

On 29 November 2019, OCAA applied for special leave to appeal to the High Court of Australia against the Court of Appeal’s decision not to set aside Member Smith’s decision having found it was affected by apprehended bias.

On 5 June 2020 the High Court granted special leave to appeal.

Applications for winding-up & security for costs

While OCAA’s application for special leave to appeal to the High Court was pending, NAC applied to wind up OCAA on the basis of it being insolvent due to the costs awarded by the Court of Appeal.

NAC obtained a costs assessment of its costs for the 2-day appeal of $736,823.41 and sought to wind-up OCAA for its inability to pay this debt.

NAC maintained its winding-up application even after the High Court granted OCAA special leave to appeal.

On 22 July 2020, Davis J of the Queensland Supreme Court declined to proceed with the winding-up application pending the outcome of the High Court appeal and any security for costs application that NAC may seek in the High Court.

NAC then applied to the High Court for $90,000 in security for costs of the appeal but on 20 August 2020 Bell J dismissed the application.

High Court allows appeal

After NAC’s security for costs application was dismissed, Kiefel CJ, Bell, Gageler, Keane and Edelman JJ heard the appeal in the High Court in Canberra on 6 October 2020.

On 3 February 2021 the High Court unanimously allowed OCAA’s appeal, set aside the Court of Appeal’s orders and remitted the matter to the Land Court for further rehearing.

Second rehearing in the Land Court

Following the appeal to the High Court, the matter was returned to the Land Court for a second rehearing of the objections to the MRA and EPA applications.

As groundwater impacts could not be raised in the rehearing (but are likely to be the subject of a separate appeal in the Land Court in the future) and due to the threat of costs, most of the surrounding farmers who were objectors became inactive in the second rehearing (thereby choosing not to call evidence or make submissions).

OCAA remained as the only active objector in the second rehearing, but limited its grounds of objection to NAC’s past performance and noise and dust impacts of the mine.

The second rehearing was heard over 4 weeks in October-November 2021, with closing submissions on 25 November 2021. OCAA’s closing submissions are available here.

On 17 December 2021 the Land Court recommended the mining leases and environmental authority be granted subject to stricter conditions, including the lower evening (6-10pm) and night (10pm-7am) noise limits of 35dB, which had been so contentious in the earlier hearings.

Current status

Mining stopped at the mine on 26 November 2021, when coal reserves in West Pit and elsewhere on Stage 2 were exhausted.

It was granted an environmental authority under the EPA for stage 3 in June 2022.

It was granted a mining lease under the EPA for stage 3 in August 2022.

It was granted an associated water licence (AWL) under the Water Act on 20 October 2022.

Any person who gave a properly made submission about the application has 30 business days to apply for internal review to the chief executive administering the Water Act. If the internal review is refused, submitters may appeal the decision to the Land Court of Queensland.

Internal review and an appeal under the Water Act do not automatically stay the decision but the submitters may apply to the Land Court to stay the decision pending the outcome of the appeal.

Lecture on mining law in Queensland

The mining of West Pit and applications for Stage 3 of the mine were examined in the following lecture on Mining Law in Queensland, delivered on 24 March 2020 as part of a course on environmental regulation in Queensland.

Key documents

EIS for stage 2 (2006)

Environmental authority for stage 2

Applications & EIS for stage 3

OCCA objections to stage 3

Expert reports on noise

Expert reports on groundwater

OCAA closing submissions

First Land Court decision

OCAA application for costs

Judicial review application

First rehearing in Land Court

Coordinator-General change of conditions

Appeal and Cross Appeal

High Court special leave application

NAC’s winding-up application

Security for costs in the High Court

High Court appeal

Second rehearing in the Land Court

Environmental authority granted

Thanks to OCAA, represented by the Environmental Defenders Office (EDO), 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.

New Acland court hearing fast tracked, The Toowoomba Chronicle, 17 July 2017.

Let Acland coalmine expand or jobs will go, says New Hope, The Australian, 19 July 2017.

Revelations from the New Acland coal mine case, Reneweconomy, 25 July 2017.

Acland coal mine expansion uncertainty leaves jobs in limbo, ABC News, 6 August 2017.

New Acland’s difficult balancing act ahead of decision, Toowoomba Chronicle, 31 January 2018.

New Acland Coal mine expansion given second chance by Queensland Government, ABC News, 13 February 2018.

Queensland accepts court block on New Acland coalmine expansion, The Guardian, 14 February 2018.

Qld govt blocks Acland coal mine expansion, The Australian, 14 February 2018.

Queensland government blocks coal mine expansion, The Age, 14 February 2018.

Environmentalists, farmers claim partial win on New Acland, Toowoomba Chronicle, 14 February 2018.

New Acland coal mine expansion back on the table after Land Court decision rejected, ABC News, 2 May 2018.

Court revives New Acland mine expansion, Sydney Morning Herald, 2 May 2018.

New Hope buoyed by court ruling on New Acland’s $900m coal mine expansion, Australian Financial Review, 2 May 2018.

New Hope spent $1.2m promoting New Acland mine before Queensland election, The Guardian, 9 May 2018.

Alleged Acland mine expansion investigated, SBS News, 31 May 2018.

Mining company accused of expanding Acland coalmine without permission, The Guardian, 31 May 2018.

New complaints investigated at $900m Darling Downs mine, Brisbane Times, 1 June 2018.

Queensland Land Court gives New Acland expansion New Hope, Australian Mining, 8 November 2018.

New Acland coalmine caught drilling illegally at 27 sites – and fined just $3,152, The Guardian, 30 July 2019.

New Hope secures court win against New Acland landowners, Australian Mining, 10 September 2019.

Future of New Hope’s Acland mine expansion unclear, AFR, 10 September 2019.

Groundwater impact review questions Government’s own report on controversial New Acland coal mine, ABC News, 23 October 2019.

Qld farmers take mine fight to High Court, Canberra Times, 2 December 2019.

High Court decision today on the long legal battle over New Acland Coal mine expansion, The Conversation, 5 June 2020.

New Acland coalmine: Queensland farmers win reprieve in battle to stop expansion, The Guardian, 5 June 2020.

Win for farmers in legal battle over New Hope coal mine, Australian Financial Review, 5 June 2020.

New Acland Coal mine saga headed to High Court after leave granted to hear farmers’ appeal, ABC News, 5 June 2020.

High Court set to decide on landmark New Acland Coal saga, Lawyers Weekly, 8 June 2020.

New Acland Coal operation under investigation after allegations of illegal mining, ABC News, 18 June 2020.

Federal investigation into alleged [unlicensed coal mining at Acland], Mirage News, 18 June 2020.

Darling Downs farmers v miners dispute heading to High Court, SMH, 18 June 2020.

Queensland coal mine under investigation, Canberra Times, 18 June 2020.

Controversial New Acland Coal mine issued with pre-enforcement letter following alleged illegal mining, ABC News, 26 June 2020.

High Court orders fresh hearings into approvals for New Acland coal mine expansion, ABC News, 3 February 2021.

New Acland coalmine expansion to be reassessed after High Court judgment, The Guardian, 3 February 2021.

Farmers win High Court appeal against Queensland’s New Acland coal mine, Brisbane Times, 3 February 2021.

New Acland mine ruling in favour of farmers a ‘hammer blow’, says LNP, Brisbane Times, 3 February 2021.

New Acland coal mine High Court ruling relieves farmers but torments workers, ABC News, 4 February 2021.

Back to square one for New Acland Stage 3, Corrs Chambers Westgarth, 5 February 2021.

Bitter legal row over controversial Qld mine back in court, News.com.au, 11 February 2021.

Land Court president excludes herself from fresh Queensland mine hearing, Brisbane Times, 11 February 2021.

More than 900 mining leases set to be retrospectively validated in Queensland, ABC News, 6 August 2021.

Land Court gives conditional green light to New Acland coal mine expansion but farmers vow to maintain ‘existential fight’, ABC News, 17 December 2021.

New Acland Coal Mine company to rehabilitate land after alleged ‘unauthorised disturbances’, ABC News, 23 June 2022.

New Acland Coal Mine agreement with Qld government a result of bullying, lawyer says, ABC News, 24 June 2022.

Queensland gives environmental approval to New Acland coalmine expansion, The Guardian, 29 June 2022.

Queensland resources minister approves expansion of New Acland coalmine, The Guardian, 26 August 2022.

Unearthed: While dispute dragged, mining company kept chasing pay dirt, Brisbane Times, 26 August 2022.

Queensland government clears way for controversial New Acland coalmine expansion, The Guardian, 20 November 2022.

New Acland coal mine set to restart after Queensland government grants water licence, ABC News, 20 November 2022.

Environmental groups plan fresh legal action against mine as New Acland ramps up recruitment drive, ABC News, 21 January 2023.