The case of MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science [2023] QLC 4 concerned an application by MacMines Austasia Pty Ltd (Applicant) to the Land Court of Queensland (Court) to stay the decision of the Chief Executive, Department of Environment and Science (DES) to find that an application made by the Applicant under the Environmental Protection Act 1994 (Qld) (EP Act) for an environmental authority for an open-cut and underground thermal coal mine in the Galilee Basin (EA Application) was not properly made (Decision), pending the outcome of the Applicant's appeal against the Decision (Appeal).

In deciding to stay the Decision, the Court considered the following: 

• whether a stay of the decision is required to secure the effectiveness of the Appeal; 

• whether the Appeal is based on arguable grounds; and 

• whether the Applicant will be prejudiced if the Decision is not stayed.

The notice of the Decision included certain steps that the Applicant had to undertake by a fixed date in order to remedy the "deficiencies" in its EA Application (at [1]). 

The Applicant submitted that, in accordance with section 129 of the EP Act, its EA Application would lapse if it did not complete the steps set out in the notice of the Decision and that any orders made by the Court in the Appeal would not be effective if the Decision lapsed (see [8] to [9]).

The Court commented that, if the decision of the Court in the Appeal is to find that the Decision was invalid, the EA Application will not lapse as there cannot be any "statutory consequence for non-compliance with an invalid notice" (at [11]). However, the Court declined to decide this point as the DES had not challenged the Applicant's submissions or offered an alternative interpretation of section 129 of the EP Act (see [11] to [12]).

The Decision was based on the DES's finding that the EA Application (at [16]):

1. did not include an assessment of the likely impact of the project's activities on environmental values in accordance with section 125(1)(l) of the EP Act; and

2. was not accompanied by a Progressive Rehabilitation and Closure Plan in accordance with section 125(1)(n) of the EP Act. 

The Applicant argued that a report prepared by the Co-Ordinator General assessing the project under the State Development and Public Works Organisation Act 1971 (Qld) (Public Works Act) exempted the EA Application from the requirements of section 125(1)(l) and (n) of the EP Act (see [15] to [16]).

The Court found that the Applicant's grounds of appeal are not frivolous or vexatious as they involve the following matters of substance (see [17] to [18]): 

• Questions of statutory interpretation with respect to the Public Works Act and the EP Act.

• Whether an evaluation report prepared by the Co-Ordinator General under the Public Works Act affected the statutory requirements under the EP Act. 

• A challenge to the DES's assessment of the material provided in support of the EA Application.

Whilst the Court did not make a decision with respect to whether the EA Application could lapse if the Applicant is successful in the Appeal, the Court noted that it would nevertheless be prudent for the Applicant to take the steps required by the notice of the Decision to avoid the EA Application lapsing and that the time and expense involved in taking these steps could distract the Applicant from the Appeal (at [19]).

Therefore, the Court found that the Applicant would be "irreparably prejudiced" if it is the case that the EA Application lapsed despite being successful in the Appeal and noted that the DES had not suggested that it would be prejudiced by a stay of the Decision (at [19]). 

The Court stayed the Decision, extended the time for service of the application and reserved the costs of the application.