The case of MacMines Austasia Pty Ltd v Chief Executive, Department of Environment and Science (No 2) [2024] QLC 16 concerned an appeal to the Land Court of Queensland (Court) against a review decision of an original decision of the Chief Executive of the Department of Environment, Science and Innovation (Department) that an application made by MacMines Austasia Pty Ltd (Applicant) for an environmental authority was not properly made.

Whilst the Court set aside aspects of the review decision, the Court confirmed the aspect of the review decision that the environmental authority application was not properly made because it did not comply with section 125(1)(l) and section 126A of the Environmental Protection Act 1994 (Qld) (EP Act).

The Applicant is a mining company which coordinates a project known as the China Stone Coal Project (Project) in the Gaililee Basin in Queensland (at [1]).

In October 2012, the Project was declared a "coordinated project" for which an environmental impact assessment (EIS) was required to progress the Project (at [2]). In 2014, the Applicant lodged with the Department applications for mining leases (2014 ML Applications) and a site-specific application for an environmental authority (2014 EA Application) (see [4] to [5]).

When the draft EIS for the Project was published in 2015 for public consultation, the then Commonwealth Department of Environment obtained advice on water matters which resulted in further information being requested from the Applicant and an amended EIS being provided (Applicant's EIS).

On 22 November 2018, the Coordinator-General (CG) publicly notified a report evaluating the Applicant's EIS (CG Report) and requesting further information. The CG Report was to lapse after it was publicly notified, being 22 November 2022 (at [11]).

In March 2019 the Applicant abandoned the 2014 ML Applications, thereby invalidating the 2014 EA Application but this did not impact the further information request in the CG Report (at [14]).

On 16 November 2022, the Applicant lodged another application for a mining lease for the Project and two days later, a site-specific application for a new environmental authority (2022 EA Application) (see [16] to [18]). The 2022 EA Application did not contain the further information requested in the CG Report, which the Department had also recommended the Applicant include (at [19]).

On 6 December 2022, the Department determined that the 2022 EA Application was not properly made (Original Decision) (at [23]). On 16 December 2022 the Applicant lodged an application for internal review, and on 6 February 2023 the Department confirmed the Original Decision (Review Decision) (see [25] and [28]). The Applicant then lodged its appeal to the Court against the Review Decision (at [34]).

The Court considered the following four issues in respect of the 2022 EA Application (at [48]):

1. Its compliance with the requirements of section 125(1)(c) of the EP Act.

2. Whether any exception in section 125(1)(I) of the EP Act applies.

3. Its compliance with section 125(1)(I) of the EP Act.

4. Its compliance with the requirements of section 126A(2) of the EP Act.

Section 125(1)(c) of the EP Act requires an environmental authority application to "…describe all environmentally relevant activities for the application".

In the 2022 EA Application the Applicant described the environmentally relevant activity as "…incinerating waste vegetation, clean paper or cardboard" (at [54]). The Department contended that this description was with respect to environmentally relevant activity 61 (ERA 61) under the repealed Environmental Protection Regulation 2008 (Qld) and not the in force Environmental Protection Regulation 2019 (Qld) (EP Regulation 2019) (at [54]).

The Court held that word "describe" in section 25(1)(c) of the EP Act requires that an application "identify" or "give an account of" the environmentally relevant activities (at [56]).

The Court found that despite the description in the 2022 EA Application lacking reference to the EP Regulation 2019 and the appliable thresholds, the application did adequately describe ERA 61 and therefore complied with section 125(1)(c) of the EP Act (at [58]).

Section 125(1)(l) of the EP Act requires an environmental authority application to include particular information about the likely environmental impacts and risk management strategies, unless an exception in section 125 of the EP Act is satisfied. The relevant exceptions in this case are as follows:

1. The CG has evaluated the EIS for each relevant activity and there are CG conditions that relate to each relevant activity, and an assessment of the environmental risks of each relevant activity would be the same (sections 125(3)(a)(ii) and 125(3)(b) of the EP Act).

2. The CG has declared the project to be a coordinated project for which an EIS is required (section 125(6)(c) of the EP Act).

The CG Report contains a series of conditions in respect of the Project, however there was a dispute about whether the conditions relate to each relevant activity so as to satisfy the exemption in section 125(3)(a)(ii) of the EP Act (at [65]).

The Court noted that when section 125 of the EP Act is construed as a whole, there is conflict between subsections (3) and (6) and that they cannot both apply (at [93]).

The Court accepted that section 125(6) of the EP Act has a "broad application" as it only requires that the application be "site specific" and the CG to declare the project as a "coordinated project" for which an EIS is required (at [94]).

In contrast, the Court accepted that section 125(3) of the EP Act has a "narrower application" which requires the CG to have evaluated the EIS for each environmentally relevant activity and there to be CG conditions for each relevant activity, and that an assessment of environmental risks would be the same as the CG evaluation (at [95]).

The Court accepted that "…[section 125(6) of the EP Act] was designed to operate prospectively and that upon completion of the EIS process it gives way to specific requirements of [section 125(3) of the EP Act]" at [101]). As the Applicant's EIS process was not complete, the Court held that the exception in section 125(6) of the EP Act "has no operation here" (at [102]).

The Court was also not satisfied that the CG evaluated the EIS for each relevant activity of the 2022 EA Application (at [122]), and thus it did not fall within the exception in section 125(3) of the EP Act.

Section 125(1)(I) of the EP Act requires an assessment of the likely impact of each relevant activity on the environmental values, which must include the matters listed in sections 125(1)(I)(A) to (E) of the EP Act. The Court accepted that the Applicant failed to satisfy section 125(1)(I) of the EP Act because it did not include an assessment of certain impacts identified in the CG Report and CG conditions (at [130]).

The Department submitted that the Applicant did not comply with section 126A(2)(c)(iv) and sections 126A(2)(d) to (f) of the EP Act because it did not sufficiently state, being "to declare definitely or specifically; to set forth in proper or definite form; to say; or to fix and settle, as by authority", certain matters relating to the exercise of underground water rights (at [149]).

The Applicant contended that only a basic assessment of whether the matters contained in section 126A(2) of the EP Act are "stated" in the application is required, and that the 2022 EA Application read in conjunction with the Applicant's EIS and CG Report provided information directed to the relevant subsections of section 126A(2) of the EP Act (see [148] and [152]).

The Court held that to "state" under section 126A(2) has a low threshold, but it requires an applicant to do more than re-state information previously determined to be insufficient, incomplete, or inadequate (at [164]). Thus, the Applicant's reliance on the CG Report was insufficient to state the matters relating to underground water rights for the purposes of section 126A (at [165]).

The Court held that the aspects of the Review Decision relating to the lapsing of the CG Report and non-compliance with particular sections of the EP Act be set aside, but otherwise held that the Review Decision is confirmed insofar as it relates to a finding that the 2022 EA Application was not properly made.

This Court's decision in this case is a reminder to applicants that the requirements for an application for an environmental authority are extensive and that compliance with those requirements is necessary for the application to be properly made.