Legal development

Queensland Land Court developments in 2024

By Libby McKillop, Paul Wilson and Tony Denholder

25 February 2025

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    What you need to know

    Queensland land access and project approvals 2024 year in review

    Land court approves BHP coal mine – an unexpected departure from Waratah

    Summary

    • In 2022, the Land Court accepted the existence of anthropogenic climate change in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21. This decision gave rise to an expectation that project proponents will find it difficult to obtain approvals for fossil fuel extraction, especially coal mining.

    • The 2024 decision in BHP Coal Pty Ltd & Ors v Chief Executive, Department of Environment, Science and Innovation [2024] QLC 7 challenges this assumption. In this case, the Land Court recommended that the government approve an application related to the extension of a Moranbah coal mine.

    • The Court held that while climate change is a relevant factor in its decision making, it is not the only factor. The Court also found that while the application engaged the right to life, protection of children and recognition and equality before the law, any limitation on these rights was 'procedurally appropriate and proportional'. 

    Environment Council of Central Queensland objects to the extension of a Moranbah mine

    BHP Coal Pty Ltd (BHP Coal) applied to amend its existing Environmental Authority (EA) to extend its mining operations at Caval Ridge, Moranbah. In response, the Queensland Department of Environment, Science and Innovation (DESI) drafted an amended EA permitting the extension. The Environment Council of Central Queensland (ECCQ) lodged an objection against the draft EA.

    The Court characterised the ECCQ's objections as falling under seven categories:

    • the need for an Environmental Impact Statement;

    • greenhouse gas (GHG) emissions;

    • climate change consequences;

    • impacts to endangered and threatened species;

    • groundwater and surface water impacts

    • rehabilitation and the final void; and

    • cumulative impacts.

    No requirement to provide a full Environmental Impact Statement (EIS)

    The ECCQ submitted that BHP Coal had 'exploited a regulatory loophole' in its failure to provide a full Environmental Impact Statement (EIS) under the Environment Protection Act 1994 (Qld) (EP Act).

    Under the EP Act, an EIS is not required for a coordinated project. Given BHP Coal's original proposal was for a coordinated project, it was not the subject of an EIS process under the EP Act. Rather, BHP followed an EIS process under the State Development and Public Works Organisation Act 1971 (Qld). The Court held that BHP Coal had not exploited a regulatory loophole, going as far as to say that, if it had, the proposal had nonetheless undergone 'rigorous assessment' and the public was given ample chance to provide feedback.

    The project's estimated emissions do not affect the economic viability of the mine 

    The ECCQ submitted that BHP Coal's methodology for estimating its scope one methane emissions was flawed and that an accurate estimation would affect the economic viability of the mine. The Court disagreed, finding no real difference between the relevant estimation tools. The estimated emissions constituted less than 3% of the proposal's total emissions.

    Climate change is not the only factor in the court's decision

    The ECCQ submitted that 'it is no longer appropriate to approve new or expanded coal proposals' because of their impact on climate change. The Court accepted, applying Waratah, that 'any extraction, and consumption, of fossil fuel will add to … climate change risks'. However, it reiterated that climate change is not the only determinative factor in its decision. The proposal's environmental impacts must be weighed against its economic and social benefits.

    In Waratah, the economic and social benefits of the coal mine were uncertain. In the present case, an identifiable economic benefit was that the coal mined in Moranbah is high-quality metallurgical coal used in the production of steel. The significance of the type of coal is that Queensland will require steel to build the requisite infrastructure needed to meet its net zero targets. Other facts that further distinguished BHP Coal from Waratah that were raised by BHP Coal are that the proposal does not affect an area of ecological significance and the application is for the extension of an existing coal mine, not a new project.

    BHP Coal's offset and management measures are adequate and appropriate

    The ECCQ contended that the project is likely to have a significant impact on listed threatened species. The amended EA demonstrated that BHP Coal intends to manage this impact through progressive rehabilitation, a reduction in the size of the out of pit overburden dump and several offsets. The Court found that such measures, while not 'particularly impressive or noteworthy', were expected and sufficient. The processes for managing groundwater and surface water impacts under the amended EA were also considered to be satisfactory.

    The ECCQ also submitted concerns about the size and toxicity of the post rehabilitation void and its contents. However, these concerns were dismissed as:

    • the size of the void under the amended EA was no greater than that sanctioned by the current EA; and

    • the amended EA included additional rehabilitation requirements with respect to the void.

    Finally, the ECCQ voiced general concerns about cumulative impacts. In response, BHP Coal produced evidence that 'the cumulative impacts are not related to the proposal but come from other existing and approved mines in the area'. The Court found that any cumulative impacts attributable to the subject proposal would be adequately managed.

    Relevance of the Human Rights Act in environmental approval applications

    The Court acknowledged that in undertaking an objections decision, it was acting in its administrative capacity. As a public entity, under section 58(1) of the Human Rights Act 2019 (Qld), the Court's decision must be compatible with human rights and give proper consideration to any human rights relevant to the decision.

    BHP Coal and DESI submitted that the extension will likely affect property and privacy rights. The Court, however, disagreed, satisfied that these rights will not be engaged by the application.

    Neither BHP Coal nor DESI gave evidence on the impact of the application on the right to life, protection of children and recognition and equality before the law. The ECCQ was a non-active objector and did not provide submissions to the Court. Notwithstanding, the Court confirmed that, despite evidence demonstrating the differences between the mine applications, President Kingham's conclusion in Waratah remains relevant and applicable. Any activity that involves increasing GHG emissions is an identifiable threat to human rights.

    The Court accepted that the right to life, protection of children and recognition and equality before the law are engaged by BHP Coal's application. However, the economic benefits of the proposal outweighed its limited effect on these rights. Further, any limitation on cultural heritage rights was found to be appropriate and proportional in light of BHP Coal undertaking a cultural heritage study, consulting with Traditional Owners and a related cultural heritage management plan.

    Insights

    The case demonstrates that climate change remains a relevant consideration in Land Court cases concerning objections to mining applications. However, provided the economic and social benefits of the proposed activities are identifiable and substantial and its environmental impacts are sufficiently managed, attaining approvals for the extension of existing mines will not be an impossible task.

    Similarly, any project anticipated to increase GHG, irrespective of how small this increase may be, will engage the right to life, protection of children and recognition and equality before the law. However, so long as the impacts upon the engaged rights are limited by the project proposal, they will not be a bar to approval.

    Author: Roxane Read, Senior Associate.

    Land Court orders environmental authority applicant to pay the Department's costs, despite partial success on appeal and concessions

    Summary

    • In MacMines Austasia Pty Ltd v Chief Executive, Department of Environment, Science and Innovation (No 3) [2024] QLC 21, the Land Court ordered MacMines to pay the Department's costs of its unsuccessful appeal against the Department's decision that it's environment authority application was not properly made.
    • MacMines asked the Court to depart from the general rule that costs follow the event on a number of grounds, which required the Land Court to consider the application of the discretion to order costs as it deems appropriate in section 27A of the Land Court Rules.
    • The Court determined that MacMines' the appellant's partial success on discrete issues did not warrant an issues-based cost order and reinforced the principle that costs generally follow the event. It also confirmed that a government agency can be awarded costs.

    Costs application

    The Department sought an order for MacMines to pay its costs, relying on the general rule that "costs follow the event". MacMines argued that the general rule should not apply and submitted that each party should instead bear its own costs in this case, primarily because the Department:

    • was only partially successful in the appeal;
    • made several concessions on discrete issues throughout the appeal process which resulted in MacMines having to expend time and resources to respond to those issues which were later conceded; and
    • is a government agency, not a private litigant.

    The Land Court has the power to order costs as it considers appropriate under section 27A of the Land Court Act 2000 (Qld). This position differs from the default position under the Uniform Civil Procedure Rules 1999 (Qld), which provides that costs generally follow the event. In contrast, section 27A states that the Land Court may order costs as it considers appropriate but if it does not do so, each party to the proceeding must bear its own costs. Although the rule that costs follow the event does not "govern" the "unfettered discretion of the Court" provided by section 27A, that rule is "deeply embedded in the law" and "must be considered".

    Court refuses to depart from general rule

    The Court acknowledged that MacMines had spent time and resources on considering, researching and developing arguments on issues that were later conceded or won. However, the Court observed that this was part of the ordinary course of litigation and that the time spent on the issues conceded, 'no longer agitated' or 'won' did not amount to special circumstances that would warrant a departure from the general rule that costs follow the event.

    Moreover, the Court said that there were 'good reasons not to encourage applications...on an issue-by-issue basis, involving apportionments based on degrees of difficulty of issues, time taken to argue them and the like' (quoting the High Court in Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192). The core dispute in this case was whether MacMines' application was properly made, and the Court indicated that it should be "slow" to favour the view that partial success on discrete issues, whether decided at the hearing or conceded before the hearing, should lead to a departure from the general rule and justify an issues-based cost order.

    The Court also rejected the argument that the Department's status as a government agency should prevent it from being awarded costs, noting the matter had little (if any) public benefit arising from the litigation to justify an alternative approach.

    The Court therefore decided in favour of the Department and ordered MacMines to pay the Department's costs of and incidental to the proceeding.

    Author: Roxane Read, Senior Associate; Amaya Fernandez, Senior Associate; Leanne Mahly, Lawyer.

    Land Court dismisses application for injunctive relief and adverse possession on jurisdictional grounds

    Summary

    • In Noble v Yarrabah Aboriginal Shire Council [2024] QLC 19, the Land Court dismissed an application for an injunction seeking adverse possession of land. The applicant's claims were based on her family's long-term caretaking and cultural connection to the land, which she alleged had been desecrated by the Yarrabah Aboriginal Shire Council.
    • The Court found that it lacked jurisdiction to award adverse possession of the land in question, as Aboriginal DOGIT land is State land granted 'in fee simple in trust' and not subject to the same adverse possession claims as freehold land under the Land Title Act 1994 (Qld).
    • The Court also determined that it could not grant an injunction to stop the alleged desecration of cultural heritage sites because the harm had occurred and was not ongoing. It also lacked the power to award compensation for any emotional trauma, pain and harm caused by the Council's actions.

    Application for adverse possession and injunctive relief

    The applicant filed an Originating Application in the Land Court Registry on 12 June 2024, seeking adverse possession of a parcel of land within the Yarrabah Deed of Grant in Trust (DOGIT), managed by the Yarrabah Aboriginal Shire Council (YASC). The applicant's claim was based on her family's role as 'caretakers of the land' for the past two decades and their 'cultural and sacred connection' to the land, which she alleged had been desecrated by the YASC.

    The applicant sought either the transfer of the property or compensation amounting to $161,300 for the emotional trauma, pain, and harm caused by the Council's actions.

    The YASC challenged the jurisdiction of the Land Court to hear and determine the application, leading to a series of submissions and reviews.

    Claim for adverse possession

    Adverse possession is a legal doctrine allowing a person occupying land owned by another to acquire ownership and title to the land under certain conditions. In Queensland, a claim for adverse possession is made through an application for registration 'as proprietor by adverse possession' under the Land Title Act 1994 (Qld) (Land Title Act).

    However, the Land Title Act pertains to freehold land, and Aboriginal DOGIT land is State land granted 'in fee simple in trust' under the Land Act 1994 (Qld). On that basis, the Court concluded that it did not have the jurisdiction to award the applicant adverse possession of the DOGIT land.

    Claim for injunctive relief

    The applicant also sought injunctive relief under section 32H of the Land Court Act 2000 (Qld) (Land Court Act) to stop the alleged desecration of cultural heritage sites the land. The Court noted that its jurisdiction under section 32H is limited to stopping ongoing acts that contravene Aboriginal cultural heritage protection provisions. Since the harm alleged by the applicant had already been caused, the Court held that the time for granting an injunction had passed. Further, the Court found that an alleged breach of the duty of care under the Aboriginal Cultural Heritage Act 2003 (Qld) is a matter for consideration of prosecution in the Magistrates Court and is not something that the Land Court can decide. The Court also noted that it lacked the power to award compensation for any emotional trauma, pain and harm caused by the Council's actions.

    Key insights - limitations of Land Court's jurisdiction

    The decision highlights the intricate legal landscape governing land use and cultural heritage protection in Aboriginal communities, and the limitation of the Land Court's jurisdiction in this regard.

    Author: Roxane Read, Senior Associate; Leanne Mahly, Lawyer.

    Land Court provides further guidance on indemnity costs and Calderbank offers

    Summary

    • In Hail Creek Coal Holdings Pty Ltd & Ors v O'Loughlin & Ors (No 2) [2024] QLC 6 the Land Court considered costs applications for proceedings related to compensation payable under the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCP Act).
    • This case is a timely reminder that the Land Court Act does not create any presumption that each party are to bear their own costs of proceedings in the Land Court. The Court can, and will, make orders that costs follow the event in circumstances that warrant them.

    The primary proceedings

    The respondents for these proceedings own and operate a station in central Queensland. Their property is overlapped by mineral development licence 442, owned by the members of the unincorporated joint venture (the HCJV) which also own the nearby Hail Creek Coal Mine.

    The HCJV intended to conduct advanced activities on the property. The HCJV and the landholders tried and failed to negotiate a conduct and compensation agreement (CCA) under the MERCP Act for these advanced activities in 2022 and 2023.

    The HCJV then applied to the Land Court under section 96 of the MERCP Act to resolve the dispute and determine both compensation and the terms of the CCA (the primary proceedings).

    On 8 December 2023, the Land Court determined that:

    • HCJV should pay $10,354.50 for compensation under section 81 of the MERCP Act to the landholders for the advanced activities;
    • HCJV should pay $25,947.33 for the landholders' negotiation and preparation costs under section 91 – that is, the costs prior to the commencement of the proceeding; and
    • the CCA should be on the terms set out in a schedule to the decision, which largely adopted the terms put forward by the HCJV.

    The only outstanding matter was the costs of the proceeding itself, which were left to be dealt with later.

    What were the parties' positions regarding costs?

    The HCJV submitted that the landholders should pay the HCJV's costs of the proceeding on a standard basis from the commencement of the proceeding, up until 11 October 2023. That was the date the HCJV made a Calderbank offer, conforming to the principles in Calderbank v Calderbank [1976] Fam 93, of (among other things) $55,000 compensation, not including negotiation and preparation costs, which the landholders rejected. Alternatively, HCJV sought costs on a standard basis for the entire proceeding.

    The landholders submitted that HCJV should pay their costs on the standard basis, or at least until the Calderbank offer expired on 15 October 2023. Relevantly, they submitted that it was reasonable for them not to have accepted HCJV's offers, including the Calderbank offer, as they achieved a more favourable outcome.

    Land Court's decision on costs

    The Court awarded HCJV with costs on a standard basis from commencement to 17 October 2023, and on an indemnity basis on and from the commencement of the hearing on 18 October 2023.

    The Land Court has a general power under section 27A of the Land Court Act 2000 (Qld) (LCA) to order costs "as it sees appropriate" subject to any provision to the contrary in the LCA or another Act. Section 34(2) of the LCA then provides a default position that parties are to bear their own costs. This power had been explored by Kingham P in Queensland Industrial Minerals Pty v Younger & Ors; Queensland Industrial Minerals Pty Ltd v Ryan (No 2) [2017] QLC 54 (QIM). Kingham P set out the following general principles about costs under section 27A (at [4] – [8]):

    • the discretion to grant costs is unfettered;
    • each case must be judged on its own facts and circumstances;
    • costs are not awarded to punish the unsuccessful party, but compensate the successful party;
    • section 34(2) does not create a general rule that each party should bear their own costs. Rather, the Court should consider the "deeply embedded" rule that costs should follow the event when exercising its discretion;
    • the Court should have regard not only to the orders made, but also to the issues raised and the parties' relative success in respect of those issues (though should be cautious about taking an issue-by-issue analysis, except where there were particularly "dominant" or "separable" issues).

    Given both parties claimed standard costs from the other, it was necessary for the Court to determine whether either party could demonstrate "success" in this matter. The parties had each provided compensation statements during the primary proceedings which set out the total amount of compensation which should be payable.

    The landholders submitted that they had been successful on one issue, which is why the award was larger than the HCJV's position in its statement. The HCJV, on the other hand, noted that the landholders had been unsuccessful on all the main issues they raised, the award was mostly consistent with the HCJV's position, and the disputed terms of the CCA had been decided in accordance with the HCJV's submitted position.

    The Court, unsurprisingly, favoured HCJV's position. Each of the "dominant issues" in the primary proceeding had been determined in the HCJV's favour. The one issue on which the landholders had been successful was a minor one.

    On that basis, the Court held that the ordinary rule that costs follow the event had been engaged. The next question was whether the HCJV would receive indemnity costs.

    The Court's approach to indemnity costs

    In determining whether indemnity costs was appropriate, the Court had to consider:

    • Was the offer "a genuine attempt to reach a negotiated settlement and not just a means of triggering a costs sanction"?
    • Was the offer more favourable than the determination of compensation "indicating that they were real, not trivial or contemptuous"?
    • Was the rejection of the offer unreasonable in the circumstances? This considers whether there was sufficient time to consider the offer, adequate information was provided to enable consideration of the offer, and whether any conditions were reasonable.

    The Court also considered whether indemnity costs was warranted in all the circumstances, reflecting the generally discretionary nature of this relief.

    The Court determined these questions in favour of the HCJV. In doing so, the Court made specific note that the persuasive burden was placed on the landholders to demonstrate their failure to accept the offer was "objectively reasonable", because the Calderbank offer was more favourable than the determination.

    Operating on an incorrect premise doesn't mean insufficient information

    One of the more interesting findings from this decision related to this question about whether the landholders had sufficient information to consider the offer.

    The landholders sought to argue that it was not imprudent for them to reject the offer of 11 October 2023, because it was not until well into the hearing of the primary proceedings that the HCJV produced evidence to demonstrate that a key fact they relied on for the bulk of their claim was untrue. The landholders pointed out that, "unusually", joint expert meetings and reports did not occur in this matter, so there was no opportunity for this to be identified earlier.

    The HCJV said, in response, that it is not their fault that the landholders operated on an incorrect premise. The Court agreed with the HCJV. The source of the incorrect factual information was the landholders, and the HCJV should not bear responsibility for this mistake.

    A reminder of costs in the Land Court

    This case is a reminder that the Land Court has a broad discretion to order costs of a proceeding that it considers appropriate. Parties should therefore be mindful of the risks and consequences of rejecting reasonable offers of settlement, and of advancing unrealistic or unsustainable claims for compensation.

    Author: Libby McKillop, Counsel; Martin Doyle, Lawyer.

    Want to know more?

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.

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