132
Recent Developments
(2007) 26 ARELJ
QUEENSLAND
ADDITIONAL SURFACE AREA Re Peabody Energy Australia Coal Pty Ltd & Anor v BHP Coal Pty Ltd & Ors [2007] QLRT 88
(Smith DP)
Coal mining lease – Application for additional surface area – Conflicting grants – Existing rights
prevail – Objects of Mineral Resources Act.
Background
Pursuant to s 275 of the Mineral Resources Act 1989 (MRA) and Ch 5 of the Environmental
Protection Act 1994 (EP Act) the applicant sought the grant of an additional surface area and
related environmental authority. The applicants already held a mining lease over the sub-surface of
the application area and the surface and sub-surface rights for the land immediately to the north of
the application area. The objectors were the current holders of a mining lease that included the
entire surface area sought by the applicant as well as additional area to the south. The objectors
also held a Special Lease granted for Industrial (Coal Mining) Purposes over the area which was
utilised for haulage routes and powerlines relating to nearby operations.1
The objectors contended that the pre-existence of their mining leases afforded priority and
precluded the grant of additional surface area. It was argued that such a grant would be an
unlawful derogation of the objector’s existing rights. Alternatively, the objectors further submitted
that if there were a power to grant the additional surface area, the Tribunal should not make such a
recommendation under s 269 of the MRA on the basis that it would unreasonably interfere with
the exercise of its rights and the discharge of its obligations.
Right to Apply for Additional Surface Area
Deputy President Smith noted that s 275 allowed for the applicant as the holder of the sub-surface
mining lease to seek additional surface area ‘at any time’, and based upon the evidence before the
Tribunal, such a right pre-dated the grant of the objector’s mining leases. Nevertheless, the
fundamental proposition remained that the grant of a mining lease does not create an estate or
interest in land.2
The Deputy President further rejected the objector’s submissions that there was no power
contained within the MRA that permitted two mining leases to be granted over the same land
which confer inconsistent rights by reference to the operation of s 248 and the underlying
objectives of the Act. In this regard, it was held that s 248 only has meaning when a mining lease
is sought by one entity in circumstances where another entity already holds a mining lease.
1
2
Ryan Gawrych BA, LLB (Hons), Research Officer to the Presiding Members, Queensland Land and
Resources Tribunal.
The evidence presented by both parties demonstrated a complex intertwining of related mining leases for
the area over a long period of commercial dealings. Nevertheless, several anomalous events which lead
to the current state of affairs were left unexplained by the parties resulting in Deputy President Smith
inferring that in accordance with the rule in Jones v Dunkel (1959) 101 CLR 298 the missing material
would not have supported either party’s case. Interestingly, the applicants had originally applied for both
the surface and subsurface rights to the area in question but abandoned the application for the surface
rights.
See Mineral Resources Act 1989, s 10.
Queensland
133
Moreover, evidence was accepted by the Tribunal that overlapping mining leases exist throughout
Queensland and both the applicant and objectors clearly indicated that the case did not involve any
review of the validity of any pre-existing tenures.
Accordingly, Deputy President Smith was of the view that as a matter of construction, in allowing
two mining leases to be held by different entities over the same land the legislature had intended
for the co-existence of multiple mining leases. Any adverse impacts resulting from such a situation
were therefore to be taken into account in making a recommendation but did not preclude the
ability for the applicant to seek additional surface area.3
Co-existence of Rights
While it was clear that differing leases could co-exist, the circumstances of the applicant’s
proposed conditions for the grant of the additional surface area would have had the effect of
inhibiting the exercise by the objectors of their rights under their mining lease. On the assumption
of the validity of the objector’s mining lease, Deputy President Smith held that the objectors’
rights would prevail until its expiration in 2010 notwithstanding any grant to the applicant.
Recommendation
Having taken into account the circumstances prescribed in s 269(4) of the MRA and s 223 of the
EP Act, Deputy President Smith recommended that the application for additional surface area and
related environmental authority be granted on the basis that any rights of the objectors under
existing mining leases prevail over those sought by the applicant as long as they remain in
existence. It was specifically noted that the situation of the case was beyond the ordinary process
of advising the Minister that the provisions of s 269(4) had been satisfied4 and the Deputy
President made further observations for the Minister’s convenience.
The Deputy President was cognisant of the potential economic benefits that the exploitation of the
huge coal reserves within the application area would bring to the State of Queensland and that the
grant of additional surface area for such activities would accord with the underlying objectives of
the MRA. Nevertheless, while the objectors’ lease remained valid coal cannot be won from the
area by the applicants. With the limited powers of recommendation vested in the Tribunal under
the MRA, it was suggested that at the Minister’s discretion a realignment of powerlines and
haulage roads at the southern extremity of the application area would allow for the efficacious
continuation of both the applicant and objectors’ operations.
3
4
Ibid, s 269(4).
Compare Re Peabody (Wilkie Creek) Pty Ltd & Bailey and Ors [2007] QLRT 74.