On 1 February 2019, the Queensland Court of Appeal confirmed that it is beyond the powers of the Planning and Environment Court to effectively concede jurisdiction to an expert to make findings as to whether an environmental authority has been contravened and, if so, the appropriate remedies.
The Judgments of the Planning and Environment Court1 and Court of Appeal2 follow an application made by Mr Swan, the owner of two properties with easements granted to Santos GLNG Pty Ltd enabling it to build a gas pipeline over the land.
Mr Swan sought declarations under Section 505 of the Environmental Protection Act 1994 (EP Act) that Santos had contravened a number of conditions in its environmental authorities and thereby had committed the offence provided for in section 430 of the EP Act. The allegations related to the rehabilitation of the land following the construction of the pipeline.
The parties obtained a number of expert reports and some of the parties’ experts prepared joint expert reports. The trial judge concluded that Mr Swan had not proved that Santos had contravened conditions of the environmental authorities to the required standard. The experts’ opinions differed about the appropriate method of rehabilitation.
Mr Swan sought substantive orders in the following terms under section 505 of the EP Act:
- Santos cease all works on Mr Swan’s land until measures have been put in place to ensure compliance with the subject environmental authorities.
- Santos cause an independent investigation to be undertaken at their cost, by an expert appointed by the Court, to identify all respects in which the environmental authorities have been contravened on Mr Swan’s land and the measures to be taken to remedy those contraventions.
- Santos cause the contraventions to be remedied by the measures identified by the independent investigation.
- Such further or other orders as the Court may seem just to remedy the contraventions of the environmental authorities on the applicant’s land.
Order (1) was ultimately not pursued because it was considered to lack utility in light of Santos having already completed construction of the pipeline.
The trial judge declined to grant orders (2)-(4) on the following grounds:
- They lack sufficient certainty and are beyond the jurisdiction of the Planning and Environment Court because they seek to have the Court concede jurisdiction to a ‘lay person’ (an expert) to identify offences and measures to remedy the alleged offences.
- In the exercise of discretion, such orders require Court supervision and the trial judge was satisfied that Mr Swan would likely only ever be satisfied if an independent expert was controlled by him.
- Mr Swan had not established that Santos had committed any alleged offences under section 430 or 431 of the EP Act.
In oral argument, the point was forcefully made on behalf of Santos that the relief effectively sought an injunction that someone else do the Court’s job.
Mr Swan made an application for leave to appeal, contending that the decision of the Planning and Environment Court involved errors of law and the trial judge should have construed the claimed relief such that there was an intended delay between the making of orders (2) and (3) and that the independent expert report would assist the Court in making findings and orders about what was appropriate.
The Court of Appeal was not satisfied that at any time during the trial did Mr Swan’s counsel suggest the orders be “stepped” in this way.
The Court of Appeal concluded that Mr Swan had not demonstrated any error of law in relation to the trial judge’s refusal of the orders and relief sought. The Court of Appeal confirmed that each order was beyond the power conferred by section 505(5) of the EP Act and the relief should not be granted.
The trial judge ordered that Mr Swan pay Santos’ costs of the proceedings in the Planning and Environment Court, to be assessed on the standard basis or as agreed.3 Mr Swan sought leave to appeal from that order. It was not contentious that Mr Swan was wholly unsuccessful in his allegations and that he had not satisfied the onus of providing the alleged breaches. However, the Court of Appeal allowed the appeal against the trial judge’s costs order and instead ordered that Mr Swan pay the costs incurred by Santos only after a particular point in time.
Whilst agreeing with the trial judge’s conclusions that orders (2)-(4) were beyond power, Fraser JA was of the opinion that it did not follow that there was anything unreasonable about Mr Swan’s pursuit of the litigation. There was the potential for the trial judge to accept Mr Swan’s arguments about the construction of the conditions in the environmental authority and to be more impressed by the evidence of Mr Swan’s experts. The Court of Appeal also noted that substantial progress in rehabilitation of the land appears to have occurred only after Mr Swan commenced proceedings against Santos and there was some expert evidence supportive of Mr Swan’s concerns about the adequacy of the ongoing rehabilitation.
For more information or discussion, please contact HopgoodGanim Lawyers' Planning team.
1. Swan v Santos GLNG Pty Ltd & Ors [2017] QPEC 2
2. Swan v Santos GLNG Pty Ltd & Ors [2019] QCA 6
3. Swan v Santos GLNG Pty Ltd & Ors [2017] QPEC 17