SUPREME COURT OF QUEENSLAND
CITATION: QCoal Pty Ltd & Ors v Stirling Hinchliffe, Minister for Infrastructure and Planning & Anor [2011] QSC 334 PARTIES: QCOAL PTY LTD ACN 010 911 234 (first applicant) and ROSELLA CREEK COAL PTY LTD ACN 134 947 121 (second applicant) and DRAKE COAL PTY LTD ACN 138 221 600 (third applicant) and BYERWEN COAL PTY LTD ACN 133 357 632 (fourth applicant) and BOWEN RIVER COAL PTY LTD (fifth applicant) v STIRLING HINCHLIFFE, MINISTER FOR INFRASTRUCTURE AND PLANNING (first respondent) and HANCOCK COAL PTY LTD ACN 130 249 973 (second respondent) FILE NO: BS 12123 of 2010 DIVISION: Trial Division PROCEEDING: Application for judicial review ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 10 November 2011 DELIVERED AT: Brisbane HEARING DATE: 1 and 2 March 2011 Written Submissions
JUDGE: Daubney J ORDERS: 1. The application is dismissed;
2. The applicants shall pay the respondents’ costs of and incidental to the application, to be assessed.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – GENERALLY – where the 2
Governor in Council made a decision approving a project – where the applicants sought judicial review of the decision on the grounds of unreasonableness, relevant considerations improper purpose and irrelevant considerations - whether the application should be allowed Acts Interpretation Act 1954 (Qld), s 36 Judicial Review Act 1991 (Qld), s 20, s 23(g) State Development and Public Works Organisation Act 1971 (Qld), s 77, s 79, s 125, s 174 State Development and Public Works Organisation (State Development Areas) Regulation 2009 (Qld)
Associated Provisional Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223, cited East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 74 ALJR 992, cited Minister for Immigration v Eshetu (1999) 197 CLR 611, cited Minister for Immigration v SZMDS (2010) 240 CLR 611, cited Pupfan Pty Ltd v State of South Australia (2003) 86 SASR 195, considered
COUNSEL: D J S Jackson QC with J Chappell for the applicants M Hinson SC with S McLeod for the first respondent A A J Horneman-Wren SC with T J Bradley for the second respondent
SOLICITORS: Holding Redlich for the applicants Clayton Utz for the first respondent Blake Dawson for the second respondent
[1] On 1 October 2010, the following Notice was published in the Queensland Government Gazette (No 35, page 257):
“DEPARTMENT OF INFRASTRUCTURE AND PLANNING
State Development and Public Works Organisation Act 1971
NOTICE
The Governor in Council has approved, under Section 125(1)(f) of the State Development and Public Works Organisation Act 1971, the Hancock Coal Pty Ltd Alpha Coal Rail Corridor Project as an infrastructure facility that is of significance, particularly economically or socially, to Australia, Queensland and the Fitzroy and Mackay regions being the regions in which 3
the Hancock Coal Pty Ltd Alpha Coal Rail Corridor Project is to be constructed.”
[2] That Notice was followed, at pages 258-284 of the Gazette, by a statement entitled:
“STATEMENT GIVING REASONS WHY THE GOVERNOR IN COUNCIL APPROVED BY GAZETTE NOTICE ON 1 OCTOBER 2010 THE HANCOCK COAL PTY LTD ALPHA COAL RAIL CORRIDOR PROJECT AS AN INFRASTRUCTURE FACILITY THAT IS OF SIGNIFICANCE UNDER THE STATE DEVELOPMENT AND PUBLIC WORKS ORGANISATION ACT 1971”
[3] This is an application for a statutory order of review under s 20 of the Judicial Review Act 1991 (Qld) (“JRA”) of the Governor in Council‟s decision to give the approval referred to in the Notice.
[4] It is uncontentious that:
(a) the applicants are persons aggrieved by the decision which is the subject of this application; and
(b) that decision was made under an enactment, namely the State Development and Public Works Organisation Act 1971 (Qld) (“SDPWOA”).
[5] The applicants holds tenements, and have applied for mining leases, in areas affected by the infrastructure facility referred to in the decision. The applicants challenge the legality of the decision, and contend that it ought be quashed or set aside.
[6] It was conceded by the respondents in argument that this decision by the Governor in Council, as that term is defined in s 36 of the Acts Interpretation Act 1954 (Qld), is amenable to judicial review. It is, therefore, not necessary to consider arguments which were advanced by the applicants on that issue.
State Development and Public Works Organisation Act 1971
[7] By s 125(1)(f) of the SDPWOA, the Coordinator-General (who is appointed under the SDPWOA) is empowered to take land for the following purpose:
“(f) an infrastructure facility that is –
(i) of significance, particularly economically or socially, to Australia, Queensland or the region in which the facility is to be constructed; and
(ii) approved by the Governor in Council, by gazette notice, as having that significance.”
[8] It should be noted at the outset that the decision sought to be impugned in this case is not a decision by the Coordinator-General to take land, but is the decision to give approval under s 125(f)(ii).
[9] Section 125 further provides:
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“(2) In considering whether the infrastructure facility mentioned in subsection (1)(f) would be of economic or social significance, the potential for the facility to contribute to community wellbeing and economic growth or employment levels must be taken into account.
(3) In assessing the potential mentioned in subsection (2), the contribution the infrastructure facility makes to agricultural, industrial, resource or technological development in Australia, Queensland or the region is a relevant consideration.
(4) Subsection (1)(f) applies even if the taking of land by the Coordinator-General is for conferring rights or interests in the land taken on a person other than the State or a local body.
(5) If the proposed taking of land by the Coordinator-General is for conferring rights or interests in the land to be taken on a person other than the State or a local body –
(a) the Coordinator-General must –
(i) prepare a statement giving reasons why the infrastructure facility was approved under subsection (1)(f); and
(ii) publish a copy of the statement in the gazette; and
(b) the Minister must table the statement in the Legislative Assembly within 3 sitting days after the gazette notice approving the infrastructure facility is published.
...
(9) The power to take land under this section for a purpose (the primary purpose) includes power to take at any time land either for the primary purpose or for any purpose incidental to the carrying out of the primary purpose.”
[10] By s 125(16)(a), the term “infrastructure facility” is defined to include a railway.
The Statement of Reasons
[11] The factual background to the decision is largely recorded in the Statement of Reasons, which was published in the Gazette on 1 October 2010.
[12] After formally recording the decision to approve the “Alpha Coal Rail Corridor Project as an infrastructure facility that is of significance, particularly economically or socially, to Australia, Queensland, and the Fitzroy and Mackay regions, being the regions in which the rail corridor is to be constructed”, the “Introduction” to the Statement of Reasons commenced:
“On 16 February 2010, The Coordinator-General received an application (the Application) from Hancock Coal Pty Ltd (Hancock Coal) requesting that a coal rail corridor and track from its Alpha Coal mine in the Galilee Basin to the western boundary of the Abbot Point State Development Area (the Rail Corridor) be approved by the Governor in Council as an infrastructure facility of significance under Section 125 (1) (f) of the SDPWO Act.” 5
[13] It is to be noticed that this paragraph defined the term “the Rail Corridor” for the purposes of the Statement of Reasons. I will use the same term in this judgment.
[14] The Statement of Reasons then enumerated at some length the material to which the Coordinator-General and the Governor in Council had regard when considering “whether the Hancock Coal Pty Ltd Alpha Coal Rail Corridor Project is an infrastructure facility that is of significance, particularly economically or socially, to Australia, Queensland and the region(s) in which the facilities are to be constructed”. That list of documentation included the “Explanatory Memorandum” signed by the Coordinator-General and the first respondent Minister which was provided to the Governor in Council. I will refer to the Explanatory Memorandum in more detail, but should observe here that it seems more than tolerably clear that, in reality, the Governor in Council proceeded to make the decision on the basis of the Explanatory Memorandum, to which was annexed a draft of the Statement of Reasons. Be that as it may, it is necessary to have principal recourse to the Statement of Reasons, and to have close regard to them in this case because, as was noted by Ashley and Redlich JJA in East Melbourne Group Inc v Minister for Planning:1
(a) a decision maker should ordinarily be treated as bound by – and confined to – the reasons which the decision maker gives for the decision in question; and
(b) the general principle is that a court, when considering the lawfulness of a decision may admit evidence in quite limited circumstances so as to elucidate, but not fundamentally collide with, the reasons stated by the decision maker.
[15] The Statement of Reasons then set out findings of material fact. These findings commenced:
“4.1 Type of Infrastructure Facility Proposed Including Land on Which the Facility is to be Located
The proposed infrastructure facility is a standard gauge, standalone railway line designed to transport significant quantities of bulk coal from Hancock Coal‟s Alpha Coal mine in the Galilee Basin to the Port of Abbot Point.
Details of the infrastructure facility
Hancock Coal, a wholly-owned subsidiary of Hancock Prospecting Pty Ltd (Hancock Prospecting), is proposing to develop the Alpha Coal Mine in the Galilee Basin, approximately 50 kilometres north of the township of Alpha, 130 kilometres south-west of the Clermont township, and approximately 360 kilometres south-west of Mackay. Upon final development in 2018, it is anticipated that the Alpha Coal Mine will produce approximately 30 million tonnes per annum (Mtpa) of thermal coal for export over a mine life in excess of 30 years.
Hancock Galilee Pty Ltd, also a wholly owned subsidiary of Hancock Prospecting, is proposing to develop the Kevin‟s Corner Mine in the
1 (2008) 23 VR 605 at [308] – [309]. 6
Galilee Basin, which is also expected to produce approximately 30 Mtpa of coal over 30 years.
The proposed railway is a single standard gauge railway, approximately 495 kilometres long, from Hancock Coal‟s Alpha Coal Mine to Abbot Point that will accommodate between 30 and 60 Mtpa of coal throughput from the Galilee Basin. For the purposes of the Application, the Rail Corridor consists of that part of the railway from the Alpha Coal Mine to the western boundary of the Abbot Point State Development Area. An area of land for marshalling yards (including maintenance facilities) to be located south of the Rail Corridor near the Abbot Point State Development Area is also included in the Application.
Hancock Coal is proposing to use the Rail Corridor to transport 30 Mtpa of coal from its Alpha Coal Mine, and a further 30 Mtpa of coal from Hancock Galilee‟s proposed Kevin‟s Corner Mine following the development of that mine, including the construction of a loadout loop and a spur line from the loadout loop to the Rail Corridor, by that company. The railway track has been designed to carry 60 to 80 Mtpa. Five passing loops along the length of the mainline will allow capacity of 30 Mtpa. An additional three passing loops will increase that capacity to 60 Mtpa. Additional passing loops and rollingstock will allow capacity to be increased to at least 80 Mtpa, and selective partial duplication will enable tonnages to be further increased. This will allow the railway to provide enough capacity to transport coal from other mines in the Galilee Basin area to Abbot Point.
The railway will be managed and operated in accordance with the provisions of the Transport Infrastructure Act 1994.
Hancock Coal anticipates that the final Rail Corridor will be approximately 60 to 100 metres in width. This will include the land required for the track itself, as well as drainage, access roads and other infrastructure necessary to support the railway. For the purpose of this approval Hancock Coal is seeking a footprint of 500 metres in width (250 metres either side of the nominal centre line). This footprint will be refined as the project proceeds to the construction phase.
The infrastructure facility to which this Application relates consists of the main railway line from Alpha Coal Mine to the western boundary of the Abbot Point State Development Area. Hancock Coal proposed other rail infrastructure, not the subject of this approval which will include a loadout loop at the Alpha Coal Mine site and unloading loops at the Port. Hancock Coal envisages that an associated company, Hancock Galilee, will construct a spur line to a loadout loop to service Hancock Galilee‟s proposed Kevin‟s Corner Mine site. A further three passing loops in the Rail Corridor will be required to create capacity for trains from Kevin‟s Corner.
Four trains per day on average will be required to transport 30 Mtpa of coal.” 7
[16] The Statement of Reasons gave some detail of the land affected by the facility, then recorded details of the proposed alignment of the Rail Corridor, including the following findings:
“The rail alignment enters the Abbot Point precinct from the west, crossing the Bruce Highway and the North Coast Rail Line as it enters the Abbot Point State Development Area. In this manner, the alignment minimises noise impacts for residents of Collinsville and avoids the Sonoma State Forest.
Hancock Coal notes that the proposed alignment is subject to changes that may arise as further studies and detailed design of the railway are undertaken.
Hancock Coal states that approximately 85 per cent of the Rail Corridor is firm. The remaining parts of the Rail Corridor are subject to flexibility, to ensure that potentially adverse effects are minimised. These areas of flexibility include:
major river and creek crossings and their approaches;
the proposed route through certain interest holders‟ properties;
alignment of that part of the Rail Corridor which runs alongside the Bowen River Valley; and
land which is covered by exploration and mining tenures, where the alignment traverses significant resources within existing exploration permits.
The Rail Corridor traverses land in the northern part of the Bowen Basin over which QCoal Pty Ltd (QCoal) and its subsidiaries hold exploration permits. QCoal expressed concerns regarding the potential sterilisation of resources as a result of construction of the Rail Corridor. Following discussions with QCoal, by letter dated 28 May 2010, Hancock Coal formally amended its Application to seek a realignment of the Rail Corridor in the area adjacent to the southern end of the Newlands coal rail system. Hancock Coal proposes to „hug‟ the existing Newlands rail line and the Northern Missing Link (which is currently under construction) so as to minimise additional impacts on QCoal. Hancock Coal stated that it believed that this was the most workable solution for both parties.”
[17] Further findings were addressed under the headings:
• Demand Projections for the Services Associated with the Infrastructure
• Needs Which the Facilities Would Meet and How the Infrastructure Would Satisfy the Identified Need
• Timing of Project or Service Delivery
• Special Assistance Required from Government other than Land Acquisition
• Preliminary Financial Analysis (of the proposed Infrastructure Facility) 8
• Possible Environmental Impacts
• Proponent‟s Financial and Technical Capacity to Implement the Proposed Facility
• Negotiations to Acquire Land by Agreement
• Investigations on the Required Land
• Summary of the Public Submissions
[18] The “Summary of the Public Submissions” included a summary of the objections which had been lodged by the first applicant, QCoal Pty Ltd and its subsidiaries. The objections included a claim by QCoal that “the corridor as proposed would result in sterilisation of significant resources of coal and presented “best case”, “likely case” and “worst case” scenarios”, and noted QCoal‟s estimates of the quantities and values of coal reserves which would be sterilised. The Statement of Reasons also noted the responses to these objections, including (at page 273):
“Hancock Coal also noted that the final Rail Corridor is only expected to be 60 to 100 metres in width, and that QCoal‟s calculations as to the amount of coal likely to be sterilised may have been based on the nominal 500 metres corridor width proposed by Hancock Coal for the purposes of its Application. In Hancock Coal‟s view, therefore, QCoal‟s estimate as to the value of coal likely to be sterilised is likely to be overstated. Further, if coal resources were in the future determined to be of significant value, Hancock Coal noted that there were precedents for the temporary or permanent relocation of rail corridors.”
Further objections by QCoal were noted in the Statement of Reasons, including that “Hancock Coal has not procured the necessary infrastructure for the delivery of water, power, port and rail facilities”, and the response that “Hancock Coal stated that it was in discussions with providers of the relevant necessary infrastructure”.
[19] Under a further heading “Economic Significance of the Infrastructure Facilities”, the following findings were noted:
“It is anticipated that the Rail Corridor will open up mining of thermal coal in the Galilee Basin, as its remote location and corresponding lack of supporting infrastructure have precluded large-scale mining to date. The Rail Corridor would, therefore, provide a solid basis for future resource development in the area. There are many mining interests conducting exploration activities in the Galilee Basin at present. As noted above, over 14 billion tonnes of thermal coal which complies with JORC standards has been identified in the Galilee Basin by Hancock Coal and other potential producers.
There will be further significant flow-on economic benefits from the use and construction of such mines. Regionally it will lead to increased investment in the Galilee Basin, increased employment at the mines and for associated services, and an increase in money spent in the relevant region. At a State and National level, opening up the Galilee Basin will contribute to the growth of the coal industry in Queensland, an increase in royalties payable to the State and an increase in Australia‟s export revenue. 9
Therefore, the Rail Corridor is likely to contribute to resource development, which is a relevant consideration in accordance with Section 125 (3) of the SDPWO Act.”
[20] Under the next heading, “Social Significance of the Infrastructure Facilities”, the Statement of Reasons identified factors which indicated that the Rail Corridor will contribute positively to community wellbeing.
[21] The Statement of Reasons then set out some three and a half pages of dot-pointed reasons for the decision to approve the Rail Corridor as an infrastructure facility of significance under s 125(1)(f)(ii). Those reasons included:
“• There is no existing infrastructure suitable to allow transportation of coal from the Galilee Basin to Abbot Point, or to any other port, for exportation. This has contributed, at least in part, to the lack of large- scale mining operations in the Galilee Basin. Existing rail infrastructure is unable to accommodate the demand and road transportation is unsuitable due to the projected tonnages of coal that would need to be transported;
• Hancock Coal is proposing to construct a standard gauge, stand alone railway of approximately 495 km in length from its Alpha Coal Mine in the Galilee Basin to the Port at Abbot Point. It is expected that a spur and loadout loop will also allow the railway to transport coal from the Kevin‟s Corner Mine, which is proposed to be constructed and operated by another subsidiary of Hancock Prospecting;
• It is expected that the railway will carry between 30 and 60 Mtpa of coal, although the railway has been designed to carry up to 80 Mtpa of coal, with an ability to further increase this capacity through the use of partial duplication;
• The Rail Corridor traverses land owned by approximately 40 different interest holders. Hancock Coal has proposed to transfer to the State any land it voluntarily acquires for the Rail Corridor, so that the State will own the underlying tenure for the land. Hancock Coal then proposes that the State lease or sub-lease the necessary land back to Hancock Coal on a long-term basis;
• The final width of the Rail Corridor will be between 60 and 100 metres, although for the purposes of its Application Hancock Coal has sought a footprint of 500 metres in width. This footprint will be refined as the project proceeds to the construction phase; ...
• The Rail Corridor will have economic significance to the Fitzroy and Mackay regions, Queensland and Australia, through:
a) providing an increase in employment opportunities, both during construction of the railway and on an ongoing basis; b) providing an opportunity for support businesses to be established to support the railway and its staff; c) increasing Australia‟s export revenue in the amount of $5 to 6 billion per year; 10
d) increasing the need for additional products to be manufactured as a result of the railway, such as coal transporting bins, additional locomotives and signalling equipment; e) increasing Queensland‟s overall coal production by 35 per cent; f) increasing the amount of royalties payable to the State, estimated to be $430 million per year; g) by providing the means through which coal from the Alpha Coal and Kevin‟s Corner Projects can be exported, indirectly contributing to long-term sustainable jobs; and h) potentially opening up the Galilee Basin to encourage other large- scale mining projects in the area, which will have further flow-on economic benefits at the national, State and regional levels.
• On the basis of the factors identified above:
a) the Rail Corridor will make an important contribution to resource development in the Galilee Basin area and the relevant region, as well to Queensland and Australia more generally, pursuant to Section 125(3) of the SDPWO Act; and b) the Rail Corridor will contribute positively to economic growth and employment levels within the Fitzroy and Mackay regions and within Queensland and Australia, pursuant to Section 125(2) of the SDPWO Act.
• The Rail Corridor will have social significance to the Fitzroy and Mackay regions, Queensland and Australia, through:
a) providing a need for enhanced local infrastructure and technology, which may not have been financially viable otherwise; b) increasing the population base in the Barcaldine and Isaac Regional Council areas particularly during the construction phase; c) providing ongoing employment opportunities in the Whitsunday Regional Council area, which has an unemployment rate higher than the State average; d) diversifying the employment opportunities available in the Whitsunday Regional Council area, which has a largely tourism- based industry; and e) providing the opportunity for training or upskilling in areas where the level of education attainment is lower than the State average. ...
• Regard has been had particularly to the submissions made by QCoal in respect of the potential sterilisation of its resources. However, it is considered that the realignment proposed by Hancock Coal in its amended Application balances the needs of both parties. Consistent with the advice of Geological Survey of Queensland, it is considered that the realignment substantially reduces any coal sterilisation impacts in respect of QCoal‟s exploration permits, by adjoining the Rail Corridor to the Northern Missing Link which is currently under construction and passes over areas of coal already sterilised by the existing Newlands line. QCoal‟s concern that the amended alignment continues to potentially sterilise its resources has been taken into account. However, given the significantly increased costs to Hancock Coal, as well as the geographical difficulties of realigning the Rail Corridor completely outside of the Bowen Basin area, combined with the preliminary stages of QCoal‟s exploration in the area, it is 11
considered that the amended alignment is the best solution to balance the interests of both QCoal and Hancock Coal; and
• In response to QCoal‟s concerns that Hancock Coal failed to negotiate with it, there is no strict requirement under the SDPWO Act for the proponent to first attempt to purchase the land by commercial negotiation before a declaration under Section 125(1) can be made. However, prior to any application for compulsory acquisition, Hancock Coal will need to demonstrate that it took reasonable steps to first purchase the land by agreement.”
The Explanatory Memorandum
[22] The Explanatory Memorandum signed by the Minister and the Coordinator-General which was considered by the Governor in Council was in evidence before me.
[23] Under the heading “Background”, the Explanatory Memorandum recorded:
“On 16 February 2010, The Coordinator-General received an application (the Application) from Hancock Coal Pty Ltd (Hancock Coal) requesting that a coal rail corridor and track from its Alpha Coal mine in the Galilee Basin to Abbot Point (the Rail Corridor) be approved by the Governor in Council as an infrastructure facility of significance under section 125 (1) (f) of the SDPWOA Act.
The Rail Corridor described in the Application is a single standard gauge railway, approximately 495 kilometres long, from Hancock Coal‟s Alpha Coal Mine to Abbot Point, that will accommodate between 30 and 80 million tonnes per annum (Mtpa) of coal throughput from the Galilee Basin for export. Hancock Coal is proposing to use the Rail Corridor to transport 30 Mtpa of coal from its Alpha Coal Mine, and a further 30 Mtpa of coal from the Kevin‟s Corner Mine through the construction of a loadout loop and a spur line from the loadout loop from Kevin‟s Corner to the Rail Corridor. An area of land for marshalling yards (including maintenance facilities) to be located south of the Rail Corridor near the Abbot Point State Development Area is also included in the Application.
...
Hancock Coal anticipates that the Rail Corridor will, as constructed, be approximately 60 metres in width. In some circumstances this may be extended, but will not be greater than 100 metres. This will include the land required for the track itself, as well as drainage, access roads and other infrastructure necessary to support the Rail Corridor. However, in the Application, Hancock Coal is seeking a footprint of 500 metres in width (250 metres either side of the nominal centre line). This footprint will be refined as the project proceeds to the construction phase.
...
The Application or approval does not constitute in any way the detailed design approval or endorsement of the Rail Corridor alignment under the EIS for the project.
If any future changes to the proposed alignment of the Rail Corridor outside of the 500 metre wide corridor footprint proposed to be declared are 12
identified, these will not be covered by this Infrastructure Facility of Significance approval.
Any changes to the alignment included in the Application that affects new interest holders will require Hancock Coal to submit a fresh Application for the entire revised Rail Corridor route should they wish to seek The Coordinator-General‟s assistance with any land acquisitions.”
[24] Under “Purpose and Consequence” it was noted:
“This is the first step in a process under which The Coordinator-General may, to the extent he is lawfully able to do so, compulsorily acquire land (or easements) and Native Title for the Hancock Coal Pty Ltd Alpha Coal Rail Corridor Project, should commercial negotiations between Hancock Coal and the relevant affected parties be unsuccessful.”
[25] The Explanatory Memorandum also summarised the submissions which had been received in respect of the application and the consultations with stakeholders and interested parties.
The Abbot Point State Development Area
[26] The eastern end of the Rail Corridor terminates at the western boundary of the Abbot Point State Development Area (“APSDA”).
[27] By Part 7 of the State Development and Public Works Organisation (State Development Areas) Regulation 2009 (Qld), the area called the “Abbot Point State Development Area” was declared to be a State Development Area, in accordance with s 77 of the SDPWOA.
[28] The development scheme of the APSDA, published pursuant to s 79 of the SDPWOA, was in evidence before me. Whilst this documentation was not before the decision maker in this case, there is nothing in it which fundamentally collides with any of the reasons set out in the Statement of Reasons. Reference to this material assists in understanding the ambit of the present dispute.
[29] The “Background” section of the development scheme stated:
“3. Background
(1) Abbot Point is located approximately 20km to the west of Bowen and forms a key part of the Government‟s Northern Economic Triangle Infrastructure Plan 2007 – 2012. This plan is a government initiative to “see the emergency of Mount Isa, Townsville and Bowen as a triangle of industrial development and mineral processing over the course of the next half century”.
(2) Declaration of the Abbot Point State Development Area enables the State to facilitate and effectively manage the planned development and operation of the area and associate infrastructure for industrial purposes of regional, State and national significance.
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(3) The establishment of industry at Abbot Point complements the existing deep water port adjacent to the Abbot Point State Development Area, the Port of Abbot Point.”
[30] Under the heading “Intent of the Development Scheme”, it was noted that the intent of the scheme was, inter alia, to “[r]ecognise that the Coordinator-General has primary carriage for the development, operation and management of land use in the Abbot Point State Development Area.”
[31] The objectives of the development scheme were stated to include the provision of “[l]and and plan for the establishment of dedicated, efficient and safe infrastructure, including essential services and infrastructure corridors, to adequately service development”.
[32] The development scheme provided for the ADSDA to be divided into the following “land use precincts”:
- Industry Precinct. This is to accommodate both large scale industrial development and complementary light industrial uses.
- Infrastructure and Corridors Precinct. This was described to include:
“To provide for multiple infrastructure users, with priority given to common use infrastructure. Infrastructure facilities envisaged are for the purposes of transporting materials, products, wastes and services by pipe, conveyor, road or rail. Local infrastructure including water, gas, electricity, sewerage and telecommunications will be located in this precinct.”
- Restricted Development Precinct.
- Environmental Management/Materials Transportation Precinct. This was described to include:
“To provide infrastructure where it is essential for transportation between the Industry Precinct and the port in a manner which ensures areas of ecological significance are recognised and managed taking into account environmental values.”
[33] The areas of these precincts within the APSDA are depicted in a map contained in Schedule 2 to the development scheme.
[34] Clause 8 of the development scheme provides:
“8. Land Use Approval
(1) Subject to this development scheme, no person shall carry out development (as defined in the Act) on any premises in the Abbot Point State Development Area without the approval of the Coordinator-General.
(2) The Coordinator-General shall have regard to the intent, objectives and purpose of the land use precincts and policies within this 14
development scheme in considering the suitability of proposed land uses.
(3) Schedule 1 identifies the uses considered highly likely to meet, that may meet, or are considered likely to compromise the purpose of the Abbot Point State Development Area.
(4) The Coordinator-General shall hold for inspection details of decisions issued in respect of the use of premises within the Abbot Point State Development Area.”
[35] Schedule 1 to the development scheme is headed “Consistent Use Table”. By reference to this table, it can be said that:
(a) for the “Infrastructure and Corridors Precinct” an “infrastructure facility” falls under column A, which means it is a use which is “considered highly likely to meet the purpose of the land use designation”;
(b) for the “Environmental Management/Materials Transportation Precinct”, an “infrastructure facility” falls under column B, which means it is a use which “may meet the purpose of the land use designation”.
[36] For the purpose of these uses, the term “infrastructure facility” is defined in cl 2(2) of the development scheme to include “a road, railway, bridge or other transport facility”.
Grounds of review
[37] At the hearing before me, the applicants limited their case for seeking judicial review to the following grounds:
(a) No reasonable decision maker could have concluded that the railway was significant, because it terminated at a point some 15 to 20 kilometres west of the port facility without any consideration given to how it would get from that point to the port for shipping (“the unreasonableness argument”);
(b) In considering the economic and social significance of the railway, the Governor in Council failed to take into account the fact that:
(i) constructing the railway over the railway corridor would not connect the Alpha coal mine site to the port and Hancock had no other arranged or planned rail link to make the connection;
(ii) the route for the railway was not finalised (“the relevant considerations argument”);
(c) By approving an area of land which was greater than that required for the railway, as having economic or social significance, the Governor in Council exceeded the authority given under the SDPWOA and erred as a matter of law (“the improper purpose argument”);
(d) In considering the economic and social significance of the railway, the Governor in Council took into consideration the impact of infrastructure and 15
development not within the proposed rail corridor when those matters were irrelevant to the proper determination of the issue (“the irrelevant consideration argument”).
The Rail Corridor terminates at the APSDA
[38] The applicants‟ “unreasonableness argument” and “relevant considerations argument” both turn on the fact that the Rail Corridor terminates at the western boundary of the APSDA, at a point some 15 – 20 kilometres from the site of the Abbot Point port.
[39] The first argument is based on the contention that the decision in this case was unreasonable in the Wednesbury sense,2 i.e. that the decision was so unreasonable that no reasonable person could have come to it.3 Wednesbury unreasonableness is concerned with the judicial review of abuse of discretionary powers.4
5 [40] In East Melbourne Group Inc v Minister for Planning, Ashley and Redlich JJA observed6 that to be successfully impugned, the decision “must be one so devoid of any plausible justification that no reasonable person could have reached it”. Their Honours continued:7
“183 A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision – there being illogical findings, or inferences of fact unsupported by probative material or logical grounds. “Irrationality” thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness.
184 Where the requisite opinion has been formed, the courts will interfere where there is an “absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends”. Where all of the evidence points one way, and the opinion rests upon a contrary view, there will be jurisdictional error because the decision will not be supported on logical grounds by the material adduced. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs, McHugh J, with whom Mason CJ agreed, held that important parts of the reasons of the delegate were, upon consideration of the evidence, in error and could not be supported on any reasonable basis. If the facts disclose no basis for the decision, it will be invalidated without, as McHugh and Gummow JJ state is S20, any distinction being drawn between errors of law and fact. Likewise, in S20 Kirby J emphatically rejected the notion that a decision that is “perverse”, “illogical” or “marred by patent error” can be immune from correction because it is a decision about the facts. Further, where by the decision-maker‟s own criteria it can be seen
2 Associated Provisional Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223. 3 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, per Mason J at 41; JRA s 20(2)(a) and s 23(g). 4 Minister for Immigration v Eshetu (1999) 197 CLR 611, per Gummow J at [124]. 5 (2008) 23 VR 605. 6 At [181]. 7 At [183] – [184]. 16
that the factual result is perverse, the decision may be struck down on the grounds of unreasonableness.” (omitting citations)
8 [41] In Minister for Immigration v SZMDS, Crennan and Bell JJ analysed the relevantly recent authorities concerning jurisdictional error being found on the basis of a decision being “irrational” or “illogical”, and noted9 that:
(a) if “rationality is a separate free standing common law standard for good administrative decision making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as ““Wednesbury unreasonableness””;
(b) it appears to be allied to the principle that extraneous reasons should not be taken into consideration but relevant considerations must be;
(c) it also appears allied to the principle that fact finding must be based on probative material.
[42] Their Honours then pointed out some difficulties or complications which arise from importing notions of “irrationality” and “illogicality” in this context, not the least of which is the clear overlap with at least part of the accepted meaning of “unreasonableness”. Their Honours said:10
“In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.” (emphasis added)
[43] In advancing the unreasonableness argument, the applicants submitted:
8 (2010) 240 CLR 611. 9 At [124]. 10 At [130] – [131]. 17
(a) Acknowledging that the Rail Corridor terminates at the western boundary of the APSDA, the second respondent did not propose any means by which the facility would connect to the port. No submission about this was made in the application, nor was any consideration given to it in the decision;
(b) When one looks at the APSDA, there was no existing infrastructure corridor within the APSDA near the Rail Corridor‟s termination point;
(c) When making the decision, the Governor in Council was aware that the Rail Corridor ended at the termination point on the western boundary of the APSDA;
(d) The reasons conclude that the railway is economically or socially significant because it will “open up” the Galilee Basin to the exploitation of thermal coal from the port at Abbot Point;
(e) There is no consideration in the reasons of what might be required before the railway could cross the APSDA, nor is there any consideration of what further steps (such as compulsory acquisition of land) would be required to connect the railway to the port. To the contrary, the Governor in Council accepted the second respondent‟s submission that aside from needing government assistance during construction of the railway for incidental road closures and accessing land, the second respondent did not envisage requiring State assistance once construction of the Rail Corridor was complete;
(f) The Governor in Council determined that the proposed railway was economically significant because it opened up the export of coal from the Galilee Basin through the port. One of the essential facts necessary to reach that conclusion was that the railway could and would link with the port, but this was an essential fact which was ignored;
(g) The Governor in Council did not consider who owned the land between the termination point and the port or whether connection to the port would require the Coordinator-General to take land within the APSDA by exercising the powers under s 82 of the SDPWOA;
(h) The lack of any evidence to support a connection from the termination to the port is a “fatal flaw in the railway as applied for”. The infrastructure identified by the application is not a railway to the port, but is a railway to a point some distance from the port, without any connection to the port. An incomplete railway is not rationally capable of assessment as infrastructure of significance because until it is connected to the port it cannot function as a railway to the port so as to have that significance. The Governor in Council must have assumed a fact that was not dealt with in the application, or in documents considered as part of the application, mainly that the railway would connect to some other railway across the APSDA to the port. This factual assumption was critical to the conclusion of significance reached. The lack of any basis for this assumption infects the decision as unreasonable and irrational;
(i) The second respondent‟s contention that because: 18
(i) it wished to use land in the APSDA for a railway to link to the port; and
(ii) the Coordinator-General may be entitled to take land under s 82 of the SDPWOA for infrastructure purposes,
there was sufficient evidence such that a reasonable decision maker could have concluded that the railway would be constructed to link to the port does not bear scrutiny. The Governor in Council was required to make the decision based on the material available at the time of the decision, and was not entitled to ignore the fact that the railway proposed under the application would need to link to the port from the termination point at the western boundary of the APSDA;
(j) To the extent that it was found that the Rail Corridor was significant, the assumption that it would link to the port was unsupported by the evidence. Such a conclusion was only able to be rationally made if consideration had been given to how that connection was proposed to be achieved. There was no such consideration;
(k) Any suggestion by the second respondent that the connection of the railway to the port is a fait accompli (in the sense that whatever steps needed to be taken by the Coordinator-General to link the railway to the port would be taken) falls foul of the proposition that this was a critical question, the determination of which was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”;11
(l) No reasonable decision maker in the circumstances of the present case could have reached the conclusion that the railway would join to the port without considering whether or how that would occur. Without the connection of the railway to the port the infrastructure of the railway could not achieve its aim or the significance required. The approval of the railway as having that significance was made unreasonably.
[44] In oral argument, counsel for the applicants addressed in considerable detail the numerous references in the second respondent‟s application and other documentation given in support of the application which advanced a scenario under which there was an assumption that the Rail Corridor would link to the port, and also highlighted the absence of evidence to sustain that assumption.
[45] It is as well to recall at this juncture that the decision which is sought to be impugned is the decision under s 125(f)(ii) to approve the Rail Corridor as an infrastructure facility that has significance, particularly economically or socially, to Australia, Queensland or the region in which the facility is to be constructed. It is also to be noted that s 125(2) expressly requires that when considering whether the infrastructure facility has that significance, “the potential for the facility to contribute to community wellbeing and economic growth or employment levels must be taken into account”. Section 125(3) mentions matters, namely the
11 The applicants cited in this regard Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 74 ALJR 992 per Gummow and Hayne JJ at [38]. 19
contribution the infrastructure facility makes to agricultural, industrial, resource or technological development in Australia, Queensland or the region, as relevant considerations in assessing the potential referred to in s 125(2).
[46] Thus, the decision with which this case is concerned required an assessment and consideration of future potential, not of present certainty.
[47] Considerable time was spent in the oral and written submissions by counsel for all parties identifying those passages in the Statement of Reasons, the Explanatory Memorandum and the documentation which had been lodged in support of the application which expressly referred to the railway delivering coal to the port and those which referred to the Rail Corridor terminating at the boundary of the APSDA. It is unnecessary for present purposes to recite these at length. It is clear that the Rail Corridor, which was the subject of the application, terminates at the western boundary of the APSDA. This was evident in the second respondent‟s application for approval. So much was expressly acknowledged in the Statement of Reasons, for example at page 262:
“For the purposes of the Application the Rail Corridor consists of that part of the railway from the Alpha Coal Mine to the western boundary of the Abbot Point State Development Area.”
[48] Importantly, material lodged in support of the application also made clear that the continuance of the railway across the APSDA to the port was to be the subject of separate application. In the course of the application process, the second respondent provided responses to concerns which had been raised by one of the applicants and stated:
“Hancock notes that the application for infrastructure facility of significance does not include rail works within the Abbot Point State Development Area (SDA). These will be covered under separate process with the Department of Infrastructure and Planning pursuant to their SDA requirements. Hancock has been in discussion with the State regarding access to the railway to the SDA, and believes it has reached agreement on possible alignments within this area which do not affect other potential alignments within the area.”
[49] The Statement of Reasons records (at page 263):
“The infrastructure facility to which this Application relates consists of the main railway line from Alpha Coal Mine to the western boundary of the Abbot Point State Development Area. Hancock Coal proposes other rail infrastructure, not the subject of this approval which will include a loadout loop at the Alpha Coal Mine site and unloading loops at the port.”
[50] A number of observations need to be made at this point. The first is that the passages to which I have just referred in the Statement of Reasons make it clear that, contrary to the applicant‟s submissions:
(a) the decision maker appreciated that the infrastructure facility which was the subject of the application did terminate at the western boundary of the APSDA;
20
(b) the second respondent had, in fact, proposed the means by which there would be a connection with the port – this involved separate dealings with respect to the APSDA;
(c) the decision maker did give consideration to the means by which the infrastructure facility referred to in the application would connect to the port.
[51] Secondly, it is clear that the present decision was not an exercise of the power to acquire land compulsorily under s 125. Nor was it a decision in relation to the APSDA; in particular, it was not a decision in relation to the allocation of precincts within the APSDA, the use of particular land for particular purposes within the APSDA, or the compulsory acquisition pursuant to s 82 of the SDPWOA of land contained within the APSDA. This decision under s 125(1)(f)(ii) went to whether the infrastructure facility referred to in the second respondent‟s application had the significance described in s 125(1)(f)(i).
[52] Counsel for the applicants acknowledged that assessment of potential requires that regard be had to events which are going to happen in the future. It was argued, however, that the assessment of the infrastructure facility as one of significance calls for a present assessment, i.e. an assessment of its present significance as a facility to be constructed. In my view, this is an unduly restrictive interpretation of what is required for the purposes of s 125(1)(f)(ii).
[53] The issues for decision under s 125(1)(f)(ii) are not wholly dissimilar from those considered by Debelle J in Pupfan Pty Ltd v State of South Australia.12 The legislation under consideration in that case permitted a Minister to declare an application to be for “a project of major environmental, social or economic significance”. In regard to that legislation, his Honour said, at [14]:
“A determination that a development is of major environmental, social or economic importance may be a difficult and complicated task. The expression “of major environmental, social or economic importance” is not a term of art. It requires consideration of a number of different factors. There is no objective criterion by which it is possible to determine that question. A proposed development may be of major environmental importance or of major social importance or of major economic importance or a combination of those criteria. There will be questions as to the relevance of particular factors and as to the weight to be attached to the factors which are identified as relevant.”
Debelle J said further, at [17]:
“The question whether a development is of major environmental, social or economic importance is, therefore, not a question of fact but a conclusion based on an assessment of facts and opinions and involving the exercise of a value judgment in circumstances where there are no objective criteria which assist in reaching the ultimate conclusion. At the risk of repetition, the word “major” requires comparisons to be made so that reasonable minds may legitimately differ on that conclusion. Although courts are able to apply criteria, however imprecise, if Parliament requires them to do so (R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400 at 403 per King CJ), the terms of s 46 involve questions where the
12 (2003) 86 SASR 195. 21
criteria are so imprecise and the ultimate conclusion is so debatable that I do not think that Parliament intended the course to determine this question. Certainly, it is not clear from the terms of s 46(1) that Parliament has required the courts to do so. To adapt the remarks of Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 538, the structure and the language of s 46(1) do not compel the conclusion that the Minister may only form the opinion that a declaration should be made whenever the objective facts establish that the proposed development is of major environmental, social or economic importance. See also Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466 per Black CJ and on appeal Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297.”
[54] In the present case it is, in my view, clear that the decision making process for the purposes of s 125(1)(f)(ii) was evaluative, and involved the making of a value judgment. That the decision making process is evaluative is made clear by the opening words of s 125(2), which prescribes consideration of whether the facility “would be of economic or social significance” (underlining added). That is further reinforced by the requirement that “the potential for the facility to contribute” be considered. According to the Macquarie Dictionary (3rd ed) the primary meanings of “potential” are:
“1. possible as opposed to actual; 2. capable of being or becoming; latent”
Consideration of potential is not, as was suggested by the applicants, limited to a narrow present assessment, but requires a prospective evaluation. The decision maker was required to look at what was proposed and make an evaluation of what may be possible in the future as a consequence of the construction of the railway in the Rail Corridor.
[55] Importantly, and contrary to the applicant‟s contentions, the decision maker here did not decide that the Rail Corridor would open up mining. Rather, the decision maker (at pages 282-283) identified that the Rail Corridor had the necessary economic significance through, amongst other things:
“Potentially opening up the Galilee Basin to encourage other large scale mining projects in the area, which will have further flow on economic benefits at the national, State and regional levels.” (underlining added)
[56] The decision in this case did not require an assessment of the actual mode of transport of coal from the Galilee Basin to the port. What it did require was a consideration of whether what was proposed, i.e. a railway situated within the Rail Corridor, which self evidently would provide a significant component in the linking by rail of the Galilee Basin to the port, had the significance referred to in s 125(1)(f)(i). In considering that issue, the decision maker referred to, and relied on, numerous matters, including:
(a) there is no existing infrastructure suitable to allow transportation of coal from the Galilee Basin to Abbot Point, or to any other port, for exportation – this fact was unchallenged, and is undoubtedly true;
22
(b) the second respondent “is proposing to construct a standard gauge, stand alone railway of approximately 495 km in length from its Alpha Coal Mine in the Galilee Basin to the Port at Abbot Point” – this is also correct. This accurately describes the totality of the project proposed by the second respondent. But this application was not concerned with the totality of the project. It was patently concerned only with that part of the project between the Galilee Basin and the western boundary of the APSDA. Implementation of the proposed project across the APSDA involves, as has already been noted, a different statutory and regulatory regime. That does not mean, however, that assessment of the economic and social significance of the Rail Corridor should occur in a conceptual vacuum. The assessment of the potential for the Rail Corridor, as an infrastructure project, to have the economic and social significance referred to in s 125(1)(f), s 125(2) and s 125(3) necessarily involved something more than assessing matters on the basis that the rail line would terminate arbitrarily at the western edge of the APSDA.
[57] Counsel for the first respondent made the following submissions:
“45. The proposed railway was 495 kilometres long, and would cost $2.2 billion to construct. It would employ 1000-1200 people during construction, and 150-200 operational staff. There was a proposal for unloading loops at the port. There are enormous thermal coal reserves in the Galilee Basin. Global consumption of thermal coal is increasing, and rail transportation is required to move coal from the Galilee Basin to Abbot Point, which is the State‟s preferred location for exporting coal from the Galilee Basin. Mining of coal in the Galilee Basin will increase export revenues and mining royalties. The lack of infrastructure has precluded large scale mining of the Galilee Basin to date.
46. Having regard to those factors, it can rationally be inferred that a rail connection from the termination point to the port will be made. It could not rationally be inferred, that within a declared State Development Area adjacent to the State‟s preferred port for exporting Galilee Basin coal, a railway line would not be built between the termination point and the port. For the Governor in Council to conclude that there was no prospect of such a connection would be perverse. The Abbot Point State Development Area development scheme contains an Infrastructure and Corridors Precinct. The Coordinator-General has power to acquire land in the State Development Area for the establishment of an infrastructure corridor. Is it seriously suggested by the applicants that a likely or even possible outcome is that large sums of money will be spent to transport coal to a place near a port, but it will be left stockpiled there with nothing else done to have it shipped to export markets?” (omitting citations)
[58] Even allowing for its rhetorical flourishes, this submission, it seems to me, completely addresses the applicants‟ contention that no reasonable decision maker could have reached the conclusion that the railway would join to the port without considering whether or how that would occur. In truth, this was not the decision which needed to be made. The decision here required an evaluative assessment of the significance of the infrastructure facility being the Rail Corridor (itself a 23
significant part of the overall project of linking the Galilee Basin coalfields to the port at Abbot Point) with a requirement that this assessment take into account the potential of the Rail Corridor to contribute to, inter alia, economic growth. It was sufficient for the purposes of forming an opinion as to the significance of the Rail Corridor that there was a sufficient basis to identify the potential for the Rail Corridor to contribute to, relevantly, economic growth. The fact that realisation of that potential involves, or may involve, processes (including statutory procedures relating to the APSDA) beyond the purview of the Rail Corridor itself does not diminish or detract from the logic or rationality of the decision maker‟s approach.
[59] I am not satisfied that it has been demonstrated that the decision to approve the Rail Corridor as having the significance described in s 125(f)(i) was one which no reasonable decision maker could have made.
[60] The applicants‟ alternative argument was that the failure of the Governor in Council to consider that the second respondent had no legal right or demonstrated ability to connect the railway from the western point of the APSDA to the port was a failure to consider a relevant consideration. It was argued that, in considering the economic and social significance of the proposed railway corridor, the Governor in Council was bound to consider the potential for the railway to contribute to community wellbeing and economic growth. It was submitted:
“The stated purpose which the railway was to achieve, being the transportation of coal from the mine sites to the Abbot Point port, was clearly a matter which was relevant to the consideration of whether the railway was economically significant. The conclusion as to significance hinged on the finding that the infrastructure facility would “open up” the Galilee Basin to the export thermal coal market and the economic benefits which would flow from that occurring.”13
[61] This submission, however, misapprehends both the nature of the decision required to be made under s 125(1)(f)(ii) and the relevant finding which was made in the course of the Statement of Reasons. As is noted above, the relevant finding related to the potential for the Rail Corridor to open up the Galilee Basin to encourage other large scale mining projects in the area, which would have further flow on economic benefits at the national, State and regional levels. To the extent that there were relevant considerations which the decision maker in this case was bound to take into account14, s 125(2) prescribed that in considering whether the infrastructure facility would be of economic or social significance the Governor in Council had to take into account “the potential for the facility to contribute to community wellbeing and economic growth or employment levels” (underlining added).
[62] As I have noted above, it is clear that the Governor in Council did take into account the fact that the Rail Corridor which was the subject of the application terminates at the western boundary of the APSDA, that the second respondent had proposed a means by which the railway built in the Rail Corridor would connect with the port, and that consideration was given to the means by which the infrastructure facility would connect to the port.
13 Submissions of the applicants at [60]. 14 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 39. 24
[63] A decision maker‟s reasons “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.15 In my view, a fair reading of the Statement of Reasons reveals that, in considering the potential, as required by s 125(2), the Governor in Council did give consideration to the fact that there is a part of the proposed railway which was not the subject of the present application, being that part which will cross the APSDA and which will be subject to other processes outside of s 125.
[64] I would therefore reject the applicants‟ “relevant considerations” argument.
Approving an area of land greater than that required for the railway
[65] This argument turns on the fact that the footprint for the Rail Corridor in respect of which approval under s 125(1)(f)(ii) has been given is some 500 metres wide, whereas the Rail Corridor within which the railway will ultimately be built will occupy a strip of land which will only be up to about 100 metres wide. The applicants submitted:
“As defined in s 125(16), the „infrastructure facility‟ is the proposed railway. The application designated a “footprint” for the railway 500m wide. The footprint identified the land which would be taken under s 125. The footprint land is at least five times wider than the width of the corridor of land required for the purpose of the railway to be constructed or for any purpose incidental to it.”16
[66] It needs to be recalled that the subject of this approval under s 125(1)(f)(ii) is the infrastructure facility described as the “Alpha Coal Rail Corridor Project”. The question for determination by the Governor in Council was whether that infrastructure facility had the significance prescribed by s 125(1)(f)(i). The terms of the area of land in respect of which such approval was sought to operate was described in the Statement of Reasons at page 263:
“Hancock Coal anticipates that the final Rail Corridor will be approximately 60 to 100 metres in width. This will include the land required for the track itself, as well as drainage, access roads and other infrastructure necessary to support the railway. For the purpose of this approval Hancock Coal is seeking a footprint of 500 metres in width (250 metres either side of the nominal centre line). This footprint will be refined as the project proceeds to the construction phase.”
But again, it needs to be recalled that the approval under s 125(1)(f)(ii) is of an infrastructure facility, not of an area of land. Once the infrastructure facility is approved as having the significance described in s 125(1)(f)(i), then, and only then, is the Coordinator-General empowered to exercise the powers of compulsory acquisition conferred under s 125.
[67] The applicants‟ submissions, therefore, proceed on a number of mistaken premises. In particular, it is incorrect to say, as the applicants do, that the footprint “identified the land which would be taken under s 125”. A fair reading of the Statement of Reasons indicates that the approval identifies a 500 metre wide footprint within
15 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 16 Submissions of the applicants at [63]. 25
which the narrower Rail Corridor will be situated. It is the land which will be part of the Rail Corridor which will be “taken under s 125”, not the entirety of the land within the footprint.
[68] It was argued for the applicants that the decision achieved an improper purpose because the land effectively “taken” under the footprint greatly exceeded the land needed for the Rail Corridor. It was said:
“All of the infrastructure necessary to support the railway is encompassed within the 60 – 100 metre wide footprint. There is no use proposed for the area outside the 60 – 100 metre footprint. It is simply a plan to take more than necessary so that Hancock Coal can change its plans for the location of the railway.”17
[69] This, however, missed the point that the “footprint” is not the Rail Corridor. It does nothing more than identify the area within which the Rail Corridor must be located. Once the Rail Corridor is established, and the land taken within the Rail Corridor, the “footprint” effectively evaporates.
[70] The applicants also pointed to the following difficulties with the argument that the decision to approve is not a decision to take the land, but merely a decision to approve it as being of economic significance. The difficulties identified were:
(a) The Governor in Council‟s approval of the facility engages the power to take the land. The second respondent will have to comply with the guidelines made under s 174 of the SDPWOA providing for the steps to be taken before compulsory acquisition will occur. It was argued that the second respondent need only then demonstrate that it has taken reasonable steps to purchase the land by agreement before it can request that the Coordinator-General take the land under s 125(1)(f).
(b) The Governor in Council having approved the facility in respect of the whole footprint, the Coordinator-General‟s power to reduce the area or to take only part of the land underlying the infrastructure facility is unclear.
[71] In my view, however, the first of these is not a “difficulty”. Section 174 requires that the Coordinator-General make guidelines for, inter alia, the processes to be followed by proponents and the Coordinator-General for a consultation and negotiation period for the proposed taking, under s 125(1)(f), of land for infrastructure facilities. The “difficulty” identified by the applicants is nothing more than the prescription of further steps which need to be followed before the Coordinator-General can exercise the power of compulsory acquisition.
[72] The second “difficulty” confuses the decision making process under s 125(1)(f). The only decision which is presently made is a decision to approve the infrastructure facility described as the Alpha Coal Rail Corridor Project as an infrastructure facility of significance. The decision identifies that the infrastructure facility which has been approved as having the necessary significance is a “coal rail corridor and track”. It identifies that the Rail Corridor will be 60 – 100 metres wide. It also identifies that the entirety of the Rail Corridor (that being the infrastructure facility in respect of which approval has been given) will be contained
17 Submissions of the applicants at [66]. 26
within the 500 metre wide “footprint”. The power in the Coordinator-General to acquire land compulsorily under s 125 is quite separate from the decision approving an infrastructure facility as having the requisite significance. In the present case, that which is approved as an infrastructure facility of significance is a 50 – 100 metre wide Rail Corridor which is to be situated within the 500 metre footprint. The legislation does not presribe that the Coordinator-General must take all of the land within the footprint. Rather, s 125 empowers the Coordinator-General to “take land for ... an infrastructure facility that is ... of significance”.
[73] Finally, it was contended by the applicants that the respondents‟ arguments elide the legality of a decision to approve a facility by reference to identified land. It was said that, irrespective of whether a discretion exists for the later acquisition of land, the purpose for approving it must still be limited to that prescribed by the SDPWOA, namely being an infrastructure facility of significance. A fair reading of the Statement of Reasons does not, however, reveal any such “difficulty”. The Statement of Reasons makes clear that the infrastructure facility that has been approved as being one of significance is a Rail Corridor which will ultimately be approximately 60 – 100 metres in width, and which will be situated within the 500 metre wide footprint referred to in the Statement of Reasons. It is land contained within the Rail Corridor which may ultimately be the subject of the Coordinator- General‟s power to acquire compulsorily, but that is not a matter which needs to be determined for the purposes of approving the Rail Corridor as an infrastructure facility of significance.
[74] Accordingly, I am not persuaded that the applicants have demonstrated that the decision to approve the infrastructure facility was infected by improper purpose.
Irrelevant considerations
[75] The final argument advanced by the applicants was that the Governor in Council took into account matters that were not included within the ambit of the project as proposed, namely:
(a) the royalties and other economic benefits to be received from the export of an additional 30 Mtpa of coal from the proposed Kevin‟s Corner mine which would not occur without the construction of three passing loops, a loadout loop and a spur line not part of the proposed Rail Corridor; and
(b) the opening up of the Galilee Basin to other coal producers, when the assumptions as to the operation of the Alpha Coal and Kevin‟s Corner mines would mean that the proposed Rail Corridor was at full capacity and would not be able to meet the demands of other users without the construction of additional infrastructure, not within the capacity of the railway as proposed.
[76] It was submitted for the applicants:
“76. The railway proposed in the rail corridor was a single standard gauge railway which was only sufficient to transport 30Mtpa of coal. This was the estimated throughput of the Alpha Coal mine. The railway which was approved as being of significance would not be capable, without the construction of additional infrastructure not within the proposed rail corridor, of carrying additional coal or of opening up the Galilee Basin to the export of coal through the port. Yet despite 27
this, in determining that the infrastructure facility was of significance, the Governor in Council took into consideration:
a) the increase in royalties from the Kevin‟s Corner mine;
b) the fact that the railway would provide Hancock with „the ability to successfully produce the coal from ... the Kevin‟s Corner mine for export‟;
c) the fact that the rail corridor would open up mining of thermal coal in the Galilee Basin;
d) the flow on economic benefits form the opening up of the Galilee Basin, including the growth of the coal industry in Queensland, and increase in royalties payable to the state and an increase in Australia‟s export revenue as well as leading to enhanced local infrastructure such as power, roads, water and communications.” (omitting citations)
[77] Counsel for the applicants argued that the assessment of the potential for the facility to contribute to community wellbeing and economic growth was confined to assessing only the effect of the railway and associated infrastructure “as proposed”.
[78] There are, however, a number of difficulties with the applicants‟ arguments.
[79] The first is that it is clearly not correct to say that the only facility proposed was a railway sufficient to transport 30 Mtpa of coal. The details of what was proposed are sufficiently recorded in the Statement of Reasons under the subheading “Details of the Infrastructure Facility” (pages 262-263):
“The proposed railway is a single standard gauge railway, approximately 495 kilometres long, from Hancock Coal‟s Alpha Coal Mine to Abbot Point that will accommodate between 30 and 60 Mtpa of coal throughput from the Galilee Basin. For the purposes of the Application, the Rail Corridor consists of that part of the railway from the Alpha Coal Mine to the western boundary of the Abbot Point State Development Area. An area of land for marshalling yards (including maintenance facilities) to be located south of the Rail Corridor near the Abbot Point State Development Area is also included in the Application.
Hancock Coal is proposing to use the Rail Corridor to transport 30 Mtpa of coal from its Alpha Coal Mine, and a further 30 Mtpa of coal from Hancock Galilee’s proposed Kevin’s Corner Mine following the development of that mine, including the construction of a loadout loop and a spur line from the loadout loop to the Rail Corridor, by that company. The railway track has been designed to carry 60 to 80 Mtpa. Five passing loops along the length of the mainline will allow capacity of 30 Mtpa. An additional three passing loops will increase that capacity to 60 Mtpa. Additional passing loops and rollingstock will allow capacity to be increased to at least 80 Mtpa, and selective partial duplication will enable tonnages to be further increased. This will allow the railway to provide enough capacity to transport coal from other mines in the Galilee Basin area to Abbot Point.” (emphasis added) 28
[80] The second is that it is again necessary to recall that the decision in this case required the decision maker to make an evaluative judgment about the potential for the facility to contribute to community wellbeing and economic growth or employment levels. It would have been unrealistic to the point of perversity for the decision maker to consider that potentiality only from the perspective of the very minimum proposed under the facility, or indeed only from the perspective of the construction of the facility itself. An evaluation of its potential to contribute to community wellbeing, economic growth and employment levels clearly called for a consideration of the facility in the broader community and economic contexts to which it would potentially contribute. In a context where there currently is no rail link between the Galilee Basin and an export port, it would be a completely artificial exercise for the decision maker, when assessing the potential of this particular facility, to ignore:
(a) the fact that the Rail Corridor, as proposed to be initially constructed, would provide a means of transport of coal from the Alpha coal mine;
(b) the fact that there is a proposal for development to occur at the Kevin‟s Corner mine, including a loadout loop connecting to the Rail Corridor, and that the railway proposed for the Rail Corridor can accommodate the transport of coal from that further source;
(c) the potential for other coal producers in the Galilee Basin to utilise the means of transport of coal provided by the Rail Corridor.
[81] In short, it was clearly relevant for the decision maker, when assessing the potential of the Rail Corridor to contribute to community wellbeing, economic growth or employment levels, to have regard to the potential contribution the Rail Corridor could make to resource development in the Galilee Basin. The matters complained of by the applicants were, in my view, clearly relevant to making an evaluative assessment that the Rail Corridor is of significance “particularly economically or socially, to Australia, Queensland and the Fitzroy and Mackay regions” for reasons including that it will have economic significance to the Fitzroy and Mackay regions, Queensland and Australia through, inter alia (at page 283):
“(g) by providing the means through which coal from the Alpha Coal and Kevin‟s Corner Projects can be exported, indirectly contributing to long-term sustainable jobs; and
(h) potentially opening up the Galilee Basin to encourage other large scale mining projects in the area, which will have further flow on economic benefits at the national, State and regional levels.”
[82] These, and the other economic indicators now complained of by the applicants were, in my view, relevant to the Governor in Council‟s conclusion that the Rail Corridor “will make an important contribution to resource development in the Galilee Basin area and the relevant region, as well to Queensland and Australia more generally, pursuant to S 125(3) of the SDPWO Act” (at page 283), and the similar finding made in relation to the Rail Corridor‟s positive contribution to economic growth and employment levels within the Fitzroy and Mackay regions and within Queensland and Australia. 29
[83] I am not persuaded that the applicants have demonstrated that the decision maker took irrelevant considerations into account in making this decision.
Conclusion
[84] As noted above, other grounds of challenge mentioned in the application for judicial review were not pursued at the hearing.
[85] Accordingly, there will be the following orders:
1. The application is dismissed;
2. The applicants shall pay the respondents‟ costs of and incidental to the application, to be assessed.
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