Practical guidance for environmental professionals on

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Practical guidance for environmental professionals on writing and

interpreting conditions of approval

Dr Chris McGrath

28 August 2019

Hopgood Ganim, Brisbane

This seminar is aimed at both:

• local and State government staff in Queensland who must write and enforce conditions; and

• environmental professionals in the private sector who must interpret what they mean.

I am not going to attempt to describe every rule for writing and interpreting conditions; rather, I want to focus on the main rules that apply in everyday situations.

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What I am aiming for in this seminar is a useful blend of theory & practice – things that you take and apply at

your desk tomorrow.

2‐page handout & 14‐page seminar paper available

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Because this seminar is aimed at Queensland professionals, it focuses on conditions imposed under the Planning Act 2016 (Qld) (for the development sector) and the Environmental Protection Act 1994 (Qld) (EPA) (for the mining sector).

Some reference is also made to conditions at a federal level under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) as it is relevant to all sectors.

Recognise that, in practice, staff copy a lot, don’t work in isolation, and don’t need to start from scratch when writing conditions.

Standard conditions, templates and organisational management structures mean that staff assessing applications and writing conditions do not work in isolation and do not “start from scratch”.

Staff, therefore, do not themselves need to be experts in creating a comprehensive, lawful set of conditions.

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While you don’t start from scratch, a deeper and more 3D understanding of conditions is

useful for any work involving them – like solving a Rubik’s cube.

Photo: Getty Images / BBC

General reference for other introductory and more detailed lectures - http://envlaw.com.au/category/lectures/

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Seminar outline(built around 2 practical examples of problems involving conditions)

1. Case study of conditions in Sincere International Group PL v GCCC [2018] QPEC 53 (DA conditions)

• What does an application apply to do and what does approval of it include?

• Assessing an application and writing conditions.

(Handout points 1-9)

2. Case study of Acland Mine (EA conditions)

• Interpreting conditions after approval is granted to determine whether a contravention has occurred.

• Fixing mistakes and problems in conditions.


Note: I thought hard about examining the recent controversy on the approval of the groundwater management plan under conditions imposed on the Adani mine & the complex problems of using conditions of approval with adaptive management of groundwater.

That’s timely but, ultimately, I decided it was not the best real world example for this seminar.

See Lee (2014) 31 EPLJ 251 for an excellent examination of these complex problems.

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Two real world, practical examples of problems involving conditions:

o Sincere International Group PL v GCCC [2018] QPEC 53 (DA conditions)

o Acland Coal Mine (EA conditions)

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20 km

Location of land involved in appeal in Sincere International Group v GCCC [2018] QPEC 53 – Arundel Drive, Gold Coast

Brisbane

Gold Coast

5 km

Gold Coast

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500 m

Napper Road

The purpose of the reconfiguration is to create 67 community title lots, common property and two balance lots. The balance lots are identified as Lots 900 and 901. Condition 7 and 2a of the decision notice dated 8 May 2018 require Lots 900 and 901 to be amalgamated and dedicated to the Council, at no cost. The purpose of the dedication is stated in condition 7 as being “Public open space for environmental conservation purposes”.

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200 m

Google Streetview image from roundabout over land

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Land included in the low density residential zone under the GC City Plan 2016

Proposed Lot 900 was not included in environmental significance overlay under the planning scheme

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The purpose of the reconfiguration is to create 67 community title lots, common property and two balance lots. The balance lots are identified as Lots 900 and 901. Condition 7 and 2a of the decision notice dated 8 May 2018 require Lots 900 and 901 to be amalgamated and dedicated to the Council, at no cost. The purpose of the dedication is stated in condition 7 as being “Public open space for environmental conservation purposes”.

Extract from Sincere International Group v GCCC [2018] QPEC 53 (Willliamson QC DCJ)

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Extract from Sincere International Group v GCCC [2018] QPEC 53 (Willliamson QC DCJ)

The full condition package imposed on the development is available on the eCourt’s website(Search for file 2116/18 on the eCourts website and see eDoc No 17)

https://www.courts.qld.gov.au/services/search-for-a-court-file/search-civil-files-ecourts

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If you are not familiar with conditions on a DA, go and look at the conditions on this approval.

Dispute over condition 7 and transfer of lot 900.

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Final version of condition 7

Practical points to take away from this case study:(see handout)

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Three approaches to writing conditions:(seminar paper, pp 7‐9)

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Choosing between detail & simplicity(seminar paper, pp 9‐10)


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Extensive (and ongoing) litigation about Stages 2 and 3 of the Acland Mine

http://envlaw.com.au/acland/

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New Acland Coal Mine

Source: QWI referral

Oakey

50 km

Brisbane

1 kmDate of image: 27 January 2019

Centre Pit

North Pit

South Pit

West Pit

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West Pit looking South, Sep 2018. Source: OCCA

West Pit

New Acland Mine looking north with West Pit in the foreground, Sep 2018. Source: OCCA

West Pit

Centre Pit

1.5 km

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New Acland MineSource: Qld Country Life (2014)

West Pit was not included in the mine layout shown in 2006 EIS for Stage 2

Location of West Pit

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Is West Pit lawful under the Stage 2 EA?

While the Stage 2 EA did not attach a map of the approved mining pits, it stated its the cover:

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Mine layout shown in 2014 EIS for Stage 3

The EA conditions for stage 3 do limit the mining activity to an

area identified in a map

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Is West Pit a breach of the EA?


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