One of the amendments introduced to the Environmental Protection Act (EP Act) by the Environmental Protection (Chain of Responsibility) Amendment Act 2016 (Chain of Responsibility Act) was a requirement that the Land Court could only stay a financial assurance decision if the holder of the environmental authority (EA) had provided 75% of the amount of financial assurance sought by the Department of Environment and Heritage Protection (DEHP).
The Land Appeal Court has now provided guidance on these amendments and on when the Land Court can stay a financial assurance decision without the EA holder providing the 75% payment.
Jonathan Fulcher and Elizabeth Harvey review the decision in Alphadale Pty Ltd v Chief Executive Department of Environment and Heritage Protection  QLAC 6, where HopgoodGanim acted for the successful appellant (the applicant for the stay).
- If a stay application is made to the Land Court pending internal review of a financial assurance decision, and before any appeal is filed to the Land Court, section 522 and section 522A of the EP Act will apply, and the financial assurance decision can only be stayed if the 75% payment is provided.
- If a stay application is made to the Land Court after an appeal has been filed to the Land Court, section 522 and section 552A of the EP Act will not apply, and a financial assurance decision can be stayed without the 75% payment.
When is the 75% payment required?
The Chain of Responsibility Act introduced a new section 522A to the EP Act, which states that the Land Court may not grant an application made under section 522 for a stay of a decision on the amount of financial assurance required under a condition of an EA, unless DEHP has been given security of at least 75% of the amount of financial assurance sought.
In the Alphadale decision, the appellant was successful in arguing that section 522 and 522A (and therefore the requirement to pay 75%) did not apply. The following facts applied to the appellant’s situation:
- DEHP made a decision on the amount of financial assurance required for the appellant’s EA (an “original decision” under the EP Act);
- The appellant sought internal review of the financial assurance decision pursuant to section 521 of the EP Act. On internal review, DEHP confirmed the original decision (a “review decision” under the EP Act).
- The appellant appealed against the review decision to the Land Court, and sought a stay of this decision pending the determination of the appeal.
The appellant argued that section 522, and therefore section 522A of the EP Act did not apply to its stay application, as section 522 only applies pending internal review and before an appeal is lodged to the Land Court. The appellant argued that once an appeal was made to the Land Court, the Land Court had jurisdiction in the appeal, and had power to grant a stay pursuant to section 7A of the Land Court Act.
The Land Appeal Court accepted the appellant’s argument and confirmed that the main purpose of section 522 is to give the Land Court power to stay an original decision pending internal review by DEHP.
The Land Appeal Court held that once an appeal is made to the Land Court, the Land Court’s power to grant a stay pending the determination of the appeal pursuant to section 7A of the Land Court Act. Section 7A puts the Land Court in the same position as a court of unlimited jurisdiction, which does have power to stay a decision of the executive to prevent an appeal right being nugatory.
On review of the evidence provided to the Land Court below, the Land Appeal Court stayed the financial assurance decision, without requiring the appellant to make any additional payment.