Special leave granted to landholder group opposing New Acland Coal Mine expansion

On Friday, 5 June 2020, the High Court granted special leave to appeal to a landholder group, Oakey Coal Action Alliance Inc (OCCA), against a decision of the Queensland Court of Appeal.

The grant of special leave is the latest step in long running litigation concerning applications by New Acland Coal Pty Ltd for an expansion of its coal mine on the Darling Downs near the town of Oakey.

After a mammoth hearing that commenced in 2015 and ran for nearly 100 sitting days and nearly 2000 exhibits, in 2017 the Land Court recommended against the grant of approvals for the expansion, principally due to concerns over groundwater impacts.

In 2018 the Applicant for the mine expansion, New Acland Coal, successfully sought judicial review of the Land Court’s decision in the Supreme Court before Bowskill J, principally on the basis that groundwater quantity was not within the jurisdiction of the Land Court to consider. Bowskill J rejected New Acland Coal’s claim of apprehended bias by the Land Court member.

OCAA appealed to the Court of Appeal against that decision and New Acland Coal cross-appealed on apprehended bias.

In 2019 the Court of Appeal upheld New Acland Coal’s cross appeal and found the Land Court member’s decision was affected by apprehended bias. It dismissed OCCA’s appeal.

However, in a second judgment, the Court of Appeal declined to set aside the Land Court member’s decision based on utility.

OCCA successfully sought special leave to appeal against Court of Appeal’s decision not to set aside the Land Court member’s decision and remit the matter to the Land Court for rehearing.

Congratulations to Dr Chris McGrath of Higgins Chambers who appeared as junior counsel with Oliver Jones to Jeremy Kirk SC of the Sydney bar for Oakey Coal Action Alliance on the application.

Stephen Keim SC

Higgins Chambers

5 June 2020