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Australia – Supreme Court Declares Part 5 Permission Void.

10 July, 2012

 

Baker v Minister for Employment Skills and Mining & Anor & QCLNG Pipeline Pty Ltd [2012] QSC 160

 

In brief

 

  • On 22 June 2012 the Queensland Supreme Court declared void the decision of the former Minister to grant a part 5 permission under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (P&G Act) that gave QCLNG access to construct and operate a gas pipeline on a property in Eidsvold.
  • QCLNG's application for the Part 5 permission did not contain a precise description of the land over which the part 5 permission was sought. QCLNG had realigned the route of the pipeline on Mr Baker's property pursuant to his requests, however, the route was not clear in QCLNG's application material or consultation notice. In short, the map included was of insufficient scale.
  • Justice Dalton found that the landholder was denied procedural fairness as he was not provided with relevant material, including detailed mapping showing in sufficient detail the route of the pipeline through his property, in sufficient time to consider the issues.

 

Legislative framework

 

QCLNG holds a point-to-point pipeline licence under the P&G Act. This pipeline licence does not give the holder the right to enter land to construct or operate the pipeline, rather if the licence-holder does not own the property, it must obtain an easement over the property or the landowner's written permission.

 

If negotiations for an easement or the landowner's permission fail, the licence-holder can then apply for a part 5 permission.

 

In the part 5 permission application, the applicant must show the steps it has taken to come to terms with the owner of the land in question and provide notice to the affected landowners about the application (consultation notice). This consultation notice must provide sufficient particulars describing the land and provide for a consultation period of at least 20 business where the applicant can consult with landowners about the proposed permission and enabling owners to lodge submissions about the proposed part 5 permission. At the expiry of the 20 day consultation period, the Minister may then grant or refuse the part 5 permission.

 

Landholder's appeal

 

QCLNG provided Mr Baker with a consultation notice on 16 January 2012 and then made the application for part 5 permission to the Minister on 20 January 2012. Mr Baker's lawyers were provided with the part 5 permission application on 24 January 2012 and subsequently made a submission on 14 February 2012 (the last day of the 20 day consultation period). QCLNG then provided supplementary submissions to the Minister on 15 February 2012 and two days later the Minister granted the part 5 permission.

 

During negotiations, QCLNG agreed to realign the pipeline but in correspondence to Mr Baker's lawyers indicated that they may be pursuing the original route through the Coordinator General or Minister in the event that an agreement could not be reached.

 

 

For further information, please contact:

 

Peter Vaughan, Partner, Ashurst

peter.vaughan@ashurst.com

 

Ashurst Energy & Project Finance Practice Profile in Australia

 

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