Austar Coal Mine Pty Limited ACN 111 910 822 v Mitchell

[2010] NSWLEC 74

Land and Environment Court

of New South Wales

CITATION:

Austar Coal Mine Pty Limited ACN 111 910 822 v Mitchell & Ors [2010] NSWLEC 74

PARTIES:

PLAINTIFF
Austar Coal Mine Pty Limited ACN 111 910 822

FIRST DEFENDANT
Natalie Cecile Mitchell

SECOND DEFENDANT
Michael Philip Windebank

FILE NUMBER(S):

80005 of 2009

CORAM:

Craig J

KEY ISSUES:

PRACTICE AND PROCEDURE :- order sought for access to mine by mining experts – claim for compensation pursuant to s 265 of the Mining Act 1992 – land subject to mining lease but not land beneath the surface of which mining was authorised to be carried out – only surface access necessary for determination of claim – access to mine denied.

LEGISLATION CITED:

Mining Act 1992

DATES OF HEARING:

25 March 2010

EX TEMPORE JUDGMENT DATE:

25 March 2010

LEGAL REPRESENTATIVES:

PLAINTIFF
Mr C H Withers (Barrister)
SOLICITOR
Sparke Helmore

DEFENDANTS
Mr L Livingston (Barrister)
SOLICITOR
Gye Associates Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

25 MARCH 2010

09/80005 AUSTAR COAL MINE PTY LIMITED
ACN 111 910 822 v MITCHELL & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: By a summons filed on 12 November 2009, the plaintiff seeks the determination of compensation payable to the defendants by it pursuant to s 265 of the Mining Act 1992. The proceedings have had a considerable history particularly with directions and notices of motion. Suffice it is to note for present purposes that these proceedings have been fixed for hearing for three days commencing on 28 April 2010 with the first of those hearing days allocated for a site inspection.

2 The defendant filed a notice of motion on 19 March 2010, pursuant to a direction made by the Court, seeking a number of orders of an interlocutory nature. Save for one of those substantive orders the others have been resolved by the registrar. The order that has been referred to me as duty judge is one whereby the defendant seeks access to the property which is the subject of the plaintiff’s mining lease. It seeks access to that property “including the ventilation shaft, emergency exit shaft, all structures on the land and internally within the mine.” It seeks that access for the nominated representative of the defendant on one day’s notice to the plaintiff. That access is required, so it is submitted, effectively because of what the defendant says it does not know in respect of the mining operations or activities being conducted on the land, that is to say the land the subject of the mining lease.

3 It is accepted, as I understand the submission, that standing on the land and in an area occupying a little under 800 square metres is located a brick structure in which there is to be found both a ventilation shaft and a lift access point for mining personnel. That area I am told is fenced, albeit that there is some land around the fenced area, occupying a total area of about three hectares. I am told also from the bar table that the area around the fenced area was cleared some years ago and clearing of that area is not part of the activities which the plaintiff currently undertakes.

4 Apparently there has been an exchange of correspondence between the parties in which some request has been made on behalf of the defendant to understand the activities which the plaintiff conducts within this three hectare area, or more precisely within the structures that are located on the lease area. Notwithstanding, as I am told, that the use to which those structures are put and the use indeed to which the mining lease area is put has been disclosed, the defendant says that it does not fully understand or indeed accept the statement of activities which has been provided by the plaintiff. That which is said not to be understood or not accepted as being correct falls into two categories.

5 First, it is said by the defendant that it does not know whether the shaft is used for the purpose of ventilation in the sense that it is used as the plaintiff says it is, for the intake of air to mining activities conducted some distance away, or whether, as the defendant I suspect mistrusts, it is used to exhaust air from mining activities.

6 The second aspect of the plaintiff’s activities which the defendant says it does not understand or know is whether or not coal washing activities are being conducted beneath the surface. The plaintiff, apparently in response to particulars sought and certainly to the question in open court, has said that no coal washing activities of any kind are being conducted within the area of the mining lease.

7 Those are at least two of the matters which the defendant says it does not understand and therefore justifies it in making an application to have access to the lease area, not only to the surface but also to the underground operations so far as they can be accessed from the mining lease area.

8 My attention has been drawn to the provisions of the Mining Act and in particular the provisions of Pt 13 pursuant to which compensation is to be sought and paid in accordance with the summons which the plaintiff has filed. Section 262 of the Act, which is the first provision within Pt 13, defines the term “compensable loss.” It needs to be noticed that the entitlement of a landholder to compensation is provided for by s 265, also in Pt 13, and it uses the expression “compensable loss” which must necessarily be understood in the context the definition contained in s 262.

9 The defendant relies upon three paragraphs of that definition in order to justify its claim for access:

(i) Paragraph (a) identifies the entitlement to claim compensable loss which is caused or likely to be caused by damage to the surface of land, trees, crops, grasses and the like and which arise from prospecting or mining operations;
(ii) Paragraph (b) of the definition refers to the entitlement to loss caused or likely to be caused by the deprivation of possession of the surface of the land: and
(iii) Paragraph (f) is directed to damage consequential upon (relevantly) either of those heads of compensation identified in paras (a) and (b).

10 I do not discern, at least for present purposes, that paragraph (f) would extend the operation of paras (a) and (b) of s 262 so as to entitle the examination of the mining activities as potentially founding a basis for compensation.

11 Furthermore, my attention is drawn to s 276 of the Mining Act which clearly contemplates that if, following a determination of the entitlement of a landholder to compensation for compensable loss within the meaning of s 265, it be proved that further loss has been caused or is likely to be caused in respect of the land to which the assessment relates then this court is able to entertain that application and in accordance with the provisions of Pt 13 order the payment of further compensation.

12 The existence of that provision seems to me to deal substantially with the concern which underlies the defendant’s request for access and to understand further the detail of the mining operations. It enables a further assessment of compensation to be made in the event that the consequences of the plaintiff’s activities occur in a way that is inconsistent with the manner in which activities are currently being conducted.

13 The plaintiff has indicated that it would not oppose access being given to appropriate experts retained on behalf of the defendant for the purpose of making any surface observation or examination of the area which is the subject of the mining lease. While I entertain considerable doubt as to whether the necessity for that inspection has been made out, I am concerned that in the time available and in light of the concerns which the defendant has expressed through its counsel, that the hearing of this matter should be delayed or frustrated by a point being raised which it is said at the time of hearing needs some further investigation.

14 In order to assist the expeditious disposal of the proceedings I think it appropriate that access in accordance with the offer made by the plaintiff be available to an expert or experts retained by the defendant. That access should be allowed to enable them to carry out any surface investigation that is reasonable, including inspection of those structures which are observable at the surface, and to carry out any tests such as an acoustic test that may be required, or an air quality test that may be required. I do note that directions have already been given for the filing of evidence and the time for that to have been done has long since passed. Clearly, if there is to be further evidence, leave will need to be sought to adduce it.

15 Accordingly, the orders that I make are as follows:

1. The defendant, by no more than two engineers and a legal practitioner, is to have access to the property being Lot 3 in Deposited Plan 714067 for the purpose of inspection of the structures used by the plaintiff for the purpose of carrying out its mining activities or activities associated with its mining.

2. Access in accordance with order 1 is to be had not later than 1 April 2010 provided that the plaintiff is given not less than twenty-four hours notice of the intention of the defendant’s experts and legal practitioner to enter the site.
3. Liberty is reserved to the defendant to make any further application for inspection of subsurface works in the event that, upon the basis of proper evidence, the need for such inspection is established, any such further application for access to be made by way of notice of motion filed not later than Tuesday 6 April 2010.
4. Otherwise order 3 of the orders sought in the defendant’s notice of motion dated 19 March 2010 is dismissed.
5. Stand proceedings over for hearing Wednesday 28 April 2010.
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