Creek v Terramin Australia Ltd - [2004] SAWC 3

WARDENS COURT OF SOUTH AUSTRALIA
RONALD CREEK V TERRAMIN AUSTRLIA LTD
TERRAMIN AUSTRALIA LTD V RONALD CREEK
TERRAMIN AUSTRALIA
V
SUSAN BARLOW, DONALD GORDON DEWAR, VALMAI JEAN DEWAR, ROBINSON HILL, MEREDITH JEANETTE HILL, MILTON ALEXANDER STIBBARD, KAY FRANCIS STIBBARD AND SANDRA GAY WHITMARSH
Ruling of Dr A.J.Cannon Senior Warden
1 November 2004

MS T COPPIN WITH DR MORIARTY FOR TERRAMIN AUSTRALIA LTD
OTHER PARTIES IN PERSON UNREPRESENTED

Hearing Date/s: 1/11/04

File No/s: 422/04, 443/04 AND 444/04

RONALD CREEK V TERRAMIN AUSTRLIA LTD
TERRAMIN AUSTRALIA LTD V RONALD CREEK
TERRAMIN AUSTRALIA
V
SUSAN BARLOW, DONALD GORDON DEWAR, VALMAI JEAN DEWAR, ROBINSON HILL, MEREDITH JEANETTE HILL, MILTON ALEXANDER STIBBARD, KAY FRANCIS STIBBARD AND SANDRA GAY WHITMARSH
Dr A.J. Cannon Senior Warden

This is an application in relation to exempt land by Terramin Australia Limited to permit a drilling program in the vicinity of the old Strathalbyn mine.
There are residences within 400 m who have maintained their exemption and they are Susan Barlow, Donald and Valmai Dewar, Robinson Hill and Meredith Hill, Milton Stibbard and Kay Stibbard and Sandra Whitmarsh and Mr Ron Creek.
There is also on Mr Creek's land an operating bore within 150 m of some of the proposed drilling. Mr Creek also has cultivated fields and some drilling may be sought on cultivated fields and also it is proposed to have a pattern of hand auger samples taken with an instrument, which I would call a four-inch post-hole borer. I use that description to make the sort of device obvious to anyone who might hear this on appeal. It is a small hand auger. Cultivated fields at exempt.
It is intended that the pattern of drilling will occur on the track alongside the Steamranger railway line. On the other side of the railway line, I am told that there is a reserve.
S.9 of the Act exempts land that is used as a railway and park lands and recreation grounds, I do not have before me and I make no ruling in relation to any exemption relevant to the railway line or the recreation ground. I am dealing only with the issues of the parties before me.
There is an interesting point that has been raised by Mr Dewar on behalf of himself and his wife. It is the issue of the extent of the exemption below ground.
S.9 exempts land that is situated 'within 400 m of a building or structure used as a place of residence'. Mr Dewar interprets that to be 400 m in any direction, including below ground, so in other words there is a hemispherical exemption of 400 m in any direction from his and his wife's dwelling.
Another way of interpreting that would be to say that it is only surface stratum that is exempted or that it is 400 m as an area and everything vertically under that area.
I note that when dealing with tenements, their boundaries are normally expected to extend vertically downwards. I note that the Mining Act allows minerals land to be declared in separate stratum. One might infer that if separate stratum has not been declared, then any exemption goes through all stratum, in other words, vertically downwards for the extent of the area.
I am not determining that today because I do not have to.
What is clear is that the proposed drilling on any view of what 400 m means is within exempt land and so it requires the exemption to be removed.
I will not go through all the authorities on exempt land, I have summarised those recently in various cases involving Southern Titanium v Heidrich and others.
This is a situation where there are competing rights over the same area of land. It has been my finding in previous cases that I should only remove an exemption if conditions can be imposed to ensure that the mining will not constitute an unreasonable imposition on the enjoyment of the proprietor's estate in and use of the land, or if there is an unreasonable imposition, adequate financial compensation is paid or can be paid.
What I need to do is to look first at the potential interferences with the interests of the exempt owners and ways of minimising those, and compensation last. If a combination of all the above cannot sufficiently address the landowner's concern, the exemption may not be able to be removed.
In this particular case I make it clear as I have several times at preliminary hearings that what I am dealing with here is consideration of whether I should remove the exemption for the purpose of the proposed drilling program. If I remove the exemption the mining company takes the risk that it may achieve some success in its drilling program and still not be able to mine in the area where it is drilling. The considerations for removal of exemption for actual mining are different from the removal of an exemption for a drilling program. I limit my orders today to the drilling program.
I note in relation to actual mining the very significant and understandable concerns of the landowners about the risk of diminishing their freehold value. It is my view that risk is not significant for a drilling program until the outcome of that drilling program when decisions are made whether mining can proceed if the drilling is successful. If the drilling goes ahead and does not reveal anything, then there is no loss because there is no potential for actual mining.
All those issues wait for another day. The issues I identify for the landowners other than Mr Creek are noise and dust. It is my view that subject to appropriate conditions I should remove the exemption to allow the drilling to occur from the point of view of the adjoining householders.
In relation to Mr Creek, I note the conditions in the standard Terramin agreement that has been tendered and I impose those as conditions for removing this exemption. I add some further conditions of my own. The conditions I impose are additional. Where there is any conflict between the conditions I impose and those in the Terramin agreement, the conditions I impose, prevail. How long do you need in total in time?
DR MORIARTY:       We would hope to have it done by the end of summer; you normally would do this sort of work in the later summer when the ground is hard and so on.
WARDEN:Could you put a definite time period on it?
DR MORIARTY:       By May which is usually when the rains start, April, May.
WARDEN:End of April?
DR MORIARTY:       This year it was June; end of April is fine.
WARDEN:The first condition I impose is that the exemption will only be removed for the purpose of the proposed drilling program. Secondly, that the drilling program will be completed by the end of April 2005. Thirdly that the exemption is removed in favour of Terramin Australia Limited, which will take all reasonable steps to limit the amount of dust created by the operation. Terramin will take reasonable steps to minimise the noise generated by the operation. If noise becomes a problem then it will monitor the noise at the identified problem location and if noise reduction measures cannot be agreed to the satisfaction of the parties I give them liberty to apply to the court to order what noise reduction may be necessary. We will wait and see. I cannot give you a blank cheque on noise.
DR MORIARTY:       No, I am just wondering what the level of noise is?
WARDEN:There are standards.
DR MORIARTY:       So it will be according to the usual standards?
WARDEN:World Health Organisation standards that are fairly widely accepted in the noise industry.
DR MORIARTY:       We are aware of those. Yes, that should be fine.
WARDEN:I do not have enough information today to express those off the top of my ahead.
DR MORIARTY:       We are aware of them.
WARDEN:If the noise is said to be unreasonable then you should be able to get someone to go out there with a noise meter, measure how much it is and from that measurement conclude whether it is unreasonable or not. If it is unreasonable, then you should be able to diminish it by either reducing the sound at the source, or putting a barrier between the two. That is a layman's version.
DR MORIARTY:       I think the sort of rig we are proposing to use won't be a problem anyway, we have been using it down there a lot.
WARDEN:If it is not a problem then I will not have to worry about it.
DR MORIARTY:       There are noisier ones, we are not going to use them.
WARDEN:My view is that if there is a reasonable complaint about noise, I should not leave it with no redress; they are entitled on the freehold residence not to have an unreasonable noise imposition. There's no infrastructure of yours that is particularly at risk, Mr Creek, apart from the bore?
MR CREEK:No, not really. Only the house and sheds are still within the 400 m limit though, as well. I haven't objected to that but it's still within the - my main concern was the bore, it still is.
WARDEN:Yes, I will come to that shortly.
I order that Terramin rehabilitate the disturbed land to the same productivity prior to the mining operation and in particular, remove, stockpile and replace topsoil in a way to minimise the loss of topsoil and to stabilise it upon its replacement.
I order that Terramin remedy any compaction, ensure no weeds or diseases are introduced to the landowners land and to ensure employees and contractors are properly instructed in relation to measures to prevent that.
I order that Terramin ensure fuel and oils are properly stored to prevent spills and take reasonable precautions to minimise the risk of starting fire and have the ability to extinguish it.
In relation to Mr Creek's bore I order Terramin to pull the existing pump and undertake a test of the bore both as to its capacity, depth and water quality before the mining commences to ensure that all holes drilled use best practice to minimise the risk of interfering with the quality and quantity of water in Mr Creek's bore.
In the event of a reduction of quantity or worsening of quality caused by the drilling to
Mr Creek's bore, Terramin is to use its best endeavours to obtain an alternative source of an equivalent quantity and similar quality of water as soon as practicable and if that cannot be obtained, to return to this court for this court to order appropriate compensation.
Is there anything else you want, apart from them not doing it at all, in relation to the bore, Mr Creek? You understand, they are going to pull the bore, they are going to test it, they have got to use best practice and if then it's shown that any damage is done, they have got to find you an equivalent amount of water and if they cannot do that, well then you come back to me and I will have to award an appropriate amount of compensation, which would have to be substantial.
MR CREEK:Yes, that's right. Am I allowed to choose who I want to do it or who to pull it up? Paul Tucker does that kind of work in Strathalbyn.
WARDEN:Do you have a view on that?
MR CREEK:I want a competent - you'd have to contact the hydrogeologist too, I would say, from PIRSA or whoever that is because they'd have all that instrumentation that he was talking about this morning; with cameras and geophysical things. I don't think the windmill chap would have that kind of instruments but I can always find out.
WARDEN:I will leave it to you to sort out.
DR MORIARTY:       There are firms that specialise in just this work, consultancy firms - you know independent ones and they are called in quite often and we know about it for mining things because we drill holes in order to obtain water supplies for operations in the outback and so on and so you can hire a contractor, he will come in and do the lot. I don't think PIRSA will do it.
MR CREEK:No, I don't think so. They will actually test it.
WARDEN:There are a couple of issues tied up in that. One is that you are dealing with equipment that has been down there a long time, whoever pulls it up wants to do it carefully or else -.
MR CREEK:I want a competent windmill repairer, which I know that he is.
DR MORIARTY:       I'm happy to consult with you on it. I don't know a competent windmill repairer so I'm happy to reach agreement with Mr Creek on that.
WARDEN:I will give liberty to apply on any of these issues if the parties cannot agree. The only other issue is whether you should give him something for running around putting lots of little holes in. Mr Creek is not too worried about since we had the conversation this morning, now he's seen the auger but -.
MR CREEK:I think I should get something for the use of the property.
WARDEN:What do you think, Mr Moriarty?
MR CREEK:I'll leave it up to you.
WARDEN:How many holes are you talking, they are only little auger holes?
DR MORIARTY:       It's very quickly done and comparatively little disturbance. What about we - I'm noticing that in this agreement that we pay for each core drill hole, which is what we're doing and not percussion as such. We pay $200, so I'd propose that - and remember the drill's there for a week or two doing this work whereas the soil sampling's going to take half a day or a day. So I would propose perhaps we pay $200 for the soil sampling, it will be a once off.
WARDEN:What do you say, Mr Creek, a couple of hundred dollars for the inconvenience?
MR CREEK:Which is that for, the soil sample or -.
DR MORIARTY:       The soil sampling.
WARDEN:That is the soil sampling, that is not the rest of it, the rest of it is in accordance with the compensation in the standard Terramin agreement.
MR CREEK:$200 for the soil sample, yes, I'll agree with that.
WARDEN:In relation to soil sampling with the auger that is permitted and $200 will be paid at the time when the sampling is undertaken. Apart from what happens if all this shows up useful material, I do not think there is more I need say right now. Anything from either of you gentlemen? I know you disagree, Mr Dewar, but that's all right.
MR DEWAR:    No.
WARDEN:No, okay. Mr Creek?
MR CREEK:No, nothing more on that, only when they drill - when they bring in their drills, then compensation for that will be -.
WARDEN:As per the standard Terramin agreement that you were given before.
MR CREEK:I don't think that's enough, not for the use of the tracks and use of the property. I think what's that work out - $25 per hole.
DR MORIARTY:       No, it's $200.
WARDEN:Each cored drill hole, these will all be cored drill holes, won't they?
DR MORIARTY:       $200 per hole plus you know we have to rehabilitate as well, it's very standard.
WARDEN:I will leave that as it is, $200. I will make a note, all drill holes on Mr Creek's land will be cored, that is part of the process of protecting the ground-water, so he gets the $200 for each.
MR CREEK:That's per hole or -.
WARDEN:Per hole and liberty to apply if anyone cannot agree on anything.
ADJOURNED 3.10 P.M.

No results found.