Hillgrove Resources Ltd v Robert Denis & Raelene Margaret Gaffney - [2006] SAWC 1

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
HILLGROVE RESOURCES LTD v ROBERT DENIS & RAELENE MARGARET GAFFNEY
[2009] SAWC 11
Judgment of Warden Sprod
19 September 2006
MINING LAW
Exempt Land

HILLGROVE RESOURCES LTD v ROBERT DENIS & RAELENE MARGARET GAFFNEY
[2009] SAWC 11

This matter relates to the hearing of Plaint Note 25/06 and Plaint Note 396/06, which I directed be heard together. The parties in each matter on the one hand are Hillgrove Resources Ltd (hereinafter referred to as ‘Hillgrove’) and Mr and Mrs Gaffney, who are the registered proprietors of the whole of the land comprised in Certificate of Title Register Book Volume 4261 Folio 863, situated on Stirling Hill Road at near Strathalbyn (hereinafter referred to as ‘the Gaffney land’). At the hearing of these matters, Hillgrove was represented by Mr M. Durrant and Mr and Mrs Gaffney appeared in person.
On 3 November 2005 Hillgrove gave notice of entry pursuant to s.57 of the Mining Act seeking entry onto the Gaffney land for exploration purposes. Mr and Mrs Gaffney objected to the notice and filed Plaint Note number 25/06 which was set for hearing before me on the 18^th and 19^th days of September 2006. By Plaint Note number 296/06 filed on 13 September 2006 the Hillgrove seeks a declaration that the Gaffney land is not exempt land pursuant to s. 9 of the Mining Act or alternatively if it is exempt land an order that the land shall cease to be exempt land upon a determination of compensation and consequent orders permitting exploration on the Gaffney land.
In their proceedings Mr and Mrs Gaffney sought to establish that the Gaffney land was exempt land under s.9 of the Act but at the hearing before me Hillgrove conceded that the whole of the land in question was exempt land and abandoned their application for a declaration to the contrary effect. However, the remaining issue is whether in all of the circumstances I should make an order removing the exemption and should I decide to do so upon what terms and conditions.
The object and policy of the Act is to make mineral resources available to the community and encourage mining and I refer to the judgment of Senior Warden Dr A. Cannon in that respect in Southern Titanium NL v Heidrich and Others, dated 8 April 2004, appearing under the heading ‘The intended purpose of the Act’. I do not intend to refer in further detail to what the Senior Warden said on that occasion.
Later in his judgment, and after referring to the relevant provisions of s.9 of the Act, the Senior Warden in his judgment went on to say (page 11):
‘I most recently summarised the law in relation to exempt land in B. Selge Nominees Pty Ltd v Colin Wegener (July 2000) … I repeat my summary of the law in that case (at pages 7-9):
“The leading case in this area is my own decision in McDonald v Monaghan and French (1989) Warden’s Court Report SA pages 26-27. In that I point out that different considerations lie to removal of exemptions than in the provisions in part 9 of the Act dealing with conflicts between normal ownership of the land and mining. I said this:
‘Without reviewing the authorities in detail, it is the basic thrust of part 9 of the Act that mining shall proceed unless there is a substantial hardship to a land owner and even then, the Warden’s Court has power to mitigate or compensate such hardship by imposing conditions or applying monetary compensation for such hardship.’.”.
The Senior Warden went on to say:
‘The situation with exempt land must be somewhat different to that. The legislation recognised that ownership (as defined by the Mining Act) combined with dwelling houses and other uses, set out in s.9 shall be sufficient cause to exempt such land from mining. We should only remove such 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 alternatively if it is an unreasonable imposition that adequate financial compensation is possible for any such imposition.’.
The Senior Warden went on to consider the cases of S.X. Holdings Ltd v Riddle and Others (1990) Warden’s Court Reports SA; Amatek Ltd trading as Rocla Quarry Products v Gifford and Williams (1994) Wardens Court Reports; and Gambier Earth Movers Pty Ltd v Rhondda Truscott (1999) Warden’s Court Reports SA.
The Senior Warden went on to say in his judgment in Southern Titanium:
‘The purpose of the Mining Act 1971 (SA) is to encourage mining and the Warden’s Court should allow mining to occur where it can be done so, having proper regard to the rights of owners of the land in the terms of ownership defined by the Mining Act 1971 (SA). S.9 specifically deals with the imposition of the conditions and payment of compensation and to give it meaning, the court must consider proper ways of removing the exemptions from mining in s.9 to allow mining to occur. I see no reasons to resile from the approach in the authorities set out above.
However, as I stated in Monaghan and French, each case will depend on its particular circumstances. These are difficult cases involving attempts to reconcile competing interests and rights to the same area of land. The factors the court will take into account in dealing with these will depend on the unique circumstances of each case and the general principles that can be extracted will develop as different circumstances arise.’.
The Court conducted a view of the Gaffney land on the 18^th of September 2006 and noted that the area of the property was approximately 100 acres, the majority of which was presently sown with barley and peas. There is a small cottage situated in the south-west corner of the holding and substantial tracts of land are subject to ongoing revegetation and there is a planned orchard for the area behind and, therefore, to the general north-east of the cottage.
I heard evidence in relation to these proceedings on the 19^th September when I directed that Hillgrove present its case first.
The following affidavit and exhibited materials were received into evidence:
P1 Affidavit of Dale Ferguson, sworn on the 12^th day of September 2006 together with exhibited documents numbered DF1-DF17 inclusive.
P2 Affidavit of John Popow, sworn on the 11^th day of September 2006 and the exhibited materials thereto numbered JP1-JP6 inclusive.
It is not necessary for the purpose of these reasons to refer in any detail to the contents of either affidavit or to the exhibit materials. Both Mr Ferguson and Mr Popow gave brief additional evidence and were cross-examined by Mrs Gaffney.
In his evidence Mr Ferguson described a number of exploration activities that if permitted Hillgrove would seek to undertake on the Gaffney land.
He described those as follows:
(a)a geological assessment which would consist of looking at rock types, collecting rock samples, possibly two to three kilos in all which would be sent for analysis which at the visual stage would involve the attendance of one geologist over a one to three day period.
(b)perhaps a geologist and an assistant collecting rock chip samples for a one to three day period and soil sampling involving two field assistants and a visiting geologist over a one to two day period.
Markings of the sampled sites would either be by way of a small tag or peg or by GPS. Depending upon the generated results Hillgrove would then conduct reverse circulation drilling which would involve the attendance on the property of a drilling rig, a support truck and 4-wheel drive vehicles and might involve the drilling of one to ten drill holes with complete rehabilitation thereafter. The witness identified an area of interest within the pea crop toward the western end of the block but not in the revegetated areas or the proposed orchard area. Under cross-examination Mrs Gaffney indicated that ewes and lambs would be run on the property between harvests in both paddocks and the witness assured her that the activities would not be of a disturbing nature to those sheep.
In his evidence Mr Popow referred to D17, an access protocol which he said Hillgrove undertook to respect if permitted entry onto the Gaffney land.
I then heard evidence from Mrs Gaffney who told me that she and her husband purchased the Gaffney land about five years ago after a long search for a property suitably situated with views, the potential to earn income and which would be suitable for revegetation and upon which they could retire. She said that she and her husband had spent hundreds of thousands of dollars on the property and were devastated when they received the notice of entry from Hillgrove proposing the various exploration activities as contained in that notice. She told me of the significant income that they derived from the property from cropping and sheep grazing that enabled them in part to pay their mortgage. She told me that their plans, dreams and quiet enjoyment of the property, which was a productive one, were ruined as a result of this application and that she feared substantial hardship, damage and financial loss if a mine were established on the property. She said that she and her husband sought the protection of their investment, their rights and their enjoyment provided by s.9 of the Act and she maintained that any exploration or mining would be inconsistent with and incompatible with their use and enjoyment of their property. She was understandably quite emotional whilst describing she and her husband’s intended future enjoyment of their land. She indicated that they had proposed moving to the property this year but had delayed doing so because of these proceedings.
Mr Gaffney did not give evidence.
At the conclusion of evidence I received from Mr Durrant, on behalf of Hillgrove, an outline of argument to which I will shortly refer.
It is my view, considering the object and policy of the Act, the relevant sections and in particular s.9 of the Act, and in view of the evidence that I have heard and the exhibited materials that I have considered, it is appropriate upon some terms and conditions to order that the Gaffney land shall cease to be exempt land for the purposes of carrying out limited exploration activities. I am not satisfied that an unreasonable imposition on the enjoyment of the proprietors’ estate would result from the limited activities that I intend to permit. I impose the following terms and conditions:
(a)that the period that the Gaffney land shall cease to be exempt be the period from the 1^st day of February 2007 to the 30^th day of April 2007, both days inclusive.
(b)that entry for the period referred to in (a) be for the purposes of:
(i)visual inspection
(ii)rock chip sampling
(iii)soil sampling
(iv)geological studies
(v)ground based geophysics.
All such activities in accordance with the description of those activities contained in paragraphs 37 to 41 of the affidavit of Mr Ferguson.
(c)that the previously given undertakings contained in the exhibited letter DF16 as repeated in the Hillgrove outline of argument paragraph 15 be complied with during the entry period.
and
(d)Hillgrove comply with the access protocol, Exhibit DF17, to the affidavit of Mr Ferguson.
I indicate insofar as it is necessary for me to do so that I determine that no compensation be payable by Hillgrove to Mr and Mrs Gaffney with respect to these exploration activities. However, I grant each party liberty to apply with respect to that issue and in the event that any other issues arise that are not capable of agreement then liberty to apply with respect to those issues.
I record that it is my intention that upon the completion of the exploration activities permitted by these reasons, or on the 30^th April, whichever shall first occur, that the exempt status of the Gaffney land shall revive in accordance with the statutory provision contained in s.9 of the Act.
I remind the parties that they are entitled to appeal my decision to the Environmental Resources and Development Court.