Lester v Ashton Coal Mining Operations Pty Ltd (No. 2) - [2011] NSWLEC 177

Land and Environment Court

New South Wales

Case Title: Lester v Ashton Coal Mining Operations Pty Ltd and Anor (No. 2)

Medium Neutral Citation: [2011] NSWLEC 177

Hearing Date(s): 18 August 2011, 27 September 2011

Decision Date: 13 October 2011

Jurisdiction: Class 4

Before:
Sheahan J

Decision:
1. Access is granted to the Applicant, Mr Scott Franks, and experts appointed by the Applicant for the purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, regarding the extent of work and consequential impact on Aboriginal sites within the area of ML 1533 by the activities of the First Respondent.
2. The persons to be granted access in accordance with Order 1 are the following:
i) Robert Lester (Applicant) and Native Title claimant and traditional owner
ii) An expert archaeologist
iii) An expert in mine engineering, and/or a geologist/geomorphologist/subsidence specialist
iv) Scott Franks, Aboriginal Heritage specialist and Native Title claimant and traditional owner
3. The areas of ML 1533 to be inspected are the Aboriginal sites known as, and referred to in these proceedings, as:
i) The Oxbow site
ii) The Grinding Groove site (also referred to as the Waterhole Site)
iii) The Pleistocene site
iv) The Fishtrap site.
4. It is envisaged in the making of these orders that the inspection will take at least one full day, with provision for a second day if required, and the Office of Environment and Heritage is to be notified by the First Respondent of the date and time of the inspection.
5. Officers of the Office of Environment and Heritage and any experts retained by the Office of Environment and Heritage are granted access to attend any such inspection, and have permission to record discussions during any such inspection.
6. The names and curricula vitae of the experts attending the inspection are to be provided to all parties.
7. Within 7 to 21 days of the completion of the inspection any of the parties may approach the Registrar to include the matter in the List Judge's list at the earliest opportunity, with a view to the making of further directions, including as to the disposition of any outstanding or further interlocutory applications.
8. Costs of 5 August, 18 August, and 27 September 2011 are reserved.
9. The exhibits are to remain in the court file for the present.

Catchwords:
PRACTICE AND PROCEDURE: Application for access to the subject site.

Legislation Cited:
Evidence Act 1995
National Parks and Wildlife Act 1974
Uniform Civil Procedure Rules 2005

Cases Cited:
Ashton Coal Operations Pty Ltd v Director General, Department of Environment Climate Change and Water [2011] NSWLEC 1162
Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011]
NSWLEC 116
Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249
Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Blue Mountains Conservation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWLEC 177
Decision Date: 13 October 2011

CaseChat Overview and Summary

The case of Lester v Ashton Coal Mining Operations Pty Ltd (No. 2) involved the applicant, Mr Robert Lester, a native title claimant and traditional owner, who sought access to specific sites within the area of ML 1533 for the purpose of inspecting and preparing reports regarding the extent of work and the impact on Aboriginal sites. The respondents were Ashton Coal Mining Operations Pty Ltd and the Office of Environment and Heritage. The dispute centred on whether the applicants were entitled to inspect the sites and have experts prepare reports on the work done and its impact on the sites.

The primary legal issue was whether the applicants were entitled to the inspection and reports under the circumstances presented. The court needed to determine whether the applicants had standing to seek such an inspection and whether it was necessary and appropriate for the preparation of expert reports to be conducted in this case. Additionally, the court had to consider whether the respondents were justified in opposing the inspection and whether the Office of Environment and Heritage had any role in this matter.

The court granted access to the applicants and their experts for the inspection and preparation of reports, finding that the applicants had standing and that the inspection was necessary. The court reasoned that the inspection was crucial for the preparation of expert reports that would provide insight into the extent of work and its impact on the Aboriginal sites. The court further determined that the respondents were not justified in opposing the inspection and that the Office of Environment and Heritage had a legitimate interest in the proceedings. The orders included detailed provisions for the inspection, the experts involved, and the notification and recording of the discussions during the inspection.

The final orders included granting access to the applicants and their experts, specifying the sites to be inspected, setting timelines for the inspection and the submission of reports, and reserving costs. The exhibits were to remain in the court file for the present. The court's decision provided a clear framework for the inspection and the preparation of reports, ensuring that all parties had the opportunity to participate and contribute to the resolution of the dispute.

Orders

Orders of the court

1. Access is granted to the Applicant, Mr Scott Franks, and experts appointed by the Applicant for the purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, regarding the extent of work and consequential impact on Aboriginal sites within the area of ML 1533 by the activities of the First Respondent.

2. The persons to be granted access in accordance with Order 1 are the following:

i) Robert Lester (Applicant) and Native Title claimant and traditional owner

ii) An expert archaeologist

iii) An expert in mine engineering, and/or a geologist/geomorphologist/subsidence specialist

iv) Scott Franks, Aboriginal Heritage specialist and Native Title claimant and traditional owner

3. The areas of ML 1533 to be inspected are the Aboriginal sites known as, and referred to in these proceedings, as:

i) The Oxbow site

ii) The Grinding Groove site (also referred to as the Waterhole Site)

iii) The Pleistocene site

iv) The Fishtrap site.

4. It is envisaged in the making of these orders that the inspection will take at least one full day, with provision for a second day if required, and the Office of Environment and Heritage is to be notified by the First Respondent of the date and time of the inspection.

5. Officers of the Office of Environment and Heritage and any experts retained by the Office of Environment and Heritage are granted access to attend any such inspection, and have permission to record discussions during any such inspection.

6. The names and curricula vitae of the experts attending the inspection are to be provided to all parties.

7. Within 7 to 21 days of the completion of the inspection any of the parties may approach the Registrar to include the matter in the List Judge's list at the earliest opportunity, with a view to the making of further directions, including as to the disposition of any outstanding or further interlocutory applications.

8. Costs of 5 August, 18 August, and 27 September 2011 are reserved.

9. The exhibits are to remain in the court file for the present.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Lester v Ashton Coal Mining Operations Pty Ltd and Anor (No. 2)
Medium Neutral Citation:	[2011] NSWLEC 177
Hearing Date(s):	18 August 2011, 27 September 2011
Decision Date:	13 October 2011
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	1. Access is granted to the Applicant, Mr Scott Franks, and experts appointed by the Applicant for the purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, regarding the extent of work and consequential impact on Aboriginal sites within the area of ML 1533 by the activities of the First Respondent. 2. The persons to be granted access in accordance with Order 1 are the following: i) Robert Lester (Applicant) and Native Title claimant and traditional owner ii) An expert archaeologist iii) An expert in mine engineering, and/or a geologist/geomorphologist/subsidence specialist iv) Scott Franks, Aboriginal Heritage specialist and Native Title claimant and traditional owner 3. The areas of ML 1533 to be inspected are the Aboriginal sites known as, and referred to in these proceedings, as: i) The Oxbow site ii) The Grinding Groove site (also referred to as the Waterhole Site) iii) The Pleistocene site iv) The Fishtrap site. 4. It is envisaged in the making of these orders that the inspection will take at least one full day, with provision for a second day if required, and the Office of Environment and Heritage is to be notified by the First Respondent of the date and time of the inspection. 5. Officers of the Office of Environment and Heritage and any experts retained by the Office of Environment and Heritage are granted access to attend any such inspection, and have permission to record discussions during any such inspection. 6. The names and curricula vitae of the experts attending the inspection are to be provided to all parties. 7. Within 7 to 21 days of the completion of the inspection any of the parties may approach the Registrar to include the matter in the List Judge's list at the earliest opportunity, with a view to the making of further directions, including as to the disposition of any outstanding or further interlocutory applications. 8. Costs of 5 August, 18 August, and 27 September 2011 are reserved. 9. The exhibits are to remain in the court file for the present.
Catchwords:	PRACTICE AND PROCEDURE: Application for access to the subject site.
Legislation Cited:	Evidence Act 1995 National Parks and Wildlife Act 1974 Uniform Civil Procedure Rules 2005
Cases Cited:	Ashton Coal Operations Pty Ltd v Director General, Department of Environment Climate Change and Water [2011] NSWLEC 1162 Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Blue Mountains Conservation…