Lightning Ridge Miners Association Limited v Slack-Smith

[2013] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lightning Ridge Miners Association Limited v Slack-Smith & Anor [2013] NSWLEC 1063

Hearing dates:

9 and 10 April 2013

Decision date:

16 April 2013

Jurisdiction:

Class 8

Before:

Moore SC

Decision:

1.Pursuant to s 62(6A) of the Mining Act 1992, I determine that the cleared area on Mining Lease Application 361 is not a "significant improvement" for the purposes of s 62(1)(c) of that Act; and

2.The respondents are to pay the applicant's costs as agreed or assessed unless, within 14 days of the date of these orders, the respondents lodge notice in writing with the Court that the respondents wish to be heard as to why some other costs order should be made.

Catchwords:

"Significant improvement", "other valuable work"

Legislation Cited:

Civil Procedure Act 2005
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Mining Act 1992
Native Vegetation Act 1993
Uniform Civil Procedure Rules 2005

Cases Cited:

Kayuga Coal Pty Limited v John Earl Ducey & 4 Ors [2000] NSWCA 54

Category:

Principal judgment

Parties:

Lightning Ridge Miners Association Limited (Applicant)
Slack-Smith, Ross & Slack-Smith, Genise (Respondent)

Representation:

Mr L Moore (solicitor) (Applicant)
Mr R Hetherington (agent) (Respondents)
Solicitors
Moore & Co (Applicant)
Hetherington Exploration & Mining Title Services (Respondent)

File Number(s):

81132 of 2012

Judgment

1. SENIOR COMMISSIONER: "Muttabun" is a grazing property located some distance to the south west of the village of Lightning Ridge. It comprises a number of Western Lands Leases. Since 1981, Mr and Mrs Slack Smith have owned "Muttabun". Of the Western Lands Leases that comprise "Muttabun", one of them, WLL308, has, amongst a range of opal mining related elements located on it, a bore that was sunk by the Lightning Ridge Miners Association (the Association) in late 1996. The land upon which the bore is located is the subject of Mining Lease Application 361, an application for a mining lease that gives rise to the issues encompassed in these proceedings.

1. A little needs to be said about the bore and its location in order to provide further details of the context of the matters requiring determination by me.

1. On 16 May 1996, Blue Fame Pty Limited, a company owned by Mr Slack Smith, was granted a Mineral Claim over an area comprising a small portion of WLL308. The claim, Mineral Claim 38516 (the mineral claim), comprises an area of approximately 2500 m². Several months later, as a result of negotiations between the Association and Mr Slack Smith, the mineral claim was transferred from Mr Slack Smith to the Association. At that time, a deed was entered into by Mr Slack Smith and the Association that permitted, inter alia:

• the sinking of a bore;
• the construction of associated headworks facilities on the mineral claim; and
• use of the bore to supply water to four ground tanks located on "Muttabun".

1. The water so supplied to the ground tanks was to be available for use by opal miners for puddling (the process of washing potentially mineralised rock to remove the clay soils within which it is located). The water so supplied was also available to Mr Slack Smith to be used for stock watering purposes.

1. Mineral Claims have a tenure for one year but are renewable. The Association has consistently renewed the mineral claim since it was transferred to it and the mineral claim currently remains in effect.

1. To allow all these activities to take place, the Association obtained a bore licence from the relevant water licensing authority. It current holds what is now called a water allocation to permit use of water from the bore.

1. Later in 1996, the bore was sunk and the appropriate headworks were erected on a slab around the bore head. A protective security cage was erected and piping installed to carry the water to the designated ground tanks.

1. At the commencement of the proceedings, I inspected the bore and the area of the mineral claim. A photograph of the present bore and associated headworks is reproduced below:

1. On the way to the bore site, I was also shown a range of other facilities on "Muttabun" (including a number of fence lines with adjacent firebreaks and roads that were independent of those fence lines).

1. Sometime in the recent past, the Association determined to apply for a mining lease over an area of land identical to that encompassed by the mineral claim. To seek to effect this, Mining Lease Application 361 was lodged in mid 2010 and, later that year, the nominated purpose for which the lease was sought was amended by letter from the Association to describe the mining purpose to be in accordance with the form of words used in the Mining Act 1992 (the Mining Act):

The maintenance and use (in connection with mining operations) of a pipeline, and the maintenance and use (in connection with mining operations) of a drill hole for the conveyance of water.

1. S 62 of the Mining Act places a number of restrictions on the granting of mining leases. Relevantly for these proceedings is the element in s 62(1)(c) relating to "significant improvements". That provision is in the following terms:

62 Dwelling-houses, gardens and significant improvements

(1) A mining lease may not be granted over the surface of any land:

(a) ................., or

(b) ................., or

(c) on which is situated anything that is taken to be a significant improvement under clause 23A of Schedule 1,

except with the written consent of the owner of the dwelling-house, garden or improvement (and, in the case of the dwelling-house, the written consent of its occupant).

1. The section also requires, in order that the above provision is triggered, that the significant improvement must have been in existence at the relevant date [s62(4)].

1. The relevant date is derived by application of the appropriate element of s62(5). In this case, as the application for the mining lease is made by the holder of a mineral claim over the same land, the relevant date is that set by s62(5)(d) - namely, the date on which the mineral claim was granted. In this instance, as earlier noted, the original mineral claim was granted on 16 May 1996.

1. In this case, Mr and Mrs Slack Smith have not given their consent to Mining Lease Application 361 being granted and they claim, as provided for by cl 23A of Schedule 1 to the Mining Act that their consent is required as there is what they consider to be a "significant improvement" located on the land.

1. The provisions of cl 23A are in the following terms:

23A Identification of significant improvements

(1) A landholder of land to which an invitation for tenders will relate, or over which a mining Lease is sought, may make a claim to the Minister that something on the land is a significant improvement.

(2) A claim must be in writing, identifying the nature and location of the improvement, and must be lodged with the Director-General on or before the date specified in the relevant notice under clause 21.

(3) In the case of a claim relating to an application for a mining Lease, the Director-General must cause notice of the claim to be given to the applicant for the Lease.

(4) An applicant for a mining Lease may give notice to the Director-General of an application to the Land and Environment Court for a determination in relation to the claim.

(5) Anything identified in a claim as being a significant improvement is taken to be a significant improvement for the purposes of section 62 unless the Land and Environment Court finds that it is not a significant improvement in an application made under section 62 (6A).

1. Mr and Mrs Slack Smith have made a claim to the Minister that there is a "significant improvement" on the land subject to Mining Lease Application 361. That claim having been made, the Association does not accept that there is any such "significant improvement" on the relevant land and has exercised its right pursuant to s 62(6A) to apply to the Court for a determination of the matter.

1. To complete the description of the framework giving rise to these proceedings, it is to be noted that the term "significant improvement" is defined in the dictionary to the Mining Act in the following terms:

Significant improvement means any substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure.

The Court's jurisdiction

1. As earlier noted, if there is a dispute about whether or not s 62(1)(a), (b) or (c) applies in a particular case, s 62(6A) permits a party to apply to the Land and Environment Court for a determination of the matter.

1. Although s 293(1)(w) of the Mining Act only nominates, inter alia, disputes relating to s 62(1)(a) and (b) as specifically being within the jurisdiction of the Court, I am satisfied that s 293(1)(x) brings disputes relating to s 62(1)(c) within the Court's jurisdiction. The terms of sch 1 cl 23A(5) of the Mining Act reinforces this opinion.

The matters to be determined

1. Before turning to describe the aspect of the land subject to Mining Lease Application 361 that is the subject of the dispute, it is appropriate to enunciate, with precision, what are the matters requiring to be determined in these proceedings. Two matters require such determination. They can be stated simply in the following terms:

• Was that which is said to constitute the "significant improvement" a "significant improvement" that was in existence as at 16 May 1996? and
• If it was a "significant improvement" as at that date in 1996, does it remain a "significant improvement" today?

1. In addition to describing the two matters that require determination, is also appropriate to note expressly that, given the nature of the material tendered in the proceedings and some of the submissions made by Mr Hetherington, the agent for the landholders, initially, on behalf of the landholders (although not subsequently pressed in his final submissions), these proceedings are entirely confined to those two narrow matters.

1. These proceedings do not encompass or permit consideration of any complaint (that the landholders believe that they have) concerning other aspects of the mining lease application process nor any other concerns that they might have relating to what they may perceive to be the consequences of the granting of Mining Lease Application 361 upon the rights and obligations of either party to the 1996 deed entered into for the purposes of facilitating the establishment and use of the bore.

1. Those matters are clearly unrelated to (and irrelevant in) any consideration of the confined matters here arising. Indeed, I took care during the course of the proceedings to draw to the attention of Mr Moore, solicitor for the Association, and Mr Hetherington that I was not considering (and should not be taken to be making any observations about) those matters entirely extraneous to the two limited matters I am required to determine.

The contended "significant improvement"

1. Running north/south along the western boundary of the mineral claim and the coincident mining lease application area is an internal fence line within "Muttabun". A survey prepared by a registered surveyor for the purposes of Mining Lease Application 361 shows that the fence is 10 cm to the west and clear of the boundary of the Mining Lease Application 361 area. The element of the Association's application for a determination concerning the fence was not pressed after Mr Hetherington conceded that it was not on the Mining Lease Application 361 area and thus could not attract concern under s 62(1)(c) of the Mining Act.

1. Inside the fence, generally parallel to it and traversing the Mining Lease Application 361 area but extending beyond it (to both north and south), is a cleared ground feature that has obviously been created by human activity. A photograph of a portion of that, within the Mining Lease Application 361 area, was taken during the course of the site inspection and subsequently tendered. That photo, looking to the north, is reproduced below:

The May 1996 position

1. It is first necessary to consider whether or not that which is depicted in the photograph was, for the purposes of s 62(4), in existence in a fashion that would have it regarded as being a "significant improvement" as at the relevant May 1996 date.

1. On this question, there is a significant conflict in the evidence. Ms O'Brien, the Secretary/Manager of the Association (who held that position as at the relevant date in 1996) gave oral evidence that the nature of that which was seen during the site inspection was similar to that which had been at the location in 1996. She said that it has always been very similar to what it is now. She described that which was observed during the course of the site inspection as being "a rough bush track".

1. On the other hand, Mr Slack Smith gave evidence concerning the state of that which is depicted in the photograph as being very different in 1996. He did so in the context of a range of works undertaken by him over a period of time after he and his wife purchased "Muttabun". His evidence of the relevant works and his consequent description of thee condition of the area in dispute were in the following terms:

• In 1986, he had a bulldozer clear 12 feet wide along all fence lines on "Muttabun" including the relevant fence line;
• In about 1992, the relevant element of the fence line was graded; and
• In May 1996, the relevant area was much more clear than it is now.

1. A booklet of photographs taken by Mr Slack Smith was tendered. Within it were photographs of a number of firebreaks that had been graded along property boundary or internal fence lines.

1. Mr Slack Smith gave evidence that the state of the relevant area within the Mining Lease Application 361 area was, in May 1996, similar to that depicted in a photo taken from a grid at one of the boundaries of "Muttabun" with "Wandella". Mr Slack Smith was invited to attach a sticker to the relevant photograph identifying the firebreak of what he says was the equivalent to the standard at the disputed location in 1996. That photograph (with his identifying sticker) is reproduced below:

The approach to be taken to the 1996 position

1. If I were to conclude that the present state of the land does not constitute a "significant improvement" and I were to accept that Ms O'Brien's recollection that the position in 1996 was comparable, then there would have been no relevant "significant improvement" as at the relevant date and thus the proceedings would be rendered futile. Such an approach has an unattractive element of circularity to it.

1. If I were to conclude that there was a higher standard of improvement, consistent with Mr Slack Smith's evidence, at the relevant date in May 1996 and that this constituted a "significant improvement" at that date, the barrier in s 62(4) would be overcome and I could proceed to assess the current position on its merits

1. Both Ms O'Brien and Mr Slack Smith were forthright and clear in their evidence on the state of the disputed land at the relevant date in May 1996. There was nothing arising out of their evidence that could cause me to prefer the recollection of one over the recollection of the other. There is no photographic evidence in these proceedings that provides any assistance.

1. I do not understand that Mr Moore contested the proposition that those current works (identified by Mr Slack Smith as being relevantly comparable to those on the disputed land in May 1996) did not constitute a "valuable work" and thus would have been a "significant improvement" if present in 1996 on the disputed land.

1. As a consequence, I have concluded that the appropriate course to follow is to the take the case for the landholders at its highest and to proceed on the basis that, for the purposes of analysis of the present position, the standard of work as at the relevant date in 1996 was that described by Mr Slack Smith as being equivalent to the firebreak identified in the photograph above and thus s 62(4) does pose any barrier to my initial consideration of the present position.

The context of the present dispute

1. To understand the context in which the landholders contend that the identified area of land should now be regarded as a "significant improvement", it is necessary to recite a little of the land management framework within which the Slack Smiths operate "Muttabun". As earlier noted, the Slack Smiths purchased the property in 1981. In 1988, Mr Slack Smith circulated, to a number of government departments and instrumentalities, a document entitled "Muttabun Development Programme". A copy of this document was tendered. It sets out, in broad terms, the management strategy proposed to be adopted for the future as being:

To develop "Muttabun" into an efficient and profitable wool growing and sheep breeding enterprise.

1. Relevant to understanding matters in these proceedings, the "Muttabun Development Programme" dealt with fencing as a topic, setting out some notes concerning fencing accompanied by a diagram that showed the external and internal fence lines on "Muttabun" at the time of preparation of this development program. The section dealing with fencing was in the following terms:

• Clearing fence lines.
• Most fence lines were not readily accessible by vehicle.
• Regrowth logs and trees made servicing and repair of fences difficult.
• Mr A Colless of Walgett was engaged to clear fence lines with a D6 Caterpillar at $45 per hour.
• Mr Jackson commenced work in June 1983 and all fence lines were cleared at least 12'. Paddock roads were also cleared.
• Three tank drains were also completed.
• An earth bank was constructed on Rexeen - Muttabun boundary to control run off that had washed over the boundary fence and deposited quantities of sand along the fence area. Cost $7,800.

1. It was Mr Slack Smith's evidence that, following those works, grading had taken place in about 1992 along the various fence lines. Relevant to the specific small area adjacent to the fence line abutting the Mining Lease Application 361 land, it was Mr Slack Smith's evidence that, in 2009 he, assisted by others, had cleared suckering regrowth in the vicinity of the fence line, pushing more substantial suckers out with a loader, spraying (to poison growth in the vicinity of the fence line) and cutting of numerous branches.

1. He said that this work was undertaken in anticipation of grading along this section of the fence line but that that work had not been undertaken as he had become aware of Mining Lease Application 361 prior to undertaking that work. As a consequence of the application, he indicated, he had deferred undertaking the work.

1. Mr Slack Smith also gave evidence concerning his general policies for fire prevention including the establishment of firebreaks along fence lines; mosaic burning and fire suppression strategies. During the course of the drive to the Mining Lease Application 361 location, I was shown a number of the fence lines with their adjacent firebreaks that have been established by Mr Slack Smith as part of his property management regime.

1. Walgett Shire Council maps part of "Muttabun" as being bushfire prone land.

1. I was provided with a copy of the North West Bushfire Management Committee's Bushfire Risk Management Plan, a plan approved by the New South Wales Bushfire Coordinating Committee on 22 September 2010. The local bushfire management committee had endorsed the plan in December 2009. It was Mr Slack Smith's evidence that he accepted the obligations that arose from the plan and that, in this context, he considered that he had a positive duty to maintain appropriate firebreaks (including firebreaks adjacent to fence lines) in response to the requirements of this plan. He also indicated that the firebreaks protected the asset of the fence line itself and that, as I understood him, his attitude to construction and maintenance of firebreaks was not contingent on the formal plan but had been the practice adopted by him, in effect, since his and his wife's purchase of "Muttabun".

1. The relevant provisions of the plan to which Mr Hetherington drew my attention relate to what is described as the land management zone. The suppression objectives described for this zone (being the appropriate zone for "Muttabun") are:

• As per the land management and fire protection objectives of the responsible land management agency.
• To reduce the likelihood of spread of fires.
• To undertake mosaic burning

1. There is no greater specificity than this provided for in the plan but Mr Slack Smith has continued his firebreak establishment and maintenance program as being his response consistent with the plan.

1. Mr and Mrs Slack Smith have also entered into a Property Vegetation Plan under the Native Vegetation Act 1993. The Property Vegetation Plan was executed in late 2009 and the starting date for the clearing consent given to Mr and Mrs Slack Smith as a consequence of that approval commenced in December 2009, lapsing in December 2024. It was Mr Slack Smith's evidence that this plan incorporates a general approval for what are known as Routine Agricultural Management Activities.

1. As a consequence of what he regards as his duties under the bushfire management plan and his ability to undertake Routine Agricultural Management Activities permitted by the native vegetation legislation and his Property Vegetation Plan, Mr Slack Smith takes the view that, within his management priorities and available financing, he has a responsibility to maintain and/or upgrade firebreaks along his fence lines, this also being an activity that protects the value of the improvement embodied in the fence itself.

1. Mr Hetherington also called Mr Lehman to give evidence in support of Mr and Mrs Slack Smith's position. Mr Lehman is an experienced and long-standing grazier. Mr and Mrs Slack Smith are in the process of subdividing "Muttabun" to enable a sale of portion of it to Mr Lehman.

1. Mr Lehman gave evidence supporting the land management strategies adopted by Mr Slack Smith, particularly his strategies with respect to firebreaks in the vicinity of fence lines and in support of his broader bushfire risk management approach.

1. Mr Lehman confirmed that well maintained fences and fence lines and well maintained firebreaks added value to a property such as "Muttabun". He was familiar with the disputed land. In this context (and of relevance to the specifics in these proceedings), Mr Lehman was not asked whether he would ascribe any special value to the area on the Mining Lease Application 361 land adjacent to the fence line nor did he volunteer any opinion suggesting that he ascribed any particular additional value to that feature of the land in WLL 308.

1. In light of all of this evidence, it is appropriate to turn to other relevant topographic matters in the vicinity of the Mining Lease Application 361 land. In doing so, it is necessary to describe a short element of our drive on "Muttabun" to reach the contested land. For a period, as I understand the maps, after we crossed an internal boundary within "Muttabun", we turned to the west within WLL 308 to follow a fence line. Observable during this portion of the drive was a cleared firebreak on either side of the fence, a firebreak that appeared to have been graded in recent years. An extract of a plan provided by Mr Slack Smith showing our route in this vicinity and leading to the disputed location is reproduced below:

1. The drive along the fence line to which I have adverted above is along the line between points B and C on this diagram. The cleared firebreak along this fence line was also used as an access track (although Mr Slack Smith informed me, by two-way radio, during the course of the drive and subsequently confirmed when giving evidence), that there had been an earlier track a little to the south of the fence line that had been declared to be a "valuable improvement" by an earlier Mining Warden's determination.

1. When we reached the point marked C, at a junction in paddock boundary fences, we turned left, to the south, toward the location of the Mining Lease Application 361 land.

1. Relevant in these proceedings, the access track along which we drove from the fencing junction did not follow the fence line (that being the fence line earlier depicted in this decision) continuing to run until and beyond where it is immediately adjacent to but separated from the Mining Lease Application 361 land. As can be seen on the extracted diagram, the access track deviated from the fence line by some 60 to 100 m, at its maximum, until narrowing this gap to approach almost immediately adjacent to the fence line a little to the south of the disputed area.

1. The area between this access track and the fence line (and any remaining elements of any clearing adjacent to that fence line to its east), where they diverged, was significantly vegetated, primarily with what appeared to be comparatively immature trees but, in the vicinity of and immediately beyond but adjacent to the fence line, several substantial eucalypts of 8 to 10 m in height could be seen.

1. In cross-examination, by Mr Moore, Mr Slack Smith gave evidence that the road to the east acts as a firebreak in this vicinity; he agreed that the other side of the fence was not maintained as a firebreak; the road that is to the east and is up to 100 m from the fence line is an adequate firebreak and is maintained and used for that purpose; and he does not need to have a firebreak on every fence line as he can use roads for this purpose.

1. I note that the "road to the east" to which he referred in giving this evidence is the access track running north/south along which we drove to reach the Mining Lease Application 361 land.

The approach to the statutory framework

1. In his closing submissions, Mr Hetherington took me to a 1992 decision of the (then) Chief Mining Warden, proceedings which also involved Mr Slack Smith. Relevantly to the process that I am undertaking, the Chief Mining Warden said:

A road or track may be constructed by means of building up, grading or by general usage and whether or not a particular road or track or other feature comes within the category of being a valuable improvement will depend on evidence as to its nature and use.

1. Although the terms of the legislation at the time of this decision were different and the concept of a "significant improvement" in the present statutory framework is defined in the current legislation, the current statutory process required by s 62(6A) clearly continues to remain one of an assessment of fact and degree in the circumstances of the particular work about the status of which there is a dispute.

1. It is, perhaps at the risk of being unnecessarily repetitive, appropriate to quote again the relevant definition from the Dictionary in the Mining Act:

Significant improvement means any substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure.

Applying the statutory framework to the present circumstances

1. I have commenced this analysis by assuming that, for the purposes of s 62(1)(c) of the Mining Act, the element of the Mining Lease Application 361 land that is the subject of these proceedings was, at the relevant date in May 1996, a "significant improvement". I have done so on the basis of Mr Slack Smith's evidence to enable me to undertake an assessment of the landholders' position at its highest. Doing so does not require my adoption that that was, in realty, the position at 1996, but merely making that assumption (as this is necessary to invoke the requirement that I consider whether or not that which is in dispute constitutes a "significant improvement" at the present time).

1. Although in a differently framed statutory context but with the essential wording elements being identical, the Court of Appeal considered, in Kayuga Coal Pty Limited v John Earl Ducey & 4 Ors [2000] NSWCA 54, the framework of words requiring consideration in these proceedings. A number of general propositions relevant to my consideration arise from the leading judgment of Meagher JA. Consistent the process endorsed Kayuga Coal, I adopt the following as relevant to this dispute:

• Fences can constitute an "other valuable work";
• Firebreaks in general, when appropriately maintained and functional, can constitute "other valuable works";
• The combination of a fence and appropriately maintained and functional protective firebreaks on one or both sides is, in combination, a further type of "other valuable work" in addition to its component elements being so.

1. Each of these elements, by being an "other valuable work" becomes a "significant improvement" for the purposes of s 62(1)(c) of the Mining Act - thus triggering the requirement for the consent of the owner of the "valuable work" to any mining Lease application encompassing such a work.

1. As earlier observed, consistent with the position adopted by the (then) Chief Mining Warden, well-maintained access tracks may also be appropriate to be so regarded. Although the then wording of the statute was in different terms, I do not consider it to be relevantly distinguishable from the present legislation.

Matters determining the status of the presently disputed element

1. Adopting, for the purpose of this consideration, Mr Slack Smith's description of the 1996 situation and my observation during travel to the dispute's site of firebreaks of the type to which he drew attention and in the photographs he had taken and were in evidence, there are a number of significant areas of difference between what he describes as the 1996 position and that observed during the site inspection. The significant areas of difference may be summarised from the evidence and the site inspection as follows:

• There is, now, no firebreak observable to the west of the fence line immediately adjacent to the disputed land;
• Apart from the limited, vegetation directed maintenance activities in 2009 (which did not involve any physical works to the land itself - merely to vegetation), there has been no maintenance of any access track or firebreak along the eastern side of the fence line since the work Mr Slack Smith said was undertaken in 1992, over 20 years ago;
• Although, on Mr Slack Smiths evidence, the disputed land might have some element of utility in the prevention of spread of fire, it is not relied upon by Mr Slack Smith as the established firebreak in this vicinity - that function is performed by the access track to the east at distances of up to 100 m from the fence line; and
• The access track that acts as a firebreak in the immediate vicinity of the bore is only some 50 m or so from the fence line and some 40 m or so from the eastern edge of the area in dispute.

Conclusion

1. In truth, Ms O'Brien's description of what we observed on site - that the disputed element is a "rough bush track" is the correct description of the relevant feature located on the land. Such a rough bush track cannot, in the context of the present site, be regarded as being an "other valuable work" as at April 2013. Its state is such that it cannot serve any reasonable purpose as an access track in light of the availability of the well-maintained track a short distance to the east. Its state is also such that it cannot serve any necessary purpose as an firebreak in light of the adoption by Mr Slack Smith of the well-maintained track a short distance to the east as the feature upon which he relies for that purpose.

1. Although that which was present in 1996 may have constituted a "significant improvement" at that time, I am unable to conclude that the nature of that which presently exists to the east of the fence located immediately to the west of the western boundary of Mining Lease Application 361 could now be regarded as a "significant improvement".

1. I am fortified in this conclusion (based on the evidence and observations during the site inspection and at the subsequent hearing) by the fact that, during the course of his evidence, Mr Lehman was not invited to (and did not volunteer) that he ascribed any value to the disputed land in circumstances were he was giving evidence concerning the value and desirability of firebreaks in the vicinity of fence lines for the purposes of both fire spread prevention and the protection of the valuable assets embodied in the fence itself.

Costs

1. In its originating Summons, the Association sought an order that the landholders pay the Associations' costs.

1. As the Chief Judge's delegation to me is pursuant to s 42 (and not s 36) of the Land and Environment Court Act 1979, I have and may exercise the functions of the Court. The exclusion contained in R3.10 of the Land and Environment Court Rules 2007 (the Rules) preventing Commissioners from making general costs orders for matters in Classes 1, 2 and 3 does not apply to proceedings in Class 8and I am vested with the general costs ordering power under s 98 of the Civil Procedure Act 2005.

1. As the restrictions in R 3.7 of the Rules on making costs orders does not apply to Class 8 proceedings, R 42.1 of the Uniform Civil Procedure Rules 2005 creates the presumption that costs follow the event.

1. As there was no detailed argument about costs during the hearing, I propose to order that the respondents pay the applicant's cost as agreed or assessed unless, within 14 days of the date of the orders below, the respondents lodge a notice in writing with the Court, addressed to me, that the wish to be heard as to why there is some reason that some other costs order should be made.

Orders

(1) Pursuant to s 62(6A) of the Mining Act 1992, I determine that the cleared area on Mining Lease Application 361 is not a "significant improvement" for the purposes of s 62(1)(c) of that Act; and

(2)   The respondents are to pay the applicant's costs as agreed or assessed unless, within 14 days of the date of these orders, the respondents lodge notice in writing with the Court that the respondents wish to be heard as to why some other costs order should be made.

Return of exhibits

The exhibits, other than Exhibits A, B and 5, are returned.

Tim Moore

Senior Commissioner

*******

Decision last updated: 17 April 2013