Lord v Broken Hill Cobalt Project Pty Ltd

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lord v Broken Hill Cobalt Project Pty Ltd [2024] NSWLEC 52

Hearing dates:

12 December 2023

Date of orders:

20 May 2024

Decision date:

20 May 2024

Jurisdiction:

Class 8

Before:

Duggan J

Decision:

See paragraph 42

Catchwords:

MINING – remittal requiring the provision of reasons – determination of compensation for non-financial losses – s 265(3) of Mining Act 1992 – compensation for management decisions – compensation determined on an hourly rate basis relative to time spent making relevant decisions – compensation for impact on land – “additional assessment” under s 276 of Mining Act 1992

Legislation Cited:

Mining Act 1992 (NSW)

Cases Cited:

Broken Hill Cobalt Project Pty Limited v Lord [2022] NSWCA 271

David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126

Lord v Broken Hill Cobalt Project Pty Limited [2023] NSWLEC 70

Category:

Consequential orders

Parties:

David Anthony Lord (First Applicant)
David Anthony Lord as representative of the estate of the Late John Montgomery Lord (Second Applicant)
Broken Hill Cobalt Project Pty Limited (First Respondent)
Cobalt Blue Holdings Limited (Second Respondent)

Representation:

Counsel:
P Lane (Applicants)
J Reid (Respondents)

Solicitors:
Harris Freidman Lawyers (Applicants)
Lander & Rogers (Respondents)

File Number(s):

2021/256624

Publication restriction:

No

JUDGMENT

Nature of proceedings

1. The proceedings related to an appeal from a determination of an arbitrator in respect of a land access arrangement pursuant to s 155 of the Mining Act 1992 (NSW) (Mining Act). The determination of that matter was made on 12 November 2021 in David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126 (Lord No 1). The facts of the matter are identified in Lord No 1 and I adopt them (together with the defined terms) without repetition here.

2. The Respondents in Lord No 1 appealed that decision to the Court of Appeal on a number of grounds. The Court of Appeal determined that appeal in Broken Hill Cobalt Project Pty Limited v Lord [2022] NSWCA 271 (Cobalt Appeal). In the Cobalt Appeal the Respondents’ appeal was allowed in part and as a consequence the Court ordered:

1. Appeal allowed in part; and

2. Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment.

3. The paragraphs referred to in Order 2 of the Cobalt Appeal relevantly related to the following paragraphs of Lord No 1:

43.   The mere fact of the presence of people and vehicles on the Land for 7 days per week for a number of years provides an intrusion that would not be experienced but for the Prospecting Operations. This intrusion will require the Applicants to consider the presence of these persons and the activities in all aspects of their use of the balance of the Land. The mustering of their flock, the movement of stock through paddocks, the travelling along the access…