Lord v Broken Hill Cobalt Project Pty Ltd

[2024] NSWLEC 52

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 tracks within the Land and the capacity to make other management decisions relating to the use of the Land as a whole will be impacted during the term of the Access Arrangement. This is a loss that cannot be measured by time spent in the handling of stock as it goes well beyond that action. The interference to management and influence upon management decisions is, in the circumstances of this case, a loss capable of comprising compensable loss within the heads of loss in s 262 as it is consequential upon the deprivation of the possession or of the use of the surface of land or any part of the surface, together with the loss being consequential on the disturbance of or interference with, stock. These management considerations are likely losses within the meaning of the definition in s 262 and, therefore, comprise a compensable loss for which compensation must be determined.

44.   Further, I accept the Applicants’ submissions based upon the evidence, that it is inherent in the carrying out of the Prospecting Operations that there will be damage to the surface of the Land. Such damage arises from the disturbance to the surface of the Land and the vegetation upon it. Such disturbances include, but are not limited to, the drilling platforms and the existing and proposed use of access tracks.

45.   It is accepted that these disturbed areas of land will ultimately be rehabilitated to the satisfaction of the relevant regulatory authority, however, from the period of the commencement of access until completion of the rehabilitation there will be a lengthy period where the damage will be present. The rehabilitation of such areas after the Prospecting Operations have been completed does provide an end date to the damage but does not preclude a finding that such damage has occurred and that such damage may comprise a non-financial loss for which the Applicants are entitled to compensation. Such compensation relates to the actual period of occupation by Cobalt on the Applicants’ Land.

46.   In the circumstances of this case the evidence is that the Land is fragile. It is subject to erosion and its vegetation is sparse. That is the context within which the Prospecting Operations will occur and exemplifies the fact that the damage sustained to the Land during the period of access is not compensated for in the determination of financial losses which relate solely to the inability for the sheep to graze those areas during access. Accordingly, I find that there is the additional head of compensable loss for such damage relating to disturbed areas and consequential disturbance caused by the clearing and use of such areas.

4. By decision in Lord v Broken Hill Cobalt Project Pty Limited [2023] NSWLEC 70 (Lord No 2) I accepted that the parties were entitled in the remitter to make further submissions on the quantification of the compensation referred to in those paragraphs.

5. As a consequence of the orders made in Lord No 2 the Applicants made an application to adduce further evidence on the remitter. After considering the nature and scope of the evidence sought to be adduced, I declined to grant leave to adduce the evidence as it was beyond the scope of the matters to which the remitter related. Subsequently, each party filed submissions on the remitter and, as requested, a further hearing on the remitter was undertaken.

Cobalt’s submissions

6. Cobalt submitted that the task before the Court required a determination of a financial amount to compensate for non-financial losses. The determination of that sum was required to be undertaken on, and founded in, the evidence.

7. The “Financial loss” was limited to damage to the surface of the Land, severance and deprivation of the use of the surface of the Land and where compensated as a financial loss, it could not also be compensated for the same losses as a non-financial loss.

8. Having regard to Lord No 1 and the Access Arrangement, it appears that the Court intended to include an amount for management decisions not related specifically to the matters identified as financial losses. The “Non-Financial” sum calculated by the Court was, in the absence of any other evidence, intended as compensation for damage to the surface of the land (from commencement up to completion of rehabilitation) and “damage relating to disturbed areas and consequential disturbance to the Land which were not compensated for as part of the compensation for the inability for sheep to graze those areas during access”, together with a sum representing time spent for management decisions.

9. The Applicants bear the persuasive onus as to compensation. The Applicants were given the opportunity on the remitter to make an application to call evidence as to the impact of the Access Arrangement/exploration activities on the grazing operation, including how it is managed. Such application was ultimately refused. However, it is notable that the Applicants made forensic decisions not to adduce evidence as to the actual impact of the Access Arrangement/exploration activity on the remitter hearing, the substantive hearing and in the arbitration. The subject matter and claim for compensation required the Applicants, as graziers, to provide detailed evidence on the management of the grazing enterprise. That evidence would need to include evidence of how decisions are made to move stock, how often stock are moved and whether the proposed exploration activities impact those movements or add work to the grazing enterprise. There was no such evidence from the Applicants.

10. Having regard to the evidence, the Applicants have failed to provide any evidence upon which a quantification of the non-financial losses could be quantified and therefore they should be awarded no compensation for such losses. Notwithstanding, Cobalt maintained that it would be prepared to make the ex-gratia payment offered in Lord No 1.

Lords’ submissions

11. The Court in Lord No 1 noted that the impacts on the management of the Land go well beyond the time taken in considering the movement of stock as identified by Mr Ivey. Mr Ivey allowed an amount of $2,000 based on 1 hour of management consideration every three months, and one movement of stock per annum in relation to the movement of sheep during lambing.

12. The Applicants accept the hourly rate identified by Mr Ivey as being the appropriate rate to be applied in the quantification of compensation for the time spent on such management decisions. However, Mr Ivey’s assumed level of response underestimates the time necessary to engage in dealing with Cobalt’s access under the licence and under the Access Arrangement. The Applicants submitted that at least one hour per day for EL 6622, which was to have the most intense access, and one and a half hour per day for each of the other ELs. The timing was not related to any specific evidence of time but rather a rational assessment having regard to the long list of considerations that the Applicants would have to engage with in accordance with the Access Arrangement.

13. The Access Arrangement as determined by the Court set out the conditions under which Cobalt would be permitted to undertake the works, including damage to the Land, severance and deprivation of the Applicants’ possession of the surface of the Land. The likely consequences of the exercise of rights under the Access Arrangement for this purpose could involve the Applicants in mutual obligations in the course of performance of the arrangement which are not compensated by Mr Ivey’s analysis.

14. The Court should affirm the rates identified in Lord No 1 as the appropriate quantification for the non-financial losses.

15. Counsel for the Applicants accepted that there was no evidence before me that permitted a calculation of potential damage to the Land from the exploration activities beyond that identified as economic loss and that it may be appropriate in the circumstances for such impacts to be considered pursuant to a further claim for compensation if the damage arises pursuant to s 276 of the Mining Act.

Findings and determination

16. As identified in the Cobalt Appeal at [114] and [167]-[170] (Ward P), [173] (Mitchelmore JA) and [174] (Kirk JA) there was a deficiency in my reasons relating to the quantification of the additional items of non-financial loss identified in paragraphs [43] and [44]-[46] of Lord No 1.

17. In the Cobalt Appeal the Court found at [111], [114]-[115] that I had given sufficient reasons for finding that the impacts on management amounted to a compensable loss. However, it also found that there was an insufficiency in reasons relating to:

1. The identification of lump sum amount of $20,000 per annum per EL attributable to each category relating to management and inherent damage to the surface of the Land including:

1. how each sum was quantified;

2. why a lump sum was determined; and

3. why the lump sum was determined to be on an annual basis per EL.

See Cobalt Appeal at [114].

18. In Lord No 1 I determined:

51.   Mr Ivey’s written evidence only considered the financial losses and, therefore, was of little assistance to me in the determination of compensation for the non-financial losses. In his oral evidence he determined what he identified as a lump sum payment for inconvenience or loss of amenity. I do not consider that such sum encompasses the totality of the losses that have been identified at above as compensable losses. For those reasons, I do not accept that a single lump sum payment of $3,000 per EL is an adequate sum for compensation for the non-financial losses.

52.   In assessing compensation, I am required to undertake such assessment in the manner provided for in the Mining Regulation. Clause 91 of the Mining Regulation provides:

91 Compensation

(1)   For the purposes of section 265 (3) of the Act, the prescribed period is the period of 28 days beginning on the date on which the mining lease takes effect.

(2)   For the purposes of section 272 (1) (a) of the Act, the prescribed manner of assessing compensation is by making an assessment that has regard to the following factors—

(a)   the nature, quality, area and particular characteristics of the land concerned,

(b)   the proximity of the land to any building, structure, road, track or other facility,

(c)   the purpose for which the land is normally used,

(d)   the use of the land that is approved under any development consent that is in force in respect of the land.

53.   Doing the best I can with the evidence that is before me I consider that it is appropriate, having regard to the nature, quality, area and particular characteristics of the Land, together with the use of the Land for grazing purposes, the Prospecting Operations, and the periods on which Cobalt will have the right under the Access Arrangement to enter upon the Land, that a lump sum per annum should be payable. Such an annual payment will compensate the Applicants for the losses in connection with both the damage to the surface of the Land until such time as it is rehabilitated and the impacts upon the management of the grazing enterprise.

54.   In determining the quantum of such compensation I have had regard to the fact that Cobalt will be entitled to access the Land for 365 days each year and the time that the landholders will need to expend time each day in their farming activities to account for the presence of Cobalt on the Land. I have had regard to the award wage for a farm manager of $50/hour together with potential additional costs for vehicle and equipment, together with other wage costs for farm hands. I have had regard to the extent of damage to the Land caused by the creation of tracks, the continuation of use of existing tracks and the drilling locations in the context of the totality of the Prospecting Operations that Cobalt has identified in its works program. Doing the best I can to synthesise these losses into a lump sum, I determine that a sum is $20,000 per annum per Exploration Licence is appropriate.

19. Having regard to the evidence available to me and as identified at [53]-[54] of Lord No 1, I determined that there was compensation payable for the non-financial losses associated with:

1. Impacts upon management decisions as to land use not related to the inability to graze the land: see Lord No 1 at [42]-[43]; and

2. Damage to the surface of the Land and vegetation going beyond the drilling platforms and the use of access tracks: see Lord No 1 at [44].

20. These heads of compensation were not the subject of adverse finding in the Cobalt Appeal and are the subject matter of compensation which I must, in this remitter, quantify and provide adequate reasons for that quantification.

Compensation for management decisions

21. In the evidence, Cobalt’s agricultural expert had provided an hourly award rate for a farm manager of $50/hour. Consistent with the evidence of Mr Ivey, I consider that the management decisions would be appropriately undertaken by a person at the level of farm manager rather than farmhand. Such management decisions related to the decision-making taking into account that the nature of the access including:

1. 365 day access;

2. The length of time of the arrangement;

3. Access by heavy and light machinery across access tracks on the property that were unfenced and otherwise used for grazing activities;

4. The size of the total landholding and the impacts that size had on the capacity for casual surveillance of stock;

5. That the nature of the Land was such that the keeping of stock was dispersed across large tracts of land rather than contained in small management paddocks; and

6. Such decisions, whilst having to be made on a regular daily basis depending upon the location of the drilling platforms and access tracks, would vary in time depending upon the breeding season; nature and location of grazing and watering locations; and the actual nature of farming activity such as: the surveillance of the stock; movement of the stocks; and watering of the stock.

22. These factors were not taken into account in the calculations of loss identified in the primary evidence of Mr Ivey as financial losses. However, in oral evidence Mr Ivey considered that, if there was to be compensation for such losses a payment of a lump sum per EL for inconvenience or lack of amenity, it could be determined on a time basis and would be a nominal sum. Mr Ivey identified such nominal sum as $3,000 per EL.

23. I do not accept that the increase in management required as a direct consequence of the access arrangement is merely nominal; it is substantive and ongoing. The access arrangement provided for daily access over a significant period beyond which will be a period of access to complete rehabilitation works. The management decisions to be made will not be one- off or otherwise subsumed in normal farming practice but will be influenced by the actions taken by Cobalt at any given time. Therefore, I consider a single “nominal” payment across the ELs in the order of the $5,000-$10,000 as identified by Mr Ivey (see Lord No 1 at [31]) or the single ex-gratia payment of $3,000 per EL as adopted by Cobalt to be too low.

24. The types of activities to which the management practices would relate were identified by the Applicants by reference to the provisions of the Access Arrangement. To the extent that they identified matters that related to the surveillance of Cobalt to ensure compliance with the terms of the Access Arrangement, I do not consider that such costs are relevantly compensable as the Access Arrangement is capable of being enforced if breached and any loss associated with such enforcement would be taken into account.

25. However, the Applicants’ identification of management time to be expended was not solely reliant upon enforcement. Cobalt is required to provide a works programme annually to the Applicants. The purpose of such a works programme is to permit an understanding of the location upon the Land that the exploration works will be focussed for that period. During that period a part of the Land will be subject, not just to the exploration works, but the creation of access tracks which require input from the Applicants. Further, the exploration anticipates the movement of vehicles daily along such tracks, and the maintenance of such tracks for example by maintenance works and the watering of such tracks (if required). Such activities pose a risk of conflict between the sheep grazing uses and the exploration uses requiring a consideration of land management practices to be deployed to avoid such conflict; for example, considerations relating to stock movement being timed to avoid the traffic movements anticipated in the exploration activities and avoiding access tracks that are being maintained.

26. I accept that the quantification as an amount of time that such decision-making will undertake is difficult. That being said, it is not impossible. The Applicants know their Land and can make such decisions, as required, on a daily basis without having to maintain a system such as a time sheet. As knowledgeable and experienced graziers they can accommodate such decision-making as part of their general daily decision-making, however, such decisions would not in the usual course of their grazing enterprise have to take into account the actions of third parties. I have estimated the time spent based upon a daily/weekly basis in light of both grazing activities and the exploration activities occurring every day of the year.

22. As to the evidence available to me, Mr Ivey gave evidence at Tcpt, 21 October 2023, p 79(38-49):

HER HONOUR: Mr Ivey, you identified in the conversation with Ms Lane that there may be management decisions or diversion from daily activities to accommodate the works on the site, but you didn't take that into account because it wasn't a financial cost. If that was a loss that was compensable, how would you determine a value for that, which would seem to be different from this notion of inconvenience or loss of amenity?

WITNESS IVEY: Just thinking about it, your Honour. Perhaps the easiest and most accurate basis would be just on - on a time basis. If it takes an extra hour every two or three months to take into account the activities, or to think about some of the issues, then the time taken might be the best basis to do that.

28. Based upon the evidence of Mr Ivey, the decisions to be made would occupy approximately a 1 minute (or less) per month. As I observed in Lord No 1, I do not consider that the decision-making I have identified above is of a type that would be adequately compensated by a nominal sum. Based upon a consideration of Mr Ivey’s evidence, together with the evidence given by Mr Lord as to the management practices he employs as to stocking of his Land and the like, I consider that a sum greater than this amount is warranted in the circumstances.

29. Depending upon the daily work schedule undertaken I expect that there will be some periods where the work schedule proposed by Cobalt will require more time to consider than at others. I consider that a small period of time per week, namely 35 minutes, would adequately accommodate for such variations in time spent.

30. I have taken into account the hourly rate of a farm manager at $50/hour which, if on average 35 minutes per week (or 5 minutes per day), was spent on management decisions directly responsive to the intersection of the Access Arrangement and farm management practices, but not including time spent in consideration of “compliance” with the Access Arrangement would produce the sum of $1,521 (rounded up to the nearest dollar) per annum across the three ELs.

31. As the exploration activities are intended to continue for the period of each EL, I also consider that it is appropriate that such payments be determined on an annual basis rather than as a single sum. This reflects the ongoing management impacts. Additionally, as the evidence disclosed that the works programme would be progressive through each of the ELs and not generally undertaken concurrently it is appropriate that such annual amount be a single sum (rather than a sum per EL), as the response to the works programme would be limited to each EL successively rather than concurrently.

32. For those reasons, it is appropriate that the amount of non-financial loss referred to in paragraph 9 of Annexure F to the Access Arrangement incorporate such amount.

Impacts on the Land

33. From the virtual site inspection that was undertaken through a video presentation (due to an inability to reasonably obtain travel to Broken Hill at the time of the hearing) it was to be observed that there were areas adjacent to, but not comprising the access track that were devoid of vegetation and it could be observed that erosion and the displacement of soil in these locations had affected the surface of the Land and the vegetation upon it. It could be observed that such disturbance differed in scope depending upon its location. Whilst these observable impacts had occurred as a consequence of prior mining and exploration operations by operators other than Cobalt, it is reasonable to infer from the evidence available that such impacts could occur as a consequence of the exploration activities of Cobalt unless they were mitigated during the period of the ELs and the completion of the rehabilitation proposed on the Land.

34. In Lord No 1, I found that there was, due to the fragility of the Land, an additional compensable loss for damage beyond the direct financial loss. The question that the parties accepted falls for consideration on the remitter, was whether such losses, as they are at this point in time prospective, could be quantified.

35. I accept the submissions of Cobalt that such impacts are yet to be identified and that the likelihood of such impacts in fact occurring will depend upon the rehabilitation programme implemented by Cobalt. Accordingly, whilst such impacts on the evidence are possible, they are not yet probable.

36. Each party identified that s 276 of the Mining Act made provision for the assessment of compensation additional to the compensation determined to be payable under the Access Arrangement. Section 276 provides:

276   Additional assessment

(1)   If, after an assessment of compensation has been made, it is proved to the satisfaction of the Land and Environment Court—

(a)   that the whole of the amount paid into court under this Part has been duly paid out, and

(b)   that further compensable loss has been caused, or is likely to be caused, in respect of the land to which the assessment relates, or to other land,

the Court must, on the application of any of the parties concerned, assess that loss and order that the amount so assessed be paid by the holder of the authorisation to which the assessment relates, within the time and to the persons specified in the order.

(2)   If it is proved to the satisfaction of the Land and Environment Court—

(a)   that an access arrangement does not make provision for or with respect to compensation, and

(b)   that compensable loss has been caused, or is likely to be caused, in respect of the land to which the arrangement relates,

the Court must, on the application of any of the parties concerned, assess that loss and order that the amount so assessed be paid by the holder of the authorisation to which the assessment relates, within the time and to the persons specified in the order.

(3)   If it is proved to the satisfaction of the Land and Environment Court—

(a)   that the whole of the amount assessed by or in accordance with an access arrangement determined by an arbitrator as referred to in section 140(1)(b) has been paid in accordance with the arrangement, and

(b)   that further compensable loss has been caused, or is likely to be caused, in respect of the land to which the assessment relates or to other land,

the Court must, on the application of any of the parties concerned, assess that loss and order that the amount so assessed be paid by the holder of the authorisation to which the assessment relates, within the time and to the persons specified in the order.

(4)   The Land and Environment Court’s decision on such an application has effect as an assessment of compensation under this Division.

(5)   In making an assessment of compensation, the Land and Environment Court must have regard to—

(a)   any previous compensation agreement between the parties under this Division, and

(b)   any current or previous access arrangement between the parties that was determined, or taken to have been determined, by an arbitrator under Part 8, and

(c)   any previous assessment under this Division of compensation payable to the landholder,

with respect to the land to which the current assessment relates.

37. Whilst areas that are identified to be disturbed are to be rehabilitated upon completion of the Access Arrangement, the areas will remain disturbed until remediation is carried out in accordance with the Access Arrangement. I have taken into account that the evidence disclosed an agreement as was incorporated in the Access Arrangement, that:

5.   The compensation for land disturbed by the activities referred to in paragraph 4(a)-(c) above will be calculated on a per square metre basis of tracks constructed or cleared. Compensation will be payable for those activities by calculating the area of land disturbed and paying compensation at a rate of $0.0004212 per square metre per annum. Payments are to be made in accordance with clause 10.5 of the Access Arrangement.

6.   The compensation for land disturbed by the activities referred to in paragraphs 4(d)-(h) above will be calculated per square metre of:

a)   the direct disturbance area for each drill hole. The calculation of direct disturbance area shall be the greater of 250 square metres per drill hole or the actual area occupied by the plant, machinery and spoil for each drill site payable at a rate of $0.0004212 per square metre per annum. Payments are to be made in accordance with clause 10.6 of this Access Arrangement.

b)   The indirect disturbance area for each drill hole. The calculation of indirect disturbance area shall be calculated as the area of a circle with a radius of 250m measured from the center of any drill hole payable at a rate of $0.0004212 per square metre per annum for the period in which any drilling activity is conducted and until all plant and equipment is removed from the area of direct disturbance, rounded up to the nearest month. Payments are to be made in accordance with clause 10.7 of the Access Arrangement.

7.   The compensation for land disturbed by the activities referred to in paragraph 4(i)-(j) above will be calculated on a per square metre basis of land disturbed and paying compensation at a rate of $0.0004212 per square metre per annum. Payments are to be made in accordance with clause 10.5 of the Access Arrangement.

38. Such provisions make it plain as to the extent of disturbance to the Land during the exploration activities. Should damage beyond those periods occur, or other land than that to which such provisions relate are damaged, a further claim and assessment can be undertaken. In the circumstances the determination of any compensation for damage to the Land should await the point in time where such occurrence can be identified and particularised.

39. Accordingly, I decline to make provision for compensation in the present Access Arrangement for the prospect of such damage and therefore leave such consideration to a future application pursuant to s 276 of the Mining Act, which both parties accepted would be appropriate if I was unable to quantify any such loss on the evidence available to me.

Costs

40. The remitter proceedings being a continuation of the review of the Arbitrator’s decision the provisions of s 155(8) of the Mining Act continue to apply. I do not consider that the Applicants’ conduct is such that the usual order provided for in s 155(8) should not apply.

41. Accordingly, I will order that Cobalt pay the reasonable costs of the landholder in connection with the remitter.

Conclusion and orders

42. For the foregoing reasons, the Court orders that:

1. Paragraph 9 of Annexure F to the Access Arrangement referred to in David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126 be deleted and replaced with the words:

For each year of the Term pay a lump sum of $1,521.00 per annum. The lump sum is payable in accordance with the provisions of cl. 10.8 of the Arrangement.

2. The Respondents are to pay the Applicants’ costs of these remitter proceedings.

3. The Exhibits are returned.

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Decision last updated: 20 May 2024