Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council

[2020] NSWLEC 66

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2020] NSWLEC 66
Hearing dates:	21, 22, 23, 24, 25, 28, 29, 30 and 31 October and 8, 14 and 29 November 2019
Date of orders:	11 June 2020
Decision date:	11 June 2020
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See orders at [475] (Matter No 242760 of 2018) and [476] (Matter No 242761 of 2018)
Catchwords:	RATING CATEGORISATION - categorisation of two assessment parcels - decisions by Council categorising lands as “mining” - applications for review of categorisation seeking to change category to “farmland” - applications covering 2016/17 and 2017/18 rating years - applications for review not determined by Council - appeals against deemed refusals by Council STATUTORY CONSTRUCTION- Valuer General aggregated both assessment parcels pursuant to s 26 of the Valuation of Land Act 1916 - impermissible to review validity of Valuer General’s aggregation pursuant to s 26 of the Valuation of Land Act 1916 - smaller assessment parcel valued pursuant to s 14F(3) of the Valuation of Land Act 1916 - impermissible to review validity of Valuer General’s valuation utilising s 14F(3) - meaning of “valued and rated accordingly” in s 14F(3) - composite expression - the Valuer General’s valuation solely fixes the value of the assessment parcel for rating purposes and does not amount to a declaration as to use for the purposes of categorisation pursuant to the Local Government Act 1993 - the smaller assessment parcel to be categorised for rating purposes in accordance with the regime in Pt 3 of Ch 15 of the Local Government Act 1993 RATING CATEGORISATION - exclusive use of part of smaller assessment parcel by coal mine - use of part of smaller assessment area by coal mine for mining activities with some grazing activities on that part - dominant use of total area of smaller assessment parcel in each year was for the purposes of the coal mine - tests in s 515 of the Local Government Act 1993 for the smaller assessment parcel to be categorised as “farmland” not needed to be considered - Council’s decisions to categorise smaller assessment parcel as “mining” in each rating year correct - appeals concerning smaller assessment parcel dismissed RATING CATEGORISATION - exclusive use of part of larger assessment parcel by coal mine - exclusive use of further part of larger assessment area as offset areas constitutes use by coal mine - use of part of larger assessment area for grazing and cropping activities with some mining activities on that part - dominant use of total area of larger assessment parcel in each year was for the purposes of the coal mine - tests in s 515 of the Local Government Act 1993 for the larger assessment parcel to be categorised as “farmland” not needed to be considered - Council’s decisions to categorise larger assessment parcel as “mining” in each assessment year correct - appeals concerning larger assessment parcel dismissed
Legislation Cited:	Local Government Act 1993, ss 514, 515, 517, 518 and 526 Mining Act 1992, s 41 Mining Regulation 2016 Valuation of Land Act 1916, s 14F(3)
Cases Cited:	Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 Ferdinands v The Commissioner of Police (2006) 225 CLR 130; [2006] HCA 5 Foodbarn v Solicitor General (1975) 32 LGRA 157 Hornsby Shire Council v Malcolm [1986] 60 LGRA 429 JAKD Pty Ltd v Randwick City Council [1998] NSWLEC 97 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 79 NSWLR 724; [2010] NSWSC 867 Liverpool Corporation v Chorley Union Assessment Committee [1913] AC 197 Mid-Western Regional Council v Peabody Pastoral Holdings Pty Ltd [2013] NSWCA 322 Peabody Pastoral Holdings Pty Limited v Mid‑Western Regional Council [2013] NSWLEC 86; (201) 211 LGERA 337 Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428 Portier v The Attorney General (2015) 89 NSWLR 284; [2015] NSWCA 129 Shire of Perth v O'Keefe (1964) 110 CLR 529 Stephen v Federal Commissioner of Land Tax (1930) 45 CLR 122 Ulan Coal Mines Pty Limited v Mid-Western Regional Council [2013] NSWLEC 1167
Category:	Principal judgment
Parties:	Mangoola Coal Operations Pty Ltd (Applicant) Muswellbrook Shire Council (Respondent)
Representation:	Counsel: Mr C Ireland, barrister (Applicant) Mr P Tomasetti SC/Mr R Lovas, barrister (Respondent)   Solicitors: Johnson Winters & Slattery (Applicant) Moray & Agnew (Respondent)
File Number(s):	242760 and 242761 of 2018
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The proceedings

The hearing

The two assessment parcels

Statutory provisions

The Local Government Act provisions

The Valuation Act

Other statutory matters

Representation

The evidence

Introduction

The expert evidence

Other evidence

The Colinta Access Licence Agreement

Admission of Mr White's evidence

Introduction

The hearing challenge to Mr White's participation

The basis of the Company's objection

The voir dire cross-examination of Mr White

Determination of the basis for Mr White’s evidence

Jones v Dunkel inferences

Use of the term “mining personnel”

The site inspection

Introduction

Mapping and boundary precision

Introduction

The reduction in size in the smaller assessment parcel

Land classification

Introduction

Mr Lane's “Class 7 adjusted” areas

Introduction

Matters requiring determination

Introduction

Onus of proof

The manner of assessment of uses

The use issues

Potential outcomes

The rating valuation of the smaller assessment parcel

The basis for aggregation of the assessment parcels

The limits on the role of the Court

Aggregation processes

A proper understanding of the function of s 14F(3) of the Valuation Act

The determined value for the smaller assessment parcel

Conclusion concerning s 14F(3) of the Valuation Act

Conclusion on Valuation Act matters

Referral to the Valuer General

Counsels’ closing oral submissions

Introduction

Mr Ireland’s closing oral submissions

Mr Tomasetti’s closing oral submissions

Mr Ireland’s closing oral submissions in reply

Categorisation of the smaller assessment parcel

Introduction

The evidence concerning the smaller assessment parcel

Introduction

The north-western element of the smaller assessment parcel

Introduction

The track network

The transmission line

Mining equipment/activities

Seed harvesting

The south-eastern element - the Sustainable Agriculture Offset area (SAO)

Introduction

The western SAO

The eastern SAO

Closing submissions concerning grazing in the SAO

The area added to the smaller assessment parcel for 2017/18

The submissions concerning the smaller assessment parcel

Introduction

The Company’s position

The Council’s position

Consideration

Characterisation of the smaller assessment parcel for 2016/17

The changes for the 2017/18 year

An introduction to categorisation of the larger assessment parcel

General overview

Introduction

The Company’s position in summary

The Council's position in summary

The mining experts’ evidence concerning the larger assessment parcel

Consideration of the larger assessment parcel

Three elements of the larger assessment parcel

The offset areas

Introduction

Consideration

The Colinta access licence land generally north of Wybong Road

Introduction

Colinta’s use of the Wybong lands

Mining use of the Wybong lands

Consideration of the use of the Wybong lands

Fencing

Weed control activities

The excluded houses and buildings

Conclusion on the Wybong lands

The Colinta access licence land to the east and south

Introduction

Transfer of the pipeline easement

The excluded house and buildings

Monitoring equipment

Screen plantings

Cropping activities

The impact of the drought on Colinta’s grazing activities

Weed control activities

Consideration

The dominant use of the eastern and south portion in the 2016/17 year

The dominant use of the eastern and south portion in the 2017/8 year

Conclusion concerning the dominant use of the larger assessment parcel

Costs

Conclusion

The smaller assessment parcel

The larger assessment parcel

Orders

JUDGMENT

Introduction

1. To finance local government councils, each council is permitted to raise a portion of that council’s revenue by the levying of a tax, known as a rate, on all properties in the relevant local government area that are liable to be charged such a levy. The legislative scheme for rating is established by the Local Government Act 1993 (the Local Government Act). For the purposes of rating, the Local Government Act mandates that all rateable properties are to be categorised. There are four different categories established by the legislation. Categorisation is effected by Council resolution allocating rateable properties into one or other of the categories that are established by s 514 of the Local Government Act. These categories are farmland, residential, business or mining. The relevant statutory provisions are later set out.

2. The Local Government Act provides that, for the purposes of calculating the rate to be levied, it is to be derived from the statutory land value for a parcel of land determined by the Valuer General pursuant to the provisions of the Valuation of Land Act 1916 (the Valuation Act). The dictionary in the Local Government Act defines a “parcel of land” in the following terms:

parcel of land, in relation to rateable land, means a portion or parcel of land separately valued under the Valuation of Land Act 1916.

3. The applicable rate levied for each category is determined by a council to operate within a particular financial year, being a financial year running from 1 July in one year to 30 June of the following year.

4. It is to be observed that rates are levied pursuant to this rating system as a variable charge based on a land valuation for rating purposes determined through the statutory valuation process conducted by the Valuer General, a process which reviews those statutory values on a regular basis and makes appropriate adjustments to those property values.

5. As a consequence of the category into which a parcel of land is assigned, different percentages of the value of a property are used to strike the rate levy for each property. Relevantly here, rates struck for properties categorised as “farmland” have a lower rate levied as a percentage in each dollar of their value than properties that are categorised as “mining”. It is this difference in the rating level for these two categories that provides the basis for these proceedings.

The proceedings

6. Mangoola Coal Operations Pty Ltd (the Company) owns extensive landholdings that are located some 18 kilometres to the west of Muswellbrook. These landholdings are in the local government area administered by Muswellbrook Shire Council (the Council).

7. For local government rating purposes, the Company's landholdings can be regarded as being in three distinct parts. The first part, not the subject of any controversy in these proceedings, is the central element of the Company's landholdings which is used for the purposes of the open-cut coal mine operated by the Company.

8. The remainder of the landholdings can be regarded, in simplistic terms, as comprising a doughnut-shaped agglomeration of many parcels of land that surrounds the area used by the mine. Aggregation processes pursuant to s 26 of the Valuation Act permit the bringing together in one nominal landholding (described for the purposes of these proceedings as “assessment parcels”) many individual parcels of land that would otherwise be separately rated. I later discuss the processes arising to permit such aggregation pursuant s 26 of the Valuation Act.

9. The surrounding land in these proceedings has been valued for council rating purposes (relevantly) in two assessment parcels pursuant to the permitted aggregation processes.

10. The Company has had the two assessment parcels that are the subject of these proceedings categorised by the Council as having the dominant use as a coal mine. The Company has exercised its right, pursuant to s 525 of the Local Government Act, to apply to the Council to change the categorisation of each of these assessment parcels. The provision that permits this application is, relevantly, in the following terms:

525   Application for change of category

(1)   A rateable person (or the person’s agent) may apply to the council at any time—

(a) for a review of a declaration that the person’s rateable land is within a particular category for the purposes of section 514, or

(b)   to have the person’s rateable land declared to be within a particular category for the purposes of that section.

(2)   An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within.

(3)   The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.

(4)   If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land.

(5)   The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application.

(6)   If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.

11. The applications for recategorisation were made by the Company to the Council on 30 May 2018. They sought recategorisation from “mining” to “farmland” with an operative date of 1 July 2016.

12. The Council had not determined the applications to recategorise the two assessment parcels of the Company's land within 40 days. As a consequence, the existing mining categorisation was taken to be confirmed.

13. Because of this, on 7 August 2018, the Company exercised its right pursuant to s 526(1) of the Local Government Act to appeal to the Court against the Council's failure to recategorise each of the assessment parcels. The appeal right-creating provision also defines the scope of the power of the Court when dealing with such an appeal. The provision is in the following terms:

526   Appeal against declaration of category

(1)   A rateable person who is dissatisfied with—

(a)   the date on which a declaration is specified, under section 521, to take effect, or

(b) a declaration of a council under section 525,

may appeal to the Land and Environment Court.

(2)   An appeal must be made within 30 days after the declaration is made.

(3)   The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.

14. For the purposes of these proceedings, the dispute between the Company and the Council is how each of those two assessment parcels is to be categorised for council rating purposes in each of the 2016/17 and 2017/18 rating years.

The hearing

15. Although originally set down for a maximum of some seven days (including two reserve days), the hearing, in fact, ran for a total of 12 days. Of those days, two days were spent on the site inspection (with the second of them also including the return from the Hunter Valley to Sydney). The transcript of the hearing comprises over 780 pages and the tendered evidence (in both electronic and paper form) comprised multiple thousands of pages of documentation.

16. Although I was only taken to limited portions of the documentary evidence, I have had to examine a wide range of the material to which I was not taken in order to obtain a proper understanding of relevant background factual information necessary to be consulted (and where appropriate, quoted) for the purposes of my analysis.

The two assessment parcels

17. As earlier noted, these proceedings involve two assessment parcels that have been aggregated pursuant to s 26 of the Valuation Act for the purposes of land valuation by the Valuer General.

18. One of the assessment parcels is significantly larger than the other. The smaller assessment parcel has been given the Assessment Identifier 121111. The smaller assessment parcel comprises approximately 727 hectares in the 2016/17 assessment year. The area of the smaller assessment parcel was approximately 578 hectares in the 2017/18 assessment year as a result of boundary alterations (including, but not confined to, the land transferred from the larger assessment parcel). The change in area has potential consequences for the issues in Matter No 242760 of 2018 concerning rating categorisation of the smaller assessment parcel.

19. The larger assessment parcel has been given the Assessment Identifier 113969. This larger assessment parcel had an area of approximately 6,617 hectares in the 2016/17 assessment year. The area of the larger assessment parcel was approximately 6,581 hectares in the 2017/18 assessment year. The change was as a result of a boundary alteration transferring 36 hectares to the smaller assessment parcel. The change in area also has potential consequences for the issues in Matter No 242761 of 2018 concerning rating categorisation of the larger assessment parcel.

20. As earlier noted, the dispute is whether each of the assessment parcels, in each of the rating years, should be categorised as “farmland” or as “mining”.

21. Although there are a range of uses conducted on these assessment parcels (particularly the larger assessment parcel), it is also to be noted, at this point, that the Company has an access licence agreement with Colinta Holdings Pty Ltd (Colinta), a cattle-grazing enterprise that operates at a number of locations across Australia. These locations are ones generally (if not exclusively) on lands in the vicinity of coal mines operated by Glencore, the parent company to the Company and to Colinta.

Statutory provisions

The Local Government Act provisions

22. There are a number of provisions of the Local Government Act which require consideration or noting in these proceedings. The first group of these provisions relates to the categories into which land in New South Wales is allocated for rating purposes. The first of these is s 514, the provision that establishes the four categories of land for rating purposes. This provision is in the following terms:

514   Categorisation of land for purposes of ordinary rates

Before making an ordinary rate, the council must have declared each parcel of rateable land in its area to be within one or other of the following categories:

•   farmland

•   residential

•   mining

•   business.

Note. Land falls within the “business” category if it cannot be categorised as farmland, residential or mining. The main land uses that will fall within the “business” category are commercial and industrial.

23. Two further provisions in this group of category-establishing provisions are engaged in matters raised by the parties to these proceedings. They are s 515 (the farmland category) and s 517 (the mining category). These two provisions are in the following terms:

515   Categorisation as farmland

(1) Land is to be categorised as farmland if it is a parcel of rateable land valued as one assessment and its dominant use is for farming (that is, the business or industry of grazing, animal feedlots, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping, horticulture, vegetable growing, the growing of crops of any kind, forestry or aquaculture within the meaning of the Fisheries Management Act 1994, or any combination of those businesses or industries) which:

(a)   has a significant and substantial commercial purpose or character, and

(b)   is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made).

(2)   Land is not to be categorised as farmland if it is rural residential land.

(3)   The regulations may prescribe circumstances in which land is or is not to be categorised as farmland.

517   Categorisation as mining

(1)   Land is to be categorised as mining if it is a parcel of rateable land valued as one assessment and its dominant use is for a coal mine or metalliferous mine.

(2)   The regulations may prescribe circumstances in which land is or is not to be categorised as mining.

24. Finally, in this group of provisions, s 518 (the business category) is to be noted because it is the default provision into which land is mandated to be categorised if it does not fall within the “farmland”, “residential” or “mining” categories. It is in the following terms:

518   Categorisation as business

Land is to be categorised as business if it cannot be categorised as farmland, residential or mining.

The Valuation Act

25. Mr Ireland, counsel for the Company, also relied on s 14F(3) of the Valuation Act as what he submitted provided the complete answer as to why it was appropriate that the smaller assessment parcel should be categorised as “farmland”. This provision of the Valuation Act is in the following terms:

14F   Valuation of mines and minerals

(1)   …

(2)   …

(3)   If any part of a mine is separately occupied by a person for a purpose other than mining, the part is taken to be distinct from the mine, and is to be valued and rated accordingly.

(4)   …

(5)   …

26. The potential engagement of this provision in the Local Government Act categorisation processes requires later, detailed consideration.

Other statutory matters

27. I have considered whether I needed to set out here, or later refer to, other statutory provisions in the Mining Act 1992 or the Mining Regulation 2016. I have examined what might be regarded as the potentially relevant terms of each of these and I have concluded that it was not necessary to do so. I have reached this conclusion because the use or definition of a particular term in one statutory context, although sometimes potentially attractive in the context of an entirely dissimilar statutory context, would not, I am satisfied, assist me in these proceedings.

Representation

28. The Company was represented by Mr Ireland of counsel, whilst the Council was represented by Mr Tomasetti SC leading Mr Lovas of counsel.

The evidence

Introduction

29. At the outset, it is to be observed that the vast bulk of the written material in evidence was tendered in electronic form. All of that material, including the site inspection reports which were separately handed up on USB sticks on behalf of the Company and the Council, was, subsequently, consolidated onto a single USB stick, with it becoming Exhibit Z (being given this designation for convenience, although it contains substantial quantities of material tendered for both the Company and the Council).

30. In addition, some documents (particularly affidavits, maps or expert reports) were also filed in hard copy, with these hard copies subsequently admitted as evidence. Where these documents became exhibits, I have referred to them by their relevant identifier whilst, for those affidavits that were read, they have been marked as such.

31. It is to be observed that significant environmental and other benefits flow when a document-rich trial can be conducted completely, or primarily, electronically as is here the case. This arises, in this instance, because there are significant elements of the documentary material that have been tendered electronically and were potentially needed to be referred to, but where this has, in fact, not proved necessary.

32. Some of the documents, which were admitted as evidence (either physically or electronically), have needed to be quoted from and, where this is the case, the source from which the document extract has been taken has been identified. It is also to be observed that, occasionally, a document has been tendered through more than one physical or electronic source (the Colinta Access License Agreement being an example of this) and, when such a document is quoted from, only one evidentiary source is cited for it.

The expert evidence

33. Expert evidence was given in four disciplines. These were:

1. Agronomy

1. Mr Joseph Lane, for the Council; and

2. Mr Neil Nelson, for the Company.

Each of them provided an expert report and, together, they provided a single Joint Expert Report.

2. Mine management

1. Mr Michael White, for the Council

Mr White’s expert evidence was challenged by the Company and the admissibility of his evidence is later discussed in some detail; and

2. Mr David Lennard, for the Company.

Each of them provided an expert report and, together, they provided a Joint Expert Report.

3. Forensic accounting

Forensic accounting evidence was given by:

1. Dr Rodney Ferrier, for the Council; and

2. Mr David Mullins, for the Company.

Dr Ferrier provided an expert report and Mr Mullins provided an expert report and a supplementary report. Together, they provided two Joint Expert Reports.

4. Geographic Information Systems evidence

Geographic Information Systems (GIS) evidence (of a cartographic nature - comprising oral and written evidence and maps) was given by Ms Angela Moore, a GIS specialist employed at Glencore Coal Assets Australia. Ms Moore gave affidavit evidence (by affidavits dated 27 September; 29 October and 6 November 2019). Ms Moore was also required for cross-examination.

Ms Moore prepared a significant number of maps showing various aspects of the two assessment parcels (including lot and deposited plan numbers within the assessment parcels); of surrounding lands; and within the mine site proper. A number of iterations of various maps were tendered. The various iterations of these maps came about as the necessary responses to other matters which emerged from the documentary or oral evidence.

Annexure A to this decision shows what was accepted to be the relevant position of the displayed elements as at 1 July 2016 (that being the commencement of the first rating year under consideration). Annexure B shows what was accepted to be the relevant position of the displayed elements as at 1 July 2017. Annexure C comprises a map of the same area showing location information (for years 2016, 2017 and 2018) of various operational aspects and facilities used by, or relating to, the Company’s coal mine operations.

In the introduction to his closing submissions, Mr Ireland discusses a range of land area inconsistencies for the assessment parcels, which inconsistencies emerged during the course of the evidence. For the purposes of this decision, I have placed reliance on the information able to be gleaned from Ms Moore's evidence (particularly the two maps that appear as Annexures A and B to this decision).

However, as Mr Ireland observed at [15] of his closing submissions:

15   In any event, the exact area of each parcel in each relevant year is not a matter that is determinative of the categorisation exercise.

I accept the accuracy of that proposition.

Other evidence

34. Mr Chris Hinze, Colinta’s station manager of Mangoola Station, provided two affidavits (dated 19 June and 18 September 2019). Mr Hinze was required for cross-examination. He gave oral evidence (both informally during the course of the site inspection and in Court). The affidavit of Mr Hinze of June 2019 had extensive documentation annexed to it relating to Colinta’s land management activities on the two assessment parcels.

35. Mr Michael Adamski, a current director of Colinta and its financial controller, provided two affidavits in the proceedings. These were dated 19 June and 18 September 2019. Mr Adamski’s June affidavit had annexed to it a range of documents relating to, or extracted from, Colinta’s business records. Mr Adamski was required for cross-examination.

The Colinta Access Licence Agreement

36. As noted by Mr Hinze in [10] of his 19 June 2019 affidavit, Colinta entered into a new licence agreement with the Company on 18 July 2016. This licence agreement (a copy of which was at Annexure B to Mr Hinze’s affidavit) remained valid throughout both relevant years. To the extent that there are any differences between this 2016 licence and the one entered into in 2012 (Annexure A to Mr Hinze’s affidavit), it seems to me that the short period of time during which the earlier licence was in force (17 days) during the first of the relevant years is of no particular importance.

37. I note, as I need to address later in my consideration of the fencing activities carried out by Mr Hinze on the Wybong lands, the element of the fencing provision at cl 13.5(d) was not in force in the earlier Colinta access licence, but was included for the Colinta Access Licence Agreement in force for virtually the entirety of the relevant years.

Admission of Mr White's evidence

Introduction

38. During the course of the pre-trial interlocutory proceedings, Mr Ireland had taken objection to Mr White, as the Council's proposed mining issues’ expert, being permitted to participate in the proceedings as an expert and, as an element reflecting the Company's concerns, objected to Mr White having access to some of the material which the Company had been obliged to produce to the Council. Although this latter element of the Company's concerns was addressed by specific confidentiality undertakings, nonetheless, the Company maintained its objection to Mr White's evidence.

39. Mr White produced a lengthy written expert report, the substantial commentary elements of which ran to 81 pages. He also participated in a joint conferencing process with Mr Lennard, the Company's mining expert.

The hearing challenge to Mr White's participation

40. Prior to the commencement of the concurrent oral evidence given by Mr White and Mr Lennard, I agreed to Mr White giving short, solo oral evidence to permit Mr Ireland to cross-examine him, on a voir dire basis, in order to seek to establish a basis upon which I should not have regard to Mr White's evidence (written or oral).

41. What follows, it is to be observed, is to be understood in light of two elements of Mr White's Expert Report. These elements are:

1. At Annexure C to his Expert Report, Mr White reproduced his curriculum vitae (CV), setting out the relevant elements of his training and experience that provided his qualifications for giving expert evidence in these proceedings (consistent with Uniform Civil Procedure Rules 2005, Sch 7, r 31.23). His qualifications, in this regard, are that he has a Bachelor of Engineering (Mining), Honours II; a Master of Business Administration; and is a Graduate of the Australian Institute of Company Directors. His experience in the coal-mining industry, shown in his CV, covered a period of some 25 years in a variety of positions in the industry, including as the general manager of a coal mine in the Hunter Valley. In addition, post his departure from full-time employment in the mining industry, Mr White has conducted his own business as, in his terms in his CV, a Resources Consultant.

It is to be observed that, in this latter consultancy role, he disclosed in his CV that he had undertaken consulting work for Coolmore, Goldolphin and the Hunter Thoroughbred Breeders Association. It will be necessary to return to this aspect of his consulting work, as it was the subject of portion of Mr Ireland’s voir dire cross-examination of him;

2. The second observation to be made concerning Mr White's Expert Report is that, at paragraph [4] , he said:

I have read the Expert Witness Code of Conduct set out in annexure A and I agree to be bound by it. I have been instructed by Moray and Agnew Lawyers to give opinion evidence in relation to the Mangoola mine.

In addition, a copy of the Expert Witness Code of Conduct (to which Mr White expressly agreed to adhere in the passage from his report quoted immediately above) formed Annexure A to his report.

The basis of the Company's objection

42. The basis of the Company's objection to Mr White giving expert evidence in these proceedings was that:

• Mr White and his wife lived some five kilometres in a generally northerly direction from the mine pit currently operated by the Company;

• Mr White and/or his wife had lodged, over the years since 2010, a large number of complaints about what they considered to be unacceptable impacts of the mine on them at their home. A graph showing the frequency of their complaints over this period was tendered (and admitted without objection from the Council), becoming Exhibit H.

A schedule of complaints and information concerning them (taken from the Company's complaints register), showing the complaints made by Mr White or his wife, was tendered (and admitted without objection from the Council), becoming Exhibit G. This schedule disclosed that, with the exception of the most recent of the complaints made by either of them (it being made by Mr White on 24 May 2018), the relevant column in Exhibit G simply notes that, from the Company's perspective, the complaint had been completed. Nothing was included in any of the material tendered in support of the Company's objection to Mr White giving evidence that explained whether or not any of the complaints made by Mr White or his wife were accepted by the Company as having had any validity and, if so, what had been the Company's response. All that Exhibit G showed was the bland notation “completed” as earlier described;

• Mr White had written, as recently as August 2019, an objection to Mangoola Coal Continued Operations Project explaining why, in his and his wife's view, an expansion proposal for the mine, in a northerly direction towards the White residence, should not be approved. This letter of objection was tendered (and admitted without objection from the Council), becoming part of Exhibit H;

• Exhibit H also included a bundle of correspondence from 2013, being by e‑mail and letter, between the Whites and the then corporate entity operating the Mangoola Mine (Xstrata Limited (Xstrata)) in which the Whites proposed that that Company should acquire the Whites’ property because of the various adverse impacts that operation of the mine was having on them (including on the value of their property). This bundle of correspondence included a letter from Xstrata dated 4 March 2013 that advised Mr and Mrs White that the request to purchase their property was rejected as it was not within the zone of potential acquisition identified in the mine’s project approval.

• The entirety of Exhibit H was admitted without objection from the Council.

The voir dire cross-examination of Mr White

43. Mr White was cross-examined extensively by Mr Ireland (the voir dire process and my short extempore judgment as its outcome), taking almost an hour and occupying 18 pages of transcript.

44. It is not necessary, for present purposes, to reproduce lengthy extracts from the transcript of Mr Ireland’s cross-examination of Mr White on the voir dire. It is sufficient to reproduce but two short elements of it. The first of these relates to the consulting work undertaken by Mr White for the three entities earlier noted. This element of Mr White's evidence was in the following terms (Transcript, 28 October 2019, page 308, lines 14 to 50):

IRELAND: And in your CV which is annexed to your affidavit, you indicate that your recent clients have included Godolphin and Hundred [Hunter] Thoroughbred Breeders Association, for example?

WITNESS WHITE: Yes.

IRELAND: They are interests in the Hunter Valley associated with the horse breeding industry, aren't they?

WITNESS WHITE: Yes.

IRELAND: And your work for them inter alia, I assume, would have involved managing or advising on their objections to mining projects. That's correct, isn't it?

WITNESS WHITE: I disagree.

IRELAND: You disagree with that?

WITNESS WHITE: Yes.

IRELAND: They do lodge - they are organisations which are engaged in the promotion of objections to coal mining projects in the Hunter Valley, aren't they?

WITNESS WHITE: I disagree.

IRELAND: Do you deny that in your work for Godolphin and a Hundred [Hunter] Thoroughbred Breed[er]s Association and Kumar you have been engaged in assisting them, you would say, as an expert in relation to their objections to coal mining projects?

WITNESS WHITE: Mr Ireland, the premise of the question being - starting with it being an objection is the area I have the problem with. I provide independent objective advice on the mining portions of proposals, and it's then the determination of the individual organisation as to how they, overall, choose to respond in the planning process.

45. It is appropriate to note, in this context, Mr White gave this element of his evidence in a fashion that made it clear, to me, that he was uncomfortable with the implications of what was being put to him on the voir dire and that he certainly did not accept that his written evidence had been provided other than in a fashion compliant with the Expert Witness Code of Conduct or that his proposed oral evidence would not be so given.

46. The second element from this voir dire cross-examination, appropriate to be reproduced, concerned the 2013 correspondence proposing that the then operator of the Mangoola Mine should acquire the Whites’ property and whether that position was one which was still maintained by Mr White. This element of the transcript was in the following terms (Transcript, 28 October 2019, page 310, line 46 to page 312, line 48):

IRELAND: And you of course would agree with me that that is a property that is outside the area or the contours that are sufficient to trigger an acquisition requirement under the project approval for noise or dust or any other impact of that nature? It just sits outside that--

WITNESS WHITE: Yes.

IRELAND: And, indeed, this is a matter that you have raised with the mine, isn't it?

WITNESS WHITE: Well, the--

IRELAND: I withdraw that. The - your view - you hold the view that the mine should acquire your property, don't you?

WITNESS WHITE: I don't know.

IRELAND: Could I provide you - show you an e-mail, copy for the Court, copy for my learned friend? Now, just read that e-mail and let me know, Mr White, when you have read that e-mail--

WITNESS WHITE: I’m familiar with the--

IRELAND: --to yourself.

WITNESS WHITE: I'm familiar with the e-mail, Mr Ireland.

IRELAND: Yes. And, so, the e-mail indicates, firstly, doesn't it, that - well, before - I withdraw that. Before I do that, although the e-mail is signed off by you and your wife, I take it, it was sent out with your authority?

WITNESS WHITE: Joint authority.

IRELAND: Yes. And so you stand behind the views expressed in the e-mail?

WITNESS WHITE: At the time. That was six years ago.

IRELAND: And you said in the e-mail that in the second sentence the impacts from noise and dust from the operation were unacceptable to you. Do you see that?

WITNESS WHITE: Yes.

IRELAND: And that was a view you held at the time?

WITNESS WHITE: Yes.

IRELAND: And you said in the e-mail that you had grave concerns with the impact on your health and the health of your children and grandchildren into the future. Do you see that?

WITNESS WHITE: Yes.

IRELAND: And that was a view you held at the time, is that?

WITNESS WHITE: Yes.

IRELAND: And you also commented on the plant what you--

HIS HONOUR: He said it was sent with his authority. He [It] speaks for itself. You [do not] need to get into it and adopt that word for word, Mr Ireland.

IRELAND: Yes, may it please the Court. The mine responded to that e-mail, didn't they, that in a way that wasn't satisfactory to you, do you recall that?

WITNESS WHITE: The mine responded, refusing our request.

IRELAND: Yes, and could I provide you with - ask you to look at this letter of 4 March 2013, and a copy to the Court and my learned friend?

WITNESS WHITE: Thank you.

IRELAND: You're familiar with that letter?

WITNESS WHITE: Yes.

IRELAND: And you see in the second last paragraph that in response to your request that the mine entered into what you termed "good faith negotiations" regarding the purchase of your property. The mine indicated that it would not do that as you were outside the relevant acquisition area, do you see that?

WITNESS WHITE: Yes.

IRELAND: And that remains the position as far as you and the mine are concerned in the acquisition of your property as far as you know, isn't it?

WITNESS WHITE: I don't understand the question.

IRELAND: The mine still hasn't acquired your property.

WITNESS WHITE: Yes, that's correct.

IRELAND: They haven't offered to do so.

WITNESS WHITE: That's correct.

IRELAND: And that's a source of dissatisfaction to you in relation to your attitude to and relationship with the mine, isn't it?

WITNESS WHITE: If I may answer in this way, we have perhaps learned to live a little more with the mine, but it still does negatively impact us from time to time. Whether we wish to sell or not there are a number of factors in there that it would be difficult to actually have a clear answer on at the moment.

Determination of the basis for Mr White’s evidence

47. Although I had earlier indicated, in an informal exchange with Mr Ireland and Mr Tomasetti, that I would deal with the question of admissibility of Mr White's evidence at a later time, I concluded, at the end of Mr Ireland’s voir dire cross‑examination, that there was absolutely no proper basis advanced for the Company as to why there should be any complete rejection of Mr White’s written evidence already provided or future oral evidence proposed to be given by Mr White. I gave a short extempore decision setting out this conclusion and my reasons for it. That decision, recorded in the transcript of 28 October 2019, at page 323, lines 20 to 32, was in the following terms:

I propose to hear Mr White's evidence in absolute terms and not on the voir dire basis. I am satisfied that none of the answers given by Mr White in response to Mr Ireland's cross examination provide any basis for me declining to entertain his evidence. I base that ruling not merely on the cross examination that's been undertaken today but on my close reading of his expert report, which does not show any elements that would otherwise cause me to conclude that he was not, in an appropriate fashion, responding to his obligations as an expert witness. I have also closely read the joint coal mining expert report filed on 4 October 2019 and I am satisfied that there was nothing in that that would cause me to conclude that he has not abided by the expert witness code of conduct in the preparation of that document as well.

48. As Mr Tomasetti reminded me at that time, this ruling that I would accept that it was appropriate for Mr White to be permitted to give evidence and to have his Expert Report admitted did not preclude Mr Ireland from submitting, later, that the totality of Mr White's evidence, or specific elements of it, should be rejected and Mr Ireland indicated that he would do so in his closing submissions, if he considered that this was appropriate.

49. For completeness, I should also reproduce a further relevant transcript extract of an exchange with Mr Ireland (Transcript, 28 October, page 323, line 38 to page 324, line 2):

IRELAND: I'll be making submissions at the end of the day in relation to weight.

HIS HONOUR: You may and indeed that will arise out of whatever evidence Mr White gives and whatever evidence Mr Leonard gives and at the moment unless Mr Tomasetti wants to press an objection on the basis of Mr Leonard's curriculum vitae which would cause me to conclude he's never given evidence for anybody but a coal mine and I don't understand he to be proposing to make such an objection then I'll deal with that in a similarly summary fashion having carefully read Mr Leonard's statement of evidence and reached a similar conclusion with respect to him and I would also observe that during the course of the site inspection I did not observe any remark made by Mr White or Mr Leonard that would cause me to conclude they were doing other than giving me factual information in response to the duties under the expert witness code of conduct.

50. In his closing oral submissions, Mr Ireland made a number of criticisms concerning details of Mr White’s evidence. However, on the broader topic of the weight to be given to Mr White’s evidence, Mr Ireland said (Transcript, 8 November 2019, page 687, lines 8 to 49):

IRELAND: … the submission that's made at the end of the day is that when weighing Mr Lennard's evidence with Mr White's evidence and your Honour would need to take into account Mr White's status as an objector.

He has a personal history with the mine and his proximity - the fact that he lives within proximity to the mine and the nature of his responses the Court would decisively prefer Mr Lennard's evidence. The applicant accepts that in terms of the admissibility point, that may well be water under the bridge, that the Court does not need to decide having regard to the fact that Mr White has now given evidence and been cross-examined.

So the applicant puts the matter in that way but in terms of weighing Mr White's evidence, the submission is maintained that due to his residential location, the fact that it's evident that he does have exposure to the mine that he didn't disclose, that's unknowable, that he does have this status as an objector and also the nature of his responses and the very extreme and stark nature, black and white nature of his conclusions. Although his expert report is carefully drafted, in my submission, all of those things, in terms of weighing the weight of his evidence, as against the weight of Mr Lennard's evidence - and this is the important thing, not the making of any findings in relation to Mr White personally - would lead the Court decisively to prefer Mr Lennard's evidence.

And the authorities that I referred to in annexure A, they provide background and support to these submissions, but I accept that the admissibility submission, that has rather been superseded by, quite properly, the manner in which the proceedings by consent have been conducted, and Mr White's given oral evidence and been cross examined.

So I'd ask your Honour to consider paras 103 and 104 in that - on that basis and the annexure as a submission in relation to the weight to be attributed to Mr White's evidence, and I accept that your Honour may well be principally in the normal way guided by the actual text of Mr White's report and his actual responses. But where a choice needs to be made between two expert witnesses, that these are matters that I feel obliged to take your Honour to and make submissions about.

But careful to say Mr White has been placed in a difficult position. And although council employees, et cetera, do give evidence, and that's been accepted in this Court, the fact that he has been a very active objector to the mine, when it comes in the balance between Mr Lennard and Mr White, can't be discounted.

51. Shortly after the above quoted passage, Mr Ireland also submitted (Transcript, 8 November 2019, page 688, lines 27 to 38):

IRELAND: The Court must - and is entitled to have doubt, in the manner in which Mr White has answered some of the questions and approached matters. Yes, sure, it may be an indication of a decided expert opinion and firm expert opinion, but the submission the applicant makes is that the Court cannot rule out the potentiality that the level of objectivity that Mr Lennard has provided this matter has not been accorded the matter by Mr White, having regard to all of this history and, ultimately, the basis for that is where a witness says - in relation to a huge area of land where there are various monitoring activities or historic exploration activities over one or two months, declares emphatically that the whole area is used for mining. It goes too far, it's extreme, and that alone would entitle the Court to have doubts about the evidence and indeed reject the evidence.

52. In his closing written submissions, Mr Ireland maintained his attack on Mr White's credit and the reliance that I might give to his evidence when there was any disagreement between Mr White and Mr Lennard about mining activities (whether in the northern extension area or for accessing monitoring equipment for the purposes of maintenance and/or data harvesting). Mr Ireland submitted, at [103]:

103   Mr White is a resident objector to Mangoola, and lives very close to the mine. He is not an independent expert in this particular case, and should not have been called to give independent expert evidence. Mr White has conceded that he feels a great sense of loss and sorrow as to the mine’s impacts on his property which is very close to the mine: T309.49-50, T301.1-3, he has lodged objections with the mine about its operations over a long period of time: T314.39-41, including against the proposed northern expansion SSD application: T318.44-50, and has knowledge of activities around the mine that the Applicant is unable to question him about as they are not disclosed in his expert report: T316.15-45. The very fact that Mr White disagrees that he should have disclosed his history as an objector to the mine in his expert report is an additional matter from which the Court would infer that due to a “subjective blindspot”, Mr White is unable (no doubt despite his best efforts) to view the mine the subject of these proceedings and is role as an independent expert objectively: T320.38-50. The problem is that Mr White has been asked to give evidence as an independent expert in relation to a matter in which he is involved as a partisan player. This puts him in an invidious position, but as this has occurred, the Court would either exclude his evidence, or in the alternative, give his very broad-brush conclusions, such as at par 225 very low or minimal weight by reason of Mr White’s compromised independence alone. Mr White in his substantive cross examination has not responded in the way the Court would expect of an independent witness to some specific questions, for example, when viewing an aerial photograph that clearly shows no mining activity in the area being considered (the northern expansion area shown as green and grass covered in the aerial photograph), Mr White declined to agree: T347.30-50. Similarly, when asked as to whether a dust monitor on a fence across from Colinta’s lands was in private property he was prepared to give and allow the Court to accept a negative answer until it became clear that he was making a casuistic point about the monitor being located on the road reserve rather than the adjoining farm.

53. In addition to that attack in the body of Mr Ireland’s primary closing submissions, he appended a further specific more than one-page attachment addressed to what he said was the unreliability of Mr White's evidence.

54. A specific example of the extent of Mr Ireland’s criticism of Mr White is to be seen at [38] and [39] of Mr Ireland’s closing written submissions in reply where he wrote:

38   At T-699.8-.25, the Respondent, in closing (Mr Tomasetti SC) appeared to dispute that Mr White said that the presence of a monitoring device rendered a whole parcel one that was used for coal mining. However, with respect, this is exactly what Mr White said in cross-examination T-483.22-50, T-484.1-11. The Court will need to read those passages and decide what its understanding of that oral evidence is, for itself.

39   As earlier submitted, Mr White’s evidence is tainted by this reasoning, that firstly moves from presence to the use of a whole parcel and secondly, considers the impacts of mining to render a parcel used for the coal mine. That latter reasoning is contrary to Peabody: [61]-[63]. The reasoning of Preston CJ at [62] of Peabody could not be clearer:

“I do not agree that affectation of land by adverse impacts such as noise from land on which a coal mine is operated causes the effect of land to be used for the purpose of a coal mine.”

55. The relevant portion of the transcript cited in the reference above to Mr White’s cross-examination was in the following terms:

IRELAND: It's not your expert opinion, is it, that simply due to the presence of that weather monitoring station on that 238 hectare paddock that I'm calling paddock 23, that that whole paddock, that 238 hectare paddock, is used by Mangoola, the miner, for mining purposes? That wouldn't be your expert opinion, would it?

WITNESS WHITE: Well, the - yes, it is.

IRELAND: So you say, do you, simply because of the presence of that small compound containing that weather monitoring station that we saw on the day of the inspection placed within that very large 238 hectare paddock, you would say, in your expert opinion, that the whole paddock is used by Mangoola for mining purposes?

WITNESS WHITE: I would - yes, I would say that - I would say that that paddock is used by Mangoola for mining purposes because of its position being - effectively adjacent to the operating area and the impacts of that within that area from noise, dust and potentially blasting, that the reason Mangoola has that piece of ground is for the purposes of mining.

IRELAND: So - so the - an important part of your reasoning, just so I can understand your - the answer to your question - is considering that the impacts of the mining, noise, dust et cetera as well as the presence of the weather monitoring station?

WITNESS WHITE: Correct.

IRELAND: And of course, that's the kind of reasoning, I take it, before we go into this further, that's underlined or underlays your opinion - for - for example, your - your opinion expressed in your report, your expert report, that the assessment areas are used by Mangoola for mining purposes, isn't it? That’s - although I've asked you a question in relation to this paddock, paddock 23, that's a process of reasoning that you - you apply uniformly to the assessment areas, having regard to the impacts - on the assessment areas, the location at particular points, of particular monitoring, locations et cetera?

WITNESS WHITE: And the consent and EPL conditions that the mine needs to comply with, yes.

56. Mr Ireland had earlier said in his closing written submissions, at [102]:

102   … Mr White’s expert opinion on this point was established to be quite extreme - he maintained that a 238ha paddock was used as a whole for mining purposes because there was one weather station on it: T482.31-50, T483, T484.1-9 (White XXN)

57. I accept that Mr White’s assertion that such a proposition might be advanced when it was necessary to weigh competing uses (grazing in a paddock compared to the occupancy of portion of that paddock by monitoring equipment for the mine) is not the correct approach. However, when the use of a paddock for monitoring equipment for the coal mine is the only use of that paddock, such a proposition is not untenable.

58. At all relevant monitoring stations located on the Wybong lands (for example, the monitoring equipment visited off Wybong PO Road, as later described), the monitoring equipment constituted the sole use in each of the relevant years of the Wybong lands’ paddock in which it was located (my reasons for so concluding are later explained). To the extent that a finding might have needed to be (but was not, in fact, necessary to be) made concerning the use of that specific paddock during the relevant years, that monitoring equipment as the sole use of that paddock in those years must, as a matter of logical necessity, have been the dominant use of that paddock during those years.

59. Although Mr White obviously held firm views concerning the Company’s coal mine and such of its activities as impacted on him and his wife, I am nonetheless satisfied that his contribution to the combined mine management expert evidence as needed to be taken into account did not warrant its rejection.

60. Indeed, to close this section of my analysis, there are two final points to be made. The first is that the Joint Expert Report produced by Mr Lennard and Mr White, whilst containing some significant differences between them on matters of emphasis, was couched in entirely appropriate terms of the professional dialogue mandated for that process.

61. Second, because of the limited matters of generality needing to be considered concerning mine management activities in the context of the necessary fact‑finding I have been required to undertake, to the extent that there were differences between Mr Lennard and Mr White it has not been necessary to resolve them. As a consequence of this final point, it is self-evident that I decline to reject Mr White's evidence either entirely or in any of its individual aspects.

62. Whilst Mr White had been subject to vigorous cross-examination by Mr Ireland (both on the voir dire as discussed above and during the course of his concurrent evidence with Mr Lennard), there was, in reality, comparatively little difference of relevance between them. To the extent that there was, it primarily concerned how I should understand the extent and intensity of the Company’s exploration activities in the northern expansion area.

63. Although initially a matter of quite some difference between the experts, that dichotomy posed by the competing positions was subsequently rendered uncontroversial, as later discussed.

64. This issue arose as a matter of potential contention only because, as I later explain in detail, I am satisfied that, on the basis of Mr Hinze's evidence, Colinta undertook no grazing activities on the Wybong lands during either of the relevant years. The consequence of that finding is that the activities of mining personnel on the Wybong lands were the only use of those lands during the relevant years. As the only use, as a matter of logical necessity, they were the dominant use of such lands.

65. In light of the objections which Mr Ireland had raised concerning Mr White's evidence (as subsequently repeated in closing as set out above), I had paid particular attention to the content of, and manner in which, Mr White gave his oral evidence.

66. Although Mr White expressed his views firmly, I am satisfied that he had engaged, in the Joint Mining Experts’ Report and in their concurrent oral evidence, in a genuine dialogue about the competing available conclusions.

67. As a consequence, although it may have been necessary for me to reach a conclusion as to whose evidence I might prefer, when there was a disagreement between them, I am satisfied that the necessity to do so would have been based on the usual and conventional weighing up of and assessing competing expert evidence. There was nothing in Mr White's evidence, per se, that would cause me to, in any sense, automatically prefer Mr Lennard's evidence over that given by Mr White.

68. Finally, I should observe that the areas of disagreement between them were comparatively minor and generally related to matters of flavouring and weight rather than any elements of completely contradictory presentation of information (rather being as to the conclusions to be drawn from such information).

Jones v Dunkel inferences

69. The closing written submissions on behalf of the Council proposed that I should draw Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) inferences on relevant matters concerning Colinta’s activities. The submissions, from [195] to [199], were in the following terms:

195   Mangoola chose not to call any evidence from anyone involved in the management of the mine or of Colinta in the relevant years.

196   No one was called from Colinta to prove that it was using the subject lands for the business of grazing which has a significant and substantial commercial purpose or character and that it was engaged in that business for the purpose of profit on a continuous or repetitive basis (ES 515).

197   Those facts are necessary to establish for Mangoola's application to succeed.

198   Someone in the Colinta organisation must be making decisions of that kind if that was the case.

199   Given that Mangoola bears a “persuasive burden of proof”, the persons from whom the Court would have expected assistance include:

•   Mr Garry Johncock, Colinta’s pastoral manager;

•   Mr Lance Anderson, the station manager on Mangoola Station at that time;

•   Michelle Taylor, Colinta’s accountant;

•   Mr Damien Ryba, who the Court met and assisted it during the site inspection.

70. Although this submission was put as a general one with respect to the use of both assessment parcels by Colinta and potential satisfaction for the tests in s 515 of the Local Government Act, I am not prepared to accept that I should adopt the proposed position on as general a basis. As I later discuss, where appropriate, there may have been instances where it is appropriate to draw such an inference and others where it clearly is not.

71. However, in his closing written submissions in reply, Mr Ireland said (at [150]):

150   Paragraph 195 is incorrect. Several persons involved in the management of Colinta in the relevant years were called. Firstly, Station Manager Mr Chris Hinze; secondly, Mr Michael Adamski, who is a financial controller and a director of Colinta.

72. As Mr Tomasetti observed in his closing written submissions, in [203], the above assertion concerning Mr Adamski was not correct. Mr Tomasetti wrote:

203   … Mr Adamski has only been a director of Colinta since September 2018 and was the financial controller only since February 2019. His evidence regarding Colinta’s past land use is hearsay at best - the source of it is not disclosed. …

73. This position was confirmed by Mr Adamski in [2] and [3] of his affidavit of 19 June 2019 (an affidavit incorporated by adoption by [2] of his affidavit of 20 September 2019 read on 24 October 2019). As it is not necessary to consider Mr Adamski’s evidence (as I do not need to address the tests raised by s 515 of the Local Government Act for the reasons later explained), it is not necessary to consider what evidentiary ruling I might (or might not) have needed to make concerning evidence about Colinta’s activities in the relevant years not being given by Mr Johncock.

Use of the term “mining personnel”

74. Throughout this judgment it will be necessary to describe activities carried out on behalf of the Company at various locations across the two assessment parcels during the two relevant years. In such descriptions, I use the term “mining personnel”. This encompasses persons directly employed by the Company or various types of independent contractor engaged by the Company for the purposes of those coal mine-related activities.

The site inspection

Introduction

75. The site inspection was undertaken on Tuesday 22 and Wednesday 23 October 2019. During the course of the site inspection, it was planned we would visit 26 locations, primarily ones on the larger assessment parcel or looking into it from roadside locations. We also traversed the area known as the Sustainable Agriculture Offset (SAO) area. We were unable to enter the north-western (larger) portion of the smaller assessment parcel as, at some time (the specific date being irrelevant) after 1 July 2018, this element had become incorporated in the active mining area (it being, at all relevant times, within the major mining lease). A list of the locations we visited across the more than a day-and-a-half of the site inspection appears below:

76. Mr Hinze’s affidavit of 19 June 2019 had, amongst its annexures, a map showing identification numbers and a list of names associated with those numbers for the various land management paddocks used by Colinta. A copy of the paddock numbers map is reproduced as Annexure D and the list of paddock names is reproduced as Annexure E to this decision. The paddock number and name references in the second column of the above table are taken from Annexures D and E.

77. As is usually customary in merit proceedings involving site inspections, the legal representatives of the parties were requested to prepare notes of what was observed during the course of the site inspection and to agree on a settled version of those notes which could subsequently be tendered as an agreed summary of what took place. Unfortunately, in these proceedings, that has not been possible, as the legal representatives of the parties, although each preparing compendious notes (and attached photographs taken during the course of the site inspection) concerning what took place, remained in substantial disagreement as to what the notes should contain. As a consequence, a set of site inspection notes prepared on behalf of the Company (with attendant photographs) was tendered as Exhibit U, whilst a competing version tendered on behalf of the Council became Exhibit 7. These exhibits were tendered as electronic files on separate USB sticks.

78. I have reviewed the two competing sets of notes and looked at the attendant photographs in each instance. The difference in the approaches taken by the parties for the purposes of the preparation of these documents is readily discernible from a reading of them. The differences are to be characterised as being ones of emphasis and flavour rather than of substantial factual differences. Although I have read both documents for the purposes of refreshing my memory of what was seen during the course of the site inspection, to the extent it is necessary in this decision to refer to matters which were observed, I have done so from my own memory, refreshed by my reading of both of these sets of site inspection notes but without the necessity to express a preference as to the accuracy or appropriateness of one of them over the other.

79. I also observe that, on Monday 21 October 2019, during the first hearing day when I heard opening submissions from Mr Ireland, I indicated to the parties that I intended to take a camera to the site inspection and that I would have my Associate take photographs of what was observed (at locations and of subjects chosen by me) and, if I considered it appropriate that any of those photographs might be tendered, I would provide copies of them to the parties and invite one or other of them to tender such photographs. At the commencement of the hearing on 31 October 2019, I provided the parties with copies of five photographs taken by my Associate and these were tendered, becoming Exhibit 8.

80. We were accompanied during the course of the site inspection by Mr Lane and Mr Nelson who pointed out various matters at locations where matters which illustrated points potentially requiring weighing in my determinative process were able to be observed.

81. In addition, Mr Ireland, Mr Tomasetti and I were able to ask them factual questions concerning observable matters potentially relating to pasture, cropping, grazing and other land management issues relevant to Colinta’s cattle-grazing activities on Mangoola Station.

82. Similarly, we visited the locations of a wide range of differing types of monitoring equipment, equipment designed to enable the harvesting of data to assist with the Company's compliance with its environmental monitoring and reporting obligations under the relevant statutory regimes applying to its mining activities. During the course of these elements of the site inspection, Mr White and Mr Lennard (who also accompanied us) responded to questions posed by Mr Ireland, Mr Tomasetti or me concerning factual matters we were observing.

83. Of utility to my understanding of Colinta’s grazing activities, we were accompanied by Mr Hinze, Colinta’s present manager of Mangoola Station. Mr Hinze was, similarly, questioned by Mr Ireland, Mr Tomasetti or me in order to obtain as complete a factual appreciation of Colinta’s grazing activities as was possible during the course of a lengthy but necessarily somewhat constrained site inspection (given the total area of the various elements of the larger assessment parcel). However, it is to be noted that Mr Hinze performed the role of stockman for Colinta during the relevant years and was not Colinta’s manager of Mangoola Station during that period.

84. Finally, in terms of noting what was undertaken during the course of the site inspection, it is appropriate to observe that:

• we traversed the major Aboriginal cultural offset area located in the south-western element of the rim of the larger assessment parcel (as can be observed marked yellow in Annexures A and B to this decision - the provenance of these being later described at [88] and [89]). There was no change to this Aboriginal cultural offset area for the two years under consideration;

• during the course of traversing this element of the Aboriginal cultural offset area, we stopped to observe several nest boxes at one location and to observe, from our vehicle, an orchid translocation site at another point of our traverse of this area;

• early in the site inspection, we observed, from a roadside stop, an area where the Company had undertaken (and was continuing to undertake) offset vegetation planting activities;

• at a location known as Hidden Valley (being toward the northernmost extension of the larger assessment parcel and adjacent to the area shaded light blue on Annexures A and B), we observed two fenced-off areas which were designated to be for the purposes of revegetation planting; where such revegetation planting had taken place at some time in the past (the timing not being relevant for these proceedings); although a few straggling saplings survived from those plantings, they had largely disappeared, primarily (on Mr Hinze's observation), as a result of the predations of herbivorous fauna (whether native or not being irrelevant) but not as a consequence of grazing.

Although several dried cowpats were able to be observed in these offset areas, Mr Hinze explained this as being as a consequence of cattle having broken through fences for opportunistic grazing but being removed - rather than as a consequence of any systematic grazing of this offset area.

85. It is also appropriate to note that we also walked from our vehicles to observe, specifically, several areas which Mr Lane described in his written and oral evidence as being “adjusted Class 7 classification land” (a concept he later clarified during the course of his oral evidence, as elsewhere discussed).

Mapping and boundary precision

Introduction

86. I have earlier noted that the final witness was Ms Moore, the geographic information systems (GIS) specialist for Glencore, the entity within whose coal‑mining asset group the Mangoola mine and the two assessment parcels fit. Ms Moore had conducted joint expert conferencing with the GIS expert retained by the Council. As no agreement had been able to be reached between them as to a settled set of maps showing relevant information (including boundaries for each assessment parcel in each relevant year and other matters), the GIS expert for the Council was not required to give oral evidence.

87. However, Ms Moore was in the witness box for a deal of the final day of evidence (31 October 2019). She was taken through the various iterations of a map (which in paper form had become Exhibit 2 and of which subsequent iterations had also been tendered) to endeavour to achieve a proper understanding of the boundaries of the various elements required for my consideration in understanding what might be determined to be the dominant use of each assessment parcel in each of the relevant years. Exhibit 2 was described as being as at 1 July 2016.

88. At the time of its tender, no version of that map for 1 July 2017 was tendered. During the course of the hearings, prior to Ms Moore's oral evidence, a variety of versions of Exhibit 2 and a companion map, then said to represent the position as at 1 July 2017, was provided (as MFI D but it was not tendered).

89. At the conclusion of Ms Moore's evidence, the state of mapping was that two maps tendered as Exhibit W represented the final version said by the Company to be an accurate depiction as at 1 July 2016 (Sheet 1 of Exhibit W) and 1 July 2017 (Sheet 2 of Exhibit W).

90. These two maps were in A3 size and are reproduced (at A4 size) as Annexures A and B to this decision.

The reduction in size in the smaller assessment parcel

91. In the various iterations of the map now reproduced at Annexure A, one piece of data in the smaller of the two keys in the top right-hand corner had caught my eye. This key indicated that, for the 2016-2017 rating year, the smaller assessment parcel had had an area of 727 hectares, as marked in boundaries on that map. However, the key to the map at Annexure B noted that, for the 2017-2018 rating period, the area of the smaller assessment parcel had decreased by 149 hectares, a reduction in size of a little over 20%. No explanation for, or apparent boundary adjustment reflecting, this was readily discernible for this difference. I raised this matter with Ms Moore during the course of her oral evidence.

92. It transpired that the keys to the maps were accurate and that portion of the north-western element of the smaller assessment parcel had been transferred out of it during the 2016-2017 rating year. A revised map, which had become the second sheet of Exhibit W (Annexure B), showed the removal of the tapering extension at the south-eastern end of the north-western portion of the smaller assessment parcel being removed from that assessment parcel and transferred to the Company’s mining area. It also showed the transfer of the pipeline easement area from the larger assessment parcel to the smaller one. The categorisation consequences of these changes is later discussed.

93. As the map showed that this remained within Colinta’s access licence area (by both colour and marking in confirmation of this status), I had an e-mail sent to the legal representatives of the parties to enquire whether there had been some alteration to the access licence thus resulting in a 2017 version of it. I was advised that there was not and that the 2016 access licence had a term of three years. It thus remained the single operative document for both the relevant years with which I am concerned in these proceedings.

94. As a consequence, the annexed 2017 map (Annexure B) enables the differences in the boundaries of the north-western element of the smaller assessment parcel readily to be discernible in a comparison between the two maps.

95. Although these differences do not change the conclusion drawn for each relevant year for this assessment parcel, my decision for the 2016/17 year is, for reasons later explained, more finely balanced than that for the 2017/18 year.

Land classification

Introduction

96. Agricultural land in New South Wales is categorised and mapped through a common classification system, with the most fertile land being in Class 1 and, relevant to the matters in dispute in these proceedings, Class 7 land being that which is of little to no agricultural potential. Of the land within Colinta’s access licence area and used for grazing, it was agreed by Mr Lane and Mr Nelson that there was land within various classifications, with there being a small element of the overall area (approximately 200 hectares) of potentially highly productive cropping or improved pasture land (Class 2 or Class 3) in the south‑eastern portion of the larger assessment parcel.

97. This land had irrigation water available to it from three separate pumping locations along the Hunter River, and had irrigation equipment owned by the Company available for Colinta’s use to take advantage of the potential of this land. During the course of the site inspection, we were able to observe:

• a small paddock cropped with lucerne which had recently been cut and was awaiting baling;

• an adjacent small paddock which had been ploughed but not yet planted;

• a larger paddock with a crop of barley growing on it. It was Mr Hinze's evidence during the site inspection that the barley was one of a number of seasonal crops grown on this element of Colinta’s licence area. It was also his evidence that this crop would be used for opportunistic grazing and that the grain was not harvested; and

• items of irrigation equipment that were not in use during our site inspection. However, these were able to be seen at several locations during our inspection of these river-flat areas.

98. Classification of the remainder of the grazing lands to which Colinta has access under the licence agreement requires further discussion in only one respect. This is dealt with below.

Mr Lane's “Class 7 adjusted” areas

Introduction

99. Mr Lane had undertaken an examination of air photos of the Colinta access licence land. He had paid particular attention, when doing so, to areas that were classified as Class 5 land (this classification being one which described the land as being suitable for grazing purposes) and where he considered that, as a consequence of the extent of the canopy cover, the grazing functionality of these areas was likely to be so limited that they should be regarded as if they were Class 7 land. These areas of land he described as being “Class 7 adjusted” land. Class 7 land has very little functional utility for grazing purposes.

100. Mr Lane had marked these areas on a map which he had produced. For the larger assessment parcel, this land was shown on Figure 2 of his individual expert report (Evidence Book C1). Mr Lane had also marked areas on the smaller assessment parcel where he considered a similar approach should be taken. Mr Lane had not undertaken an inspection of these areas during the course of the pre-trial site visit by the agronomy experts.

101. Mr Nelson disagreed with the propositions advanced by Mr Lane in this regard. He was of the opinion that, although the grazing potential of the lands identified by Mr Lane warranted some qualification as to their utility, they in fact provided some limited grazing potential and also provided shelter for cattle-grazing on adjacent land. As a consequence, he considered that the land so identified by Mr Lane remained appropriately designated as Class 5.

102. It is to be observed, first, that during the course of his oral evidence, Mr Lane indicated that he considered that the land that he had identified as “Class 7 adjusted” was more appropriately identified as “Class 5 adjusted”, this being a an appellation more consistent with the grazing lands adjacent to these areas (Transcript, 25 October 2019, page 173, line 48 to page 174, line 6).

103. It is also appropriate to observe that there is no evidence that any of these areas identified by Mr Lane have been fenced in any fashion to separate them from any of the adjacent grasslands used for grazing.

104. During the course of the site inspection, we walked through two elements of these lands so identified by Mr Lane. The first was near where we stopped in a location toward the north of the larger assessment parcel (in a paddock identified by Mr Hinze as Hidden Valley), as earlier discussed, and the second in the north-west of the larger assessment parcel (in a paddock identified by Mr Hinze as Ridgelands). This latter location was in close proximity to the boundary fence of Colinta’s access licence area.

105. At the first of these stops, we were able to see patches of what was described as “weeping grass” in the understorey of portion of the land identified by Mr Lane. We were also able to observe that significant elements of the identified land were steep, with rocky outcrops. There was open grassed land on either side of the land identified by Mr Lane.

106. The second location was flat and had a quite dense canopy cover. There was open grassed land on the side of this identified land from which we approached it.

107. At several other locations, we were able to look toward land of the type identified by Mr Lane, but at a distance of a 100 or more metres so that detailed evaluation was not possible (but there was nothing observable that appeared to differentiate this land from the two sites closely inspected).

108. Although there was a semantic difference between Mr Lane and Mr Nelson with respect to these lands (Mr Nelson describing them as containing “grazing” opportunities, whilst Mr Lane preferred to use the word “browsing”), it seems to me that nothing turns on this for the purposes of my determination.

109. These lands are integrated in, and formed part of, Colinta’s available land for grazing. Whilst of undoubtedly significantly less value in providing feed for cattle, I am nonetheless satisfied that they do provide limited to extremely limited foraging opportunities; value as shelter spaces from the rain and sun; and transit passageways between more open grassland areas within Colinta’s access licence areas.

408. During the course of his oral evidence, when he was under close questioning by Mr Tomasetti (including the element of his more lengthy oral evidence concerning the use, or lack of use, of the Wybong lands by Colinta), Mr Hinze was, to my observation, uncomfortable about the process to which he was being subjected. This, of course, is a not uncommon reaction from witnesses who are entirely unfamiliar with the courtroom and with court processes. However, to my observation, Mr Hinze was distinctly more uncomfortable when giving this element of his oral evidence than he had been during the course of the more introductory passages of his questioning by Mr Tomasetti.

409. Of relevance to the portion of his oral evidence when he was resiling from his earlier written and oral evidence that the Wybong lands had not been used by Colinta for grazing during the relevant years, he appeared to me to be less certain and more discomfited in the giving of this evidence than he had earlier been.

410. When the final, third questioning on this point was undertaken by Mr Tomasetti, Mr Hinze seemed to me to appear relieved to revert to the position of adopting the accuracy of [49] of his affidavit.

411. As a consequence, I am satisfied that, on the balance of probabilities, I should accept that the true position was that, during each of the relevant years, Colinta did not use the Wybong lands for grazing purposes.

412. In reaching this conclusion, I accept that the reason for this was, as described by Mr Hinze, the drying up of water sources in those lands from which the cattle could drink and the lack of pasture in those paddocks. Both of these occurrences were, as Mr Hinze observed, consequences of the extent and effect of the drought impacting the region. In this regard, I note that this position of particularity concerning the impact of the drought on the Wybong lands is consistent with the evidence concerning drought impacts in this part of the Hunter region given by Mr Nelson, the Company's agricultural land use expert (and, as a general matter, agreed with by Mr Lane for the Council).

Fencing

413. For completeness, I should also address the question of fencing activities carried out on the Wybong lands by Mr Hinze or others supervised by him employed by Colinta or contracted by Colinta to undertake fencing activities. Two types of fencing activity were undertaken on the Wybong lands.

414. The Colinta access licence provides, in Clause 13.5 Fencing, what the respective roles of the Company and Colinta are with respect to fencing. The clause is in the following terms:

13.5   Fencing

(a)   The Licensor will, at its sole cost, provide boundary fencing around the Property to a standard acceptable for the Purposes.

(b)   The Licensee will construct, maintain and repair internal fencing within the Property to a reasonable standard normally practised on farms of the same character and in the same neighbourhood as the Property, normal wear and tear excepted.

(c)   The Licensor must promptly repair or renew any boundary fences, gates and stock crossings damaged or destroyed by any cause other than the wilful or negligent act or omission of the Licensee. The Licensee must report any such damage to the Licensor as soon as is practical after it becomes aware of such damage.

(d)   The Licensee must not alter or remove existing fencing without written consent from the Licensor.

415. The first element relates to boundary fencing. Although issues of costs’ quantum and attribution for this fencing might arise for consideration had I needed to address matters relating to s 515 of the Local Government Act, it is sufficient to note, for present purposes, that the Colinta Access Licence Agreement makes it clear, in Clause 13.5(a), that the cost of boundary fencing as necessary for the Colinta access licence areas is to be met by the Company and not by Colinta. Therefore, to the extent that this fencing was carried out by Colinta, it cannot be regarded as forming part of Colinta’s grazing activities at any location (particularly, here relevant, for the Wybong lands). In any event, I have no evidence of any precision readily ascertainable as to the location and extent of Colinta boundary fencing activity on the Wybong lands.

416. The second element relates to internal fencing removal (Clause 13.5(d)). Mr Hinze also gave informal evidence during the course of the site inspection concerning internal fencing activities undertaken by him or under his supervision. This included very limited reinstatement of internal fencing but, more particularly, the removal of dilapidated legacy fencing carried over from prior ownerships of grazing properties before they had been acquired by the Company.

417. For the purposes of the Wybong lands, we observed some of this legacy fencing at several locations during the site inspection. At the location mentioned below where we turned from Wybong PO Road into a paddock to inspect an air quality-monitoring station, I observed, from the road, a modestly significant pile of the legacy fencing which had been removed and stacked in the vicinity of the gate.

418. To the extent that such internal fencing removal may have been undertaken by Mr Hinze or under his supervision on the Wybong lands, I have no evidence that such removal was carried out during the relevant years. In addition, even if such removal was carried out during those years, I have no evidence of the extent of it and such visual manifestation of it as was able to be observed during the course of the site inspections traversing of the Wybong lands would indicate that the activity was de minimus.

419. It is to be observed that Clause 13.5(d) of the Colinta Access Licence Agreement operating during the vast majority of the relevant years, provided that Colinta must not alter or remove existing fencing without written consent from the Company. There is no evidence that such written consent was obtained for any of this legacy fencing removal. However, under the circumstances, it seems to me that nothing of significance should be regarded as turning on this point and I certainly do not propose to draw a Jones v Dunkel inference concerning this.

420. It is sufficient, for this consideration (and also applicable to my subsequent consideration of the Colinta access licence lands to the east and south), that these legacy fencing removal activities were minor and do not weigh, to any significant extent at all, in my consideration of the dominant use of the Wybong lands.

421. Having concluded that I should accept that Colinta had undertaken no grazing activities in the Wybong lands during the relevant years, I now turn to the mining activities on these lands during the relevant years. These activities, as earlier set out, fall into two distinct categories.

422. The first is the presence of the various elements of mine activity-related monitoring equipment, equipment which was present on the Wybong lands throughout the entirety of the two relevant years. Not only was this equipment continuously present and operating for mine operational compliance reasons throughout this period, such maintenance and/or data harvesting as was periodically necessary for this equipment took place throughout each of the relevant years.

423. Whether that access by mining personnel was along clearly marked tracks or was merely obtained, informally, by driving across a paddock (as we did when we visited the air quality monitor a 100 metres or so from Wybong PO Road within PO Box Hall paddock (paddock 26) within the Wybong lands) being irrelevant.

424. Whilst there was also some seed-harvesting activity by mining personnel on the Wybong lands during the relevant years, this is a matter of minor (but confirmatory) use of these lands for the purposes of the Company’s coal mine.

425. I have also earlier described the evidence given by Mr Lennard and Mr White concerning the various exploration activities carried out by mining personnel in the portion of the Wybong lands described as the northern expansion area.

426. These experts were in agreement concerning the extent and/or duration of these activities by mining personnel in this area within the Wybong lands (and for other monitoring sites) during the relevant years. This was set out in Table 2 of their Joint Expert Report (Exhibit N).

427. It is sufficient that, for the purposes of this consideration of what might be regarded as the dominant use of the Wybong lands during the relevant years, such activity by mining personnel on behalf of the Company on this portion of the Wybong lands was taking place during a period when Colinta was not undertaking any grazing activities.

Weed control activities

428. Clause 5.2 of the Colinta Access Licence Agreement deals with the Company's obligation to undertake such general broadacre weed control and management activities as might be required. This provision is in the following terms:

The Licensor will be responsible for managing and undertaking weed control programs on the Property, other than weed control required by the Licensee as part of a cropping or improved pasture regime for the Purposes.

429. During the course of the site inspection, in the vicinity of the second of the stops where we inspected a paddock element in the north of the Wybong lands which Mr Lane proposed was an example of his “Class 7 adjusted” lands, discussion also took place concerning weed control activities undertaken on Colinta’s access licence lands. It was confirmed that those activities were undertaken by the Company and not by Colinta.

430. However, to the extent that the Company’s mining approval mandates that the Company undertakes weed management activities, these appear to be confined to such activities relating to protection of the various biodiversity offset areas. The undertaking of weed control activities on a wider scale, such as was noted above, appears, as best I am able to understand it, merely to arise as an obligation on the Company pursuant to the Colinta Access Licence Agreement. As a consequence, such weed control activities as are undertaken anywhere on this assessment parcel are not to be regarded as having any relationship with the Company’s coal mine - neither, however, are they part of any activity of Colinta.

The excluded houses and buildings

431. On Annexures A and B, it can be seen that there are 19 small, square, brown markings within the boundaries of the Wybong lands (excluding the Northern Corridor). These markings represent dwellings or other buildings and their curtilages that have been excluded from the larger assessment parcel. Nothing of controversy arises from these exclusions.

Conclusion on the Wybong lands

432. As a consequence, the only conclusion that is to be drawn with respect to the use of the Wybong lands during the relevant years is that the dominant (indeed, sole) use of those lands was by the Company for the purposes of its coal mine.

The Colinta access licence land to the east and south

Introduction

433. As can be seen from a combination of Annexures C and D, the Colinta access licence area in the east and south of the larger assessment parcel comprises paddocks 1 to 19 and 27 to 33 of those named on Mr Hinze's list at Annexure E. It is to be noted that the portions of the Northern Corridor to the east of ML1626 shown on Annexures A and B fall within my discussion of the offset areas and not here. The consideration I am here undertaking is confined to the permitted grazing utilisation of the portions outside the Northern Corridor paddocks.

434. There are a number of matters to be noted concerning these lands within this element of the Colinta access licence lands.

435. First, Mr Nelson's expert report set out, at Table 6 (at folio 659 of the Consolidated Evidence Book), the land and soil capability classifications of the land within the larger assessment parcel. The table included those classifications for the entirety of this assessment parcel. A copy of the map, incorporated in his expert report, visually displaying this (Figure 1 at folio 659 of the Consolidated Evidence Book) is reproduced as Annexure G to this decision. Mr Nelson's Table 6 is reproduced below:

436. A proper understanding of where the various elements depicted in this table are located can be seen from Annexure G. It is clear that the Class 2 and Class 3 land (described by Mr Nelson as being situated along the rivers and creeks and land capable of being regularly cultivated so long as conservation practices are observed) can be seen to be located, principally, along the Hunter River along the south-eastern edge of this element of the larger assessment parcel. What was observed during our visit to elements of these Class 2 and Class 3 lands as part of the site inspection was earlier described in my setting out of matters then observed.

437. As can be seen from Mr Nelson's Table 6, a small portion of the eastern and southern lands of the larger assessment area is Class 4, with the vast majority of it being Class 5 land described by Mr Nelson as being not capable of being regularly cultivated but suitable for grazing with occasional cultivation. It is to be observed that there was no evidence from Mr Hinze that any of the land outside the Class 2 and Class 3 land in this portion of the larger assessment parcel was cultivated during either of the relevant years.

438. With the exception of Mr Lane’s “adjusted Class 7” land earlier discussed (and a matter not here relevant) there was no relevant difference in the approaches by Mr Nelson and Mr Lane to these land classifications.

Transfer of the pipeline easement

439. The only difference to this area of the larger assessment parcel between the first of the relevant years and the second of those years was the transfer of the pipeline easement lands from the larger assessment parcel to the smaller assessment parcel for the second of the relevant years. As earlier discussed, in the context of the smaller assessment parcel, this pipeline easement area constituted a significant coal mine use of the land falling within that easement as a consequence of its use for water and electricity supply to the mine - service supplies without which, it is to be inferred, the mine could not function. This is a matter of importance for my consideration of the 2016/17 uses of this assessment parcel.

The excluded house and buildings

440. On Annexures A and B, it can also be seen that there are 14 small, square, brown markings within the boundaries of these lands. These markings represent dwellings or other buildings and their curtilages that have been excluded from the larger assessment parcel. As with the Wybong lands, nothing of controversy arises from these exclusions.

Monitoring equipment

441. It is also to be observed that an examination of Annexure C discloses the presence of monitoring equipment on this element of the larger assessment parcel necessary for the operation of the coal mine. This is set out in the table below:

2016/17	2017/18
Air quality monitoring stations	9	8
Blast monitoring stations	2	2
Ecological monitoring stations	-	-
Ground water monitoring stations	-	-
Meteorological monitoring stations	-	-
Noise monitoring stations	4	4
Surface water monitoring stations	6	5

442. The difference between the 2016/17 and 2017/18 years results from the fact that one air quality monitoring site and one surface water monitoring site were located within the pipeline easement land transferred to the smaller assessment parcel for the second of the relevant years.

443. It is also to be observed that there was one location in this element of the larger assessment area where seed harvesting was undertaken in 2018.

Screen plantings

444. It is also to be noted that, as was observed during the course of the site inspection, visual impact vegetation screening has been planted along Mangoola Road in order to provide protection from viewing into the mine’s activities. On Annexure D, Mr Hinze marked, with a yellow line, the location of where he considered that screening has been planted (affidavit of 19 June 2019, paragraph [41]). He acknowledges that the screening planting “somewhat restricts the ability to graze cattle in this area”.

445. However, the required visual screening planting location, as a ribbon along Mangoola Road, is more extensive and is accurately depicted on Appendix 7 of the Consolidated Project Approval (Exhibit Z, Respondent’s Tender Bundle B, folio 38) reproduced below (the screening planting is to be seen as the light green strip on the western side of Mangoola Road):

Cropping activities

446. During the course of the site inspection, we visited several locations in the Class 2 and Class 3 lands along the Hunter River in this element of the larger assessment parcel. We also drove parallel to the riverbank for portion of the site visit for the purposes of access. The present extent of cropping activities seen on these highly productive lands was earlier been described at [96].

447. In his affidavit of 19 June 2019, Mr Hinze described the nature of Colinta’s cropping activities at [88] to [97] in the following terms:

Cropping and Irrigation

88   Colinta engages in centre-pivot irrigation, half-pivot irrigation, soft tow irrigation and general ploughed up cropping for the purpose of planting and growing crops on the Properties.

89   Under the Water Licences, Colinta is able to irrigate 80 hectares using three centre pivots and one half pivot for cropping. One of the centre pivots is towable.

90   Colinta can irrigate a further 40 hectares using soft tows.

91   Colinta is able to irrigate a further eight hectares on the flats adjacent to the Hunter River with moveable pivots for the purpose of cropping Lucerne. The crops of Lucerne are used to make hay for the cattle.

92   Colinta can also use a further 60-80 hectares of dry land, which was previously ploughed up for seasonal cropping. This land has not been used for cropping since late 2016 due to the drought because it relies on seasonal rainfall rather than irrigation for crops to survive. Colinta will use the land when it can for future cropping.

93   The total area used for cropping described above amounts to around 200 hectares.

94   Of the total area, the land that can be irrigated is located within the south-eastern portion of the Properties because it is adjacent to the Hunter river irrigation pumps. On this land, Colinta sows and crops oats and Lucerne.

95   In previous years Colinta has also plant sorghums in the summer months.

96   Crop yields are used to grow out calves for sale and produce fodder for the cattle generally.

97   Every year on a rotating basis Colinta replants the pasture, Lucerne, and forage sorghum under 1 of the pivots, so that all pasture, Lucerne, and forage sorghum in the area is replanted once every 5 years. Oats and winter based cereals are also sown under some of the pivots. In the period between 2016 and 2018 we have also planted a summer crop of forage sorghum.

448. Whilst matters relating to cost attribution (or the lack thereof) for the irrigation equipment available to Colinta for these purposes might potentially require discussion, it does not do so in the present context. That consideration would only arise if I needed to turn to the tests in s 515 of the Local Government Act.

449. By reason of my conclusions that flow from my dominant use conclusions concerning the larger assessment parcel, I do not need to do so.

450. During the course of his oral evidence, Mr Hinze was questioned concerning Colinta’s cropping activities. This evidence is recorded in the transcript of 24 October 2019. It is not necessary to set out significant elements of this evidence. It is sufficient, for present purposes, to set out what Mr Hinze accepted during Mr Tomasetti’s cross-examination was a summary of Colinta’s cropping activities in the relevant years (Transcript, 24 October 2019, page 99, lines 18 to 40):

Q. So in the relevant years, I'd be accurate to summarise your evidence for the Court by saying you grew crops of barley, sorghum and oats. Is that correct?

A. Barley, sorghum and oats, yeah.

Q. The total cropping area was 128 hectares. Is that correct, including the lucerne block?

A. I - I do believe so. Actually, no, I think it's only 80 hectares under irrigation. I think I'd have to double-check with you. I think there is other - there's dry land crops there that we put in, but we struggled to get crops in the dry land areas due to the - to - to the - you know, no rain. I think we got - I believe it was one or two failed crops and we didn't - last year we didn't put in - I don't think they put anything in on some of them because we couldn't afford to lose a crop.

Q. It's 80 hectares, is it‑‑

A. I'll just‑‑

Q. --that was available for irrigation of crops and - or pastures?

A. I can add it up for you if you'd like, if you want an exact - I sort of broke it down the best I could with my knowledge, but it's ten, 20, 30, 40 - 40, 50, 60, 70 - 70, 80 - 80 hectares under the centre pivots and then the eight hectares out the front.

The impact of the drought on Colinta’s grazing activities

451. Mr Hinze also gave evidence concerning the impact that the drought had had, during the relevant years, on Colinta’s grazing activities. A significant element of that impact was discussed in the earlier portion of this decision dealing with what I have concluded was the abandonment by Colinta of grazing in the Wybong lands during each of the relevant years.

452. However, Mr Hinze also gave more general evidence concerning the impact that the drought had had on Colinta’s grazing activities. In his 19 June 2019 affidavit, he said (at [79] to [83]):

Drought

79   At the end of 2016 I noticed that the drought had begun to affect Colinta’s business operations because paddocks available for grazing were significantly drier than in previous years.

80   Since 2016 Mangoola Station has undergone a process of selling livestock at an increased rate to alleviate pressure on the lands from reduced feed and silage on the Properties because of drought.

81   The stock records referred to in Annexures “H” and “I” above reflect the reduction in cattle numbers on Mangoola Station from 2016 to present.

82   Of the cattle sold since 2016, there were a few truckloads that went to Bobadeen Station in Ulan but the majority of the cattle were sold at the public yards up in Dubbo and also to Singleton-based abattoirs.

83   Colinta runs what cattle it can on the land even though Mangoola Station has been continuously impacted by drought from at least mid-2016 onwards. The dryness on the land improved in 2019 because of rainfall on the Properties that year.

453. During the course of his oral evidence, in addition to questioning about drought impacts on activities on the Wybong lands, Mr Hinze was questioned by Mr Tomasetti concerning the broad impact of drought on Colinta’s activities. This evidence was (Transcript, 24 October 2019, page 65, lines 7 to 27):

Q. So that in the relevant period, 2016 to 2018, the Court is correct to understand that the Mangoola Station was in a period of very dry times, drought?

A. It was, yeah. It started at - it starts, well, in 16, got dry and it just continued to get drier, yes.

Q. And the amount of feed on the ground was, in many parts of the property, less than what was observed during the Court view in the last two days?

A. Yes.

Q. Is that correct?

A. Yes.

Q. And you've been working at Mangoola Station for how long?

A. Approximately eight - eight years.

Q. And it would be right to say that in the relevant years, this two year period, the weather was drier than it's been at any other time when you were working there?

A. Yeah, we - we haven't had a severe as drought as what we're in now, prior to me being there, no, to - in those relevant years.

454. This evidence concerning the impact of the drought on Colinta’s activities was entirely consistent with the expert land management evidence concerning the impact of the drought on more general cattle-grazing activities within this portion of the Hunter Region.

Weed control activities

455. I have earlier discussed the question of weed control activities undertaken by the Company in the context of the Wybong lands. The conclusion I there set out, that such weed control activities were unrelated to the Company’s coal mine activities, is equally applicable to any weed control activities undertaken on the eastern and southern portion of the larger assessment parcel.

Consideration

456. For the purposes of assessing the balance of the use of this element of the larger assessment parcel for each of the relevant years, it is necessary to weigh the uses of this element for the coal mine by the placing of the monitoring equipment and its continuous use throughout the entirety of the two relevant years (together with the necessity for intermittent access to that equipment for data recovery and/or maintenance purposes) with the extent of the use by Colinta of this element of the larger assessment parcel for grazing and cropping purposes. In this process, for reasons earlier described, the importance of the use of the water and electricity supply easement to permit the Company’s coal mine to operate as a coal mine is an element of importance in my assessment of the 2016/17 uses of this land.

457. For the 2016/17 year, I am not satisfied that the use of this portion of the larger assessment parcel by Colinta is greater than the use of elements of this land for the purposes of the coal mine.

458. However, for the 2017/18 year, I am satisfied that the use of this portion of the larger assessment parcel by Colinta is greater than the use of elements of this land for the purposes of the coal mine. This forms part of my assessment of what should be regarded as the overall dominant use of the larger assessment parcel in this second of the relevant years.

459. I now explain why I have reached these differing conclusions.

460. Although it is clear that the intensity of Colinta’s activities for grazing purposes was diminished in each of the relevant years as a consequence of the drought, I am nonetheless satisfied that Colinta’s grazing activities carried out across this element of the larger assessment parcel, when coupled with the extent earlier described of the cropping activities on the limited, more productive portion of this element of this assessment parcel, constitutes a significant use of this area to be balanced against the coal mine uses in in each of the relevant years.

461. As earlier noted, a differential consideration arises between the years with respect to the use of the water and electricity supply easement earlier discussed. That is because of the water and electricity supply facilities and their necessity for the existence of the Company’s mine at all. This was explained in detail in the 2017/18 discussion of the smaller assessment parcel. This forms a significant part of my assessment of what should be regarded as the overall dominant use of the larger assessment parcel in the 2016/17 year.

462. The use of the various locations for the coal-mining monitoring facilities earlier set out, when coupled with the need for access to them for data-gathering and/or maintenance is also to be considered in the aggregation of the overall uses of the larger assessment parcel.

The dominant use of the eastern and south portion in the 2016/17 year

463. Because of the water and electricity supply uses, when coupled with the limited monitoring-related uses and roadside screen plantings, I am satisfied that the dominant use of this element of the larger assessment parcel was for the coal mine during this year.

The dominant use of the eastern and south portion in the 2017/8 year

464. Because of the removal of water and electricity supply uses in this year, I am satisfied that the dominant use of this element of the larger assessment parcel was for Colinta’s grazing activities during this year. The limited monitoring‑related uses and roadside screen plantings could not outweigh, to any extent, the significance of Colinta’s grazing activities during this year.

465. However, the limited monitoring-related uses and roadside screen plantings in this element of the larger assessment parcel need be accumulated with the exclusively coal mine uses in the offset areas and the Wybong lands for the purpose of determining the overall dominant use for the 2017/18 year of the larger assessment parcel.

Conclusion concerning the dominant use of the larger assessment parcel

466. To reach a conclusion as to the overall dominant use of the larger assessment parcel and the purpose it serves, it is necessary to bring together all three of the assessments I have made of the disparate elements that make up this larger assessment parcel.

467. At the commencement of doing so, I should note that I do not have land area break-ups that permit any comparison with precision of the area of the Wybong lands together with the offset areas with the area occupied by Colinta for its grazing and cropping activities in the east and the south of the larger assessment area.

468. However, although I acknowledge that this is impressionistic (Leda Manorstead), it appears to me that the area of the Wybong lands available to, but not used by, Colinta for grazing purposes, together with the various offset area elements within the larger assessment parcel, are roughly equal to the area occupied by Colinta for grazing and cropping in the east and the south of this assessment parcel.

469. I have earlier explained, in the context of my assessment of the dominant use of the smaller assessment parcel in the 2017/18 year, the importance of the use of the pipeline and electricity supply easement. This easement was within this element of the larger assessment parcel for the 2016/17 assessment year and its importance to the ability of the Company’s coal mine to operate at all requires to be taken into account in my consideration of what should be regarded as the weight to be given to the two uses (those for the coal mine weighed against those for Colinta’s grazing and cropping activities) in the larger assessment parcel in that year.

470. As a consequence of all the matters informing a conclusion of the dominant use of the larger assessment parcel, I am satisfied that, for 2016/17, there is no doubt that the dominant use (and overwhelmingly so) was for the purpose of the Company’s coal mine.

471. As a further consequence of all the matters informing a conclusion of the dominant use of the larger assessment parcel, I am satisfied that, for 2017/8 - adding the uses of the Wybong lands, the offset lands and the limited mining uses of the east and south portion of the larger assessment parcel when compared to Colinta’s grazing and cropping uses in the east and south portion of this parcel - on balance, the dominant use of the whole parcel was for the purpose of the Company’s coal mine.

Costs

472. Both parties submit that the question of costs should be reserved. The orders therefore so provide.

Conclusion

The smaller assessment parcel

473. With respect to the smaller assessment parcel, I am satisfied that:

1. Section 14F(3) of the Valuation Act was the basis upon which the smaller assessment parcel was valued and the validity of that process and the resultant valuation amount is not amenable to challenge in these proceedings;

2. However, this conclusion merely results in the requirement to enquire how the smaller assessment parcel is to be categorised for rating purposes in conformity with the requirement of s 514 of the Local Government Act. This has required a factual determination of what is the dominant use of the smaller assessment parcel in each of the relevant years;

3. For the 2016/17 assessment year, I have concluded that the dominant use of this assessment parcel was, for the purposes of s 514 of the Local Government Act, as a coal mine and the categorisation pursuant to s 517 of that Act was correct;

4. The position for the 2017/18 rating year is even more clear-cut. The dominant use of this assessment parcel for that year was for the coal mine and the categorisation pursuant to s 517 of the Local Government Act was clearly correct; and

5. as a consequence, the Company's application for recategorisation of the smaller assessment parcel with respect to each of those years must be dismissed.

The larger assessment parcel

474. With respect to the larger assessment parcel, I have reached the following conclusions:

1. The position for the 2016/17 assessment year is clear-cut. I have concluded that the dominant use of this assessment parcel in this year clearly was, for the purposes of s 514 of the Local Government Act, as a coal mine and the categorisation pursuant to s 517 of that Act was clearly correct;

2. The position for the 2017/18 rating year is less clear-cut. However, taken over all activities on this assessment parcel and as an objective matter of impression having regard to all the facts, on balance, the dominant use of this assessment parcel for this year was as a coal mine and the categorisation pursuant to s 517 of the Local Government Act was correct; and

3. As a consequence, the Company's application for recategorisation of the larger assessment parcel with respect to each of those years must be dismissed.

Orders

475. It follows from the above conclusions that the orders of the Court, in Matter No 242760 of 2018, are:

1. The appeal against the failure of the Respondent to recategorise assessment parcel 121111 as farmland for the period commencing 1 July 2016 is dismissed;

2. The appeal against the failure of the Respondent to recategorise assessment parcel 121111 as farmland for the period commencing 1 July 2017 is dismissed;

3. The exhibits are returned; and

4. Costs are reserved.

476. It follows from the above conclusions that the orders of the Court, in Matter No 242761 of 2018, are:

1. The appeal against the failure of the Respondent to recategorise assessment parcel 113969 as farmland for the period commencing 1 July 2016 is dismissed;

2. The appeal against the failure of the Respondent to recategorise assessment parcel 113969 as farmland for the period commencing 1 July 2017 is dismissed;

3. The exhibits are returned; and

4. Costs are reserved.

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Annexure A - 2016-2017 map (1373450, jpg)

Annexure B - 2017-2018 map (1280216, jpg)

Annexure C - operations map (1542053, jpg)

Annexure D - paddock numbers map (180719, pdf)

Annexure E - paddock name and number (63544, pdf)

Annexure F - northern expansion map (461404, pdf)

Annexure G - soil classification map (238496, JPG)

Decision last updated: 12 June 2020