Mine Subsidence Board v Wambo Coal Pty Ltd

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Reported Decision: 154 LGERA 60

New South Wales


Court of Appeal


CITATION: Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137
HEARING DATE(S): 3 May 2007
 
JUDGMENT DATE: 
15 June 2007
JUDGMENT OF: Hodgson JA at 1; Santow JA at 2; Tobias JA at 3
DECISION: a) Leave to appeal granted; b) Set aside the answers given by Lloyd J to questions (a) and (b) on 24 August 2006 and in lieu thereof substitute the following answers: (a) Yes, (b) No; c) The proceedings be remitted to the Land and Environment Court for further disposition; d) The respondent to pay the appellant’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified
CATCHWORDS: ENERGY AND RESOURCES — Statutory regulation — Compensation — Subsidence – Whether compensation can be claimed for works done to prevent or mitigate damage from anticipated subsidence - STATUTES – Acts of Parliament – Interpretation – Mine Subsidence Compensation Act 1961 ss 12, 12A, 12B, 13A
LEGISLATION CITED: Land and Environment Court Act 1979
Mine Subsidence Compensation Act 1961
CASES CITED: Cooper Brookes (Holdings) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
PARTIES: Mine Subsidence Board
Wambo Coal Pty Limited
FILE NUMBER(S): CA 40585/06
COUNSEL: A: P McEwan SC / M Seymour
R: M Leeming SC / C Withers
SOLICITORS: A: Trisley Kilmurray, Solicitors, Newcastle
R: Sparke Helmore Lawyers, Newcastle
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): LEC 30584/05
LOWER COURT JUDICIAL OFFICER: Justice Lloyd
LOWER COURT DATE OF DECISION: 24/8/06
LOWER COURT MEDIUM NEUTRAL CITATION: Wambo Coal Pty Limited v Mine Subsidence Board [2006] NSWLEC 528



                          CA 40585/06
                          LED 30584/05

                          HODGSON JA
                          SANTOW JA
                          TOBIAS JA

                          15 June 2007
MINE SUBSIDENCE BOARD V WAMBO COAL PTY LIMITED
Judgment

1 HODGSON JA: I agree with Tobias JA.

2 SANTOW JA: I agree with Tobias JA.

3 TOBIAS JA: In 1999 Wambo Coal Pty Ltd (the respondent) constructed a surface drift coal conveyor (the conveyor) approximately 1.07km in length on land which was within a mine subsidence district proclaimed under s 15(1) of the Mine Subsidence Compensation Act 1961 (the Act).

4 In 2003 the respondent became aware that United Collieries Pty Limited (United) proposed to engage in longwall underground coal mining beneath the conveyer. Engineers retained by the respondent predicted that the underground workings of United would cause subsidence of the land on which the conveyor or portions thereof were constructed.

5 Because of its concern that the potential subsidence would, when it occurred, inevitably cause damage to the conveyor, the respondent opted to dismantle and relocate it. In so doing it expended an amount of $597,400. It was common ground that it was reasonable to anticipate some damage to portions of the conveyor arising from the predicted subsidence, if and when it occurred.

6 Ultimately, United commenced mining operations and subsidence did…

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Details
Case
[2007] NSWCA 137
Decision Date

CaseChat Overview and Summary

The Mine Subsidence Board (appellant) appealed to the Court of Appeal of New South Wales against a decision of Lloyd J in the Land and Environment Court concerning claims for compensation under the *Mine Subsidence Compensation Act 1961* (NSW). The dispute arose from Wambo Coal Pty Ltd (respondent) seeking compensation for works it undertook to prevent or mitigate damage to its mine from anticipated subsidence caused by the appellant's mining operations.

The primary legal issue before the Court of Appeal was whether the respondent was entitled to claim compensation for works carried out to prevent or mitigate damage from anticipated mine subsidence, as opposed to damage that had already occurred. This involved the interpretation of sections 12, 12A, 12B, and 13A of the *Mine Subsidence Compensation Act 1961*.

The Court of Appeal determined that the Act, particularly in light of amendments, permitted claims for compensation for works undertaken to prevent or mitigate damage from anticipated subsidence. The court reasoned that the legislative intent behind the amendments was to broaden the scope of compensable damage, encompassing proactive measures taken by mine owners to address foreseeable subsidence impacts. Consequently, the court set aside the previous answers given by Lloyd J and substituted new answers that affirmed the respondent's entitlement to claim compensation for such preventative works. The proceedings were remitted to the Land and Environment Court for further determination.

Orders

Orders of the court

a) Leave to appeal granted;

b) Set aside the answers given by Lloyd J to questions (a) and (b) on 24 August 2006 and in lieu thereof substitute the following answers: (a) Yes, (b) No;

c) The proceedings be remitted to the Land and Environment Court for further disposition;

d) The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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