O’Brien v Slack-Smith and Anor (No2); O’Brien v Hall and Anor (No2); O’Brien v Hall (No2)

[2015] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:

O’Brien v Slack-Smith & Anor (No2); O’Brien v Hall & Anor (No2); O’Brien v Hall (No2) [2015] NSWLEC 1271

Hearing dates:

Mention 29 June and written submission on 25 and 30 June 2015

Date of orders:

21 July 2015

Decision date:

21 July 2015

Jurisdiction:

Class 8

Before:

Dixon C

Decision:

See Orders after paragraph [72]

Catchwords:

APPEAL – MINING – determination of access management plan for small- scale titles pursuant to Part 10A of the Mining Act 1992 for land in Lightning Ridge

Legislation Cited:

Mining Act 1992

Texts Cited:

O’Brien v Sack –Smith & Anor; O’Brien v Hall & Anor; O’Brien v Hall [2015] NSWLEC 1179

Category:

Principal judgment

Parties:

Maxine Anne O’Brien (Plaintiff of 14/80651)
Ross Slack-Smith (First Defendant of 14/80651)
Genise Janet Slack-Smith (Second Defendant of 14/80651)

Maxine Anne O’Brien (Plaintiff of 14/80652)
Roderick Allan Hall (First Defendant of 14/80652)
Helen Anne Hall (Second Defendant of 14/80652)

Maxine Anne O’Brien (Plaintiff of 14/80664)
Roderick Allan Hall (First Defendant of 14/80664)
Helen Anne Hall (Second Defendant of 14/80664)

Representation:

Counsel:
Mr Lindsay John Moore, Solicitor (Plaintiff)
Ms Warry (solicitor) (Defendants – Mr and Mrs Hall )

Solicitors:
Moore & Co Solicitors (Plaintiff)
Holding Redlich (Defendants – Mr and Mrs Hall)
Mr Slack – Smith self-represented

File Number(s):

80651 of 2014, 80652 of 2014 and 80664 of 2014

Judgment

Introduction

1. On 25 May 2015 I published my principle reasons following a hearing that took place in Lightning Ridge: O’Brien v Sack –Smith & Anor; O’Brien v Hall & Anor; O’Brien v Hall [2015] NSWLEC 1179 (earlier judgment).

2. This judgment should be read together with my earlier judgment which focussed upon a resolution of the critical issues between the parties. In particular, it dealt in principle, with the legal framework against which each application must be assessed at [31], [44], and [51] and addressed in principle, the matters for inclusion in an AMP at [47]. It also provided a template format for that document [104].

3. My earlier judgment did not, however, attempt to resolve the particular details for the AMP in each case. At that time I believed that there was a reasonable prospect the parties might agree upon the particular terms of the AMPs if given the benefit of my general findings and, some specific findings about certain features followed by the opportunity to confer upon the detail or terms of the document.

4. My belief was based upon the fruitful negotiations which had occurred after the view on the first day of the hearing and the defendants’ final submissions which state “if the restricted zones are adhered to in choosing the access routes then most of the defendant’s concerns are likely to be addressed… ” and “…effectively the parties have reached agreement on the approach to be adopted (save for the issue of the extent of access sought, dealt with below)”: (the defendants’ written submissions at [3], [4] in respect of Sorrento, Allawah and Muttabun (DWS)).

5. Unfortunately, my expectation about the agreement of the parties to the final terms in which the AMP would be drafted has not been realised. As a consequence, I now have competing submissions which I must resolve for the purpose of concluding and settling upon the terms of the AMP in each case so as to perform the function with which I am tasked by s236 G (2) of the Mining Act.

6. Before I do that I need to record the parties’ current legal representation because it has changed since the delivery of my earlier judgment.

Legal representation of the parties

7. James Johnson of counsel, who represented all of the defendants at the hearing in Lightning Ridge, is no longer retained. Similarly, Lindsay Moore the solicitor who represented the plaintiff, Ms O’Brien, at the hearing and, whom I might add was of great assistance to the Court, has had limited involvement since the delivery of my preliminary findings due to a change in his personal circumstances which have rendered him unable to continue.

8. The legal firm Holding Redlich (the firm) who represented the defendants at the hearing no longer acts for Mr Slack-Smith the occupier of Muttabun. These solicitors filed a Notice of Ceasing to Act on 26 June 2015.

9. Mr Slack –Smith now appears without legal representation.

10. The firm continues to act for the defendants Mr and Mrs Hall who occupy Sorrento and Allawah. They are now represented by Breellen Warry Special Counsel. However, Ms Warry did not attend the hearing in Lightning Ridge.

Further written submissions from the parties following the delivery of my reasons

11. At the conclusion of my earlier judgment I directed that the proceedings be listed for a telephone mention on 29 June 2015 if the parties had not forwarded a copy of their agreed AMPs to the Court by 25 June 2015.

12. The parties did not file agreed AMPs. Although I did receive, before the nominated mention date, a proposed AMP from Mr Slack-Smith for Muttabun dated 25 June 2015 and, three proposed AMPs from Ms O’ Brien for the properties ‘Sorrento’, ‘Allawah’ and ‘Muttabun’ also dated 25 June 2015

13. The Halls did not to file a proposed AMP for their properties ‘Allawah’ and ‘Sorrento’. However, at the Court mention Ms Warry told me that her clients wanted an opportunity to respond to Ms O’Brien’s proposed AMPs for their land.

14. I afforded them that opportunity. The Court received their submission dated 30 June 2015. It records the Halls’ attempts to negotiate the final terms of the AMPs for ‘Allawah’ and ‘Sorrento’ with Ms O Brien, as directed by the Court. To that end they forwarded a marked up response to Ms O’Brien’s proposed AMPs but did not receive a response from her. Instead, it is asserted, Ms O’Brien forwarded an ex- parte submission directly to the Court in the absence of the defendants’ consent.

15. The ex-parte submission referred to in the Halls’ submission is in fact the proposed AMP filed by Ms O’Brien’s dated 25 June 2015 this is the subject of this judgment.

16. In order to save possible confusion I note that the numbering of the proposed AMP from Ms O’Brien omits a clause numbered 3. While this judgment refers to the numbering of her document the AMPs attached to my final orders have been renumbered consecutively.

Joint hearing of the proceedings

17. As recorded at [10], [14], [18] of my earlier judgment, the three applications were, with the parties consent, heard together. Furthermore, I ordered that evidence in one application be evidence for all applications to the extent relevant.

18. As Mr Slack-Smith was the only defendant to give oral evidence at the hearing, the Halls relied upon his oral testimony and evidence for general matters relevant to their properties ‘Allawah’ and ‘Sorrento’. This included his evidence about the impact of primary access roads and tracks on sensitive features such as fences and cup and saucer tanks.

19. During the Court’s view of the properties ‘Sorrento’ and ‘Allawah’ I was shown fences and several “cup and saucers” in areas where access tracks/ roads existed or were proposed. At that time, Mr Johnson made clear to me that his clients, the Halls, wished to have these areas protected.

20. Accordingly, my earlier judgement in respect of the protection of these sensitive features on ‘Sorrento’ or ‘Muttabun’ was intended to be of general application to all properties subject to the particular circumstances in each case. Relevantly, the distance of any buffer around a cup and saucer tank on ‘Allawah’ was not the subject of specific evidence. The Halls have now asked that these sensitive features be afforded the same protection as agreed between the parties for the large cup and saucer on ‘Sorrento’, namely a buffer of 200m. I will deal with this matter in due course.

Attachment 1 – the common conditions applicable to all Access Management Plans

21. Following a consideration of the parties competing submissions in respect of Attachment 1 I have decided to accept Ms O’Brien’s version (attached to the proposed AMPs dated 25 June 2015 for each property) subject to the following amendments.

Access management plan cover - notation of OPBs

22. The defendants would like the identification of Opal Prospecting Blocks (OPB) on the cover sheet of each AMP. I accept that it is convenient to include this reference on the tile cover of the AMP.

23. I do not understand Ms O ‘Brien to object to this amendment. In any event if a

24. new OPB is designated for the land the AMP can be amended to incorporate the reference by agreement or under cl13 of the AMP.

Recital F

25. The Halls have requested that the final AMP include Recital F.

26. Recital F of exhibit F provides:

The landholder and the title holder reserve for future discussion the requirement (if any) that the titleholder shall have public liability insurance in exercising rights and obligations under this Plan.

27. Paragraph [91] of my earlier judgment clearly deals with the issue of public liability insurance and general indemnity against liability for claims brought against the landholder. As stated, I do not believe that an AMP should deal with matters of insurance – the AMP manages access to land.

28. As Ms Warry correctly points out, my earlier judgment records at [109] “RECITALS – unchanged apart from deletion of the reference to holders of a permit to enter”. This is an inadvertent error. I had intended that the AMP would be modified by my general findings. Therefore, I wish to make plain my finding that Recital F is to be deleted to accord with my earlier reasoning at [91].

29. I also need to correct my reference to the deletion of the words “of holders of a permit to enter” at [109] of my earlier judgment. It is a reference to those words in the DEFINITIONS in cl 1 of Exhibit F. The relevant correction has been picked up in Ms O’Brien’s proposed AMPs dated 30 June 2015. The documents now accord with my earlier judgment.

Definitions

30. The defendants object to the inclusion of the words “and future title holders” in the definition of “Titleholder” in cl1 of Ms O’Brien’s proposed AMPs dated 25 June 2015.

31. I agree with the defendants.

32. I do not believe the words are necessary because the AMPs will apply to any SST for the land under the Mining Act irrespective of the date of the AMPs.

Clause 10(11)

33. The defendants object to the additional words proposed by the plaintiff in Clause 10 (11) of her AMP dated 25 July 2015. They submit that I did not authorise the inclusion of those words in my earlier judgment at [96] – [99] and [109] and, therefore, they should be deleted.

34. However, after a consideration of the parties’ further submissions on this issue I consider the nomination of three particular events as examples of “special reasons” to be useful. It does not distract from the clear intent of cl 10 (11) which is to generally prohibit the use of access roads/ paths outside the prescribed periods.

35. The term “special reasons” in cl10 (11) needs to be defined in order to confine the use of the access paths outside the prescribed areas. Therefore, I have decided to allow the inclusion of the additional words proposed by Ms O’Brien in cl10 (11).

Clause 13

36. The plaintiff has amended cl 13 to require the titleholder - when notifying under s266 (4) (b) Mining Act – to also notify the make, colour and registration number (if any) of vehicles they expect to be accessing the land under this plan.

37. The modified provision is inconsistent with my earlier judgment. I am of the opinion that the landholder is entitled to know the details about all vehicles they expect to be accessing the land under the plan and not just at the time of the s266 (4) (6) notification. This requirement to notify the landholder is an ongoing obligation.

Attachment 2 map – the marked plan showing routes that have been designated as access routes for the purposes of this Access Management Plan - Allawah and Sorrento

38. It is appropriate that I identify which Attachment 2 map I have decided to incorporate into the AMPs for ‘Allawah’ and ‘Sorrento’ because the parties have competing versions.

Allawah

39. The map of ‘Allawah’ marked Attachment 2 to the letter from Holding Redlich dated 30 June 2015 is in my opinion acceptable, subject to an additional notation about the fences. It shows (marked blue) the location of four (4) existing “cup and saucers” on ‘Allawah’. The existing fences are marked green and the transmission line is red. It also depicts (as yellow) the dirt road which is to be used after the LRMA installs at its cost a grid with a gate on it and any associated infrastructure (see [113]-[114]).

40. I accept, as the Halls’ submit, that it is useful in this instance to have one map which identifies the features referred to in the AMP.

Sorrento

41. The map of ‘Sorrento’ marked Attachment 2 to the letter from Holding Redlich dated 30 June 2015 showing all features referred to in the AMP is also acceptable in this instance.

Attachments 3 and 4 - Sorrento

42. The defendants object to the notations proposed by Ms O Brien in Attachments 3 and 4 in respect of fencing and the “cup and saucer”. The reasons are outlined at paragraph 20 -25 of their submission dated 30 June 2015.

43. I do not agree. In my assessment of the evidence, the specification of the area in Attachment 3 as a restricted area means that the area is to be avoided. However, the restriction on vehicle access along these primary access roads and tracks does not preclude access to the area for any lawful activity under an SST or OPL. The notation proposed by Ms O’Brien does nothing more than state that fact. Ultimately, prospecting access will turn on the terms of the particular SST or OPL.

44. For those reasons I consider the defendants proposed notations at paragraphs [23] confusing and potentially misleading. I prefer Ms O’Brien’s draft.

Fences

45. My earlier judgment imposed a restriction in respect of access near particular fences on ‘Muttabun’ at [109] - [118]).

46. For the reasons stated a similar restriction should be available where applicable, for ‘Sorrento’ and ‘Allawah’. Clause 5(3) of Ms O’Brien’s proposed AMP dated 25 June 2015 achieves this and in my assessment adequately covers the issue for ‘Sorrento’ and ‘Allawah’. However, the restriction needs to be shown on a map and referred to in the Attachments.

47. Attachment 2 map for ‘Allawah’ (which I have adopted) shows all fences on ‘Allawah’. However, driving access is only restricted in respect of those fences which fall within the terms of cl 5 (3) of the AMP.

48. Therefore, it is necessary to include a notation on the Attachment 2 map to that effect.

49. The notations for Attachment 3 and Attachment 4 of the AMP as proposed in paragraph 24 of the Hall’s submission need to be modified to reflect cl5(3). I have decided the wording should be as follows:

Attachment 3

There is to be no driving of vehicles within 10 metres of any fences where there is a cleared 50m fire break.

Only those fences on attachment 2 which fall within cl 5 (3) of the AMP are subject to this restriction.

Attachment 4

There shall be no driving of vehicles within 10 metres of the fences where there is a cleared 50m fire break as noted in cl5(3) of the AMP.

The fences which fall within cl 5 (3) on Attachment 2 are nominated elements for this AMP.

Cup and saucers

50. As noted at the time of providing my earlier judgment I understood that there were several ‘cup and saucer’ tanks of different sizes on ‘Allawah’ around which access was sought. At the view I was shown some of them.

51. I had hoped that the parties might have resolved how these sensitive elements might be protected.

52. The Halls have identified 4 particular cup and saucers as blue dots on Attachment 2. Consistent with my earlier judgment, I accept that these 4 cup and saucer tanks on ‘Allawah’ as depicted on the map should also be avoided and, a notation to that effect needs to be made on the relevant Attachments and map.

53. However, the extent of any buffer is an arbitrary matter. The 200m buffer around the large cup and saucer tank on ‘Sorrento’ was determined by the parties. The defendants submit that 200m is also an appropriate distance for the 4 identified cup and saucer tanks on’Allawah’. Ms O’Brien does not agree and Mr Moore submitted at the hearing that the distance is “an ambit claim” (transcript (D2 p68 at [5]-10])

54. As the parties have not come to any agreement on this issue I must determine the distance based on the evidence before me.

55. There is no evidence to support a 200m buffer for these cup and saucers on ‘Allawah’. However, given their plotted locations it would appear that they are proximate to proposed access routes and therefore it is appropriate that they be protected. Therefore, based on my understanding of the evidence including that taken on the view and the size and locations of these sensitive features I am of the opinion that a 50m buffer is appropriate.

56. I have considered the wording proposed in paragraph 19 of the letter from Holding Redlich dated 30 June 2015 for inclusion in Attachments 3 and 4. Subject to the insertion of a distance of “50m” and the deletion of the words” …and this area is to be avoided” I accept the proposed drafting.

57. As was made clear in my earlier judgment, an AMP is not a vehicle to be used to restrict a titleholder from legally accessing a title under the terms of their SST or OPL. The notations in the Attachments for ‘Allawah’ are to be :

Attachment 3

There shall be no access or creation of any primary access road or track within 50m of the cup and saucer tanks shown marked blue on the map in Attachment 2.

Attachment 4

Cup and saucer tanks and the supply (pipeline) of water to same, are nominated elements for the purposes of this plan and are shown marked with a blue dot on the map in Attachment 2.

There shall be no access or creation of any Primary Access Road or track within 50m of the cup and saucer tanks on or in the vicinity of OPBs 30, 39, 40 and 44.

The remaining 2 disputed access paths on Allawah

58. I need to determine the two remaining disputed access paths on ‘Allawah’. They are marked red and identified with the words “not agreed” on the second map called Attachment “A” for ‘Allawah’ attached to the Holding Redlich letter dated 30 June 2015.

59. The Plaintiff wants these access paths approved because they provide access to land which is difficult to access on existing paths or has no access. The defendants contend that there are already existing routes which provide suitable access to all of these areas. The proposed roads are said to encroach on sensitive features such as ‘cup and saucer’ tanks and black soil areas and are not necessary given the alternate routes available.

60. With respect to the proposed access path near the word ‘Allawah’ on Attachment ‘A’ I accept that there is no existing alternative access path in that part of the site and, therefore access should be allowed for any existing and future SSTs to this part of the land. Part 10A the Mining Act facilitates access in these circumstances.

61. With respect to the other access path marked red from the Highway to the land, the plaintiff’s position is that this route requires significant backtracking along the highway which is unsatisfactory for mining vehicles/machinery. The defendants’ position is that the existing road should be preferred over a new access route particularly when the proposed access is proximate to an existing ‘cup and saucer’.

62. As the parties cannot agree I must decide the issue on the evidence such as it is. Having regard to my inspection of the land and the fact that the ‘cup and saucer’ will be protected under the AMP by a 50m buffer, I am satisfied that the more direct proposed access route is appropriate in this case. It not only avoids back tracking of drilling rigs etc. along the public Highway but also allows access into a central area of the land which is not currently readily accessible. Furthermore, it avoids the proliferation of numerous access points diverging from the main road into the site.

58. For the above reasons I am satisfied that the two red lines which are the disputed access routes on ‘Allawah’ are acceptable and should be included under the AMP and on the relevant Attachments for ‘Allawah’.

Power line

64. The defendants object to the plaintiff’s proposed wording “Nothing in this clause prevents a vehicle crossing the track”. They offer an alternate clause which is detailed at paragraph 15 of their submissions dated 30 June 2015.

65. The power line is marked red on Attachment 2 and, given its length; it is inevitable that it will need to be crossed at various points on the land. Under the general terms of the AMP the shortest most practical route to an SST or OPL is mandated. Therefore, I do not believe that it is reasonable to include the defendants’ proposed clause. I adopt the plaintiff’s version.

Muttabun

66. At the telephone mention on 29 June 2015 Ms O’Brien made some brief oral submissions in response to Mr Slack- Smith’s proposed AMP and written submissions dated 25 June 2015.

67. Ms O’Brien took issue with Mr Slack–Smith’s reliance on documentation which was not before the Court at the hearing. It included a document entitled Narran Warrambool Reserve Interim Lightning Ridge Mining Board Buffer Zone – Guidelines and other correspondence with the Department.

68. I do not propose to rely upon any document which was not before the Court hearing. That said, I appreciate that Mr Slack–Smith’s is not lawyer and that he is no longer legally represented. Despite that fact, his reference to the LRMA’s standard mineral claim conditions and opal prospecting licence conditions which were tendered at the hearing as exhibit “G” is relevant and I have had regard to that document in my consideration of his submissions.

69. Mr Slack–Smith’s submission is offered to assist the Court not to cavil with any findings made. He states: “The application from the Lightning Ridge Miners Association (LRMA) was for nominated access roads through Muttabun. Most of the roads were agreed and I accept the Court’s decision “(p2 submission dated 25 June 2015). To that end his proposed AMP generally follows the format of Attachment 1 of the AMP prepared by Ms O’Brien and dated 25 June 2015. However, he would like the restricted zones in Attachment 3 to record numerous areas and sensitive items and features on his property at Muttabun. Relevantly, many of the areas and items listed are already protected under the Mining Act or by SST licence conditions as detailed in exhibit G. Therefore, for the reasons stated in my earlier judgment it is not necessary to repeat these restrictions in the Attachments to the AMP. In short, they are enforceable under the terms of the particular licence and the Mining Act. Repeating that detail in the AMP does not improve their enforceable. Nor is it necessary to repeat in the Attachments what is already referenced in the clauses of the AMP.

70. Mr Slack–Smith also submits that it appropriate to dictate the access path for each SST holder to any particular mineral claim area or OPB in Attachment 4. Under the terms of the AMP an SST holder must access their title or any relevant OPB or mineral claim area in accordance with the terms of the AMP. Repeating or dictating a path of access in any Attachment to an AMP is not necessary or anticipated under Part 10A of the Mining Act.

71. For the reasons stated I am satisfied that the AMPs proposed by Ms O’Brien dated 25 June 2015 for ‘Muttabun’ satisfactorily reflect my earlier findings and I do not propose to change them.

72. Having said that I note that the draft prepared by Ms O’Brien invites Mr Slack- Smith to mark on a map which fences have a 50m fire break and this has not yet been done. As I do not propose to delay my final orders in these appeals to accommodate the preparation of further maps, I do not propose to include such a map in the Muttabun AMP. However, if Ms O’Brien and Mr Slack-Smith agree to the inclusion of such a map in the future then they have the Court’s leave to include that map in the AMP for ‘Muttabun’.

Orders

(1) In accordance with s236G(2) of the Mining Act 1992 I have determined the following access management plans for the properties of ‘Allawah’, ‘Sorrento’ and ‘Muttabun’ as follows:

Proceedings matter number 14/80664

(2) For the land known as Allawah comprising Western Land Lease No 2829 and 4637 the access management plan is marked Annexure A to this judgment.

Proceedings matter number 14/80651

(3) For the land known as Muttabun comprising Western Land Lease Nos 384,722 and 5346 the access plan is marked Annexure B to this judgment.

Proceedings matter number 14/80652

(4) For the land known as Sorrento comprising Western Land Lease No 8407 the access plan is marked Annexure C to this judgment.

Susan Dixon

Commissioner of the Court

80651, 80652, 80664 of 2014_Annexure A_Allawah (498 KB, pdf)

80651, 80652, 80664 of 2014_Annexure B_Muttabun (1.81 MB, pdf)

80651, 80652, 80664 of 2014_Annexure C_Sorrento (1.26 MB, pdf)

Decision last updated: 22 July 2015