PANORAMIC RESOURCES LIMITED AND LANFRANCHI NICKEL MINES PTY LTD and SHIRE OF COOLGARDIE
[2010] WASAT 159
•4 NOVEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: PANORAMIC RESOURCES LIMITED AND LANFRANCHI NICKEL MINES PTY LTD and SHIRE OF COOLGARDIE [2010] WASAT 159
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 12 AUGUST 2010
DELIVERED : 4 NOVEMBER 2010
FILE NO/S: DR 137 of 2010
BETWEEN: PANORAMIC RESOURCES LIMITED AND LANFRANCHI NICKEL MINES PTY LTD
Applicants
AND
SHIRE OF COOLGARDIE
Respondent
Catchwords:
Section 120(1) of the Mining Act 1978 (WA) - Definition of mining operations - Whether planning consent is required - Meaning of 'incident or conducive to'
Legislation:
Mining Act 1978 (WA), s 8(1), s 12(1), s 85(1), s 85(1)(d), s 87(1), s 91, s 94A(2), s 120(1)
Mining Regulations 1981 (WA), reg 37(2), reg 42B, reg 42B(q)
Planning and Development Act 2005 (WA), s 252(1)
Shire of Coolgardie Town Planning Scheme No 4 (District Scheme)
Result:
Planning consent not required
Category: B
Representation:
Counsel:
Applicants: Mr P Quinlan
Respondent: Mr A Roberts
Solicitors:
Applicants: Mallesons Stephen Jaques
Respondent: McLeods
Case(s) referred to in decision(s):
Mineralogy Pty Ltd v Kuruma Marthudunera Native Title Claimants [2001] WAMW 29
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In February 2010, the applicants applied to the Shire of Coolgardie for planning approval to construct a mining accommodation village at the Lanfranchi Nickel Mine near Kambalda. The Shire refused that application on the basis that it did not meet the objectives of the Shire of Coolgardie Town Planning Scheme No 4 (District Scheme). The applicants applied to the Tribunal for a review of that decision.
The Tribunal ordered that a preliminary issue should be determined, which was, 'Is planning consent required in respect of the proposed construction, having regard to the operation of s 120(1) of the Mining Act 1978 (WA)?'
The Tribunal determined that the answer to the preliminary issue was 'No'. In coming to this decision, the Tribunal considered whether or not the construction of a mining accommodation village could be considered to be 'mining operations' within the meaning of the Mining Act 1978 (WA) and concluded that the construction was 'incident or conducive to' the applicants' mining project.
Background
The Lanfranchi Nickel Project is in the Tramway Tenements area of the Coolgardie mineral field, approximately 85 kilometres south of Kalgoorlie and 48 kilometres south of Kambalda. Those tenements include Mineral Leases ML15/486 and ML15/493 and Mining Lease M15/473.
The tenements are held by BHP Billiton Nickel West Pty Ltd and are operated by Lanfranchi Nickel Mines Pty Ltd (Lanfranchi) under a sub-lease agreement with BHP.
Lanfranchi proposes to construct an accommodation village on the land the subject of Mining Lease M15/473.
Lanfranchi, through Panoramic Resources Limited (Panoramic), applied to the Shire of Coolgardie (Shire) for planning approval to build the accommodation village. The Shire refused the application because it did not meet the objectives of the Shire of Coolgardie Town Planning Scheme No 4 (District Scheme) (Scheme), which restricts the residential component of mining activities to the townsites of the Shire.
Panoramic and Lanfranchi applied to the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) for a review of that decision.
Preliminary issues
On 28 May 2010, Senior Member Mr D Parry ordered that the Tribunal should determine two preliminary issues, namely:
(a)Whether having regard to the operation of s 120(1) of the Mining Act 1978 (WA) planning consent under the Shire of Coolgardie Town Planning Scheme No. 4 (District Scheme) was required in respect of the applicant's application for planning consent under the Shire of Coolgardie Town Planning Scheme No. 4 (District Scheme) to construct a 140 person accommodation village on Mining Lease 15/473 (with a power and water corridor and access road across Mineral Lease 15/486 and Mineral Lease 15/493) as set out in the applicant's application to the Shire dated 6 February 2010.
(b)Whether the orders sought at paragraphs 1 and 2 of Annexure A to the application dated 4 May 2010 should be made.
The orders sought at para 1 and para 2 of Annexure A to the applicants' application dated 4 May 2010 are as follows:
1.An order setting aside the decision of the Shire of Coolgardie made on 7 April 2010 on the basis that the requirement for planning consent under the Shire of Coolgardie Town Planning Scheme No. 4 (District Scheme) is not required by virtue of the operation of section 120(1) of the Mining Act 1978 (WA).
2.A declaration pursuant to section 91 of the State Administrative Tribunal Act 2004 (WA) that the requirement for planning consent under the Shire of Coolgardie Town Planning Scheme No. 4 (District Scheme) is not required by virtue of the operation of section 120(1) of the Mining Act 1978 (WA).
The agreed facts
The parties agreed the following facts for the purpose of the determination of the preliminary issues:
1.Lanfranchi is a wholly owned subsidiary of Panoramic.
2.Lanfranchi is the operator of the Lanfranchi Nickel Mine near Kambalda in Western Australia (Lanfranchi Project).
3.The Lanfranchi Project comprises one operational underground mine, a decommissioned underground mine, two waste rock stockpiles, a waste plant facility and associated mining infrastructure.
4.The Lanfranchi Project is situated on the Tramway Tenements. The Tramway Tenements fall within the boundaries of the Shire of Coolgardie. The Tramway Tenements are approximately 48 kilometres south of Kambalda. The Tramway Tenements include Mineral Leases ML15/486 and ML15/493 and Mining Lease M15/473. Mining Lease M15/473 was granted on 31 July 1990. Mineral Leases ML15/493 and ML15/486 were both granted on 14 January 1976.
5.The Tramway Tenements are held by BHP Billiton Nickel West Pty Ltd (Nickel West) and operated by Lanfranchi under a sublease agreement with Nickel West.
6.The Lanfranchi Project currently operates under 3 approvals from the Department of Mines and Petroleum (DMP), including Notice of Intent for Lanfranchi Nickel Mine recommencement of Mining (NOI 4832), September 2004.
7.Lanfranchi proposes, subject to obtaining all necessary approvals and consents required by law, to build a 140 room accommodation village, with other associated buildings, on Mining Lease M15/473 (Village). A power and water service corridor and access road for the Village is proposed to be built across Mineral Leases ML15/486 and ML15/493.
8.The nature, purpose and objectives of the Village to be constructed by Lanfranchi are set out in the Planning Submission which was lodged with the Shire and on a presentation made to the Shire.
9.The Village is proposed to be located approximately 3 kilometres from the main office of the Lanfranchi Project and is approximately 48 kilometres from the town of Kambalda.
10.In December 2009, the DMP advised Lanfranchi that an Addendum Mining Proposal to NOI 4832 (Addendum) was required for DMP to approve construction of the Village. Lanfranchi submitted the Addendum to DMP for approval on or around 4 March 2010.
11.On 29 Arpil 2010, Lanfranchi was informed by letter dated 7 April 2010 that DMP intended to approve the Addendum subject to the conditions set out in the schedule of the letter being added to the tenement conditions on M15/473, ML15/493 and ML15/486.
12.On 12 May 2010, Lanfranchi was informed by DMP that the Addendum had been assessed by DMP and the document satisfied the Schedule of Conditions attached to M15/473, ML15/486 and ML15/493 (DMP Approval).
13.The DMP Approval states that:
'Approval is hereby given to commence development and operation of the project in accordance with the tenement conditions. However this does not remove the need for any necessary approvals from other authorities.
It should be noted that the approvals hereby given relate only to environmental issues and do not in any way relate to safety. With respect to safety, you are reminded of your obligation to carry out the mining operation in accordance with the provision of the Mines Safety and Inspection Act 1994 and Regulations 1995.
Please note that this letter does not constitute a Clearing Permit under Part V Division 2 of the Environmental Protection Act 1896 for clearing of native vegetation. A Clearing Permit must be gained independently through the Native Vegetation Assessment Branch of the Department of Mines and Petroleum if required'.
14.On 6 February 2010, Lanfranchi applied to the Shire for planning approval to build the Village.
15.The land on which the Lanfranchi Project is situated is located within:
(a)the scheme area for the Shire of Coolgardie Town Planning Scheme No 4. (District Scheme); and
(b)the rural/mining zone under the Scheme.
16.Clause 7.6.1 of the Scheme empowers the Shire to make policies in order to achieve the objectives of the Scheme. On 22 October 1992, the Shire adopted the Residential Development in the Rural/Mining Zone Policy.
17.Clause 5.1.1 of the Scheme provides that:
a person shall not commence or carry out development of any land zoned or reserved under the Scheme without first having applied for and obtained the planning consent of the Council under the Scheme.
18.Clause 7.2.1 of the Scheme provides that:
'a person shall not erect, alter or add to or commence to erect, alter or add to a building or use or change the use of any land, building or part of a building for any purpose:
(a)otherwise than in accordance with the provisions of the Scheme;
(b)unless all consents required by the Scheme have been granted and issued;
(c)unless all conditions imposed upon the grant and issue of any consent required by the Scheme have been and continue to be complied with;
(d)unless all standards laid down and all requirements prescribed by the Scheme or determined by the Council pursuant to the Scheme with respect to that building or that use of that land or building or that part have been and continue to be complied with'.
19.On 7 April 2010, the Shire refused Panoramic's application for approval on the grounds that it did not meet the objective of the Rural /Mining Zone set out in the Scheme for the following stated reasons:
(1)Clause 3.2.7(e) of the Local Planning Scheme No. 4 restricts the residential component of mining activities to the townsites of the Shire.
(2)Taking into account the 5 objections submitted during the public comment period, the application is in conflict with the intent of Local Planning Scheme No. 4, in that the application does not promote and safeguard the convenience and economic welfare of the inhabitants or the amenities of the area.
The statutory framework
'Mining operations' is defined under s 8(1) of the Mining Act1978 (WA) (Mining Act) as follows:
…
mining operations means any mode or method of working whereby the earth or any rock structure stone fluid or mineral bearing substance may be disturbed removed washed sifted crushed leached roasted distilled evaporated smelted or refined or dealt with for the purpose of obtaining any mineral therefrom whether it has been previously disturbed or not and includes
(a)the removal of overburden by mechanical or other means and the stacking, deposit, storage and treatment of any substance considered to contain any mineral;
(b)operations by means of which salt or other evaporites may be harvested;
(c)operations by means of which mineral is recovered from the sea or a natural water supply; and
(d)the doing of all lawful acts incident or conducive to any such operation or purposes;
…
Section 85 of the Mining Act sets out the rights of the holder of a mining lease and provides:
Rights of holder of mining lease
(1)Subject to this Act and to any conditions to which the mining lease is subject, a mining lease authorises the lessee thereof and his agents and employees on his behalf to
(a)work and mine the land in respect of which the lease was granted for any minerals;
(b)take and remove from the land any minerals and dispose of them;
(c)take and divert subject to the Rights in Water and Irrigation Act 1914, or any Act amending or replacing the relevant provisions of that Act, water from any natural spring, lake, pool or stream situate in or flowing through such land or from any excavation previously made and used for mining purposes, and subject to that Act to sink a well or bore on such land and take water therefrom and to use the water so taken for his domestic purposes and for any purpose in connection with mining for minerals on the land; and
(d)do all acts and things that are necessary to effectually carry out mining operations in, on or under the land.
(2)Subject to this Act and to any conditions to which the mining lease is subject, the lessee of a mining lease
(a)is entitled to use, occupy, and enjoy the land in respect of which the mining lease was granted for mining purposes; and
(b)owns all minerals lawfully mined from the land under the mining lease.
(3)The rights conferred by this section are exclusive rights for mining purposes in relation to the land in respect of which the mining lease was granted.
Section 120(1) of the Mining Act relevantly provides that:
… the provisions of any planning scheme in force under the Planning and Development Act 2005 … shall not operate to prohibit or affect the … carrying out of any mining operations authorised by this Act.
The parties' submissions
The applicants' submissions
The applicants contend that as a matter of law and fact, the construction of the Village by the applicants in accordance with their proposal should be characterised as 'mining operations' as defined in the Mining Act and within the meaning of that phrase where it is used in s 85(1) and s 120(1) of the Mining Act. The applicants therefore submit that the respondent's decision to refuse consent to the applicants' proposal on the basis of the Scheme necessarily has the effect that the provisions of the Scheme operate to prohibit 'mining operations' authorised by the Mining Act in contravention of s 120(1) of the Mining Act.
The respondent's submissions
The respondent contends that the construction of the Village by the applicants is not 'mining operations' under s 120(1) the Mining Act. It puts two alternative arguments in support of its submission that the Shire's approval for the construction of the Village is required under the Scheme.
The respondent's first argument
First, the respondent draws a distinction between, on the one hand, acts which constitute mining operations and, on the other, uses of land which serve a purpose which is directly connected with mining operations. The respondent submits that the Mining Act must be considered as a whole and that the expression 'mining operations' must be construed consistently: '[t]he primary objective of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute': Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (Project Blue Sky).
By way of example, the respondent analyses the use of the expression 'mining operations' in s 91 of the Mining Act as follows.
Section 91(1) permits a miscellaneous licence to be granted for 'purposes prescribed'. Under reg 42B(q) of the Mining Regulations 1981 (WA) (Regulations), one such prescribed purpose is a 'mine site accommodation facility'.
The respondent then goes to s 91(6) of the Mining Act which provides as follows:
A miscellaneous licence shall not be granted unless the purpose for which it is granted is directly connected with mining operations (emphasis added).
The respondent concludes that if the purpose for which a miscellaneous licence under the Mining Act can be granted must be both a 'prescribed purpose' and also 'directly connected with mining operations', then the construction of the Village cannot be included in 'mining operations' something cannot be included in mining operations and at the same time be directly connected with mining operations.
Counsel for the respondent, in oral argument, found support for this approach in Mineralogy Pty Ltd v Kuruma Marthudunera Native Title Claimants [2001] WAMW 29, where the warden, at 12, stated as follows:
I do not accept that all processes and all facilities that will in some way contribute towards the extraction of minerals from mineral bearing substances are intended by the Act to be regarded as part of "mining operations". If that were to be the intention of the Act then, it would seem, there would be no need for the provision within the Act for the grant of general purpose lease or a miscellaneous licence.
The respondent argues that this is the very reason why, under s 91(7) of the Mining Act, a miscellaneous licence may be granted over land that is already the subject of a mining tenement.
I am not persuaded by the respondent's first argument, for two reasons.
First, if the legislature intended that the prescribed purposes under reg 42B of the Regulations (and the general purpose lease uses set out in s 87(1) of the Mining Act) are all to be excluded from the meaning of 'mining operations', it would have been a simple drafting exercise to make this clear. Further, if those uses are in fact excluded, it is difficult to see what uses were in fact contemplated to be included in para (d) of the definition of mining operations: '… a court construing a statutory provision must strive to give meaning to every word of the provision': Project Blue Sky at [71].
Second, the need for the grant of miscellaneous licences and general purpose leases is clear. These are ancillary licences over land to allow for the construction of, usually, infrastructure facilities and except sometimes in the case of a miscellaneous licence, outside of the boundaries of a mining lease, without the attendant obligations which are placed on the holder of a mining lease. An example of where such a licence might be needed would be for the construction of a road between two discontiguous mine sites. The mining lease holder would apply for a miscellaneous licence over the land between those sites for the construction of that road. That road would then connect the other roads which presumably exist from each of the respective mines to the boundary of each mining lease. It follows that a road, which is a prescribed purpose for a miscellaneous licence, can also be included within the meaning of 'mining operations', being the roads from in each case the mine itself to the mining lease boundary.
I acknowledge that a miscellaneous licence may be granted over land which is already the subject of another mining tenement: s 91(7), s 91(8) and s 94A(2) of the Mining Act. The respondent says that this supports its view that if a mining lease holder wishes to construct or do anything which is a 'prescribed purpose' on the land the subject of its mining lease which is a prescribed purpose for a miscellaneous licence, then it must also obtain a miscellaneous licence to do so.
There is no doubt that the holder of a mining lease may also be granted a miscellaneous licence over some or all of the land the subject of that mining lease. However, that cannot of itself lead to the conclusion drawn by the respondent. It is my opinion that the primary purpose of these provisions in the Mining Act is to allow a party to apply for a miscellaneous licence over land the subject of a mining tenement held by another party. This is borne out to some extent by the fact that the applicant for a miscellaneous licence is required to give a copy of the application to the 'holder of any mining tenement comprising any portion of the land the subject of the application': s 91(9) of the Mining Act and reg 37(2) of the Regulations. Words to the effect of 'unless they are one and the same person' do not appear.
The respondent's second argument
The respondent then goes on to say that if its first submission is not accepted, then it submits in the alternative that the construction of the Village is not a 'lawful act incident or conducive to' any operation or purpose referred to in the definition of 'mining operations' in the Mining Act and, therefore, not within the scope of para (d) of that definition.
Both the applicants and the respondent agree that 'lawful' within the meaning of para (d) of the definition is likely to be a reference to general law, rather than specific legislation. They also agree that it does not mean 'authorised by the local government under the relevant planning scheme', as such a construction would render meaningless the closing words of s 120(1) of the Mining Act. Accordingly, whether or not the construction of the mine site accommodation is 'lawful' is not an issue between the parties.
It would also seem to be common ground between the parties that the words 'any such operation or purposes' in para (d) of the definition should be taken to refer to the physical processes and purpose of obtaining minerals to which the definition refers. Acts 'incident or conducive to' such operation or purpose should relate specifically to those matters, not to the mining project as a whole in a general sense.
Neither of the phrases 'incident to' or 'conducive to' is defined in the Mining Act. The ordinary and natural meaning of the two phrases is:
'Incident to':
a)likely or apt to happen as a result of;
b)naturally related to or connected with.
'Conducive to': 'contributive; helpful'.
(The Macquarie Dictionary (5th ed, 2009)).
The applicants' purpose in developing the mine site accommodation facility is stated by the applicants to be:
(a) to improve site morale by providing high quality accommodation;
(b) to provide a stable cost effective accommodation solution for the applicants to mine and explore resources in the area;
(c) to reduce employee turnover by eliminating the long travel to and from the site;
(d) to improve the management of employee fatigue by reducing travel; and
(e) to ensure that the applicants provide the highest quality duty of care for their employees by reducing fatigue and travel.
The applicants submit that the construction of the Village is closely and directly bound up with and involved in its mining of minerals as to constitute an activity incident to mining operations. I have some difficulty with this. The construction of the Village is not likely or apt to happen as a result of the mining of minerals, nor is it naturally related to it. It may, however, be connected with the mining of minerals, at least to some degree.
The question of whether or not the construction of the Village is contributive or helpful to the mining of minerals is, I think, clearer. It is a factual consideration, involving degree, but, in the circumstances of this particular matter, the purposes given by the applicants which relate to the efficiency, effectiveness and safety of the applicants' mining operations in the area lead me to the conclusion that the construction of the Village is 'conducive to' the mining of those resources.
Conclusion
I consider that the construction for the Village by the applicants in accordance with their proposal is 'mining operations' within the meaning of that phrase where it is used in s 85(1) and in s 120(1) of the Mining Act. I therefore consider that the preliminary issue (a) should be answered 'No' and in respect of preliminary issue (b) I make the orders set out below.
Orders
I make the following orders:
1.Planning consent under the Shire of Coolgardie Town Planning Scheme No. 4 (District Scheme) for the construction of a mining accommodation village is not required by virtue of the operation of s 120(1) of the Mining Act 1978 (WA).
2.The decision of the Shire of Coolgardie made on 7 April 2010 under the Shire of Coolgardie Town Planning Scheme No 4 (District Scheme) is set aside.
I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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