Pewsey Vale Pty Ltd v Adelaide Brighton Cement - [2009] SAWC 8

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
PEWSEY VALE PTY LTD v ADELAIDE BRIGHTON CEMENT
[2009] SAWC 8
Judgment of Senior Warden Cannon (ex tempore)
6 December 2005
MINING LAW
Exempt land: discussion of 'cultivation' and s.9 generally, pegging permitted on exempt land.
Notice of entry, permission to limited drilling program granted on suggest condition.
Costs: general rule is no costs in matters of competing rights.

PEWSEY VALE PTY LTD v ADELAIDE BRIGHTON CEMENT
[2009] SAWC 8

In this matter I am ruling on a notice of objection in a plaint note of 1 July 2005 and an objection on the basis that the land to be entered is exempt land.
I am also ruling on an application of 18 November seeking a declaration on behalf of a miner that the land is not exempt land or that the exemption be removed and for a declaration that pegging and exploring for kaolin and conducting mining operations would not be likely to result in substantial hardship. It has been clarified that that application has been limited down to the proposed mining solely of undertaking a drilling program of some fifteen drill holes.
S.9 of the Act provides that
“land that is lawfully and genuinely used as a yard, garden, cultivated field, plantation, orchard or vineyard shall be exempt from mining operations in pursuance of this Act”.
It goes on to make clear that the section does not prevent pegging out of a claim upon such land.
An exemption can be removed by the owner’s agreement by way of waiver under s9(3) or by an appropriate court (and this court, for this case is an appropriate court) determining compensation to be paid.
Sub-s.3a goes on, by later amendment of the Act, to provide an agreement or determination under sub-s.(3) may be made on such terms and conditions as the parties or the appropriate court thinks fit.
It has been the interpretation of this court in the past that the appropriate way of dealing with such matters is to look at what terms and conditions are agreed, or might sensibly be imposed before looking at compensation and there will be circumstances where the terms and conditions might suffice to make compensation unnecessary for the removal of an exemption.
I note Mr Hayes’ argument that sub-s.(3) requires compensation in any event. It remains my view that that compensation is a matter that the court should be required to consider, but it is not required in every instance, depending on the particular circumstances. The later amendment has qualified the plain meaning of sub-s.(3) that compensation must be paid.
The appropriate procedure for a miner before entering any land is to give notice of entry under s57. It is my finding that such notice is appropriate even in relation to exempt land and in such an instance a notice given is still operative. This is because I interpret the pegging of a claim to be a part of the exploration and prospecting for minerals.
Thus it is that s.9 has preserved the right on a miner to go and peg regardless of exemption, but before s/he goes and pegs he or she has to give notice of entry and once having given notice of entry, subject to an objection for substantial hardship, which has been raised here, then the pegging can proceed.
If there is an exemption, then that can be upheld, waived or removed on terms and payment in accordance with s.9. A notice of entry, if it is required, is apposite for exempt land.
The core issue here for me to decide is whether the land that is intended to be drilled is cultivated land. The property concerned is a most attractive, scenic and well-developed grazing property. Both sheep and cattle are grazed. The property has been improved by methods of discing, harrowing and seeding, and rolling the seed in. This has been done on all the property that is readily accessible to the farm equipment required to undertake those processes.
The exhibited evidence shows costs incurred. Those costs are in accordance with the oral evidence which is that the bulk of this work was undertaken a decade ago. After this process of improvement, the stock were kept off the land until the seeded pasture had time to fully grow and seed itself, thereby perpetuating the improved pasture grasses into the land before the stock were returned.
The stock then grazed the whole of the property and carried seed from the improved pasture to the parts that were unable to be ploughed, harrowed and seeded as noted above.
Further work is done to keep the land in good condition. It is regularly sprayed for weed prevention. It has been fertilised on a regular basis. At the view we undertook the product of this careful work could well be seen in the height and lushness of the pasture compared to adjoining properties. Clearly the efforts of careful husbandry have been rewarded.
A question arises: is this cultivation? I have had a helpful discussion of the authorities. I will not repeat them all. They are set out in the written submissions and the oral submissions which have been recorded. It is clear from the authorities that once land is put to the plough, seeded and the resulting crop removed it is clearly cultivated. It is also clear that when that is part of a rotational use of the land so that in between those activities the land may be allowed to lie fallow or grazed but the rotation will return it to a crop within a reasonable time frame that still preserves its status as cultivated land.
In argument counsel agreed that land that has never been touched except to have stock grazed on it, is not cultivated land. Between those clear examples of what is cultivated and what is not, there will be reason for argument. Whether the land here is cultivated or not is a matter that is in some respects a hard decision.
The case most helpful for the landowner here is Starke and Hicks v Taylor (1981) Wardens Court Reports at p.23. In that case the land was subject to grazing as in effect a single paddock. On the findings of Warden McClory the land had been harrowed 12 months before. He concluded that that land was cultivated.
For land to be cultivated my conclusion is that it must be worked. By worked I mean by such activities of moving the earth by ploughing, harrowing and seeding it and growing something other than the native occurring species. The resulting vegetation must be cropped. Cropping has a very wide sense. What is grown must be used. It is clear that where land is planted with something and the crop grows that it is a form of cultivation if that crop is used for grazing without first having been cut.
The difficulty with this case is that some 10 years has passed since there was any working of the land in the seeding or harrowing or ploughing sense. The fertilising and weed killing may not themselves be enough to maintain the status as cultivation.
However, I will leave that issue for a moment. Before I do I mention the policy issue. The policy in s.9 of the Act is to protect the investment of an owner of land who is using it for a productive purpose. Stated in that general way the policy is helpful to this landowner who has paid careful attention to making his land productive and more so than the surrounding adjacent properties.
The other matter I mention is that I was not convinced by Warden McClory’s dismissive view of the ejusdem generis argument in s.9. He concluded that just because a ‘yard’ is included in the group of things mentioned in s.9 it changes the character. I do not accept that argument. However, I do not think that the ejusdem generis argument really helps the interpretation of exactly what is a cultivated field. I am still left with the issue of how recently the working of the land must have occurred for it to remain in its cultivated state.
I leave that argument because the clear evidence is that the ridges have not been turned by the plough and neither has the fire track. It is my finding that absent the use of plough and harrow and seeding, the land is not cultivated and so the ridges on this property in my view are clearly not cultivated.
It is not sufficient to say, as Mr Hayes does, that the whole property should be treated as one. That is not the plain meaning of the Act. The edge of a cultivated field stops at the edge of the cultivation. The carriage of some of the seed by stock to areas that have never been ploughed does not change their status and make them cultivated. It is my finding that the ridges and the fire track are not cultivated and so they are not exempt land.
The fact that they have been subject to weed killing and fertilising does not of itself constitute sufficient working of the land to make it cultivated.
If I were wrong on that, I would, in any event, remove the exemption for the very narrow purpose of permitting the drilling on the ridges and the fire track in the terms proposed in the evidence in support of the miner’s application. In removing that exemption I would impose careful conditions to protect the owner from the dangers that might follow and any compensate him for any losses that occur. Those conditions and compensation would be the same as I would impose to remove hardship in dealing with the matter under s.58A of the Mining Act 1971.
In dealing now then with the notice of entry and the objection to it. I would remove the objection to entry for the proposed drilling program upon conditions determined under s.58A(5)(b) to limit and to ensure the least detriment to the interests of the owner and the least damage to the land. Appropriate conditions will be able to prevent substantial hardship occurring to the landowner.
Having given those rulings, I am happy to hear counsel on the detail of any terms and conditions but I will state some that are obvious.
The maximum number of drill holes to be undertaken should be specified. Fifteen are presently proposed and it should be a maximum close to that number. Their location on the ridges and the fire track needs to be specified and limited to those locations.
Appropriate precautions must be put in place to protect against fire danger and if it is in the fire season, particular attention should be paid to this danger. I am told that the Forestry Department has guidelines. I am not aware of those but they should be looked at as a sensible starting point. Obviously grinding, drilling and smoking should be prohibited.
It is my view that the nature of that property with its lush growth would require the presence of firefighting equipment beyond knapsacks. A truck with a tank of water on it you would think would be a minimum.
There will need to be conditions to protect the stock. There maybe some times such as lambing season or calving season when entry would not be appropriate. There should be no dogs permitted.
There should be an agreement that there will be compensation if any damage or loss to stock can be proven to have been caused by the mining operation.
There should be a protection against any pollution occurring. The undertakings that have been made about backfilling holes should be required as conditions and there should be a requirement to return and redo any rehabilitation that time proves to be inadequate.
There will be damage to the feed. I am not sure if the evidence was that the grass would be flattened for 5 metre radius or diameter around each drill hole. I did a rough calculation in my ex tempore judgment of that area but the arithmetic was incorrect and I have deleted it. The area of feed flattened around each hole will need to be calculated. There will be additional damage due to flattening of feed under tyres. That feed will be lost. An appropriate payment for that should be agreed.
Subject to the need to protect commercial confidentiality there should be disclosure of the results of the testing of any kaolin or other mineral removed. The owner is entitled to have a progress report on the prospects of anything useful being discovered.
There maybe other conditions I have not thought of in the short time I have had to think about this between the close of final addresses and now. I give liberty to counsel to call this matter back on formally to order terms and conditions if they cannot agree them between them. Are you happy with that?
MR HAYES: Yes.
MR AMEY: Yes.
WARDEN: I add this further note. This is a particularly aesthetic and well-maintained piece of land. I make it clear that nothing should be read into my permission that the drilling program is to proceed as to whether I have a general view as to whether turning this land into some sort of quarry is a good idea or not. Experience has taught me not to decide more than I have to at any time, so I will leave all of that alone.
Is there anything else you need from me?
MR AMEY: Just some clarification. We talked about the pegging.
WARDEN: I make it clear that the miner is entitled to peg the claims but is required to give proper warning, say two weeks to the landowner, and to permit the landowner to accompany him and give reasonable directions as to the manner he conducts himself during the pegging.
MR AMEY: Can we ask for seven days notice rather than two weeks, with Christmas coming up.
MR HAYES: We would ask for two weeks and that’s what we put to the witness.
WARDEN: Yes, two weeks.
MR AMEY: That was really in terms of drilling I thought, rather than just pegging.
WARDEN: I will make a compromise, 10 days notice.
MR AMEY: Can I just ask for clarification of one thing? We talked about the fire track and that larger ridge to the north, your Honour’s order is in respect of the entire property, both claims.
WARDEN: As we identified the lines of proposed drill holes run down the ridges and the fire track.
MR AMEY: Yes. It’s really up to the parties now to work within the guidelines of your Honour’s reasons.
WARDEN: Yes. What I have done is indicate my view of obvious conditions and what I am saying to you is if you cannot encapsulate that into an agreement between yourselves, then come back before me and I will fix it.
MR AMEY: I ask for costs of the action.
WARDEN: Now we have got all sorts of potential costs orders I suppose we need to talk about. Do you want to say anything about costs?
MR HAYES: I do. Your Honour will recall that there was one notice served and was withdrawn. There was a further notice and I’m not sure that - I haven’t given it any thought as to how the costs should be split up in relation to it.
WARDEN: I tell you both straight away my starting point is that there should be no cost order and I am prepared to give reasons for that.
MR HAYES: I was going to put that to your Honour.
WARDEN: Do you want to argue or maintain your application?
MR AMEY: Yes, I maintain my application.
WARDEN: I note there is an argument about costs. The miner seeks costs. That is not conceded by the landowner. Indeed there is a previous request for costs from the landowner. Notwithstanding some contrary authority to this view, I still maintain this position. The underlying principle justifying cost orders in courts that costs should follow the event or the cause, is based on the principle that people come to court enforcing a predictable legal right, are held up in establishing their predictable legal right by the intransigence of their opponent, and then they are vindicated and proved to be right and therefore should be compensated in costs.
That underlying principle has no application to these types of cases, save for an exception I shall mention shortly. That is because in these cases both parties have sensible, enforceable legal rights that are in obvious contradiction and conflict. They do not come to court with one of them winning at the end and establishing something that was always theirs. They both come with what are often irreconcilable conflicting uses over the same piece of land, both of which are subject to enforceable legal rights.
It follows therefore that the end will often be a compromise, and neither party is vindicated in the sense of always having been in the right. For those reasons, the general principle has no application. The general principle should be that neither party will recover costs.
The exception I mention would be if either party had conducted themselves in an unreasonable manner. I do not have any reason to form that view of either party here. I will follow the general principle that neither party gets costs.