United Plantations (Australia) Pty Ltd v Arco Coal Australia Inc (No 2)

[1997] QCA 402

IN THE COURT OF APPEAL	[1997] QCA 402
SUPREME COURT OF QUEENSLAND

Appeal No. 8615 of 1996

Brisbane

[United Plantations (Aust.) P/L v. Arco Coal Aust. Inc. & Ors]

BETWEEN:

UNITED PLANTATIONS (AUSTRALIA) PTY LTD

(ACN 010 267 820)

(Plaintiff) Appellant

AND:

ARCO COAL AUSTRALIA INC.

(ARBN 009 738 407)

(Defendant) Respondent

AND:

ARCO RESOURCES LIMITED

(ACN 010 565 554)

(Defendant) Respondent

AND:

MITSUI GORDONSTONE INVESTMENT PTY LTD

(ACN 002 429 763)

(Defendant) Respondent

AND:

MLC COAL INVESTMENT PTY LTD

(ACN 060 305 044)

(Defendant)	Respondent
Fitzgerald P. Demack J. Dowsett J.

APPEAL ALLOWED, JUDGMENT SET ASIDE, A MINING LEASE MAY NOT BE GRANTED ON MINING LEASE APPLICATION NO. 70110 BY REASON OF THE FAILURE TO INCLUDE IN SUCH APPLICATION THE SURFACE AREA OF THE APPELLANT’S LAND, THE RESPONDENTS TO PAY THE APPELLANT’S COSTS OF THE APPEAL AND THE COSTS OF AND INCIDENTAL TO THE ACTION INCLUDING RESERVED COSTS TO BE TAXED.

CATHWORDS:	Mines - application for mining lease - application over land excluding the surface area - intention to mine coal by longwall mining - effect will be to cause surface land to subside - lease may not be granted to exclude surface area. Mineral Resources Act 1989, ss 8, 9, 269, 273, 279, 280, 281, 282.
Counsel:	Mr D F Jackson QC, with him Mr D Savage for the appellant. Mr S L Doyle SC, with him Mr P Ambrose, for the respondents.
Solicitors:	Magney & Rhodes for the appellants. Clayton Utz for the respondents.
Hearing Date:	11 June 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8615 of 1996

Brisbane

Before Fitzgerald P.
Demack J.
Dowsett J.

[United Plantations (Aust.) P/L v. Arco Coal Aust. Inc. & Ors]

BETWEEN:

UNITED PLANTATIONS (AUSTRALIA) PTY LTD

(ACN 010 267 820)

(Plaintiff) Appellant

AND:

ARCO COAL AUSTRALIA INC.

(ARBN 009 738 407)

(Defendant) Respondent

AND:

ARCO RESOURCES LIMITED

(ACN 010 565 554)

(Defendant) Respondent

AND:

MITSUI GORDONSTONE INVESTMENT PTY LTD

(ACN 002 429 763)

(Defendant) Respondent

AND:

MLC COAL INVESTMENT PTY LTD

(ACN 060 305 044)

(Defendant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 7 November 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of Demack J.

In my opinion, it is essential to understand what is meant by the statement in the respondents’ mining

lease application that no area of surface has been applied for. It is that the mathematical surface of the

appellant’s land, a two-dimensional plane having length and breadth but no depth, has not been applied

for. Irrespective of where the coal seam is thought to exist, the application seeks an entitlement to carry

on mining operations immediately beneath the two-dimensional surface plane, inevitably involving an

entitlement to cause the surface to collapse. Indeed, it is agreed between the parties that “the carrying

out of mining operations will cause subsidence to the surface of the land”.

In my opinion, in these circumstances, the assertion in the respondents’ mining lease application that “no

surface area [has been] applied for” is not accurate when regard is had to the application as a whole.

Properly construed, the application includes the surface of the land in the sense in which “surface” is

used in the Mineral Resources Act 1989. It is, of course, permissible to disregard an erroneous

statement in a document to arrive at its true meaning.

It does not follow from what I have said that the respondent’s mining lease application is vitiated or that

s. 273 of the Mineral Resources Act prohibits the grant of a mining lease to the respondents on that

application. Rather, it must be processed as an application which includes the surface of the land.
Despite reservations with respect to making any declaration concerning issues which have not yet arisen

for determination and been determined in the Wardens Court, I am prepared to declare, in lieu of the

declarations sought by the appellant, that Mining Lease Application No. 70110 may not be granted

until compensation has been determined between the appellant and the respondents. However, I do

not consider that a sufficient basis has been shown for any further declaration at this time.

The appeal should be allowed, with costs to be taxed, the orders made below set aside, a declaration

made as I have indicated, and the respondents ordered to pay the appellant its taxed costs of the action,

including reserved costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8615 of 1996

Brisbane

Before Fitzgerald P
Demack J
Dowsett J

[United Plantations (Aust.) P/L v. Arco Coal Aust. Inc. & Ors]

BETWEEN:

UNITED PLANTATIONS (AUSTRALIA) PTY LTD

(ACN 010 267 820)

(Plaintiff) Appellant

AND:

ARCO COAL AUSTRALIA INC.

(ARBN 009 738 407)

(Defendant) Respondent

AND:

ARCO RESOURCES LIMITED

(ACN 010 565 554)

(Defendant) Respondent

AND:

MITSUI GORDONSTONE INVESTMENT PTY LTD

(ACN 002 429 763)

(Defendant) Respondent

AND:

MLC COAL INVESTMENT PTY LTD

(ACN 060 305 044)

(Defendant) Respondent

REASONS FOR JUDGMENT - DEMACK J.
Judgment delivered 7 November 1997

This appeal from the decision of a Judge of the Trial Division raises two questions for this Court. First, may a mining lease which does not include the surface of the appellant’s land be granted to the respondents in circumstances where the method of extraction of coal will inevitably cause subsidence of the appellant’s land? Second, if such a lease is granted, may the appellant pursue a claim for compensation before subsidence occurs?

The Background to the Action

On 4 January 1982, Gordon Resources Pty Ltd ("Gordon Resources") purchased a property "Gordon Downs" north east of Emerald. Below the surface of this land was the German Creek coal seam. This substantial seam has an average thickness of about 3 metres and generally slopes downwards in a westerly direction. The depth of the seam below the surface ranges from approximately 80 metres to approximately 450 metres.

On 11 February 1982, Gordon Resources subdivided "Gordon Downs" laterally into surface and subsurface lots. The subsurface lots contain the whole of the German Creek coal seam. On 10 June 1982, the appellant purchased all the surface lots from Gordon Resources. On 31 July 1984 Gordon Resources sold a half interest in the subsurface lots to another company and that half interest has been acquired by the respondents.

On 12 April 1990, a mining lease (ML 1978) was granted to the respondents after they had purchased part of the land owned by the appellant. Portion of ML 1978 is over the surface of the land, and that land is owned by the respondents. The remainder of ML 1978 does not include the surface area of the land and the appellant has a licence over that surface land. All of the subsurface land comprised in ML 1978 is owned by the respondents.

On 22 December 1994 the respondents applied for a mining lease (MLA 70110) over part of the appellant’s land adjoining ML 1978, exclusive of the surface area. The application stated that an application for a mineral development licence has been made for the area the subject of the sub-surface mining lease application and the surface of that area. It also stated that access to the land the subject of the application was supplied by way of the adjoining ML 1978.

The appellant objected to the granting of MLA 70110 because the method of extracting coal would cause subsidence on the surface of its land. After some preliminary hearings the matter was adjourned to allow the Mining Warden to see the effects of the mining in ML 1978 upon the surface of the land.

The appellant commenced proceedings seeking declarations that no valid lease would be given under MLA 70110, alternatively that the appellant was entitled to compensation, and, alternatively, that the respondents be restrained from carrying out mining operations in a manner which deprived the appellant of the right of support given by s. 179 of the Property Law Act.

Pleadings were exchanged and the matter came on for trial upon the basis of a statement of agreed facts and issues. In addition, various documents were tendered, many of which establish the respondents’ financial and technical resources, something which seems to be of no relevance either before the trial judge or on appeal. It should be stated that there is some uncertainty about the relationship between the respondents and the companies which are said to own the subsurface land to which MLA 70110 applies. However, at the hearing it was stated (p. 5), "the whole of the coal which is to be mined is in the defendants’ land". This judgment proceeds on that understanding, although it has no significance except to describe the interests involved.

The agreed statement of facts and issues stated -

"A.	AGREED FACTS
1.	The Plaintiff is the registered proprietor of land near Emerald upon which it conducts a farm.
2.	The Defendants are applicants for mining lease - Application No. 70110. No area of surface has been applied for.
3.	The land the subject of the mining lease application is subjacent to the surface area of the Plaintiff’s land in accordance with the map marked "A".
4.	Upon any grant of a mining lease pursuant to Application No. 70110 the Defendants will conduct mining operations pursuant to that lease within the German Creek coal seam which is a substantial coal seam running at various depths through land which is below the Plaintiff’s land as shown on the map marked "A".
5.	The mining will inevitably cause the Plaintiff’s land to subside and cause alteration to the topography of the surface of the land and economic loss to the Plaintiff’s farming operations on the land.
6.	If such mining lease is granted the Defendants will obtain access to the deposits of coal contained in the land the subject of the lease from an adjoining Mining Lease No. 1978.
B.	AGREED ISSUES
7.	Where (as here) the carrying out of mining operations will cause subsidence to the surface of the land:
(a)	is that area of the surface the subject of subsidence an area of surface necessary to enable the holder of the lease to carry out the purposes for which the lease was granted for the purposes of s. 273 of the Mineral Resources Act?
(b)	is there attached to the land the subject of the mining lease application (if such lease is granted) an obligation not to do anything on it which will withdraw support from the Plaintiff’s land by reason of s. 179 of the Property Law Act?
(c)	does the Plaintiff have a present entitlement to compensation under Section 280 or 281 of the Mineral Resources Act?
(d)	if no to (c) does the Plaintiff nevertheless have a present entitlement to damages caused by or resulting from such subsidence under or by virtue of Section 179 of the Property Law Act.
(e)	does s. 279 of the Mineral Resources Act apply to Mining Lease Application No. 70110?
(f)	can a valid lease be granted pursuant to Mining Lease Application No. 70110?
(g)	is the Plaintiff entitled to all or any of the injunctive relief claimed in paragraph C of the prayer for relief?"

After hearing argument and reserving his decision, the trial judge delivered his reasons for judgment in which he answered the questions:-

(a)         No.

(b)         No.

(c)         No.

(d)         No.

(e)         No.

(f)          Yes.

(g)         No.

He invited further submissions on the form of the final orders including costs.

Subsequently, he ordered that there be judgment for the respondents and that the appellant pay the respondents their costs of and incidental to the action, including reserved costs, to be taxed.

The Appeal

The notice of appeal raised a number of grounds, only two of which were argued. The orders sought in the notice of appeal were:

The appeal be allowed.
The respondents pay the appellant’s costs of the appeal and of the action below.
The matter be remitted to the trial judge for further consideration of the
appellant’s entitlement for relief.
The latter order is not a satisfactory way to deal with the issues because the matter must

go back to the Mining Warden and the purpose of the action was to have rulings on relevant legal issues for the guidance of the Warden. Consequently, counsel were asked to submit appropriate orders that might be made. The following was submitted -

"1. Re: Section 273

A declaration that a mining lease may not be granted on Mining Lease Application No. 70110 by reason of the failure to include in such application the surface area of the appellant’s land.

2.[1] Re: Section 280[2]

[1]           Proposed Order 2 is sought in the alternative to proposed Order 1.

[2]           The respondent has asked that the following be added:

A declaration:

(a) that upon the granting of a mining lease upon Mining Lease Application No. 70110, the appellant may apply, pursuant to s. 281(1) of the Mineral Resources Act 1989, to have the Wardens Court make a determination of compensation in accordance with ss280(1), 281(3)(b) and 281(4) of such Act; and

(b)         that in making such determination the Wardens Court is not limited to awarding compensation in respect only of physical damage to the appellant’s land which has occurred prior to the making of such determination."

It will be seen from these suggested orders that two sections of the Mineral Resources Act

1989 need to be considered.

Section 273

Section 273 provides:-

"Restriction on grant of mining lease that does not include surface of land

273.      A mining lease over land shall not be granted unless-

(a)	it includes such an area of the surface of that land; or
(b)	where it does not include an area of the surface of that land, the applicant is the holder of such an adjoining mining lease;

as will enable the holder to carry out the purposes for which the firstmentioned
mining lease is granted."

Because one of the respondents’ arguments about the meaning of s. 273 turns upon the wording of s. 280, that section should also be quoted:-

"Compensation for owner of land where surface area not included
280(1) An owner of land the subject of a mining lease where no part of the
surface area of that land is included in the lease may agree with the holder of the
mining lease as to compensation for any damage caused to the surface of the
land.

(2) An agreement made pursuant to subsection (1) shall not be effective

unless and until -

(a)         it is in writing signed by or on behalf of the parties; and

(b)         it is filed in the office of the mining registrar.

(3) If an agreement referred to in subsection (2) is required by any law of
Queensland to be stamped, it shall not be filed until it is stamped according to
law."
To understand the appellant’s argument it is necessary to describe the method of mining

which the respondents presently use on ML 1978 and which they will use to extract coal if they are granted a mining lease. The method is called the longwall method. This involves dividing the area of the coal seam into panels which are 200 metres wide and up to 2,500 metres long. Each of these panels is separated by a pillar of coal and other material running the length of the panel. There are also other pillars running at right angles to the panels and these pillars support drifts which allow access both for machinery and for a conveyor belt to remove the extracted coal. To mine a panel a drift is driven alongside a designated pillar and at the end of the drift the continuous mining unit is constructed. It then moves backwards along the panel extracting the coal. As the coal is extracted the roof begins to fall in and in time the area above where the coal has been extracted subsides. The existing surface of the appellant’s land may then assume a geometrical pattern of ridges and troughs, but it is not suggested this can be precisely described.

The learned trial judge dealt with the construction of s. 273 in this way:-

" The answer to (a) is "no" in my view. The defendants have not applied for any area of the surface of the land the subject of the application and therefore must seek to rely on their ability to comply with s. 273(b) of the Mineral Resources Act. Agreed fact 6 shows that they can do so, i.e., that they hold an adjoining mining lease, no. 1978, which will enable them to carry out the purpose for which the lease applied for will be granted - if it is granted. That purpose is mining for coal and, on what is before me, I see no reason to conclude that merely because the mining will cause the surface to subside, an area of the surface of the land the subject of the application will be required to enable the applicants to carry out the purpose. Section 273(b) imposes a condition as to access on underground mining; it does not deal with the adverse effects of that mining on the land above."

In brief, that is the respondents’ construction of s. 273. If access to an underground seam of coal can be gained from existing facilities on an adjoining mining lease there is no need for the surface area of the land to be included in the intending lease. Also, s. 280 clearly assumes cases where the surface area is damaged even though not part of a mining lease.

The appellant emphasises the concluding words of s. 273 - "as will enable the holder to carry out the purposes for which the firstmentioned mining lease is granted". In the present case it is an inherent characteristic of carrying out the purposes for which any lease would be granted that the land above the mined area, including the surface, will collapse. Thus the surface is needed to enable the applicant for the lease to carry out mining.

One of the difficulties when an action is tried on an agreed statement of facts is that issues of fact emerge for which there is no answer. Here it is not known why, if the coal is in the respondents’ subsurface land, the respondents need any part of the appellant’s land which lies over the respondents’ land. Consequently, it is not known why the respondents’ need stopped just below the surface of the appellant’s land.

One of the things that the Warden must consider on an application for a mining lease is whether "the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate" (s. 269(4)(b)). The appellant had raised the issue of mineralisation in the statement of claim, but that was not pursued at the trial. However the second part of the clause is relevant.

The Governor in Council may grant a mining lease to mine the mineral specified in the lease and for all purposes necessary to effectually carry on that mining (s. 234(1)(a)). To mine is to carry on any operation with a view to extracting mineral from its natural state (s. 5). Coal is a mineral. When all these sections are brought together with the longwall mining proposed, it is clear that the purpose for which the proposed lease would be granted would include the filling of the void left after the removal of 3 metres of coal by collapsing the stratas of soil above the area mined, including the surface stratum. Dealing with the void may be seen as part of the effective carrying on of the mining. Further, as the roof over the void is apparently unable to support itself over an area measuring up to 200 metres by 2,500 metres, the collapse of the roof following the extraction of the coal is part and parcel of the mining. Once the stratum immediately above the coal collapses subsidence of the surface inevitably follows.

The respondents’ reliance on s. 280 does not meet these issues. There may well be cases

where the subsidence of the surface is not part and parcel of the extraction of a mineral.

Consequently the surface area may not need to be included in the lease. Nonetheless, damage
to the surface may occur. For example, the ore extracted may require an extraction process
which contaminates the surface.

It follows then that the proposed lease should include the surface area so as to enable the respondent to carry out the purpose for which the mining lease is granted.

Section 280

It is inappropriate to consider the matters raised under s. 280. That section, it will be recalled, is concerned with compensation where the surface area is not included.

The orders are:-

1.          Appeal allowed.

2.          Judgment set aside.

3.          Declare that a mining lease may not be granted on Mining Lease Application No. 70110 by reason of the failure to include in such application the surface area of the appellant’s land.

4.          Order that the respondents pay the appellant’s costs of the appeal and the costs of and incidental to the action including reserved costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 8615 of 1996

Brisbane

Before Fitzgerald P

Demack J Dowsett J

[United Plantations (Aust) P/L v Arco Coal Aust. Inc. & Ors]

BETWEEN:

UNITED PLANTATIONS (AUSTRALIA) PTY LTD

(ACN 010 267 820)

(Plaintiff) Appellant

AND:

ARCO COAL AUSTRALIA INC.

(ARBN 009 738 407)

(Defendant) Respondent

AND:

ARCO RESOURCES LIMITED

(ACN 010 565 554)

(Defendant) Respondent

AND:

MITSUI GORDONSTONE INVESTMENT PTY LTD

(ACN 002 429 763)

(Defendant) Respondent

AND:

MLC COAL INVESTMENT PTY LTD

(ACN 060 305 044)

(Defendant) Respondent

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 7 November 1997

Arco Coal Australia Inc., the first-named respondent has applied on behalf of itself and the

other respondents for a mining lease over certain land near Emerald. As appears from the reasons

prepared by Demack J., which I have read, part of the application relates to land owned by the

appellant. The appellant holds a number of different allotments in the area. In all but one of them, its

interest extends only to a specified depth below the surface. In the remaining case, the depth of the land

held by the appellant is unlimited. The respondents’ application is expressly exclusive of the surface area

of the relevant land. The words used in the application are, “No surface area applied for”. It is common

ground that the surface area so excluded is what has been described as the “mathematical surface”, the

two dimensional surface of the land with no depth below the surface. The appellant carries on rural

industry on its land. It is common ground that the method to be used by the respondents in extracting

coal, as contemplated by the application, will involve the eventual subsidence of the surface. The

relevant facts appear in more detail in the reasons for judgment prepared by Demack J.

Quite apart from the specific provisions of the relevant legislation, one would question the

entitlement of a miner to undertake a process designed to have such permanent negative consequences

on the surface over which it has no rights. However, at first instance, the learned trial Judge held that

the Governor in Council might, pursuant to a mining lease, authorize such conduct, although the owner

of the land adversely affected would be entitled to compensation. This appeal addresses two questions,

namely:-

(a)         Whether or not it is competent for the Governor in Council to grant a lease pursuant

to the application, having regard to the terms of s.273 of the Mineral Resources Act
1989; and

(b)        If that question be answered adversely to the appellant, whether compensation may be

obtained by the appellant pursuant to s.280 of the Act before actual damage occurs.

Section 273 of the Act provides:

“A mining lease over land shall not be granted unless -

(a)	it includes such an area of the surface of that land; or
(b)	where it does not include an area of the surface of that land, the applicant is the holder of such an adjoining mining lease;

as will enable the holder to carry out the purposes for which the first mentioned
mining lease is granted.”

The appellant’s primary argument is that because the subsidence of the surface is inevitable as

a result of the activities to be undertaken pursuant to the proposed lease, no valid lease may be granted

unless it includes that surface area. As I understand it, it is common ground that the “purposes” in

question include the mining of coal by the method mentioned above and described in the reasons of

Demack J.

A number of the earlier provisions of the Act, are relevant to the construction of the provisions

with which I am presently concerned. Section 5 defines “mine” to mean:-

“To carry on any operation with a view to or for the purpose of -

(a)         winning mineral from a place where it occurs;

(b)        extracting mineral from its natural state;

(c)         disposing of any mineral in connection with or waste substances resulting from such winning or extraction.”

Sections 8 and 9 make it clear that the power to permit mining is vested in the Crown. Section

9(1), prohibits a person from entering into any agreement or arrangement authorising prospecting,

exploring for mineral or mining, notwithstanding that the mineral in question is not the property of the Crown. Given the width of meaning of the term “mine”, this provision might include an agreement for

compensation. However, s.9(2) expressly excludes such an agreement from the ambit of s.9(1),

provided that it is entered into “pursuant to this Act.” It is probably for this reason that s.280 (which

authorizes an owner of land to enter into a compensation agreement with a miner) was inserted. It is

difficult to see why it would otherwise have been necessary to authorize such an agreement. Section 280

operates with ss. 279, 281 and 282 to establish a compensation regime. Section 10 provides that a

mining title granted under the Act does not create an estate or interest in land.

The respondents' primary submission is that:-

“The language of (s.273) does not readily lend itself to the appellant’s construction. It does not expressly require that all surface land which will inevitably be adversely affected by the mining activity be included in the mining lease. It is necessary to read a great deal into s.273 to arrive at the construction contended for by the appellant.”

They submit that s.273, on its proper construction, has no application to the present

circumstances because, in effect, s.273 is concerned only with ensuring physical access to the land in

question without disturbing the surface. They further submit that as they hold an adjacent lease which

provides access to the subject land, their application is within paragraph (b) of s. 273. This was the view

preferred by the learned trial Judge.

It is no part of the appellant’s argument, as I understand it, that “all surface land which will

inevitably be adversely affected by the mining activity (must) be included in the mining lease.” The

appellant says only that the lease must include such an area of the surface of the land as will enable the

holder to carry out the purposes for which the lease is granted (the “relevant purposes”) or alternatively,

that the applicant hold an adjoining mining lease appropriate to enable achievement of those purposes.

Whether or not any part of the surface is necessary to enable the holder of the lease to achieve the

relevant purposes is a question of fact in each case, as is also the question of whether such purposes
can otherwise be carried out on and from an adjacent mining lease.

The respondents point out that in the Shorter Oxford English Dictionary (3rd Ed.) at p.65, the

word “enable” is defined as “to make able” or “to make possible”. In fact the full meaning given in that

reference is:

“1.	To invest with legal status ....;
2.	To empower; to give legal power or licence to ...;
3.	To make able (to be or to do something); to strengthen; to supply with means, opportunities, or the like ...;
4.	To regard as competent ...;
5.	To make possible; also to make effective;
6.	To become able ...”.

The word “enable” is therefore apposite to describe the conferment of legal entitlement as well

as physical capacity. In a strictly physical sense, it is not necessary that any land be included in a lease

in order that the respondents be able to extract coal, but in the present context, the intention is clearly

that the lease should contain such part of the surface area as is necessary to enable the applicant legally

to carry out the relevant purposes. Alternatively, an adjoining lease held by the applicant may be used

to achieve this result. Although the section does not say so, it is difficult to avoid the conclusion that the

intention is that the lessee have a lease over all of the land needed for the proposed operation, including

any surface area. The respondents' construction of s.273 would limit the operation of the section to

ensuring access to the mining lease in question. There is nothing in the wording of the section to suggest

such a limitation. It is derived from the assumption that paragraph (b) is concerned to guarantee access

and the further assumption that this reflects the sole purpose of the section as a whole.

There is no textual justification for the assumption that paragraph (b) is concerned only with

access. Indeed, the respondents make the point in their supplementary submissions (paragraph 6) that,

“There are many above ground activities/facilities which are necessary for mining”. They go on to assume that s. 273 seeks to guarantee access between such facilities and the coal seam. There is no

reason why this should be so. It is at least equally as likely that the section seeks to ensure that there is

sufficient surface area available to the lessee to accommodate all of the consequences of and necessary

impedimenta and activities associated with the mining operation. Indeed, there are other textual

references in the Act which suggest as much. I will refer to them at a later stage. There is, in any event,

little justification for allowing the perceived purpose of paragraph (b) to dominate the purposive

construction of the section as a whole. It is the respondents’ argument, not the appellant’s, which

requires the substantial implication of limitations and qualifications into the wording of s.273.

I have said that other textual provisions in the Act may assist in construing s. 273. The first such

provision is s.237, which authorises the holder of a mining lease to apply to the Minister for approval

to conduct drilling and other activities on the surface area of the relevant land where such surface area

is not included in the lease. This provision clearly indicates an awareness of the possibility that the

surface of the land may be used for purposes other than access.

Section 245 prescribes the content of an application for a mining lease. Relevant paragraphs

of sub-s.(1) require that an application:-

“(d)	Describe all parcels of land ... which are the subject of the application ... and the names and addresses of the owner or owners of the land and of land which is to be used as access thereto...” (emphasis added)
“(f)	Identify in the prescribed manner the boundaries of any surface area of land within the boundaries (of the land applied for) to be included in the mining lease and specify the purpose for which that area is to be used; ...”
“(h)	Describe and identify in the prescribed manner any land proposed to be used as access from a point outside the boundary of the mining lease acceptable to the mining registrar to land over which the mining lease is sought: ...”

It can be seen that questions of access are expressly dealt with independently of the question
of the surface area to be included in the lease. Given that the issue of access is expressly dealt with in

paragraphs (d) and (h), it seems likely that the wider language used in sub-paragraph (f) is intended to

deal with something more than access. Further, if the only relevant purpose were access, it is unlikely

that there would be a requirement to state that purpose. The parallels between the language used in

s.245(1)(f) and that used in s.273 are obvious, suggesting that the latter section is also intended to deal

with more than mere access.

Section 269 deals with the warden’s recommendations after a hearing. Sub-section (3)

provides:-

“A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the warden considers appropriate, including a condition that mining shall not be carried on above a specified depth below a specified surface area of the land.”

This suggests that Parliament was aware of the potential need to provide a buffer zone between

mining activity and the surface and highlights the artificiality of the suggestion that one can separate the

so called mathematical surface from its underlying support.

It is a major part of the respondents’ submissions that s.280 of the Act is in some way

inconsistent with the appellant’s interpretation of s. 273. Section 280 provides:-

“280.(1) An owner of land the subject of a mining lease where no part of the surface area of that land is included in the lease may agree with the holder of the mining lease as to compensation for any damage caused to the surface of the land.

(2) An agreement made pursuant to subsection (1) shall not be effective

unless and until -

(a)         it is in writing signed by or on behalf of the parties; and

(b)        it is filed in the office of the mining registrar.

(3) If an agreement referred to in subsection (2) is required by any law of

Queensland to be stamped, it shall not be filed until it is stamped according
to law.”
The respondents submit that the section contemplates, “that, although ‘no part of the surface

area of ... land is included in the lease’ there may nevertheless be ‘damage caused to the surface of the

land’ for which compensation is payable”. The submission then asserts that the Act allows a miner to

elect whether or not he will enter upon the surface of the landholder’s land if he wishes only to mine

beneath it. It is submitted that,

“In such a case the Act does not require the miner to take up an area of surface and thus maximise disturbance to the landowner and require compensation to be paid to the landholder for deprivation of the whole of his land.”

In other words, it is said that because s.280 contemplates damage to the surface where the

surface is not included in the lease, the section is in some way inconsistent with the appellant’s

submission as to the true meaning of s.273. This argument assumes that the criterion for the operation

of s. 273, according to the appellant’s argument, is damage to the surface. This assumption is incorrect.

The argument is that s.273 requires the inclusion of the surface area in this lease because it is to be used

as part of the proposed operation. In the present case, damage will be caused to the surface, and that

is clear evidence that the surface is to be so used, but it is the use which invokes the operation of s.273,

not the probability of damage. There may well be cases where only minor damage to the surface, or

no damage is likely. In those cases, s.293 will not compel the inclusion of surface area in the lease.

There is therefore no inconsistency between the appellant’s construction of ss.273 and the operation

of 280.

The respondents advance a number of other submissions to rebut the appellant’s construction

of s.273. Firstly, they submit that the appellant’s construction “would constitute an unexplained and

significant departure from the position as it obtained under the Mining Act 1968, s.125”. It is suggested,

probably correctly, that s.125 of the 1968 Act was a precursor of the current section and that it “seems clearly to have been concerned with issues of access, rather than damage, to the surface...” Specific

reference is made to sub-paragraph (c). Section 125 provides as follows:

“Where an application made for the grant of a mining title to private land does not relate to any portion of surface, the applicant shall not be entitled to a grant of the title sought unless he proves to the warden that -

(a)         he is the holder of a mining tenement in land adjoining the private land to which the application relates;

(b)        he is the proprietor of an estate in fee simple in land adjoining the private land to which the application relates; or

(c)         he is the holder of a mining tenement with such way-leaves and other rights through land situated between that tenement and the private land to which the application relates as will enable him to mine in the land to which the application relates.”

The respondents' specific reference to sub-paragraph (c) is apparently to the words “such way-

leaves and other rights”, implying that they should be taken as indicating that the section as a whole was

intended to relate to questions of access. Paragraphs (a) and (b) contain no such express limitations,

and a close reading of para.(c) discloses that it does not support the respondents' argument. The

paragraph is clearly concerned with access between land the subject of the application and another

mining tenement held by the applicant. All three paragraphs contemplate that such other tenement or

freehold land is to be used in conjunction with the mining lease, but no indication is given as to the

anticipated purpose.

The respondents submit that, “It is difficult to see any policy consideration which would explain

why Parliament would have intended the construction for which the appellant contends.” This argument

assumes that the appellant’s argument concerning the application of s.273 depends upon damage to the

surface. I have already dealt with that error.

Finally, the respondents submit that the appellant’s construction does not serve any useful
purpose. Section 273, as I see it, serves two purposes. Firstly, it ensures that sufficient surface is

available in the immediate vicinity of the mine for the proposed operation, including its infrastructure.

This may include (inter alia) space for storage of ore and/or tailings, plant and equipment, offices and

staff amenities. No doubt, potential miners will often find it beneficial to avoid the compensation

problems inherent in disrupting the landholder's surface activities. In all probability, s.273 was designed

to ensure that activities appropriate to the mining operation are not artificially divorced from it, with

adverse consequences to the landholder and others in the vicinity either as a result of dust, traffic and

other such problems associated with movement between different sites or because the operation is

spread more widely as a result of some part of it being located away from the mining site. The second

purpose is to prevent applications such as that with which we are presently concerned which seek

artificially to sever the surface from the substratum.

I consider that s.273 requires the inclusion in a lease of such part of the surface as is required

to enable the holder to carry out the purposes for which the lease is granted, save to the extent that an

adjacent mining lease held by the same person is capable of being so used instead of the surface of the

subject land. In the present case, the respondents have sought a lease over all the land below the

mathematical surface. I seriously doubt that the Act contemplates such an artificial severance. In any

event, the respondents have admitted that their operation will inevitably cause subsistence of the surface,

leading to the inference that the surface is needed to enable the proposed operation to be undertaken.

Obviously, this is not a case in which adjacent land may be used to take the place of the surface.

The President has concluded that the present application should be taken as including the

mathematical surface and therefore as complying with s.273, notwithstanding the express exclusion of

any claim for rights over the surface. The alternative view is that expressed by Demack J, namely that no lease may be granted pursuant to the application because of the exclusion of the surface contrary to

the provisions of s.273. Whilst accepting that in construing a document, it may be permissible to

disregard an erroneous statement, I find myself unable to agree that in construing the present application,

one may disregard the statement, “No surface area applied for”, so as to turn the application into an

application which includes the surface area. The surface area has been expressly excluded, perhaps

because the applicant is not willing to incur an obligation to pay compensation for disturbance of the

surface. For the reasons which I have given, I consider that no lease may be granted pursuant to the

application. I would declare accordingly.

The second question raised by the applicant concerns the appellant's entitlement to compensation

pursuant to ss.280 and 281 of the Act, assuming it is unsuccessful on the first point. In the

circumstances, it is not appropriate to offer an opinion on that matter. I do not wish to be taken as

expressing any view as to the correctness or otherwise of the decision on this point reached by the

learned trial Judge. In those circumstances, I concur in the orders proposed by Demack J.

"If the Court determines that the issue raised by proposed
order 2 ought to be decided at this stage. That:"