Venn v Mine Subsidence Board - [2013] NSWLEC 30

Land and Environment Court

New South Wales

Medium Neutral Citation: Venn v Mine Subsidence Board [2013] NSWLEC 30
Hearing dates: 17, 18 March; 6, 7 June; 15, 16 August 2011
Decision date: 15 March 2013
Jurisdiction: Class 3
Before: Craig J
Decision:
1.   Appeal dismissed
2.   Costs reserved
3.   Should either party seek an order for costs, the matter is to be listed within the next 14 days by arrangement with my Associate so that directions may be given for the determination of any such application.
4.   Exhibits may be returned.

Catchwords: APPEAL - compensation for damage to improvements from mine subsidence - whether claims met the requirement of the legislation as having been made within "the prescribed time" - whether decisions as to competence of claims by the Mine Subsidence Board were decisions engaging the right to appeal to the Court - decision in Alinta LGA Ltd v Mine Subsidence Board [2008] HCA 17 applied - whether the appeal was competent - the decision from which time for appeal runs - whether evidence established causal connection between damage claimed and subsidence from coal mining - Mine Subsidence Compensation Act 1981, ss 4, 7A, 12, 12B, 15, 15B - Mine Subsidence Compensation Regulation 2007, cl 6 - Land and Environment Court Rules 2007, r 7.1
Legislation Cited:
Civil Procedure Act 2005

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Land and Environment Court Rules 1996 (now repealed)

Land and Environment Court Rules 2007

Mine Subsidence Compensation Act 1961

Mine Subsidence Compensation Regulation 1997 (now repealed)

Mine Subsidence Compensation Regulation 2002 (now repealed)

Mine Subsidence Compensation Regulation 2007 (now repealed)
Uniform Civil Procedure Rules 2005
Cases Cited:
Alinta LGA Ltd v Mine Subsidence Board [2008] HCA 17; (2008) 244 ALR 276

Anthony De Lisle Venn v Elcom Collieries Pty Ltd [2006] NSWDC 60

Carr v Baker [1936] 36 SR (NSW) 301

Jones v Dunkel [1959] HCA 8; (1959) 201 CLR 298
Seltsam Pty Ltd v McGuiness; James Hardie and Coy Pty Ltd [2000] NSWCA 29; 49 NSWLR 262
Category: Principal judgment
Parties: Anthony De Lisle Venn (Applicant)
Mine Subsidence Board (Respondent)
Representation: C Kardell (Solicitor) (Applicant)
P A Thew (Respondent)
C Kardell, Sole Practitioner (Applicant)
Kilmurray Lawyers (Respondent)

File Number(s): 30640 of 2010

Judgment

Anthony De Lisle Venn is the owner of land at Colangra Point, bordering the southern shore of Lake Munmorah on the New South Wales Central Coast. The formal description of that land is Lot 2 in DP 509889, known as Lot 2, Macleay Drive, Halekulani (Lot 2).

Erected on Lot 2 are a number of improvements, including a dwelling, boatshed, jetty, boat ramp and seawall, together with what might compendiously be described as access roads and paths together with landscaping works. Lot 2 has an area of about 1.84 hectares.

For many years, underground coal mining has been undertaken in the vicinity of Colangra Point and Lake Munmorah. As a consequence of mining, a subsidence event occurred in 1992, followed by a further event in 1998, both of which affected land in those areas, including Lot 2.

In 2010, Mr Venn, through his solicitor, submitted claims to the Mine Subsidence Board (the Board), alleging damage as a consequence of subsidence on Lot 2. These claims were made in respect of seven discrete "improvements" or group of "improvements" on Lot 2 said to have been damaged by mine subsidence and for which either damages were claimed or the undertaking of remedial works was sought (the 2010 claims). In each case, the Board indicated that claims for damage by reason of mine subsidence to each of the seven "improvements" or group of "improvements" had been determined by it in either 2002 or 2005. As a consequence, the Board contends that it made no "decision" in respect of the 2010 claims, its response to the latter claims involving no more than a reference to the "decision" or "decisions" that it had made in earlier years.

By application filed on 12 August 2010, Mr Venn appealed to this Court, founding his appeal upon the provisions of s 12B of the Mine Subsidence Compensation Act 1961 (the Subsidence Act). The Board denies that the Court has jurisdiction to determine the appeal other than by dismissal. The bases of its contentions are:

(i) no "decision" of the kind identified in s 12B of the Subsidence Act was made by the Board in respect of the 2010 claims with the consequence that no right to appeal was engaged;

(ii) the claims sought to be propounded by Mr Venn could not, in 2010, have been entertained by the Board, having regard to the time limitation imposed upon the making of claims by the provisions of s 12(2)(a) of the Subsidence Act and cl 6 of the Mine Subsidence Compensation Regulation 2007 (now repealed) (the 2007 Regulation) and could not now be entertained by the Court;

(iii) the only relevant "decisions" of the Board in respect of claims made by Mr Venn were those made and notified to him in 2003 and 2005 respectively: any appeal to this Court under s 12B of the Subsidence Act was required to have been commenced within 60 days from those decisions: Pt 17 r 1 of the Land and Environment Court Rules 1996 (now repealed): cf Pt 7 r 7.1 of the Land and Environment Court Rules 2007; and

(iv) as a number of the improvements that were the subject of claim had not been approved by the Board in accordance with s 15(3) of the Subsidence Act, no claim for any damage caused to those improvements by mine subsidence could be "entertained" by the Board, having regard to the provisions of s 15(5)(b) of that Act, with the result that the Board could not and did not make any "decision" founding a right to appeal under s 12B.

Even if, contrary to the contentions of the Board, the jurisdiction of the Court to entertain the present appeal is engaged, it contends that the appeal should be dismissed on the following grounds:

(i) Mr Venn has not proved that the damage to improvements claimed by him was damage arising from "subsidence", within the meaning of the Subsidence Act; and

(ii) Mr Venn has not proved the quantum of damages for which payment should be made from the Fund established under that Act.

Background

Lot 2 was acquired by Mr Venn from his aunt in November 1976. He was familiar with the land long before its purchase, having visited it as a child. At the time of its acquisition by him, Mr Venn described improvements on the land as being a timber and steel holiday house, a brick garage, a boatshed, a barbeque area and a "100 ft" timber jetty. Apart from the timber jetty, these improvements are said by Mr Venn to remain on Lot 2.

Following his acquisition of Lot 2, Mr Venn erected a number of structures and carried out a number of works on that land. These structures included the erection of a new double-brick dwelling, an in-ground swimming pool, a boat ramp with adjacent hardstand area and the provision of roads serving both the boat ramp and boatshed. He also installed a water main and other utilities. Approval for the construction of the dwelling erected by Mr Venn was obtained from the Board.

Since the early 1970s, underground coal mining had been undertaken in the vicinity of Colangra Point. This mining was undertaken by Elcom Collieries Pty Ltd, the mine head for this mine being located approximately two kilometres from Lot 2. In 1993, the mining operations of Elcom Collieries Pty Ltd was taken over by a company known as Powercoal Pty Ltd (Powercoal). Both companies are sometimes referred to in the evidence as "the Colliery".

Subsidence events

The first of two subsidence events to which I have earlier referred occurred on 1 August 1992. The Board accepts that such an event occurred as a consequence of coal mining undertaken in the vicinity of Lot 2. On that day Mr Venn observed that the waters of Lake Munmorah had inundated beaches that had hitherto been within or adjoined the boundary of his property with the Lake. He also observed that his jetty together with a concrete boat ramp were submerged beneath the waters of the Lake. Mr Venn also asserts that cracking was observed both in his house and boatshed and that his swimming pool had "tilted".

As a result of the damage that occurred at that time, claims were made upon the Board pursuant to s 12 of the Subsidence Act. The first claim related to damage said to have been occasioned to the house structure and associated improvements within the property. That claim was assigned claim number 92/457 by the Board and accepted for payment. A second claim, assigned claim number 93/522, related to the swimming pool. That claim was accepted with promise of a payment in the sum of $24,000 being made upon a deed of release being signed by Mr Venn. The Board's decision in relation to both these claims was notified to Mr Venn on 11 March 1994.

In 1995, Powercoal which was then responsible for the operation and maintenance of mines in the area of Lot 2, commissioned ERM Mitchell McCotter Pty Ltd, planning and environmental consultants, to prepare a report addressing works to be undertaken to "rehabilitate" the Lake Munmorah foreshore affected by the 1992 mine subsidence event, including the foreshore of Lot 2 (the Mitchell McCotter Report). Powercoal had accepted responsibility to undertake these rehabilitation works.

The Mitchell McCotter Report was prepared in June 1995. It identified a number of works to be undertaken. Those works included repairs to the existing seawall, the construction of revetments and the placement of fill on Lot 2 so as to re-establish some of the land area "lost" as a consequence of subsidence. Other proposed works addressed in the Mitchell McCotter Report included reinstatement of the boat ramp and hardstand driveway area adjacent to that ramp.

The works proposed in the Mitchell McCotter Report were the subject of a development application submitted by Powercoal to Wyong Shire Council. Mr Venn provided his consent to the application as owner of Lot 2. Wyong Shire Council granted development consent to that application on 4 September 1995. The consent of the Board to carry out the work that was the subject of that development consent was not sought either by Powercoal or by Mr Venn.

Foreshore restoration works in purported compliance with the development consent were commenced in February 1996 and continued until September of that year. The work was undertaken on behalf of Powercoal. The estimated cost of that work is said to be $300,000. A substantial amount of the work contemplated by the development consent had been completed before work ceased. This occurred by reason of a dispute between Mr Venn and Powercoal as to the standard of work being undertaken on and adjacent to Lot, 2 coupled with Mr Venn's refusal to sign a deed of release in terms required by Powercoal.

In 2001, Mr Venn commenced proceedings in the District Court against Elcom Collieries seeking damages for trespass, negligence and nuisance arising from the subsidence that had occurred in 1992. His claim was unsuccessful on the ground that his action was statute barred (Anthony De Lisle Venn v Elcom Collieries Pty Ltd [2006] NSWDC 60).

The second subsidence event to which I have referred occurred in February 1998. Mr Venn claims that as a result of that event further inundation of his land by Lake Munmorah occurred with the result that access walkways were eroded, revetments constructed in 1996 were damaged, and his boatshed had become liable to flooding as had the replacement jetty which was constructed following the 1992 subsidence event.

Items for which claim has been made

It will be necessary to discuss, in detail, each of the items of claim that Mr Venn has identified. However, by way of background it is convenient to identify the heads of claim together with a brief description of the damage claimed. Each head of claim was the subject of a claim made in 2010, albeit that the description of each head of claim has not always been consistent.

The subject matter of each claim is identified in the following paragraphs. This means of identifying each claim will be used throughout this judgment.

(i) The sewer line claim. This claim relates to the sewer line from the main bathroom in the dwelling erected by Mr Venn. The sewer line is claimed to have been cracked or broken, resulting in blockage and the need for temporary clearing measures.

(ii) The hardstand claim. Although sometimes referred to as the boat ramp/hardstand area claim, the evidence reveals that the boat ramp was repaired and that the claim, accurately described, relates to the area of hardstand adjacent to the boat ramp that was cracked and damaged. Putting aside the legal issues that the Board identified, as will become clear, the factual debate centres upon the dimensions of the hardstand area for which any compensation is payable.

(iii) The boatshed claim. This claim relates to a boatshed erected on the foreshore of Lake Munmorah. Mr Venn claims that it has been damaged by intermittent flooding from the Lake caused by subsidence beneath the boatshed.

(iv) Transpiration beds claim. Waste water from the kitchen and laundry within the dwelling erected by Mr Venn is treated by an onsite waste disposal system. Waste water is piped to a transpiration bed for this purpose. Mr Venn asserts that pipes distributing waste water to and within the transpiration bed have been cracked or broken by reason of subsidence, with the result that the disposal system failed to function as it was intended to do.

(v) The seawall claim. This claim relates to the seawall erected on the Lake boundary of Lot 2 that was re-erected or substantially repaired by Powercoal in 1996. The wall is said to have been damaged or inadequately repaired.

(vi) The revetments claim. This claim is sometimes said in the evidence to relate to access ways and walkways adjacent to the foreshore but ultimately it seems that the claim is for damage to the revetments constructed by Powercoal in 1996.

(vii) The landscaped area claim. The area of Lot 2 that is the subject of this claim pertains to an area of "cliff", which was damaged in 1992 and in respect of which reinstatement and landscaping works, including the provision of steps, pathways and rails were proposed as part of the works to be carried out by Powercoal in 1996. These are all works said to be proposed for an area described as the "chapel area". Temporary works of this nature were carried out by Powercoal in 1996.

The orders sought by Mr Venn

In his Application by way of appeal to this Court, Mr Venn seeks differing orders, depending upon the head of claim that is made. In some cases, he seeks an order that the Board carry out identified works while in respect of others he seeks the payment of an identified sum. The amount for which payment is sought is additional to the sum of $63,900 paid by the Board to Mr Venn since 1992. In addition to the latter sum, works on Lot 2 for which the Board has paid amount to $56,595.

The nature of the orders that the Court is able to make on an appeal brought under s 12B of the Subsidence Act will be identified later in these reasons.

A mine subsidence district is proclaimed

On 23 November 1966 an area of land in the vicinity of Lake Munmorah, including Lot 2, was proclaimed to be a mine subsidence district. This proclamation was made pursuant to s 15(1) of the Subsidence Act. The significance of this proclamation, as it affects claims made by Mr Venn, will be considered later in these reasons.

The statutory provisions

As will be apparent from the bases upon which the Board opposes Mr Venn's appeal, the statutory provisions applying to his 2010 claims are important to be noticed. It is appropriate to identify the critical statutory provisions at the outset because they inform the manner in which both the 2010 claims and the Board's refusal to entertain them are to be considered.

By s 10(1) of the Subsidence Act, a fund is constituted which is called the Mine Subsidence Compensation Fund (the Fund). Administration of the Fund is vested in the Board. That Board is constituted pursuant to s 5(1) of the Act. The Fund consists of contributions from colliery proprietors (s 10(2)(b)) together with such further sums as are identified in s 10. Colliery proprietors are obliged to make contributions to the Fund calculated pursuant to s 11 and the amount so calculated is deemed to be a debt due to the Crown, recoverable as such by the Board. Provided a colliery proprietor is not in arrears with contributions and observes identified operational covenants, that colliery proprietor is not "liable for any damage to improvements or household or other effects occasioned by subsidence": s 14(1). The entitlement of a landholder claiming to have sustained damage to an improvement by reason of mine subsidence is left to making a claim for payment from the Fund.

Section 12(1) is directed to claims from the Fund. The section relevantly provides:

"12 Claims for damage arising out of subsidence

(1) Claims may be made under this Act for payment from the Fund of:

(a) compensation for any damage to improvements that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the improvements,

(b) an amount to meet the proper and necessary expense incurred or to be incurred as a result of such damage in:

(i) building retaining walls or bolting together or underpinning or otherwise supporting, raising or repairing buildings and walls,

(ii) altering the approaches to or the levels of lands or buildings,

(iii) raising, lowering, diverting or making good roads, tramways, railways, pipelines, bridges, fences, sewers, drains or other improvements, ... "

Section 4 of the Subsidence Act contains definitions of words and expressions used in the Act. Relevantly, the section contains the following definitions:

"Improvement includes any building or work erected or constructed on land; any formed road, street, path, walk or drive-way; any pipeline, water, sewer, telephone, gas or other service main, whether above or below the surface of the land.

...

Subsidence means subsidence due to:

(a) the extraction of coal or shale, or

(b) the prospecting for coal or shale carried out within a colliery holding by the proprietor of the holding,

and includes all vibrations or other movements of the ground related to any such extraction or prospecting (whether or not the movements result in actual subsidence), but does not include vibrations or other movements of the ground that are due to blasting operations in an open-cut mine and that do not result in actual subsidence."

The procedure for making a claim upon the Fund is set out in s 12(2). The subsection provides:

"(2) (a) The owner of any improvement or any household or other effects which have been damaged by subsidence may notify the Secretary of the Board in a form approved by the Board and within the prescribed time of the details of such damage; the location of the improvement damaged; the description of the household or other effects damaged; the amount claimed from the Fund and such other particulars as may be prescribed.

Such notification shall be treated as a claim for payment from the Fund under subsection (1).

(b) Any such notification received shall be recorded and investigated by the Board, an officer of the Board or some other officer in the Public Service acting for the Board and on receipt of a report of such investigation the matter shall be placed before a meeting of the Board for a decision as to the payment, if any, to be allowed in respect of the damage to which such notification relates."

The "prescribed time" within which the owner of an improvement damaged by subsidence may notify the Secretary of the Board in accordance with s 12(2)(a) is found within the 2007 Regulation. Clause 6 of that Regulation provides:

"6. Notifications under s 12(2)

A notification under s 12(2) of the Act must be lodged with the Secretary of the Board:

(a) within 12 months after the day on which it became known to the owner concerned that the damage was caused by subsidence, or

(b) if the Board determines that the owner should have known on a particular day that the damage was caused by subsidence, within 12 months after that day, or

(c) if the Board determines that a longer period is justified in the circumstances of the case, within the longer period so determined."

A provision in similar terms to that found in cl 6 of the 2007 Regulation was contained in cl 7 of the Mine Subsidence Compensation Regulation 1997 which commenced on 1 September of that year, and also in cl 6 of the Mine Subsidence Compensation Regulation 2002, which commenced on 1 September of that year. Thus the time limited for the making of claims has, at all times relevant to the disputes in the present proceedings, been expressed in similar terms

I have earlier referred to the proclamation made under s 15(1) of the Subsidence Act, proclaiming an area of land which includes Lot 2 as a mine subsidence district. A relevant consequence of such a proclamation is that, following its making, approval is required from the Board to alter or erect any improvement upon land within the mine subsidence district. Failure to obtain such an approval is an offence: s 15(7). Moreover, failure to obtain approval from the Board has a consequence upon an entitlement to claim compensation for damage to an improvement due to subsidence. Section 15(5) relevantly provides:

"(5) Where any improvement has been erected or altered or subdivision has been made in contravention of this section:

...

(b) no claim shall be entertained or payment made under this Act in respect of damage caused by subsidence to any such improvement or to any improvement upon land within the subdivision unless a certificate is issued under s 15B(3A) in respect of the improvement or land."

Section 15B enables the Board to issue a certificate in respect of an improvement erected within a mine subsidence district. Relevantly, subsection (3A) provides:

"(3A) If the Board is satisfied that:

(a) an improvement ... referred to in an application under this section would have met the requirements of subsection (3) had the Board's approval been obtained, and

(b) it is appropriate having regard to the circumstances of the case, to do so.

the Board may issue a certificate under this section in respect of the improvement or land."

The issue of a certificate under s 15B(3A) is only undertaken in response to an application made in accordance with subsection (1) of the section. The provision does not contemplate the issue of a certificate by the Board of its own volition. Importantly, no such certificate has been sought at any time by Mr Venn with the consequence that no such certificate has ever been issued.

As I have earlier indicated, Mr Venn founds his entitlement to appeal to this Court upon the provisions of s 12B of the Subsidence Act. That section provides:

"12B Appeals

A person claiming compensation under section 12 or 12A may appeal to the Land and Environment Court against the decision of the Board:

(a) as to whether damage has arisen from subsidence or could reasonably have been anticipated, or

(b) as to the amount of the payment from the Fund."

Appeals under that section are assigned to Class 3 of the Court's jurisdiction in accordance with s 19(f1) of the Land and Environment Court Act 1979 (the Court Act).

As will be apparent from the provisions of s 12B, the Court does not have unlimited jurisdiction in such an appeal to determine any question that arises from a claim sought to be made by a person asserting that damage to an improvement has arisen from subsidence. The limited scope of the appeal afforded by s 12B was identified by the High Court in Alinta LGA Ltd v Mine Subsidence Board [2008] HCA 17; (2008) 244 ALR 276. It will be necessary to consider the judgment in that case later in these reasons.

Neither s 12B nor any other provision of the Subsidence Act limits the time for appeal under the section. That limitation is and has at relevant times been imposed by rules of Court. The Land and Environment Court Rules 1996 provided that an appeal to the Court may be commenced at any time "within 60 days after the right of appeal, objection or reference first arises.": Pt 17 r 1(1). That rule commenced on 29 January 1996 and was operative until 28 January 2008 when it was repealed and replaced by the Land and Environment Court Rules 2007 (LECR 2007) which continue to operate. Part 7 r 7.1 of LECR 2007 also requires that any appeal to the Court be commenced "within 60 days after the right of appeal, objection or reference first arises".

Jurisdiction to entertain the 2010 "claims": the principles

As will be apparent from my reference to the legislative provisions, claims for payment from the Fund consequent upon damage to improvements occasioned by subsidence are circumscribed by the provisions of s12(1) of the Subsidence Act. In order to constitute a "claim" made under s 12(1), that "claim" must be made by way of notification that meets the requirements of the first paragraph of paragraph (a) of s 12(2). So much is made clear by the second paragraph of paragraph (a) which provides:

"Such notification shall be treated as a claim for payment from the Fund under subsection (1)."

In order to meet the requirements of the first paragraph of s 12(2)(a), the notification which is to "be treated as a claim for payment" must contain the information required by the paragraph and be given "within the prescribed time" (Alinta at [22]).

Section 18 of the Subsidence Act provides for the Governor to make regulations "... prescribing all matters which by [the] Act are required or permitted to be prescribed". As I have earlier indicated, successive regulations made under s 18 have prescribed a time of 12 months "after the day on which it became known to the owner concerned that the damage was caused by subsidence".

Unless the notification made under s 12(2)(a) conforms with the statutory provision, it is not a claim for compensation under s 12(1) of the Subsidence Act. A "claim" that does not meet that requirement is not one for an amount "payable under [the] Act in respect of damage caused by subsidence", with the consequence that payment from the Fund for such a "claim" is not authorised: s 10(3)(a) of the Subsidence Act.

Moreover, the determination by the Board that a "claim" made upon it does not relevantly engage the provisions of s 12(1), because the claim has not been made within the time prescribed, has an important consequence upon the jurisdiction of the Court to entertain an appeal pursuant to s 12B. Such a determination by the Board is not directed to causation (s 12B(a)) nor is it one directed to the quantum of a claim (s 12B(b)).

In Alinta the High Court was called upon to consider the ambit of this Court's jurisdiction under s 12B. The plurality (Gummow, Hayne, Heydon, Crennan and Kiefel JJ) rejected a contention that any decision of the Board having the legal effect of denying a claim for payment from the Fund engaged the right of appeal afforded by that section (at [44] - [45]; [58]). The Court observed (at [60]) that the subject matter "prescribed in paras (a) and (b)" of s 12B is "identified and delimited by the language of ss 12 and 12A". (The provisions of s 12A are not relevant to the "claims" made in the present case.) In essence, the High Court determined that when considering a claim made under s 12, the jurisdiction of the Court is confined to the questions of causation and quantum of compensation "in claims competently made against the Fund" (at [63]).

A determination by the Board that a claim is not competent, because it fails to satisfy a provision of the Subsidence Act circumscribing the making of a claim, does not engage the Court's jurisdiction under s 12B (at [64]). In this context, the plurality opined (at [63]) that by framing the section as it did, "the legislature left to the Board the determination of jurisdictional facts, subject to scrutiny only on judicial review in the Supreme Court." The decision of the Board on a claim must be one "as to" one of the two classes of subject matter identified in paragraphs (a) and (b) of s 12B to enliven the right of appeal under the section.

The Board submits that one basis for its decision to decline the 2010 claims was that none of them were notified to it within 12 months after the day on which it became known to Mr Venn that the damage claimed was caused by subsidence. That decision by the Board is one directed to the competency of the claims.

The Board further submits that an additional basis for the Board's determination not to entertain some of the claims made to it is that they relate to improvements erected or altered without the Board's approval subsequent to the proclamation of the mine subsidence district which includes Lot 2 within its boundary. On that basis, the Board submits that they are claims that cannot be entertained: s 15(5)(b) of the Subsidence Act. A determination so founded does not engage the jurisdiction of the Court (Alinta at [64]).

These two bases of challenge to the competence of Mr Venn's appeal requires consideration of the terms in which the 2010 claims were submitted to the Board and also the Board's determination of them. Further, as I have noted in [5], an aspect of the Board's contentions (contention (iii)) is that the subject matter of each of the 2010 claims was determined by the Board between 2002 and 2005. A considerable volume of evidence, both documentary and by way of affidavit, was tendered on these and related issues and, so far as is relevant, will need to be considered in order to address the Board's contentions.

Content of the 2010 claims

As will become apparent, there is a long history of dealing between Mr Venn and the Board concerning damage claimed to have occurred on Lot 2 following the subsidence events of 1992 and 1998. I have already referred to claims made by Mr Venn for structural damage occasioned to his home and swimming pool following the 1992 event. His claims in that regard were resolved by the Board and those claims are not the subject of the present proceedings.

From 1992 until 2006, almost all dealings between Mr Venn and the Board concerning damage to Lot 2 were conducted by Mr Venn himself. His direct contact was in the form of correspondence to and from officers of the Board or, in some cases, direct personal contact with some of those officers. The documents tendered in evidence reveal that in 2005 there was correspondence from Ms C Kardell, solicitor, making representation to the Board on behalf of Mr Venn as to some aspects of his "claims". However, between 2006 and 2010, there is no evidence of any contact made by or on behalf of Mr Venn with the Board concerning damage to improvements on Lot 2.

In February 2010 Ms Kardell commenced writing to the Board and submitting claims on behalf of Mr Venn. It is not suggested that she lacked authority so to do. As this correspondence and submission of claim forms proceeded over several months, it is necessary to address each of the claims that has been submitted by reference to the heads of claim that I have earlier identified (at [19]).

The sewer pipes claim

Ms Kardell first wrote to the Board by letter dated 9 February 2009 (sic). It is accepted that the year was wrongly stated and that the letter was written on 9 February 2010. Ms Kardell's letter is headed:

"Claim number: 02/00151

About: the outstanding repair of sewer pipes in main bathroom".

After identifying Mr Venn as the client and nominating his address, the letter proceeds:

"I have attached a fresh application from Mr Venn, which refers you to claim number 02/00151, MSB file number 76/683W and the repair of the sewer pipes in main bathroom, which is outstanding."

The letter then refers to repairs to the sewer line carried out in 2002 and 2003, asserting that repair to the bathroom sewer "remains outstanding". It acknowledges that repairs then carried out were "under the benefit of the doubt provisions". The letter also states that the section of sewer line for which claim is made which is beneath the main bathroom of the house has had to be cleared "on numerous occasions in the period from end 2002 to date".

The claim form accompanying that letter was signed by Ms Kardell for Mr Venn and dated 9 February 2010. Under a heading on the form requiring that the nature of the damage be described, the following has been inserted:

"Sewer in bathroom - MSB approved repair 27/5/2002 - work incomplete and outstanding".

In response to the question asked in the claim form as to when damage was first noticed, the following response is given:

"2002 - refer file 76/683W for full details."

The section of the form seeking a statement of the amount claimed has been left blank.

The Secretary of the Board responded by letter dated 22 February 2010 addressed to Ms Kardell. It noted that four years had passed since the last correspondence directed to the sewer line issue. Observations made in Ms Kardell's letter of 9 February were challenged and further information sought. Ms Kardell responded by letter dated 2 March 2009 (sic) debating matters raised in the Board's letter of 22 February. Her letter was again headed "outstanding repair of sewer pipes in main bathroom".

The final response from the Board in respect of the sewer line claim was provided by letter under the hand of the Secretary dated 10 March 2010. Relevantly, it stated:

"The subsidence event occurred in 1992. Mr Venn claimed for the blocked sewer 10 years later on 23 April 2002, it was accepted under benefit of doubt on 14 June 2002 and repairs made in August 2003. A letter was sent to Mr Venn on 15 August 2003 advising that work was complete and requesting his advice on any further issues within 14 days.

He replied on 20 August 2003 complementing staff and contractors on the efficiency and quality of the work carried out. He did not raise any issues of outstanding or incomplete work.

The Board considers this claim closed."

As will be apparent, in 2010 the Board neither addressed the quantum of any claim directed to the sewer line, as no amount was claimed, nor, more importantly, did it address the question of causation, that is the causal link between damage claimed to have occurred to the bathroom sewer line and the subsidence event that was the consequence of coal mining.

The decision of the Secretary conveyed by the letter of 10 August 2010 was one declining to accept the 2010 claim as one which the Board had power to entertain. That determination was clearly founded upon failure to make a claim within the "prescribed time" under s 12(2) of the Subsidence Act. Quite apart from the history shortly summarised in the second paragraph of that letter, the Board's determination is supported by the material contained both in the claim form itself and the accompanying letter from Ms Kardell. By the admissions made on behalf of Mr Venn the damage was first noticed in 2002 with the consequence that claim in respect of that damage was required to be lodged within 12 months from the date of discovery.

If, as was submitted by Ms Kardell, the "claim" referred to in the Board's correspondence as has having been made in April 2002, was not a claim made for the purposes of the Subsidence Act, then the claim lodged in February 2010 was clearly outside the "prescribed time" within the meaning of s 12(2) the consequence of which was that the power of the Board to entertain the claim was not engaged. If, on the contrary, there was a claim that conformed with the requirements of the Subsidence Act in 2002 and that claim was determined in 2003, then the present appeal, at least in respect of this matter, would appear to be incompetent as it has not been brought within the time stipulated by the Court Rules to which I have earlier referred.

Importantly, applying the principles to which I have earlier referred, if the Board's decision is taken as being that it lacked power to entertain the claim by reason of failure to notify it within "the prescribed time", then such a determination is not one that founds the entitlement to appeal pursuant to s 12B of the Subsidence Act. The decision of the High Court in Alinta determines as much.

The hardstand claim

The claim form relating to the hardstand on Lot 2 was completed by Ms Kardell and dated 10 May 2010. Under the form heading that required a description of the nature of the damage for which claim was made, the following information was inserted:

"Boat ramp and hardstand area sank below Lake Aug. 1992 due to subsidence. Boat ramp repaired 2003. Hardstand area to be reviewed."

In response to the question posed by the form as to when damage was first noticed, the following has been inserted:

"1992 - claim made 1992/accepted 2002 - refer file number 76/683 for full details."

The amount claimed is stated to be $16,751.36.

That claim form was sent to the Board with a letter dated 20 May 2010 from Ms Kardell. After referring to the accompanying claim form, the letter stated:

"The Board accepted Mr Venn's claim in 2005 for the repair of the hardstand area to serve the boatramp and boatshed on his waterfront.

At the time Mr Venn provided the Board with a number of quotations for the job, based on the specifications provided in 1996 by consulting engineers ... as part of the proposed rehabilitation of his foreshore land by the Mining Company. The lower quote for labour plus materials was $20,000 and I recall the higher quotation was more than twice that amount.

The Board offered $1650, which on its assessment it said would cover the cost. Mr Venn disagreed, based on the quotes he had obtained. He returned the cheque to the Board in June 2005. Mr Venn wants the Board to review its decision."

After referring to the fact that the work to repair the hardstand area has been carried out, the letter states that the amount claimed reflects the sum already paid by Mr Venn for the materials used in carrying out the work. The letter concludes:

"Please arrange for the Board to review its decision in 2005 and issue a cheque in the sum of $16,751.36 in favour of Mr Venn."

The Secretary of the Board responded by indicating that nothing had changed in relation to the claim to be compensated for the hardstand area since the Board decided to pay the sum of $1650 by way of compensation for damage occasioned to that area. The initial determination in that regard had been made in 2003 and was confirmed by a decision of the Board that was notified to Mr Venn by letter dated 28 February 2005. Further correspondence was exchanged between the Board and Ms Kardell but the position related in the Board's letter to her of 31 May 2010 maintained that in light of the history of claim and determination there was "nothing new ... to consider further investigation."

For the reasons stated in respect of the sewer line claim, the Boards's response to the 2010 claim directed to the hardstand area would not engage the Court's jurisdiction under s 12B of the Subsidence Act. Mr Venn's requested "review" of the Board's decision can only be a review of the decision made and notified on 28 February 2005. While his challenge is to the quantum sought under this head of claim, his appeal is incompetent as having been filed more than five years after the expiration of time for appeal allowed by rules of Court. No extension of this time was ever sought. I will address, in due course, the submission on behalf of Mr Venn that the 2010 claims are the first claims made by him under s12(2) of the Subsidence Act.

As with the previous claim, if the Board's response to the 2010 claim for compensation to the hardstand area is taken to be a determination the Board has no power to entertain that "claim" because it has not been made within the prescribed time, then the determination of the Board to proceed no further is not one that is amenable to appeal to the Court under s 12B of the Subsidence Act.

The boatshed claim

The claim form relating to the boatshed is dated 24 May 2010. It seeks the payment of $100,000 "incl. GST. (est)". The nature of the damage for which that sum is claimed is described in the following way:

"Boatshed on foreshore lowered about 1 - 1.5m by subsidence. Cracked walls, but main damage is that it is now prone to regular flooding, where before it was not."

In response to the question as to when damage was first noticed, the claim form states:

"On about 11/8/92 I noticed my foreshore had been lowered below Munmorah Lake. The boatshed went with it - refer the Board's records."

The claim was submitted to the Board with a letter dated 24 May 2010 from Ms Kardell. The letter states:

"The Board registered Mr Venn's application for compensation for damage to his boatshed, which is situated on his foreshore, in August 2003. The Board subsequently asked Mr Venn for permission to survey the foreshore and information about the boatshed. The survey was done in 2004. The claim remains unresolved to date."

The letter continued by providing a history of construction, survey measurement and a statement that the boatshed floods "at least three - four times a year".

The Secretary to the Board responded on 31 May 2010 by questioning why "old matters" were being raised. The letter stated that the boatshed claim had been refused by the Board in February 2005.

Ms Kardell responded by letter dated 8 June 2010. It is a somewhat lengthy dissertation on the material available to the Board when it made its decision in February 2005. The thrust of the letter would appear to be encapsulated in paragraph number 5 which states:

"In summary, the report the Board assessed in February 2005 was wrong and so ineptly done, I find it difficult to believe it actually happened."

The report to which reference is made in that statement is a report upon several of Mr Venn's claims, including that for the boatshed. The letter goes on to state that because of the claimed "ineptitude" of the report, Mr Venn considers the claim "unresolved" and thus the observation to that effect in the letter dated 24 May 2010 from Ms Kardell with which the claim form was sent to the Board.

By letter dated 8 June 2010, the Secretary to the Board responded succinctly to a number of matters raised in Ms Kardell's letter of 8 June. The letter concluded by stating that the claim was finalised.

The position that pertains in respect of the boatshed claim would appear to be no different from that which I have addressed in respect of the two earlier claims. The matters identified in the claim form itself, coupled with statements made in the correspondence from Ms Kardell on behalf of Mr Venn, amply demonstrate that:

(i) the damage for which claim is made was known to Mr Venn in 1992 and was the subject of notification to the Board in 2003; and

(ii) it acknowledged a determination made in respect of the claim in February 2005.

For reasons earlier stated, the Board was entitled to consider this claim as not having been made in accordance with s 12(2) of the Subsidence Act and its determination in that regard is not susceptible to appeal under s 12B.

Mr Venn's consideration of the determination made in 2005 as being inept does not detract from the fact that it was a decision of the Board directed to causation and to damage. The 60 day period for the commencement of an appeal under s 12B from that decision commenced to run. As would be obvious, that time has long since expired and cannot be revived by the 2010 claim.

I will address in due course the substance of the allegation that there was neither a claim made for the boatshed in 2003 nor a determination of that claim in 2005. It is sufficient for present purposes to indicate my conclusion that there was such a claim and a determination of it by the Board.

Transpiration beds claim

None of the claim forms submitted to the Board in 2010 identifies, in terms, a claim then made for damage to the transpiration beds that serve to treat waste water from the kitchen and laundry within Mr Venn's dwelling on Lot 2. However, such a claim seems to have been incorporated in a claim submitted under cover of a letter dated 10 June 2010 from Ms Kardell to the Board. The claim form attached to that letter, as completed by Ms Kardell, identifies claim number 03/00275, being a claim that had been considered and, as I have concluded, determined by the Board in February 2005. The 2010 claim form accompanying Ms Kardell's letter described the nature of the damage that was the subject of the claim as follows:

"Refer attached letter re

Works erected on the foreshore mid 1996 lowered by 1998 subsidence event below Lake, causing loss of walkways, revetments etc

Works/steps/rails on cliff damage by subsidence event 1992 and continuing".

In response to the question as to when damage was first noticed, the following information is inserted:

"Refer attached letter re

Works on foreshore - 1996

Works on cliff - 1992".

The form has been left blank against the heading "Amount Claimed".

The letter from Ms Kardell to which the claim form was attached also refers to claims 03/00275 and separately addresses a number of items that appear to be the subject of claim. Item 3 is directed to the transpiration bed. It describes the function of the transpiration bed, indicating that there were "no problems with the system prior to the 1992 subsidence event." The letter indicates that "subsequently" a strong stench was noticed in the vicinity of the laundry and kitchen with water failing to drain away. Repairs are said to have been carried out by Mr Venn to alleviate the problem with a receipt for that work yet to be provided to the Board. The letter asserts that "the land around the dwelling now tilts in the opposite direction and towards the lake, as a result of the subsidence event in August 1992."

The response of the Board was by way of letter from the Secretary dated 11 June. The letter indicates that no evidence had been provided that the Board had approved improvements to which the claim form relates and otherwise advises that claim 03/00275 had been finalised, with reference made to the decision notified to Mr Venn on 28 February 2005.

The observations that I have made in respect of the earlier claims would equally apply to this claim both as to the power of the Board to entertain it by reference to s 12(2) of the Subsidence Act and also having regard to the time limited for appeal pursuant to s 12B of that Act.

The seawall claim

A form claiming damage for the seawall was submitted by Ms Kardell on behalf of Mr Venn in May 2010. The form itself nominates only May 2010 as the date of claim although the form was forwarded to the Board under cover of a letter dated 21 May 2010 from Ms Kardell. The amount claimed according to the form is estimated to be $100,000 inclusive of goods and services tax.

The damage for which claim is made is described in the claim form as follows:

"Concrete retaining wall on foreshore sank down into lake. Concrete capping busted off. Lake washed soil retained behind wall. Wall now always at/or below water level".

In response to the question on the form as to when damage was first noticed, the following information is provided:

"About 12/2/1998 - noticed wall was under water, nearby trees/land submerged and at boundary of Lot 1/Crown Land lake had encroached over the land (about 500m) - over time, water did not recede."

Both the form and the letter from Ms Kardell with which it was enclosed refer to claim number 03/275 which, as I have earlier indicated, was a claim that was investigated by the Board and made the subject of determination in February 2005. The claim form is described in the letter of 21 May 2010 as being 'a fresh claim form made ... in respect of the above claim number 03/275". The letter reiterates that in "about February 1998" Mr Venn noticed that the retaining wall or seawall together with his land immediately to the north of the wall was under water. When the water did not recede, he appreciated that the wall had sunk below the lake. He acknowledged writing to the Board "at the time" identifying his observations. Attached to Ms Kardell's letter are photographs said to have been taken in the year 2000 and again in 2006 demonstrating the extent to which the retaining or seawall is impacted by the waters of Lake Munmorah. From what are described as the specifications for the wall and the photographs, the letter asserted that in the period between 1996 and 2006 the wall subsided "in the region of 350-450mm". The quotation for repair work that is enclosed with the letter is a quotation prepared in September 2006 in the sum of $67,859. In a note made on that quotation, apparently by Ms Kardell, the figure is said to be "adjusted for period to date - estimated $100,000".

The Board responded by letter dated 28 May 2010. The Secretary attached to that letter a copy of the 2007 Regulation and enquired how Ms Kardell considered the 2010 claim "meets the requirement of the prescribed period". The letter also stated that the wall had been constructed within a proclaimed mine subsidence district and sought a copy of any approval said to have been granted by the Board for construction of the wall. The letter from Ms Kardell of 21 May stated that the wall had been built in 1996, that is, some 30 years after the mine subsidence district proclamation was made. Attention was directed by the Board's letter to the provisions of s 15(5)(b) of the Subsidence Act which prohibits the entertainment of a claim where improvements are erected without the approval of the Board.

Ms Kardell responded by a letter dated 1 June 2010 stating that the issues raised in the Board's letter were not relevant. Reliance was placed on the fact that the Board had written to Mr Venn in August and September 2003 in which the Board had informed him that letters written to the Board by Mr Venn in July of that year were regarded as "formal lodgement of a claim" which was being investigated. Included among the matters addressed in letters from Mr Venn was "outstanding work still to be completed" including the retaining wall then said to have "subsided to water level".

The claim made in relation to the seawall in 2003 was the subject of the Board's determination in February 2005 when it was rejected. The fact of a decision by the Board in that regard is implicit in a further letter written by Ms Kardell on 23 June 2010 when she asserts that wrong information had been given to the Board in February 2005 when considering the seawall claim as a result of which the decision was "wrong" with the consequence that members of the Board were now being given the opportunity to "rectify their mistake".

In response, the Board reiterated that a claim in relation to the seawall had been determined by refusal in February 2005. Further, its correspondence stated that in the absence of any evidence of Board approval to the construction of the seawall in 1996, the Board would not entertain any claim.

The latter indication on the part of the Board is sufficient for present purposes. It is clearly a statement founded on s 15(5)(b) of the Subsidence Act proscribing the entertainment or payment of any claim made in respect of an improvement that has been erected or altered without the Board's approval. As I have earlier discussed, the decision of the High Court in Alinta has determined that a decision so made by the Board is not one that engages the jurisdiction of this Court under s 12B of the Subsidence Act.

Further, the matters advanced both in the claim form and correspondence from Ms Kardell on behalf of Mr Venn makes tolerably clear that he seeks to re-agitate a determination made by the Board in relation to the seawall in 2005. Even if that determination was one that enlivened the provisions of s 12B, the time to institute an appeal in order to secure rectification of "the mistake" allegedly made by the members of the Board expired more than five years prior to the date upon which the present appeal was filed.

The revetments claim and the landscaped area claim

The 2010 claim for damage under these heads was submitted to the Board under cover of a letter from Ms Kardell on 10 June 2010. The claim form was that to which I have earlier referred when addressing the transpiration beds claim. Further information pertaining to these claims is contained in the same letter of 10 June to which I have earlier referred.

The letter refers to the construction of the revetments and walkways by "the mining company" (Powercoal) in 1996. After asserting the levels to which the revetments were constructed and the extent to which subsidence had occurred, the letter contains the following statement:

"Note the Board considered this part of claim 03/00275 in February 2005 on the basis of wrong information that the subsidence 'on the property' since 1996 had been 'no more than 40mm'."

In substance, the claim, particularly in the context of the statement just recorded, clearly seeks reconsideration of an acknowledged determination made in February 2005. It is to the same effect as the claim for consideration made in respect of the seawall.

In her letter of 10 June, Ms Kardell also addresses what I have earlier identified as the landscaped area claim. Temporary repairs are acknowledged to have been carried out by Powercoal which promised to carry out permanent repairs at a later date. Those permanent repairs have not been carried out, so the letter indicates, before Powercoal stopped work in mid 1996. As I have earlier recorded, the letter from Ms Kardell is headed "Your Claim number: 03-00275".

The Board's response to those claims was by way of letter dated 11 June 2010. It was:

"This is in response to your letter dated 10 June 2010. I note that you have not provided evidence of Mine Subsidence Board approval for the improvements.

As advised in previous correspondence, Claim 03/275 has been finalised - see my letter dated 28 February 2005."

On their face, claims for both items make clear that they are founded upon damage caused by subsidence that occurred in 1992 or, at the latest, in 1998. The history of dealing with the Board as recited in Ms Kardell's letter of 10 June indicates that the damage claimed by reason of subsidence was known to Mr Venn at both dates.

The letter of 11 June 2010 from the Secretary to the Board makes tolerably clear that the decision not to entertain the 2010 claims is founded in both s 15(5)(b) and s 12(2) of the Subsidence Act. For reasons earlier stated, a decision of the Board that is so founded does not enliven the Court's jurisdiction under s 12B of the Subsidence Act.

The Court lacks jurisdiction to determine the 2010 claims

As would be apparent from my analysis of each claim, the response of the Board was, in substance, to deny that it retained any power to determine them. Leaving aside any debate as to prior determination of the claims, the decision in all cases was founded upon the fact that the "notification" given to it in "the form approved by the Board" (s 12(2)(a)) had not been given to the Secretary within the prescribed time (cl 6 of the 2007 Regulation). The claim forms to which I have referred constituted the "notification". The evidence informing the application of cl 6 of the 2007 Regulation is essentially that contained in each of the claim forms read with or explained in the accompanying correspondence. In each case, the damage described and the statement as to when that damage first occurred made it apparent that by 2004, at the very latest, Mr Venn knew or asserted that the damage was caused by subsidence.

As will also be apparent from my discussion, the Board also declined to entertain some of the claims because they were made in respect of improvements erected or altered after the mine subsidence district proclamation without the approval of the Board. Those decisions are founded upon s 15(5)(b) of the Subsidence Act.

The fact that improvements were erected or altered after the mine subsidence district proclamation in 1966 is apparent from the information supplied by or on behalf of Mr Venn in support of the relevant 2010 claims. No evidence was produced to indicate that the Board had given its approval under s 15(3) of the Subsidence Act to the erection or alteration of those improvements that are the subject of claims made by Mr Venn. As the information provided on his behalf indicates, the erection or alteration to those improvements, save for those carried out to the boatshed, were undertaken following the 1992 subsidence event.

Whether the decisions of the Board on the two grounds just discussed were legally or factually correct is not presently relevant although on the material before me I am of the opinion that they were decisions properly open to the Board. Importantly, the decision of the High Court in Alinta clearly establishes that a decision or decisions of the Board that there was no "claim" before it within the meaning of s 12(2), or that it was enjoined by the Subsidence Act from determining the claim, is not a "decision" or are not "decisions" of the kind that engage the provisions of s 12B (at [64]).

I have not found the submissions made by Ms Kardell on behalf of Mr Venn easy to comprehend. As I understand her submissions directed to the jurisdictional question, they were :

(i) under the provisions of the Land and Environment Court Act 1979 (the Court Act) the Court has all the powers and discretions of the Board when determining the appeal and therefore is able to make a merit determination of the applications;

(ii) each of the claims was made by reason of continuing mine subsidence and the date upon which Mr Venn became aware that the damage claimed was due to subsidence was the date upon which each of his claims was submitted to the Board in 2010;

(iii) cl 6 of the 2007 Regulation only restricts the time for making a claim in respect of damage alleged to have been caused by subsidence: it has no application to claims already approved for payment of compensation by reason of subsidence.

None of Mr Venn's submissions appear to address the fundamental question as to the nature of the "decisions" made in response to the 2010 claims. For reasons already explained, the substance of those decisions was to deny that the Board had power to determine the "claims", having regard to the provisions of the Subsidence Act to which I have referred. The holding of the High Court in Alinta speaks clearly against such a decision engaging this Court's jurisdiction under s 12B. The Court does not otherwise have jurisdiction to adjudicate upon disputes arising under the Subsidence Act.

The absence of a "decision" enlivening the jurisdiction of this Court strictly renders it unnecessary to consider the three specific matters raised by Mr Venn in response to the jurisdictional question. However, as the matters were argued, it is appropriate that I should say something about them.

I can readily accept the submission made by Mr Venn that by s 39 of the Court Act, this Court is given broad powers when determining an appeal to it in Class 3 of its jurisdiction. Those powers include the exercise of "all the functions and discretions" which the Board had "in respect of the matter the subject of the appeal" (s 39(2)). However, the exercise of those broad powers is only engaged once the proceedings before it are properly characterised as "an appeal" which may be disposed of by the Court in proceedings in Class 3 of its jurisdiction. Whether the present proceedings may be so characterised turns upon the proper construction and application of s 12B of the Subsidence Act (Alinta at [13]). It was that exercise of characterisation that was undertaken in Alinta.

As I have earlier recorded, the High Court determined that the subject matter "prescribed" in paragraphs (a) and (b) of s 12B is relevantly circumscribed by the language of s 12 (Alinta at [60]).

There being no decision of the Board in response to the 2010 claims that was a "decision" made upon the subject matter of either paragraph (a) or (b) of s 12B, there was no "appeal" to the Court that engaged the exercise of jurisdiction in Class 3 pursuant to s 19(f1) of the Court Act. As a consequence, the provisions of s 39 of the Court Act are irrelevant to the present issue.

The second of Mr Venn's contentions directed to jurisdiction is founded upon damage claimed to have occurred by reason of ongoing subsidence. As I understood the submission, Mr Venn's awareness of the damage claimed as being due to subsidence was only manifest when his 2010 claims were made. It follows, so the argument runs, that the "prescribed time" referred to in s 12 and stipulated in the 2007 Regulation had not expired. I do not accept that submission.

The terms in which the claim forms were completed together with the accompanying correspondence from Ms Kardell, contradicts the essential foundation for the submission. By way of example, the claim made for repairs to the seawall not only refers to the state of the wall following the 1998 subsidence event, but relies upon a quote for repairs to the wall which was obtained in 2006, the letter from Ms Kardell indicating an upward adjustment to the amount of that quote "for period to date". Clearly, the claim relates to the state of the wall as it was in 2006 when the quote was obtained, being for damage acknowledged then to have occurred and alleged to be the consequence of subsidence of which Mr Venn was aware long prior to that date.

The material in and accompanying the 2010 claim for the hardstand area expressly seeks to have the Board "review its decision in 2005" as to the amount then tendered by the Board to repair this item. Such a claim, on its face, is unrelated to damage alleged from ongoing subsidence of which Mr Venn became aware in 2010. Moreover, the claim under this head for $16,751.36 was for reimbursement of moneys outlaid to carry out repairs. Invoices said to substantiate this claim are for the period from 31 July 2008 to 13 October 2008.

In similar vein is the sewer line claim. This claim is identified as being for work "incomplete and outstanding" from 2002. Likewise the boatshed claim is said to be "unresolved" since 2003 and the revetments, landscaped area and transpiration bed claims are all stated to be the consequence of incomplete works following claims made in 2003.

It is by reference to the material provided in support of the claims made in 2010 that, on my assessment, speak against the assertion that Mr Venn was only aware of damage from ongoing subsidence at or about the time of making his 2010 claims.

That subsidence may be dynamic, in the sense that it may not be confined to a single or discrete event, can be accepted. However, Mr Venn faces difficulty in sustaining his claims founded upon damage said to be the consequence of ongoing subsidence occurring through to 2010. His difficulty is essentially factual.

That difficulty is simply stated. Mr Venn did not lead any evidence seeking to establish that the damage claimed in 2010 was occasioned by "subsidence". Having regard to the definition of "subsidence" in s 4 of the Subsidence Act, evidence of damage due to subsidence from coal mining was necessary in order to sustain his claim for compensation.

As I have said, Mr Venn adduced no evidence either of subsidence continuing up to the time of his claims or as to any causal nexus between subsidence and damage to improvements for which he claimed compensation. To the extent to which the 2010 claims made reference to compensation sought under the same heads in 2001 and 2003, once again there was no evidence adduced as to the requisite causal connection between damage then claimed and subsidence.

As was acknowledged in Ms Kardell's correspondence, the Board's letter to Mr Venn of 28 February 2005 expressly denied that damage claimed was due to subsidence, save for that occasioned to the hardstand area and for which compensation in the sum of $1,650 was tendered. In the face of the Board's denial, apparent since 2005, the absence of direct evidence on which the Court could determine an entitlement to compensation cannot be readily understood.

Mr Venn sought to rely upon inferences drawn from both the acknowledgement by the Board that subsidence events had occurred in 1992 and 1998 and also from the Board's acceptance that some improvements, other than those for which claim was and is presently made, had been damaged as a consequence of subsidence. However, there are difficulties for Mr Venn in seeking to rely upon inference to sustain his case.

Acknowledged damage from subsidence to one improvement does not, without more, render it probable that damage to another improvement was occasioned by the same subsidence event. Drawing an inference from the facts relied upon by Mr Venn requires more than a possibility that each improvement has been damaged as a consequence of subsidence. An inference of the requisite causal connection may properly be drawn only where the evidence is sufficient to justify the probability, rather than the possibility, that the requisite causal connection exists (Seltsam Pty Ltd v McGuiness; James Hardie and Co Pty Ltd [2000] NSWCA 29; 49 NSWLR 262 at [83]). Evidence that raises conjecture as to whether the causal connection exists, or even which establishes the possibility of such a connection, is an insufficient basis upon which to draw an inference that supports Mr Venn's submission (Carr v Baker [1936] 36 SR (NSW) 301 at 306 - 307; Jones v Dunkel [1959] HCA 8; (1959) 201 CLR 298 per Kitto J at 305).

As I have indicated, in order to address the submission by the Board that his claims have not been made "within the prescribed time", Mr Venn alleges that the 2010 claims reflect damage due to ongoing subsidence. Assuming, contrary to my earlier finding, that the damage now claimed was newly discovered in 2010, the inference that I would be required to draw is that the subsidence events in 1992 and 1998 had the consequence that subsidence then commenced had continued through to 2010 and that the improvements the subject of claim had been damaged as a consequence of that continued or continuing subsidence. In the absence of any expert evidence led at the hearing, the only evidence to which Mr Venn is able to point is a survey measuring levels on and around Lot 2, reflecting the extent to which levels at those points had fallen between 1992 and 2004. That evidence also identified the extent to which those levels changed between 1992 and 1998 on the one hand and between 1998 and 2004 on the other. There is no persuasive evidence indicating any difference in those levels between 2004 and 2010, let alone evidence which would leave open the probability that if subsidence between the latter dates did occur, it resulted in damage to the particular improvements for which Mr Venn now makes claim.

In the context of the inference that Mr Venn seeks to have drawn, I again refer to correspondence from the Board to Mr Venn indicating that after investigation, none of the improvements that were the subject of his claim had been damaged by mine subsidence. In evidence before me are letters from Mr Venn, who claims no expertise, or from Ms Kardell asserting that damage was so occasioned. The only independent material in support of Mr Venn's assertion is a letter dated 11 December 2009 from a plumber retained by Mr Venn who expresses an opinion that "the problem" has been caused by mine subsidence. The basis upon which that opinion was expressed is not stated in the plumber's letter.

Faced with competing conclusions expressed in correspondence that was tendered in the proceedings, there is no proper basis upon which to infer that the damage to improvements identified in the 2010 claims was damage that occurred as a consequence of mine subsidence. As I have indicated, the possibility of such a consequence is insufficient.

Moreover, in the conduct of an appeal in which Mr Venn asserts an entitlement to be paid compensation under the Subsidence Act from the Fund, a practical onus is cast upon him to establish that entitlement. While the rules of evidence do not apply to proceedings competently commenced in Class 3 of the Court's jurisdiction, where the subject matter of those proceedings is an entitlement to be paid compensation, evidence that is persuasive of the existence of those facts necessary to found the statutory entitlement is necessary.

It is in this context that I have described the need for a practical onus to be satisfied. Particularly is that so where, as here, Mr Venn was on notice for some years of the Board's denial that damage claimed had been occasioned by subsidence. That practical onus has not been satisfied by Mr Venn. He has not satisfied me that continuing subsidence has occurred giving rise to new claims that only crystallised in 2010.

The third argument addressed on behalf of Mr Venn as to jurisdiction was directed to cl 6 of the 2007 Regulation and the clause to similar effect in the earlier Regulations. He submitted that the clause applied only to damage alleged to have been occasioned by subsidence and not to an application for compensation where damage was previously found by the Board to be due to subsidence.

I accept that the clause applies where damage to an improvement is claimed to have been caused by subsidence. That is the basis for notifying a claim under s 12(2). To the extent that a claimant seeks to found a claim by asserting the damage/subsidence nexus, the claim to which the section applies will inevitably be a claim for damage "alleged to have been caused by subsidence". How acceptance of that proposition assisted Mr Venn in relation to the 2010 claims was never adequately explained. The terms of s 12 contemplate that the Board may reject the claim so made on the basis that the required nexus is not established.

By reference to documentary evidence that I have already identified, the Board had in 2002 and 2005 denied that damage claimed under the heads of claim now propounded was damage due to mine subsidence. I leave aside from that observation the claim made in respect of the hardstand area which I have previously addressed. The factual premise of Mr Venn's submission has not therefore been established.

The purpose of limiting the time for notification under s 12(2) is apparent. Once damage due to subsidence is identified, the Board must be afforded the opportunity to investigate and address that damage in a timely manner. Not only does the timely notification of claims afford the Board the opportunity properly to manage the Fund which it is charged to control (s 10(4)), it also provides the Board with the opportunity to consider undertaking remedial works (s 13) or taking mitigation measures (s 13A) with a view to avoiding, or at least mitigating, further damage from subsidence. Timely notification of damage claimed to be consequential upon subsidence is therefore an important element in the operation of the legislation.

For these reasons, I do not accept the submissions made by Mr Venn as to the manner in which cl 6 of the 2007 Regulation should be construed. The purpose of cl 12(2) is to impose a limit by reference to the "prescribed time" within which each claim for damage to an improvement is made so as to give effect to the proper administration of the Act.

Conclusion on jurisdiction

My conclusion that there is no jurisdiction in the Court to entertain the present appeal is sufficient to found an order for its dismissal. However, against the possibility that my determination is wrong, it is necessary to address the second principal basis upon which the appeal was argued, namely that it was incompetent because it was commenced beyond the time allowed for such an appeal by the Rules of Court.

Determination of claims between 2002 - 2005

I have earlier referred to a contention made by the Board that the subject matter of each of the seven claims submitted in 2010 had previously been determined by the Board. As a consequence, so it is submitted, the present appeal is a legally ineffectual attempt to overcome the circumstance that an appeal from the Board's earlier determinations is now incompetent by operation of Pt 7, r 7.1 of LECR 2007.

As I understand the submissions made on behalf of Mr Venn, he contends that none of his dealings with the Board between 2002 and 2006 constituted a claim or claims. According to the submission, his correspondence may have constituted "threats or demands or agitations" but not claims. As a consequence, his present appeal was not incompetent by operation of r 7.1 of LECR 2007.

In order to understand the competing submissions, it is necessary to return to evidence relevant to this issue as it relates to each of the heads of claim made by Mr Venn.

The sewer line claim

On 27 February 2002, Mr Venn wrote to the Board indicating that "for some years" he had been having his sewer line "pumped out". He identified an examination of the pipe that had been carried out by "a laparoscopic technician" which had shown that "the sewer pipes inside the concrete slab under the bathrooms had broken". His letter asserted a health hazard and requested that "the problem be fixed".

The letter was treated by the Board as a claim under s 12(2) of the Subsidence Act. As a consequence, it was investigated by officers of the Board as well as a consultant plumber, Peter Holbert, and a company known as Namits Pty Limited which undertook CCTV inspection of the sewer line. Both Mr Holbert and Namits were retained by the Board.

As a result of the investigations, the Board wrote to Mr Venn on 1 August 2002 stating that "no clear indication on the cause of this damage could be identified". The presence of tree roots in part of the sewer line was acknowledged which, according to the letter, may have occurred "through the normal entry of tree roots" (sic) or that mine subsidence "may have contributed to the damage". The letter further stated that applying the Board's "Benefit of the Doubt Policy", repairs would be undertaken to the sewer pipes in the area of the ensuite bathroom "and any associated remedial works".

Between November and December 2002, Mr Holbert, on instructions from the Board, replaced the sewer line to the ensuite bathroom in the dwelling on Lot 2. As a result of a further complaint from Mr Venn, in about May 2003, Mr Holbert completed a replacement of the main sewer line. However, no work was carried out on the sewer line to the main bathroom as no damage was found to have been occasioned to that line.

The Board again wrote to Mr Venn on 15 August 2003, indicating that damage referred to in claim 02/00151 (being the claim number assigned to the sewer line claim) and attributable to mine subsidence had been repaired. The work was stated to be completed and Mr Venn was invited to raise any further issues in relation to that claim "within 14 days".

Mr Venn did respond as requested. By letter dated 20 August 2003 he thanked the Board for the "efficient way" in which the repair process had been undertaken on his property. He complemented "the team" for the way in which plumbing repairs were carried out.

No complaint was then raised by Mr Venn in relation to the sewer line beneath the bathrooms on Lot 2 until 2 January 2006 when Mr Venn wrote to the Board indicating that the sewer line to the main bathroom continued "to give trouble requiring continual blasting out." He asked that the Board consider having "the rest of the sewer fixed".

The Board responded on 6 February 2006. After giving a brief history of claims in respect of the sewer line and problems associated with tree root entry to that line, the letter concluded that the damage that Mr Venn referred to had not been caused as a result of mine subsidence. Following a letter from Mr Venn questioning some of the statements made in the Board's letter, the Board repeated its position in a letter dated 17 March 2006 to Mr Venn, indicating that the investigations that had been carried out by and on behalf of the Board had failed to identify any damage to the sewer line beneath the main bathroom.

Nothing further was raised in relation to the sewer lines until 2010 when the claim form and correspondence earlier described was forwarded to the Board on Mr Venn's behalf by Ms Kardell. In his oral evidence, Mr Venn acknowledged that the claim made in 2010, was in respect of the damage to the sewer line, being damage of which he was aware prior to 2002 when he requested that the line be repaired by the Board (Tcpt 45: 45-50) and that the specific claim in relation to the sewer line beneath the main bathroom and for which he now claimed, was the subject of his letter to the Board on 2 January 2006.

There are two matters of present relevance to be noticed from the correspondence to which I have referred. First, the Board treated Mr Venn's initial request for work as a claim and in all subsequent correspondence referred to it as such. Mr Venn did not demur to that description. He received the benefit of work undertaken as a consequence of its acceptance as a claim by having the ensuite bathroom sewer line and main sewer line repaired at the cost of the Board.

The second matter to be noticed is that there were decisions of the Board in relation to this claim of which Mr Venn was well aware. The Board's letter of 1 August 2002 made clear that repairs would be undertaken at its expense, albeit under the "Benefit of the Doubt Policy". The Board's further letter of 15 August 2003 confirmed completion of all work under claim number 02/00151 and Mr Venn's letter of 20 August 2003 demonstrated his satisfaction with "the plumbing repairs" that had been carried out.

To the extent to which there was any doubt as to the ambit of works accepted by the Board under claim number 02/00151, those doubts ought to have been dispelled by the Board's correspondence of 6 February and 17 March 2006. A reasonable reading of that correspondence makes apparent that the decision of the Board was and had been to refuse a claim for repairs to the bathroom sewer line.

As the claim made under this head in 2010 is for "work incomplete and outstanding" in respect of the main bathroom sewer line, it is a claim determined, at its very latest, in March 2006. It is at that time that the right of appeal arose and as a consequence the appeal filed on 12 August 2010 is incompetent, no extension of time for the filing of the appeal by reference to LECR 2007 having been sought.

There is a further matter which, for completeness, should be noticed. Even if, contrary to my determination, the present appeal was competent, there is no persuasive evidence before me that damage claimed by Mr Venn to the sewer line beneath the main bathroom was caused by subsidence. Both Mr Holbert, the plumber engaged by the Board to investigate and rectify the sewer pipes in 2002 and 2003 together with Mr Alexander, the Board's work supervisor who was involved in the investigation of the claim, have sworn affidavits that were read in the course of the appeal. Their evidence supported the decision of the Board that subsidence had not caused the sewer line damage claimed by Mr Venn. Neither of them was required for cross examination upon their affidavit evidence. Their direct and unchallenged evidence outweighs any inference that Mr Venn seeks to have me draw of the possibility that the damage now claimed by him was due to the subsidence event that occurred in either 1992 or 1998 because the Board had acknowledged liability to repair another part of the sewer line under the "Benefit of the Doubt Policy".

For this reason also, I would reject Mr Venn's claim.

The hardstand claim

What I have earlier described as the hardstand claim, became one of the six claims which were assigned claim number 03/00275 by the Board. Five of those six claims were so identified as a consequence of a letter dated 29 July 2003 written by Mr Venn to the Board. As the letter is relevant to this and four of the remaining claims to which I will refer, it is appropriate that I quote the substantive parts of the letter:

"Re: Mine subsidence events 1992 and 1998 at Colongra Point, Lake Macquarie.

Following advice to provide details on the outstanding work still to be completed on the waterfront subsidence part of my claim I submit the following.

1. The retaining wall now subsided to water level - requires a further block to be added to bring the level back up above the water (see attached photograph marked "F").

2. The remaining hardstand part of the boat ramp launching facilities.

3. The damaged boathouse raised above the recommended AHD as per Mitchell McCotter Report (extract attached in photo marked "L").

4. Repair constructed footpath walkway being washed out by wave action and ongoing erosion.

5. Remaining work on landscaping where bank collapsed in front of house destroying footpaths, guard rails etc. replace temporary pole work with the original treated pine.

6. Compete [sic] the restoration of the works detailed in the Mitchell McCotter report as approved by all relevant authorities.

Please note these works are all replacements of original man-made structures.

I look forward to receiving advice as early as convenient."

The Board responded by letter dated 29 August 2003. The letter was from the District Manager, Mr J O'Donnell, in which he stated "I have registered a new Claim No. 03/275, to address the additional items of damage you reported in your letter 29 July 2003". The Board's letter indicated that a survey would be undertaken for the purpose of investigation. Relevant to the hardstand claim, the letter requested that Mr Venn provide any photographs that may have been taken of the area before subsidence had occurred or otherwise to indicate "the approximate amount of concrete in the old hardstand area". The letter also indicated that aerial photographs were to be consulted in an endeavour to estimate the area of hardstand for which the claim was made.

Mr Venn indicated that he was not able to provide information as to the volume of concrete in the old hardstand area. In the result, having examined the materials available to him and undertaken a site inspection, Mr O'Donnell, on behalf of the Board, advised Mr Venn that the area affected appeared to be about 30m2. Applying standard costs to provide a hardstand area of that dimension, the sum of $1,650 was offered by way of compensation.

Correspondence then ensued between Mr Venn and the Board as to the adequacy of that compensation. Mr Venn also challenged Mr O'Donnell's estimate of the affected hardstand area as being too small.

Determination of the claim came to a head in February 2005. Each of the claims that had been assigned claim number 03/275 were the subject of a detailed minute paper submitted to a meeting of the Board in February 2005. The minute paper recorded that no evidence could be found that the hardstand area, prior to subsidence, had occupied more than 30m2 with the consequence that the offer of $1,650 by way of compensation for damage to this area was reiterated. Reference to the evidence upon which the investigation had relied was contained in the minute paper. Its ultimate recommendation was that the offer of $1,650 be confirmed. That recommendation was accepted by the Board.

The decision made by the Board at its February meeting in respect of all claims made under claim number 03/275 was conveyed to Mr Venn by letter dated 28 February 2005. Because this letter bears not only upon the hardstand claim but all remaining claims to which reference will be made, it is appropriate to quote the terms of the Board's letter:

"The Board Members have considered a report on your claims on the Mine Subsidence Board. They noted that no more than 40mm of subsidence has taken place on your property since 1996. The Board Members made the following decisions:

1. The damage to the transpiration area has not been caused by mining subsidence.

2. The offer of $1,650 for the hardstand near the boat ramp was reaffirmed.

3. Noted that the Board's building staff are of the view (based on their trade experience) that the boatshed was constructed after 1966. Notwithstanding, as a non-habitable building, the Board can find no damage caused by mine subsidence.

4. Similarly, no damage to the block seawall from subsidence can be found to have been caused by mine subsidence. Any damage to the land adjacent to the seawall is not the responsibility of the Mine Subsidence Board.

5. Discussed whether the footpath walkway to the foreshore was an improvement, decided that no damage by mine subsidence has occurred since 1996.

6. Discussed the landscaping work to the embankment in front of the dwelling and decided that it has not been damaged by mine subsidence.

I am arranging for a cheque for $1,650 to be sent to you to finalise your claim on the Mine Subsidence Board. I have enclosed a brochure on appeals to the Land and Environment Court."

Mr Venn responded by letter dated 6 March 2005. He stated that he had obtained three quotes to reinstate the hardstand area, indicating that the quote was based on a plan for the area prepared in 1996 on behalf of Powercoal following preparation of the Mitchell McCotter Report. Mr Venn returned the Board's cheque with his letter stating that it was inadequate.

By letter dated 25 May 2005, the Board again forwarded the cheque for $1,650 to Mr Venn, indicating that it represented its assessment of the cost of replacing the area of hardstand lost or damaged by subsidence in 1992. The letter reiterated the statement made in earlier correspondence that plans prepared for work to be undertaken and partially completed by Powercoal in 1996 in an endeavour to meet Mr Venn's requirements were not works that were sanctioned by the Board and therefore had no relevance to the compensation payable by it.

That is where the matter rested until May 2010 when the Board received Mr Venn's claim form and associated correspondence from Ms Kardell. I have earlier referred to the terms in which that claim was made. It did no more than reiterate dissatisfaction with the compensation assessed in 2005 in the sum of $1,650.

Once again, there is no substance in the submission that compensation sought by Mr Venn in his letter of 29 July 2003 was not a "claim" under the Subsidence Act. As will be apparent from the opening paragraph of that letter, quoted at [139], the identified work was referred to by Mr Venn as "part of my claim". The correspondence from the Board acknowledged it as a "claim" and Mr Venn thereafter continued to press his position for a greater amount of compensation.

Further, there can be no doubt that in February 2005 the Board made a "decision" in respect of the hardstand claim, along with the other claims that were determined under claim number 03/275. The letter of 28 February 2005 to Mr Venn stated, in terms, that the Board had "made the following decisions". The letter attached a brochure on the entitlement to appeal to this Court from decisions of the Board. The final sentence of the letter written by Mr Venn on 6 May 2005 in response to the Board's letter of 28 February requests that the Board "review ... the decision made by the Board as conveyed to me by your letter dated 28 February 2005."

An objective view of this evidence reveals not only that there was a claim made within the meaning of the Subsidence Act but also that there was a decision made by the Board in February 2005 in respect of that claim. For reasons earlier stated, the appeal filed in August 2010 is incompetent.

Again, even if I be wrong as to the competence of the appeal, there is no evidence before me sufficient to conclude that the Board's determination of quantum is incorrect. The tendering of quotes from other contractors or invoices for work carried out in respect of a hardstand area does not establish the area of the hardstand that was lost or damaged by subsidence in 1992.

The Board's contention as to the pre-subsidence dimension of the hardstand area is supported by the evidence of Dr Harvey Mitchell, a lecturer in surveying at the University of Newcastle. Dr Mitchell has specialist qualifications in the interpretation of aerial photography and photogrammetry. He examined aerial photographs sourced from the Land and Property Management Authority, NSW for the years 1965, 1976, 1990 and 2001. It was as a result of his stereoscopic examination of aerial photographs that provided support for the Board's contention. Although called to give evidence and be cross-examined upon his affidavit evidence, he was not cross-examined to suggest that his evidence in respect of this claim was not well-founded.

The boatshed claim

When addressing the hardstand claim, I have quoted Mr Venn's letter of 29 July 2003 addressed to the Board. Item numbered 3 in that letter is the origin of Mr Venn's claim in respect of the boatshed. So much is acknowledged in his oral evidence.

In a letter dated 26 September 2003, the Board addressed a number of claims that were the subject of claim number 03/275. Relevantly, that letter was written after an inspection of the property had been carried out by officers of the Board. In respect of the boatshed, the letter stated that:

"The type of construction suggests a fairly recent vintage, say the last 20 years. There is no record of approval to construct and we have so far no assessment of the damage."

The relevance of the quoted observation was that the boatshed appeared to have been constructed after the mine subsidence district relevant to Lot 2 had been proclaimed and that the Board had no record of any approval having been obtained for its construction.

Following that letter, Mr Venn corresponded with the Board asserting that the boatshed had been constructed some 60 years earlier with the approval of Gosford Council, although no record of its approval or construction could be found. Mr Venn subsequently acknowledged that the roof, windows and doors had been replaced in the 1970's and no approval for that work had been obtained. The roof replacement included the construction of a pitched roof in place of a flat roof.

The boatshed claim was the subject of discussion in the minute paper submitted to the Board in February 2005. As recorded in the letter from the Board of 28 February 2005, quoted at [145], its decision in respect of the boatshed claim is twofold. First, it considered that the shed in its present form had been constructed after the mine subsidence district proclamation without approval. Secondly, it determined that no damage to the boatshed had, in any event, been caused by mine subsidence.

The decision of the Board in respect of the boatshed was the subject of comment by Mr Venn in his letter of 6 May 2005. He maintained that, contrary to the Board's decision, the boatshed had been erected prior to 1966 although again acknowledging that he had replaced the roof, window frames and doors "in the late 1970's". The same claim was the subject of representation by Ms Kardell on Mr Venn's behalf in a letter dated 2 June 2005. In response to the latter letter, the Board reiterated its determination that the boatshed had not been damaged by mine subsidence. No claim or correspondence in relation to the boatshed then ensued until May 2010 when Ms Kardell submitted the claim form and accompanying correspondence to which I have earlier referred.

For reasons earlier stated, I am satisfied that Mr Venn's letter of 29 July 2003 was a claim upon the Board under the Subsidence Act and was determined by the Board in February 2005. That is the only "decision" of the Board made in respect of the boatshed claim.

That decision is the only relevant decision which had the potential to enliven the entitlement to appeal pursuant to s 12B of the Subsidence Act. However "inept" Mr Venn considered that decision to be (see [66] above), nonetheless it was and remains the only decision from which an entitlement to appeal arises. The content of the 2010 claim makes abundantly clear that it is an attempt to revive a lost entitlement to challenge the 2005 decision. To allow the "new" claim to have that affect would be contrary to the purpose of the Subsidence Act and the rules of Court limiting the time for appeal.

In light of my determination, it is unnecessary to resolve the factual dispute that arose in the course of the hearing as to whether the boatshed was first constructed prior to November 1966. Mr Venn's evidence was to the effect that he had visited Lot 2 many times prior to acquiring the property from his aunt in November 1976. His evidence is, in part, supported in an affidavit affirmed by his wife, Beverley Venn, on 16 February 2011 together with an affidavit affirmed on 17 February 2011 by a friend, Jill Jones. Both deponents depose to visits to Lot 2 in 1965 and 1966 respectively, recollecting the existence of a concrete block boatshed on the property on the occasion of their respective visits. Neither of them were required for cross examination by the Board.

For the Board's part, it relied upon the evidence of Dr Mitchell who gave detailed evidence of his examination of the aerial photograph to which I have earlier referred, indicating that he could detect no evidence of the existence of a boatshed prior to 1976. Photographs subsequent to that date identify the existence of the boatshed. Mr Venn's evidence in response to that of Dr Mitchell was that the nature and colour of the roofing material before its replacement in the 1970's was such that it is unlikely to be observed in an aerial photograph, particularly having regard to the extent of vegetation that was both growing on and screening the boatshed prior to its renovation by him.

I have briefly summarised the competing evidence directed to this issue against the possibility that a determination of it is necessary. Such a determination need not presently be made in light of the decision that I have reached that the appeal is incompetent.

Even if I am wrong in determining that the boatshed claim is incompetent there is a clear reason why Mr Venn's appeal directed to the boatshed claim would not be sustained. That clear reason arises from the fact that no expert evidence was adduced establishing that such damage as is claimed in respect of the boatshed was occasioned by subsidence from coal mining. The causal link between observations made by Mr Venn and mine subsidence do not properly give rise to an inference, properly to be drawn, that the 1992 or 1998 events were the cause of subsidence to the boatshed.

The transpiration beds claim

In a letter dated 22 March 2004 from Mr Venn to the Board in which he addressed aspects of the hardstand claim, Mr Venn also indicated that he was experiencing "difficulties with the transpiration bed on the property." He requested that the Board arrange "to have the matter addressed as it could fast become a health hazard." This was accepted by the Board as a claim which it subsequently investigated.

Mr Holbert was again engaged for this purpose. The transpiration bed was inspected by Mr Holbert on 7 December 2004. This investigation included excavation in at least two locations and the use of sewer rods to determine the direction and length of trenching. Mr Venn was present during this excavation and assisted by indicating where excavation might be made.

The following day Mr Holbert provided a report to the Board in which he pointed out that the transpiration area was not correctly constructed as such but acted as a sullage pit. His conclusion was that the area was saturated "and may be passed its use-by date." Further investigations of this area from the kitchen and laundry to the so-called transpiration bed were carried out by Mr Holbert on 16 December 2004. As a result of that investigation he concluded that not only had the transpiration bed reached its 'use-by date' but also that the damage or malfunction claimed by Mr Venn could not have been caused by mine subsidence.

This claim was also the subject of the minute paper prepared for the meeting of the Board in February 2005. The minute paper not only reflected the findings of Mr Holbert but also an inspection of the same area carried out by Board employees revealing fat build up in the pipes from the kitchen and laundry leading to the transpiration trenches. The minute paper concludes that the loss of effectiveness of the area was not considered to be the result of mine subsidence.

The Board accepted the recommendation contained in the minute paper that damage to the transpiration area should not be seen to be the result of mine subsidence. As will be apparent from my earlier quoting of the Board's letter dated 28 February 2005, Mr Venn was advised of the Board's decision in this regard.

In an undated letter received by the Board from Mr Venn on 8 March 2006, Mr Venn sought the "technical advice" that the Board had relied upon when determining that the transpiration beds had passed their "use-by date". The Board responded to this request by letter dated 17 March 2006 stating that advice had been given to Mr Venn "quite some time ago" that the problem with drainage from the kitchen and laundry was the transpiration area itself and that Mr Venn was responsible to take action to correct it. The letter again recommended that such action be taken.

No further correspondence was received by the Board in relation to the transpiration area or pipes leading to it until receipt of the claim form and correspondence from Ms Kardell dated 10 June 2010. I have earlier recorded the substance of those documents.

By parity of reasoning to that applied when considering the claims that I have already addressed, there was a claim within the meaning of the Subsidence Act made by Mr Venn in respect of the transpiration beds and its associated infrastructure which claim was decided by the Board in February 2005. It is that decision which, in substance, the 2010 claim impermissibly seeks to reinstate for the purpose of enlivening an entitlement to bring the present appeal.

Further, the absence of evidence demonstrating the probability of a causal link between the damage claimed and subsidence would be fatal to the claim if, contrary to my determination, the appeal was otherwise competent.

The seawall, revetments and landscaped area claims

In the present context, it is convenient to address these three claims together. Each was the subject of Mr Venn's letter dated 29 July 2003 to the Board and accepted by the Board as constituting a claim under the Subsidence Act. The Board's acknowledgement and acceptance of matters raised in Mr Venn's letter of 29 July 2003 were acknowledged in letters from the Board to Mr Venn dated 8 and 29 August 2003.

Each of these claims relates to work identified in the Mitchell McCotter Report of 1995. The works so identified were subsequently undertaken, or at least commenced, by Powercoal in 1996. It will be recalled that Powercoal had sought and obtained development consent for this work from Wyong Shire Council under the Environmental Planning and Assessment Act 1979. Work ceased in the second half of 1996 as a result of disagreement between Mr Venn and Powercoal as to the standard of work being undertaken on Lot 2 by or on behalf of Powercoal.

Prior to the cessation of work, a new seawall had been constructed as had works comprehended in the revetments claim. Each of these two claims relates to damage to structures erected or works undertaken in 1996, said to have been a consequence of the 1992 subsidence event.

As I have earlier recorded, damage was claimed to have occurred to an area of "the cliff" in the vicinity of the "chapel area" was the subject of new work recommended in the Mitchell McCotter Report. Temporary works within these areas were carried out by Powercoal in 1996. The landscaped area claim, which relates to these areas, seeks to have completed the permanent works recommended by Mitchell McCotter and approved by Wyong Shire Council.

Between August 2003 and December 2004, correspondence was exchanged between Mr Venn and the Board concerning his claims. For its part, the Board indicated that it was seeking access to Lot 2 for the purpose of survey in order to assess the extent of any subsidence that had occurred. In addition, the Board recorded that the statutory role of the Board was not to be equated with the actions of or any arrangements made by Mr Venn with Powercoal. A letter dated 15 December 2003 from the Board to Mr Venn states:

"The Mitchell McCotter Report was the subject of arrangements between you and Powercoal and any commitments are not ones for the Mine Subsidence Board."

As with other claims that were the subject of Mr Venn's letter of 29 July 2003, each of the three claims presently being considered were addressed in the minute paper prepared for the meeting of the Board in February 2005. In the case of the seawall, the minute paper records that it does not appear to have been constructed in accordance with the development consent and the opinion is otherwise expressed that the wall had not been damaged by subsidence but rather by wave action. It is recommended that the claim in respect of the seawall be refused.

In respect of the remaining two claims, the minute paper noted the nature of the work that had been undertaken, noting that it had not been carried out "to any engineering standard". It also recorded that timber sleepers that had been placed to form steps were effected by white ants and on the steep slope localised land slip was observed to have occurred. Given the observations made, coupled with the extent to which survey information had indicated the extent of subsidence that had occurred since 1996, the author of the minute paper concluded that any damage claimed for these areas had not occurred as a result of mine subsidence. Attention was also drawn to the fact that neither the development sought in the development application submitted to Wyong Council for this work nor the development in the form to which the Council granted development consent had been referred to the Board for approval.

As a consequence, the minute paper recommended that all three claims be refused as the damage asserted was not the result of mine subsidence. The recommendation was adopted by the Board at its February meeting and its decision conveyed to Mr Venn in the letter of 28 February 2005 which I have earlier quoted.

Following receipt of the Board's letter, there was an exchange of correspondence with Mr Venn concerning the rejection of all three claims. This exchange of correspondence included the letter of 2 June 2005 from Ms Kardell in which she sought further information in relation to the basis for the Board's rejection of both the landscaping and seawall claims. By letter dated 8 June 2005 the secretary of the Board sought to explain the reasoning behind the rejection of those claims. That letter expanded upon a letter that had been written to Mr Venn on 25 May responding more succinctly to Mr Venn's challenge to the Board's decision as conveyed in its letter of 28 February.

Following the letters from the Board of May and June 2005, no further correspondence was received by it in relation to these three claims until claim forms were received from Ms Kardell in May and June 2010. I have earlier recorded the content of those claims and the accompanying correspondence from Ms Kardell.

As with the claims earlier discussed, and for reasons earlier given, the 2010 claims represented an attempt to provide a vehicle for review of decisions made in 2005 rejecting those same claims. The appeal, so far as it relates to these claims, is therefore incompetent.

Again, applying the reasoning earlier articulated, even if I am incorrect in so concluding, the evidence available to me does not permit of a conclusion that the damage claimed in each case was the consequence of mine subsidence.

Section 7A of the Subsidence Act does not support Mr Venn's claim

As I understood a submission made on behalf of Mr Venn, reliance was placed upon the provisions of s 7A of the Subsidence Act in order to assert that the Board could not now maintain its refusal of the sewer line claim, the hardstand claim or the transpiration beds claim. The section, so it is submitted, prevents the Board, without Mr Venn's consent, from altering the determination that the Board is claimed to have made, accepting damage to those areas as having been occasioned by subsidence.

Section 7A provides:

"7A Board may reconsider matters

(1) The Board may reconsider any matter which has been dealt with by it and may adhere to, rescind, or alter or amend any decision previously made by it, but shall not rescind, alter or amend any such decision except with the consent in writing:

(a) where the decision was that a payment be made under section 12 or 12A, of the person in respect of whose claim the decision was made, or

(b) where the decision was that:

(i) the Board's approval be granted (whether with or without conditions) under section 15, or

(ii) ...

(iii) the Board issued a certificate under section 15B,

of the person in respect of whose application the decision was made or of a person having an estate or interest in the land to which the approval or the certificate, as the case may be requires, relates.

(2) Where a decision has been made under section 15 or 15B in respect of an application in relation to any land, nothing in this section affects the subsequent making of a decision in respect of another application under any of those sections in relation to the same land."

Reliance upon the section in an endeavour to sustain Mr Venn's claim is legally and factually misconceived. It can have no legal consequence in addressing the "decision" of the Board that founds the right to appeal afforded by s 12B. Further, assuming there was a decision of the Board that engaged the right to appeal, it does not overcome the time limitation for the commencement of an appeal from any relevant decision which, as I have determined, was made either in 2002 or in 2005.

Assuming these legal impediments were overcome, the evidence does not establish any factual basis that would attract the operation of the section. The decision of the Board in respect of the hardstand area is not sought to be changed, rather the Board has not resiled from the decision that it made and conveyed to Mr Venn in February 2005. As to the sewer line and transpiration beds claims, the evidence does not support the contention that the Board is attempting to "rescind, alter or amend" any decision made in respect of those claims. As I have earlier indicated, the Board accepted that identified works were to be undertaken in those areas of Lot 2 in which each of these two claims are said to arise, but it did not decide that any improvement claimed to have been damaged within either area would be the subject of either repair or payment of compensation by it.

In short, there is no factual foundation for Mr Venn to contend that, without his consent, the Board is impermissibly seeking to resile from any decision made by it for payment under s 12 of the Subsidence Act.

Operation of s 15B and reliance upon the Board's Surface Development Guidelines

I have earlier recorded the contentions of the Board in relation to each of the boatshed, seawall, revetments and landscaped area claims. Apart from the contention, which I have accepted, that damage from subsidence has not been established, it is also contended that the improvements were effected after the 1966 proclamation of the mine subsidence district that applied to Lot 2, with the consequence that the Board lacked power to entertain any such claim by reason of s 15(5)(b) of the Subsidence Act. Mr Venn sought to overcome the latter contention by submitting that as the Board had investigated each of those claims rather than reject them at the time of being made, it should be inferred that the Board's approval was not required under s 15(3). The basis for the submission is said to arise from the judgment of the plurality in Alinta where the Court said at [52]:

"The Board submits that s 15(5)(b) requires the Board to satisfy itself that the approval regime prescribed by s 15 has been complied with before exercising its extensive powers to investigate, report and determine claims for payment from the fund under s 12(2)(b)."

I do not accept Mr Venn's submission. The passage relied upon, which reflects the submission made to the Court rather than express the basis of its decision, does not support a contention that if, having received a claim, the Board embarks upon an investigation, by doing so it, in effect, waves a prior contravention of s 15. Such a result does not accord with the legislative purpose reflected in the section as a whole which is to proscribe the erection or alteration of improvements on land within a mine subsidence district when the Board's approval of that work has not first been obtained. Moreover, where an improvement has been erected or altered without first obtaining the approval of the Board, specific provision is made to retain the improvement by obtaining a certificate under s 15B(3A). So understood, it would be inconsistent with the legislative purpose for the requirement to comply with s 15 to be waived in the manner contended for by Mr Venn.

Mr Venn also submitted that approval under s 15 or the issue of a certificate under s 15B was not required in respect of any or all of the subject improvements having regard to the Surface Development Guidelines adopted by the Board. The Guidelines were adopted for the purpose of implementing the provisions of s 15 of the Subsidence Act.

Relevant, for the purpose of the submission, was the statement in the Guideline that the Board will be deemed to have given its approval for an improvement "where a council does not require a building application". This provision was relied upon by Mr Venn although there was no attempt on his behalf to establish whether "a building application" was required by Wyong Council for all or any of the improvements in question.

However, there is a more fundamental response to the submission. The evidence establishes that the Guidelines were not adopted by the Board until February 2003. The Guidelines, which are in evidence, are not expressed to have retrospective effect. Each of the improvements that are the subject of claim were erected no later than 1996. Therefore the Guidelines can play no part in overriding the provisions of s 15(5)(b) of the Subsidence Act.

Orders sought

In light of my determination that the appeal cannot succeed, it is unnecessary to consider further the orders sought by Mr Venn in his application to the Court. However, it should be noticed that in an appeal under s 12B of the Subsidence Act, it is not open to the Court to direct the Board to carry out work to repair or remediate damage to improvements said to have been occasioned by subsidence. Orders to that effect were sought by Mr Venn in respect of all claims other than that relating to the hardstand area.

As is apparent from the terms of s 12B of the Subsidence Act, the power of the Court is limited to the determination of causation of damage and the compensation payable from the fund. No evidence was led in respect of several claims as to the compensation sought in respect of them should the Court have otherwise been satisfied that there was jurisdiction to entertain Mr Venn's appeal.

Conclusion

Mr Venn seeks to found this appeal upon a statutory claim for compensation. In propounding that claim, it is essential that the statutory requirements pertaining to the making of claims, together with those provisions that circumscribe the determination of claims, be clearly observed and followed. No discretions are afforded either to the Board or to the Court in respect of claims for compensation, save for those expressed or implied in the statute founding the entitlement to claim.

The faithful application of the provisions of the Subsidence Act to Mr Venn's 2010 claims does not support their approval. They are not "claims" that potentially found an entitlement to compensation from the Fund pursuant to s 12 of that Act. The provisions of s 12(2)(a) for the making of a claim or claims were not satisfied because they were not claims made within "the prescribed time", being that time specified in cl 6 of the 2007 Regulation. Moreover, the "decisions" made by the Board in 2010 to decline consideration of the "claims" then made were not "decisions" that engaged the jurisdiction of this Court to entertain an appeal under s 12B (Alinta).

Further, even if the subject matter of the 2010 claims made by Mr Venn were "claims" made conformably with s 12(2)(a), they were all claims that were the subject of decisions made by the Board not later than February 2005. The lodging of claim forms between February and June 2010 propounding what were, in substance, the very claims determined by the Board in 2002 and 2005, did not enliven the jurisdiction of the Court under s 12B. By dint of Pt 7, r 7.1 of LECR 2007, the Court's jurisdiction was only enlivened if the appeal was commenced within 60 days of the Board's decision as to causation or as to the quantum of compensation payable. The only decisions of the Board addressing either of those two matters were those made in 2002 in respect of the sewer line claim and in February 2005 in respect of the remaining claims.

Finally, should it have been open to the Court to determine the claims on their merits, save for the hardstand claim, Mr Venn failed to lead evidence establishing the necessary causal connection between the nature of damage claimed and subsidence due to coal mining. While the evidence left open the inference that the causal connection was possible, it did not persuade me that such a connection was probable.

In the result, the appeal must be dismissed.

Costs

The Board has foreshadowed that if the appeal is dismissed, it would seek an order for costs, although the opportunity was sought to consider the reasons for judgment before prosecuting any such application. It is therefore appropriate that the question be reserved.

I note that the provisions of Pt 3, r 3.7 of LECR 2007 would not appear to apply to proceedings of the present kind (r 3.7(1)(c)). Further, by operation of Sch 1 to the Uniform Civil Procedure Rules 2005, r 42.1 of those rules would not apply. This would leave the making of any order for costs to be within the discretion of the Court without any prescriptive constraint imposed by rules of Court (s 98 Civil Procedure Act 2005).

Orders

For the reasons I have given, the orders that I make are as follows:

1. Appeal dismissed.

2. Costs reserved.

3. Should either party seek an order for costs, the matter is to be listed within the next 14 days by arrangement with my Associate so that directions may be given for the determination of any such application.

4. Exhibits may be returned.

**********

Decision last updated: 18 March 2013

Medium Neutral Citation:	Venn v Mine Subsidence Board [2013] NSWLEC 30
Hearing dates:	17, 18 March; 6, 7 June; 15, 16 August 2011
Decision date:	15 March 2013
Jurisdiction:	Class 3
Before:	Craig J
Decision:	1. Appeal dismissed 2. Costs reserved 3. Should either party seek an order for costs, the matter is to be listed within the next 14 days by arrangement with my Associate so that directions may be given for the determination of any such application. 4. Exhibits may be returned.
Catchwords:	APPEAL - compensation for damage to improvements from mine subsidence - whether claims met the requirement of the legislation as having been made within "the prescribed time" - whether decisions as to competence of claims by the Mine Subsidence Board were decisions engaging the right to appeal to the Court - decision in Alinta LGA Ltd v Mine Subsidence Board [2008] HCA 17 applied - whether the appeal was competent - the decision from which time for appeal runs - whether evidence established causal connection between damage claimed and subsidence from coal mining - Mine Subsidence Compensation Act 1981, ss 4, 7A, 12, 12B, 15, 15B - Mine Subsidence Compensation Regulation 2007, cl 6 - Land and Environment Court Rules 2007, r 7.1
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 1996 (now repealed) Land and Environment Court Rules 2007 Mine Subsidence Compensation Act 1961 Mine Subsidence Compensation Regulation 1997 (now repealed) Mine Subsidence Compensation Regulation 2002 (now repealed) Mine Subsidence Compensation Regulation 2007 (now repealed) Uniform Civil Procedure Rules 2005
Cases Cited:	Alinta LGA Ltd v Mine Subsidence Board [2008] HCA 17; (2008) 244 ALR 276 Anthony De Lisle Venn v Elcom Collieries Pty Ltd [2006] NSWDC 60 Carr v Baker [1936] 36 SR (NSW) 301 Jones v Dunkel [1959] HCA 8; (1959) 201 CLR 298 Seltsam Pty Ltd v McGuiness; James Hardie and Coy Pty Ltd [2000] NSWCA 29; 49 NSWLR 262
Category:	Principal judgment
Parties:	Anthony De Lisle Venn (Applicant) Mine Subsidence Board (Respondent)
Representation:	C Kardell (Solicitor) (Applicant) P A Thew (Respondent) C Kardell, Sole Practitioner (Applicant) Kilmurray Lawyers (Respondent)
File Number(s):	30640 of 2010