Hall v O'Brien

Land and Environment Court (NSW)|2015-12-07|Before: Preston CJ

Nature of appeal and conclusion

A Commissioner for Mining of the Land and Environment Court determined under s 236G(2) of the Mining Act 1992 access management plans for land, including two pastoral properties known as "Allawah" and "Sorrento", in a designated access management area near Lightning Ridge. Mineral claims and opal prospecting licences have been granted over land within the access management area. Mineral claims and opal prospecting licences are referred to collectively as small-scale titles: s 236A(1) of the Mining Act. The access management plans made provision for the right of access that each holder of a small-scale title has in relation to land to which the plans apply and the conditions to which the holder of the small-scale title is subject in relation to the exercise of any rights of access.
The landholders of two of the properties to which the plans applied, namely "Allawah" and "Sorrento", have appealed against the Commissioner's decision to determine the access management plans under s 56A of the Land and Environment Court Act 1979 on numerous questions of law. The grounds of appeal focus on three aspects of the Commissioner's decision to determine the access management plans.
The first aspect was the Commissioner's decision not to make provision in each access management plan for or with respect to certain matters relating to the manner in which the holders of small-scale titles may exercise rights of access, including the use of unregistered vehicles on the land and having unlicensed drivers driving vehicles on the land. The appellants contended that the Commissioner erred in law in two ways: first, she misconstrued the legislation and erroneously concluded that the matters could not, as a matter of power, be covered in an access management plan. Alternatively, if the Commissioner did accept that there was power to cover the matters in an access management plan but exercised her discretion not to do so, the Commissioner again misdirected herself that the matters were not matters that ought to be covered in the access management plan and she gave no other reasons for not covering the matters in the access management plan. Both of these alternatives involved errors on questions of law.

The first aspect: matters not covered in the access management plan

The appellants contended that the Commissioner, in deciding not to cover in the access management plan certain matters, misconstrued the power to determine an access management plan and/or misexercised that power.
The appellants contended that the Commissioner erroneously decided that there was no power to cover in an access management plan matters which are dealt with under other conditions of small-scale titles with respect to land within the access management area or provisions of the Mining Act or under separate legislation. This was the substance of appeal grounds 1 and 6. The absence of power could either be because s 236D(1) of the Mining Act did not give power for such matters to be covered in an access management plan or because such matters are dealt with under other conditions of small-scale titles or provisions of the Mining Act or other legislation. The appellants submitted that the Commissioner should be found to have decided that there was no power from both the text of what she said and the context in which it was said.
The Commissioner said earlier in the first judgment under the heading "The issues the Court must resolve" that, in order to determine the terms of the access management plan for the land, she "must determine the legal framework against which each application must be assessed. This requires a resolution of the first issue identified at [31], namely the competing interpretations of the meaning of the relevant legislation and the jurisdiction of the Court": at [45] of the Commissioner's reasons for judgment in O'Brien v Slack-Smith; O'Brien v Hall; O'Brien v Hall [2015] NSWLEC 1179 (25 May 2015) ('the May judgment'). The Commissioner continued: "Once the legal framework is identified then I need to determine the general matters or topics that can be covered in any AMP [access management plan] before deciding the particular matters relevant to each application": at [46] of the May judgment.
These preliminary comments reveal how the Commissioner proposed to structure her judgment and that the determination of the general matters or topics "that can be covered in any AMP" was an issue of power that needed to be addressed "before deciding the particular matters relevant to each application", which was an issue of the exercise of the power.
The Commissioner next addressed the legislative framework, being the first task she had referred to in [45] of the May judgment. The Commissioner then addressed the question of "What is an AMP?". In answering this question, the Commissioner considered "the general matters or topics that can be covered in any AMP". The Commissioner referred to the decision of Hall J in Parkins v Lightning Ridge Miners' Association Ltd [2009] NSWSC 621; (2009) 75 NSWLR 427, particularly concerning the meaning and scope of s 236D(1) of the Mining Act. In that case, Hall J held that s 236D(1) does not provide power to impose provisions as part of an access management plan for the control of mining or prospecting operations: at [144], [149]. The Commissioner said: … I must agree with the plaintiff that an AMP cannot be used as an instrument to control prospecting and mining purposes on the land where other provisions of the Mining Act or other legislation deals with such matters. Accordingly, matters such as unregistered vehicles on the land, public liability insurance (see: s383C general indemnity against liability for claims brought against the landholder), the licensing of drivers, environmental protection, and firearms etc which are dealt with under other conditions of the SSTs or provisions of the Mining Act and/or under separate legislation are not matters to be covered in an AMP: at [91] of the May judgment.
In this paragraph, the Commissioner expressed her conclusion as to the matters that cannot be covered in an access management plan. A few paragraphs later, the Commissioner addressed the converse question of "What general matters can an AMP cover?". The Commissioner noted at [94] that "[a]n AMP determined by the Court may make provision for or with respect to any of the matters set out in s 236D of the Mining Act", which section the Commissioner quoted in full. This discussion of the matters that can be covered in an access management plan corroborates a construction of the Commissioner's earlier conclusion in [91] that the Commissioner had determined that there was no power to cover the matters she had specified in that paragraph in an access management plan.
The appellants submitted that the Commissioner erred in concluding that there was no power to cover the matters that she had specified in [91] in an access management plan. The appellants submitted that the matters specified fell within the ambit of one or more of the matters enumerated in s 236D(1) of the Mining Act. An access management plan may make provision for or with respect to the following matters: (a) the rights of access that the holder of a small-scale title has in relation to the land to which the plan applies, including rights in relation to: (i) access points to the land, and (ii) routes of access across the land, and (iii) the manner in which, and the times at which, rights of access may be exercised, (b) the conditions to which the holder of a small-scale title is subject in relation to his or her exercise of any such right of access, including conditions in relation to: (i) maintaining routes of access, and (ii) preserving the safety of persons and stock, and (iii) avoiding interference with the land management practices being adopted in relation to the land affected by the right of way, and (iv) environmental protection, … : s 236D(1)(a) and (b).
The appellants submitted that the matters specified by the Commissioner at [91] are aspects concerning the rights of access, including rights in relation to the manner in which rights of access may be exercised. For example, the requirement that the holder of a small-scale title, in having access across the land to which the plan applies, only drive registered vehicles and/or have licensed drivers drive vehicles regulates the manner in which the holder of the small-scale title may exercise the rights of access under the access management plan.
Similarly, a requirement that the holder of a small-scale title not transport firearms while having access across the land, regulates the manner in which the holder may exercise the rights of access.
The requirement that the holder of a small-scale title has insurance to cover loss or damage caused to the landholder or the land by the holder of a small-scale title in exercising rights of access across the land is a condition in relation to the exercise of the rights of access.
The matter of environmental protection, specified by the Commissioner at [91] as being one of the matters that "are not matters to be covered in an AMP", is in fact expressly identified as a matter in respect of which a condition of an access management plan can be imposed: see s 236D(1)(b)(iv) of the Mining Act.
The appellants submitted, therefore, that these matters were all matters for or with respect to which an access management plan may make provision under s 236D(1) and the Commissioner was in error in holding to the contrary.
The appellants noted that, inconsistently with her holding in [91] of the May judgment, the Commissioner did in fact make provision in relation to firearms in the conditions of the access management plans she determined (see cl 9(17) of the access management plan). The Commissioner also dealt with vehicle identification, imposing a condition that the holder of a small-scale title notify the landholder of "the make, colour and registration number (if any) of all vehicles they expect, at the time of the notification, to be accessing the land under this Plan" (cl 12 of the access management plan).
The appellants also submitted that the Commissioner erred in deciding that, because these matters are dealt with under other conditions of small-scale titles, or provisions of the Mining Act or under separate legislation, they cannot be covered in an access management plan. The fact that these matters can be dealt with under other statutory provisions or small-scale titles does not remove the power to deal with the matters under s 236D(1) of the Mining Act in determining an access management plan. Indeed, the appellants noted that the inclusion of the paramountcy provision of s 236D(2) to deal with any inconsistency recognises that matters may be dealt with under an access management plan as well as in a provision of the Mining Act or the Mining Regulation or a condition of a small-scale title. The appellants submitted that the Commissioner was in error in holding that there was no power to cover in an access management plan matters that are dealt with under conditions of a small-scale title or provisions of the Mining Act or separate legislation.
Alternatively, if the Commissioner's reasons are to be construed as stating that the Commissioner exercised her discretion not to make provision for or with respect to the matters specified in [91], the appellants submitted that the Commissioner still erred on a question of law. The fact that these matters could be dealt with under conditions of small-scale titles or provisions of the Mining Act or separate legislation is not a reason for not considering whether provision ought to be made for or with respect to them in an access management plan. The Commissioner misdirected herself in the exercise of her discretion in concluding that, because the matters are dealt with under conditions of small-scale titles or other provisions of the Mining Act or separate legislation, they are not matters that are to be dealt with in the access management plan.
The appellants submitted that the Commissioner gave no other reasons for determining that the matters in [91] are not matters to be covered in an access management plan. The inadequacy of her reasons in this regard was the substance of appeal grounds 2 and 9. The appellants particularly focussed on three of the matters specified in [91], namely the use of the unregistered vehicles, driving by unlicensed drivers and public liability insurance. The appellants noted that they had made detailed submissions to the Commissioner on the need and reasons for the access management plans to make provision for or with respect to each of these matters: see defendants' (the appellants on the appeal) written submissions [69]-[73] (public liability insurance), [74]-[97] (registration of vehicles) and [98]-[101] (licensing of drivers). The defendants (the appellants on the appeal) explained why having unregistered vehicles and unlicensed drivers accessing the land adversely affects the safety of persons and stock on the land (see s 236D(1)(b)(ii)) and interferes with the land management practices being adopted in relation to the land (see s 236D(1)(b)(iii)).
The Commissioner failed to address the submissions of the defendants (the appellants on the appeal) in relation to these matters or provide any reasons as to why the defendants' arguments were rejected. The appellants submitted that the parties cannot determine from the Commissioner's reasons that their arguments with respect to public liability insurance, vehicle registration and driver licensing had been understood or given adequate consideration. The Commissioner did not disclose the evidence that she relied upon to justify the determination made as to such matters.
The respondent submitted that the Commissioner's reasons, and in particular [91] of the May judgment, should not be construed as the Commissioner holding that there was no power to cover the specified matters in an access management plan, but only that the Commissioner in the discretionary exercise of the power under s 236D(1) determined not to cover such matters in the access management plan for the land. The respondent submitted that s 236D(1) expressly says that an access management plan "may" make provision for or with respect to such matters, not that the Commissioner "must" make provision for such matters. The respondent submitted that in [91] of the May judgment the Commissioner was giving her reasons for deciding, in the exercise of her discretion, not to deal with such matters in the access management plan. The respondent submitted that: It is apparent from her reasoning in paragraph 91 that in the exercise of her discretion such matters are not to be covered in an AMP because it would make the AMP unwieldy due to an unnecessary duplication of the requirements of other legislation. Were it appropriate or necessary for an AMP to address such matters already regulated by law, the content of an AMP would be "unmanageably vast".
I find, on a fair reading of the Commissioner's reasons, that the Commissioner did determine that the matters she had specified in [91] of the May judgment cannot be covered in an access management plan as a matter of power. I find that the Commissioner so determined having regard to: 1. the language used by the Commissioner in the critical second sentence of [91], namely that the specified matters "are not matters to be covered in an AMP"; 2. the second sentence of [91] commences with the word "Accordingly" which refers back to the first sentence of [91] where the Commissioner used the language that "an AMP cannot be used" to deal with specified matters. In the first sentence, the Commissioner agreed with the plaintiff (the respondent on the appeal) that, where other provisions of the Mining Act or other legislation deal with such matters, "an AMP cannot be used"; 3. the announced structure of the judgment whereby the Commissioner said she needed "to determine the general matters or topics that can be covered in any AMP before deciding the particular matters relevant to each application": at [46]. That is to say, the Commissioner proposed dealing with the question of power (the matters in respect of which there is power to make provision in an access management plan) before the question of the discretionary exercise of power (the matters in respect of which provision ought to be made in the circumstances of the case); 4. the actual structure of the judgment in which the Commissioner followed her announced structure to determine the matters in respect of which "an AMP cannot be used" and which "are not matters to be covered in an AMP" (at [91]), before dealing with the matters that an AMP can cover (at [94]); and 5. the fact that the Commissioner did not address the matters specified in [91] in her consideration of the matters that s 236D states are matters for which an access management plan may provide. If the Commissioner had determined that the matters specified in [91] were matters for which an access management plan can provide under s 236D(1), the Commissioner would logically have said so in this section of the judgment but then gone on to explain why she decided that they ought not to be covered in the circumstances of the case.
The Commissioner was in error in concluding that an access management plan cannot provide for or with respect to the matters she had specified in [91] of the May judgment. I agree with the appellants' submissions set out earlier that the matters specified in [91] fall within the matters enumerated in s 236D(1) and accordingly are matters for or with respect to which an access management plan may make provision. They relate to the rights of access that holders of small-scale titles have in relation to the land to which the access management plan applies, including rights in relation to the manner in which the rights of access may be exercised. Conditions requiring the holder of a small-scale title to, for example, use registered vehicles and have licensed drivers drive the vehicles when having access across the land to which the plan applies regulate the manner in which the rights of access may be exercised.
The power under s 236D(1) to make provision for these matters in an access management plan is not taken away or restricted by the fact that these matters might be able to be dealt with under conditions of the small-scale titles or other provisions of the Mining Act or separate legislation. Each of these statutory provisions regarding determining an access management plan, a small-scale title, a right of way or other entitlement under the Mining Act or separate legislation might give power to deal with these matters. The fact that there are multiple sources of power to make provision for or with respect to the matters is recognised by the provision in s 236D(2) that gives paramountcy to a provision of the Mining Act, the Mining Regulation or a condition of a small-scale title over a provision of an access management plan in the event of an inconsistency.
The Commissioner was, therefore, also in error in concluding that because the matters specified in [91] are dealt with under conditions of small-scale titles or provisions of the Mining Act or separate legislation, they are not matters to be covered in an access management plan.
Furthermore, even if the Commissioner's reasons could be construed as the Commissioner saying that, in the exercise of her discretion, the matters specified in [91] are not matters that she determined should be covered in the access management plan, the Commissioner misdirected herself in law in so concluding. The fact that the same matters may or must be considered in the exercise of different powers does not take away or restrict any of the powers. The matters in s 236D(1) may be considered and provision may be made for or with respect to them in an access management plan regardless of whether some or all of the matters may also be considered in the grant of a small-scale title and the conditions imposed in relation to the title, or considered in the exercise of any other power under the Mining Act or separate legislation. Hence, the Commissioner was in error in concluding that merely because the matters might be able to be dealt with under conditions in the small-scale title or provisions of the Mining Act or separate legislation, they are not matters that are to be covered in the access management plan.
The Commissioner did not give any other reason for not covering the matters specified in [91] in the access management plan. The Commissioner failed to address the parties' arguments, and in particular the appellants' arguments considering the need for the access management plan to address public liability insurance, vehicle registration and driver licensing. I agree with the appellants' submission in this regard. These were crucial matters in issue that needed to be addressed in the Commissioner's reasons but she failed to do so. This is an error of law.

Second aspect: hours of access

The appellants contended that the Commissioner had erred in law in fixing the times at which holders of small-scale titles may exercise rights of access across land to which the access management plan applied without giving any reasons. The Commissioner determined that access roads and tracks are not to be used prior to one hour before sunrise or one hour after sunset except for three special reasons that she specified.
Originally, the appellants contended in appeal grounds 3 and 4 that the Commissioner had erred in law in fixing the standard hours of access to be different to the hours of access of 7.00am to 6.00pm prescribed by cl 45(8) of the Mining Regulation. The appellants modified this submission at the hearing of the appeal to press other aspects of appeal grounds 3 and 5.
The appellants accepted that the Commissioner had power under s 236D(1)(a)(iii) of the Mining Act to fix hours of access that were different to the hours of access prescribed by cl 45(8) of the Mining Regulation. The Commissioner had so held in [97] and [98] of the May judgment. The appellants did not press that the Commissioner had erred in so holding.
The appellants did, however, submit that the hours of access prescribed in cl 45(8) of the Mining Regulation should have been a persuasive point of reference in fixing the standard hours of access under the access management plan. The appellants submitted that cl 45(8) expresses a clear legislative intention that a holder of a mineral claim who is entitled to a right of way is not to exercise the right of way before 7.00am or after 6.00pm unless it is with the written consent of the landholder. The appellants submitted that access over a right of way is not entirely different to access under an access management plan. The appellants also noted that, under s 236D(2) of the Mining Act, a provision of the Mining Regulation, including a right of way, prevails over a provision of an access management plan in the event of an inconsistency. Having regard to these matters, the appellants submitted that the hours of access prescribed for a right of way in cl 45(8) of the Mining Regulation would be persuasive to be used as the standard hours of access under the access management plan.
The Commissioner, however, decided to depart from the hours of access for a right of way of 7.00am to 6.00pm and instead extend the period of time in which access is permitted to between one hour before sunrise to one hour after sunset.
The appellants submitted that there was no evidence in support of that finding of extended hours. To make a factual finding where there is no evidence in support of that finding is to make an error of law. The appellants also submitted that the Commissioner gave no reasons for making the finding of extended hours. The Commissioner gave reasons as to other aspects about the times at which rights of access may be exercised, but not on the crucial aspect of the standard hours of access being extended to be between one hour before sunrise to one hour after sunset. The failure to give any reasons for this crucial aspect is an error of law. The appellants relied upon the principles concerning a failure to give reasons in Pettitt v Dunkley [1971] 1 NSWLR 376; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
The respondent submitted that the rights of access under a right of way and under an access management plan are separate rights. As such, it is inappropriate to impute that limitations and conditions applicable to a right of way (including hours of access) automatically apply to access routes in access management plans. To attach the conditions and limitations that apply to rights of way to the access routes within an access management plan would be contrary to the legislative intention underpinning the introduction of Pt 10A of the Mining Act. The respondent, therefore, submitted that there was no error of law involved in the Commissioner not applying the hours of access of 7.00am to 6.00pm prescribed by cl 45(8) of the Mining Regulation for a right of way to access routes under the access management plan.
On the hearing of the appeal, the respondent conceded that there was a "hiatus" in the Commissioner's reasons explaining why she had adopted as the standard hours of access under the access management plan the extended hours of one hour before sunrise to one hour after sunset.
I find that the Commissioner has erred in law in making the finding that the standard hours of access under the access management plan should be between one hour before sunrise to one hour after sunset where there was no evidence in support of that finding and no reasons were given for that finding.
The general issue of the hours of access was contested between the parties. The plaintiff (the respondent on the appeal) was arguing for extended hours of access whilst the defendants (the appellants on the appeal) contended that there was no power to depart from the standard hours of access prescribed by cl 45(8)(c) for a right of way or the restrictions on access during or less than 24 hours after wet weather prescribed by cl 45(8)(d) of the Mining Regulation.
The plaintiff adduced no evidence in support of extended hours, but the plaintiff did make a submission to the Commissioner in her written submissions dated 9 February 2015 that "it is not unreasonable to allow access to be exercised an hour before sunrise and an hour after sunset except in special circumstances when it may be unreasonable". The plaintiff gave six reasons in support of that submission.
The plaintiff attached to her written submission a draft access management plan that she submitted the Court should make. This draft access management plan was later tendered in evidence and marked Exhibit F. The then numbered cl 10(10) of the draft access management plan stated: Access roads and tracks should not be used prior to one hour before sunrise or one hour after sunset except for special reasons.
In the May judgment, the Commissioner dealt with the submissions of the defendants (the appellants on the appeal) that the Court should impose the same restrictions on the standard hours of access for a right of way prescribed by cl 45(8)(c) and on access after wet weather for a right of way prescribed by cl 45(8)(d). The Commissioner held: The defendants would like the Court to impose restrictions on the minimum standard hours of access and restrict access after wet weather for all future SSTs. They contend that these restrictions already apply to existing SST holders who access the land under a right of way granted under s211 by operation of Regulation 45(8)(c) and, that the Court only has power to vary the provisions of cl 45(8) for future SST holders. Although, they submit to provide for a two tiered system of access should be avoided. I do not accept that submission. Section 236D(1)(iii) certainly provides that an AMP can make provision for "…the manner in which, and the times at which, rights of access may be exercised" and in my opinion each case must be assessed on its individual circumstances. Regulation 45(8)(c) relates only to a right of way granted under s 211(6)(a). It provides for the imposition of conditions to limit the use of "…a right of way granted under s 211(6)(a) to between the hours of 7am and 6pm or use of the right of way during or less that 24 hours after wet weather": at [96]-[98] of the May judgment.
In these paragraphs, the Commissioner only dealt with the question of power. The Commissioner rejected the submission that the Court had no power to impose different hours of access to those prescribed for rights of way. The Commissioner held that s 236D(1)(a)(iii) did empower the Court to make provision in an access management plan for the times at which access may be exercised and that those times could be different to the hours of access prescribed for a right of way. However, the Commissioner did not go on to decide what different hours of access ought to be imposed in the individual circumstances of the case or give any reasons for imposing different hours of access.
Later in the May judgment, the Commissioner held that the access management plans for the three properties concerned should be in the form set out in the Schedule to the judgment: at [104] and [107]. Attachment 1 to the Schedule contained the common conditions applicable to all of the access management plans. The Commissioner held that these common conditions should include specified clauses from Exhibit F (which was the draft access management plan that had been submitted by the plaintiff): at [109]. In relation to cl 10, the Commissioner required it to be modified by inclusion of two additional subclauses, neither of which concerned hours of access. Impliedly, therefore, the Commissioner adopted as a clause of the access management plan the plaintiff's submitted cl 10(10) which extended the standard hours of access to be between one hour before sunrise to one hour after sunset. However, the Commissioner gave no reasons in this section of the judgment where she determined the conditions of the access management plan for adopting these extended hours.
The Commissioner directed the parties to prepare copies of the access management plans for each property in accordance with her reasons in the form of the Schedule attached to the May judgment: at [121].
On 25 June 2015, the plaintiff (the respondent on the appeal) filed further written submissions attaching a revised access management plan. Of relevance, the plaintiff revised the previous version of cl 10(10) to add an explanation of the reasons that are to be considered to be special reasons for accessing the land outside of the standard hours of access. The clause was renumbered as cl 10(11) and read as follows: Access roads and tracks shall not be used prior to one hour before sunrise or one hour after sunset except for special reasons which include but are not limited to the following reasons: * If security of a title is breached or threatened or is likely to be breached * There are reasons of safety involved * When a titleholder decides to remain on title overnight and an emergency arises at home
On 30 June 2015, the defendants (the appellants on the appeal) responded to the plaintiff's submission. In relation to the revised cl 10(11), the defendants submitted: The plaintiff has provided no notice to the defendants of its proposed amendment to this clause. Notwithstanding this, the proposed amendments are not agreed and have not been directed by the Court. The only amendments to clause 10 which were directed by the Court are set out at [109] of the judgment and it is not appropriate that the plaintiff seek to introduce new drafting to the Proposed AMP which has not been directed by the Court. The clause should remain as drafted.
On 21 July 2015, the Court delivered further judgment: O'Brien v Slack-Smith (No 2); O'Brien v Hall (No 2); O'Brien v Hall (No 2) [2015] NSWLEC 1271 ('the July judgment'). Of relevance is the Commissioner's determination regarding the plaintiff's revised cl 10(11) of the access management plan. The Commissioner stated: The defendants object to the additional words proposed by the plaintiff in Clause 10(11) of her AMP dated 25 July 2015. They submit that I did not authorise the inclusion of those words in my earlier judgment at [96] - [99] and [109] and, therefore, they should be deleted. However, after a consideration of the parties' further submissions on this issue I consider the nomination of three particular events as examples of "special reasons" to be useful. It does not distract from the clear intent of cl 10(11) which is to generally prohibit the use of access roads/ paths outside the prescribed periods. The term "special reasons" in cl 10(11) needs to be defined in order to confine the use of the access paths outside the prescribed areas. Therefore, I have decided to allow the inclusion of the additional words proposed by Ms O'Brien in cl 10 (11): at [33]-[35] of the July judgment.
In these paragraphs, the Commissioner only dealt with the issue of whether "the additional words" proposed by the plaintiff, detailing the three special reasons for accessing the land outside of the standard hours of access, should be added. The Commissioner did not address the issue of what should be the standard hours of access or give reasons for her implied finding that the standard hours of access should be between one hour before sunrise to one hour after sunset.
The Commissioner, therefore, has failed to give reasons for her finding that the standard hours of access should be between one hour before sunrise to one after sunset. The issue of what should be the standard hours of access was a contested issue and her finding that the hours should be extended to be between one hour before sunrise and one hour after sunset, as submitted by the plaintiff, rather than adopting the hours of 7.00am to 6.00pm as submitted by the defendants, needed to be explained in her reasons. The reasons the Commissioner did give in the May judgment and the July judgment address other aspects concerning the times at which rights of access may be exercised, but not the crucial issue concerning the standard hours of access. The Commissioner did not refer to any relevant evidence, set out any findings of fact or provide reasons for making findings of fact concerning the standard hours of access. This failure to provide reasons is an error of law: see Beale v Government Insurance Office of NSW at 444 and the other cases cited by the appellants above.

Third aspect: distance from water tanks

Appeal grounds 10 and 11 concerned the Commissioner's finding that the extent of the buffer around four cup and saucer water tanks on the property "Allawah" in which access by the holder of the small-scale title is to be avoided should be 50m. The appellants submitted that this finding was made without any evidence in support and the reasons given were inadequate in law.
Cup and saucer water tanks provide water for stock on the properties. The Commissioner accepted that access by the holder of a small-scale title around cup and saucer tanks on the properties "Sorrento" and "Allawah" should be avoided. At issue was the extent of the buffer around the tanks within which access should be restricted.
An agreed fact by the parties at the hearing of the appeals was that the Commissioner had undertaken a view of the properties and had inspected one cup and saucer tank on "Sorrento" and one cup and saucer tank on "Allawah".
In the May judgment, the Commissioner determined that "[a] restriction of access around the cup and saucer [tank] on 'Sorrento' as agreed should be recorded in Attachment 3 on the AMP for 'Sorrento'" (at [116]) and that "[t]he cup and saucer [tank] on 'Sorrento' is a nominated element to be avoided and this needs to be specified in Attachment 4" [of the AMP] (at [119]). In the May judgment, however, the Commissioner did not refer to any cup and saucer tank on the property "Allawah".
As I have earlier noted, the Commissioner directed the parties to prepare settled copies of the access management plans for each property in accordance with her reasons in the May judgment.
On 25 June 2015, the plaintiff (the respondent on the appeal) filed further submissions annexing a revised access management plan for "Sorrento" and "Allawah". In Attachment 3 of the revised access management plan for "Sorrento", the distance of the buffer for the cup and saucer tank was specified to be 200m. However, in Attachment 3 of the revised access management plan for "Allawah", no reference was made to any cup and saucer tank on "Allawah" and accordingly no distance from any cup and saucer tank was specified.
On 30 June 2015, the defendants (the appellants on the appeal) filed their further submissions addressing the issue of the restriction on access around cup and saucer tanks on "Sorrento" and "Allawah". In respect of "Allawah", the defendants submitted: The judgment notes at [119] that the "cup and saucer tank" on Sorrento is a nominated element to be avoided. However, it is noted that there are 7 cup and saucer tanks on Allawah which are equally as sensitive and which should also be avoided. The location of 4 of these tanks is shown marked up on the map attached as proposed Attachment 2. On this basis, the defendants submit that the cup and saucer tanks on Allawah should also be included as nominated elements for Allawah. The defendants therefore propose the following wording for inclusion at Attachments 3 and 4: Attachment 3 There shall be no access or creation of any Primary Access Road or track within 200m of the cup and saucer tanks shown marked blue on the map in Attachment 2 and this area is to be avoided. Attachment 4 Cup and Saucer tanks and the supply (pipeline) of water to same, are nominated elements for the purposes of this plan and are shown marked with a blue dot on the map in Attachment 2. There shall be no access or creation of any Primary Access Road or track within 200m of the cup and saucer tanks located on or in the vicinity of OPBs, 30, 39 and 40 and 44 and this area is to be avoided.
In respect of "Sorrento", the defendants submitted: The inclusion of the wording 'Nothing in this clause restricts a title holder from accessing their title should it be located within 200m of the cup and saucer' in Attachment 3 and 4 is not agreed by the defendants. The judgment has not directed that this wording be included and we are instructed that there is no surface activity allowed within 200m of any cup and saucer tank. In addition, in accordance with [119] of the judgment, Attachment 4 must specify that the area 'is to be avoided'. The defendants therefore propose the following wording: Attachment 3 There shall be no access or creation of any Primary Access Road or track within 200m of the cup and saucer tanks located on OPB 190 (and shown marked red and blue on the map in Attachment 2) and this area is to be avoided. Attachment 4 Cup and saucer tanks and supply (pipeline) of water to same are nominated elements for the purposes of this plan and are shown marked with a blue and red dot on the map in Attachment 2. There shall be no access or creation of any Primary Access Road or track within 200m of the cup and saucer tanks located on OPBs 190 and 191 and this area is to be avoided.
The Commissioner addressed this issue of cup and saucer tanks in the July judgment: 50 As noted at the time of providing my earlier judgment I understood that there were several 'cup and saucer' tanks of different sizes on 'Allawah' around which access was sought. At the view I was shown some of them. 51 I had hoped that the parties might have resolved how these sensitive elements might be protected. 52 The Halls have identified 4 particular cup and saucers as blue dots on Attachment 2. Consistent with my earlier judgment, I accept that these 4 cup and saucer tanks on 'Allawah' as depicted on the map should also be avoided and, a notation to that effect needs to be made on the relevant Attachments and map. 53 However, the extent of any buffer is an arbitrary matter. The 200m buffer around the large cup and saucer tank on 'Sorrento' was determined by the parties. The defendants submit that 200m is also an appropriate distance for the 4 identified cup and saucer tanks on 'Allawah'. Ms O'Brien does not agree and Mr Moore submitted at the hearing that the distance is "an ambit claim" (transcript (D2 p68 at [5]-10]) 54 As the parties have not come to any agreement on this issue I must determine the distance based on the evidence before me. 55 There is no evidence to support a 200m buffer for these cup and saucers on 'Allawah'. However, given their plotted locations it would appear that they are proximate to proposed access routes and therefore it is appropriate that they be protected. Therefore, based on my understanding of the evidence including that taken on the view and the size and locations of these sensitive features I am of the opinion that a 50m buffer is appropriate. 56 I have considered the wording proposed in paragraph 19 of the letter from Holding Redlich dated 30 June 2015 for inclusion in Attachments 3 and 4. Subject to the insertion of a distance of "50m" and the deletion of the words "…and this area is to be avoided" I accept the proposed drafting. 57 As was made clear in my earlier judgment, an AMP is not a vehicle to be used to restrict a titleholder from legally accessing a title under the terms of their SST or OPL. The notations in the Attachments for 'Allawah' are to be : Attachment 3 There shall be no access or creation of any primary access road or track within 50m of the cup and saucer tanks shown marked blue on the map in Attachment 2. Attachment 4 Cup and saucer tanks and the supply (pipeline) of water to same, are nominated elements for the purposes of this plan and are shown marked with a blue dot on the map in Attachment 2. There shall be no access or creation of any Primary Access Road or track within 50m of the cup and saucer tanks on or in the vicinity of OPBs 30, 39, 40 and 44: at [50]-[57] of the July judgment.
The appellants submitted on the appeal that there was no evidence in support of the Commissioner's finding of a buffer distance of 50m. The plaintiff (the respondent on the appeal) had adduced no evidence before the Commissioner that 50m was an adequate distance and indeed did not even address the issue in her written submissions of 25 June 2015. The defendants (the appellants on the appeal) did address the issue in their submissions of 30 June 2015 but contended for a distance of 200m for four cup and saucer tanks on "Allawah", the same distance as had been agreed by the parties for the cup and saucer tank on "Sorrento". The appellants submitted that the matters referred to by the Commissioner in [55] of the July judgment were not in evidence and could not provide evidentiary foundation for the Commissioner's finding that a distance of 50m was appropriate.
The appellants also submitted that the Commissioner's reasons for finding that a 50m buffer was appropriate were inadequate in law. The only reasons given were in [55] of the July judgment. These do not explain how the figure of 50m was selected for each of the four cup and saucer tanks on "Allawah".
The respondent submitted that appeal grounds 10 and 11 really related to the Commissioner's finding of fact that the buffer zone around the cup and saucer tanks on "Allawah" should be 50m, rather than identifying any legal error, and is therefore not appellable. The respondent submitted that the Commissioner's explanation in [50]-[57] of the July judgment provided adequate reasons for the finding of fact. The Commissioner referred to the view that she and the parties had undertaken of the properties (which the parties agreed included inspection of one cup and saucer tank on "Allawah"): at [55]. The Commissioner referred to the sketch map that was Attachment 2 to the defendants' written submissions of 30 June 2015 identifying four cup and saucer tanks by blue dots: at [52]. The Commissioner noted their plotted locations proximate to proposed access routes marked on the map: at [55]. The Commissioner said that she understood that the cup and saucer tanks on "Allawah" were of different sizes: at [50]. Taking these matters into account, the Commissioner concluded: Therefore, based on my understanding of the evidence including that taken on the view and the size and locations of these sensitive features I am of the opinion that a 50m buffer is appropriate: at [55].
I find that the appellants have not established these appeal grounds. The Commissioner's explanation in [50]-[55] of her July judgment ostensibly provided reasons for her finding of fact that a 50m buffer around the cup and saucer tanks on "Allawah" would be appropriate. The appellants' criticisms are more directed to the factual soundness of the ultimate finding and the bases for that finding. The appellants pointed out that "the evidence taken on the view" only included an inspection of one of the four tanks, so the Commissioner's finding in respect of the remaining three tanks could not have been based on what she saw on the view. The appellants submitted that the Commissioner's expressed understanding that the cup and saucer tanks on "Allawah" were of different sizes was factually incorrect and was not based on any evidence. In fact, the appellants submitted the tanks on "Allawah" are all of the same size. However, this fact was not in evidence before the Commissioner. The sketch map (Attachment 2 to the defendants' submission of 30 June 2015) showed the four cup and saucer tanks (the blue dots) to be located at different distances from the access roads on "Allawah", although no scale was provided to be able to put figures to the varying distances. The appellants submitted that it was not possible to derive a figure of 50m for the distance of each of the four tanks from the access roads. In these circumstances, the appellants submitted that the Commissioner's ostensible reasons were not in fact reasons at all. They raise more questions than they answer.
However, even accepting these points of challenge to the factual bases of the Commissioner's finding that a 50m buffer was appropriate, the fact remains that the Commissioner has given some reasons, however succinct, and those reasons are based on the evidence that was available to the Commissioner, however meagre that evidence may have been. There was no other evidence that the Commissioner overlooked or failed to give consideration to. The Commissioner made the best estimate of distance that she could given the evidence that was available. If the Commissioner has made a factual error in finding what is the appropriate distance, that does not in itself cause the reasons she gave to become inadequate in law. I therefore do not uphold appeal grounds 10 and 11.

Conclusion and orders

The appellants have established that the Commissioner erred on questions of law in failing to consider certain matters that she had identified in [91] of the May judgment as matters that cannot be covered in an access management plan, and in fixing the standard hours of access as being between one hour before sunrise and one hour after sunset without giving any reasons for that finding. These errors are material and vitiate the Commissioner's determinations of the access management plans for "Sorrento" and "Allawah".
The respondent submitted that the Court nevertheless should not set aside the Commissioner's determination of the access management plans. The reason, the respondent submitted, is that it would be futile for the Commissioner to redetermine the access management plans. The respondent contended that the Commissioner would inevitably make the same findings to not provide for the matters in any new access management plans that she had omitted from the original access management plans and to extend the hours of access to be between one hour before sunrise and one hour after sunset. The respondent relied on the statement in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145, although in the context of departure from the rules of natural justice, that "an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility".
The appellants responded that the Court would not conclude that the Commissioner would inevitably make the same findings. The Commissioner would be bound to make a fresh determination in accordance with this Court's decision. This would require considering whether and in what manner to make provision in the access management plans for or with respect to the matters that the Commissioner had found in [91] of the May judgment that cannot be covered in an access management plan. The Commissioner would need to address the evidence, make findings, and give reasons for the findings in relation to these matters. Similarly, the Commissioner will be bound on the remitter to address the evidence, make findings, and give reasons for the findings in relation to the hours of access. The appellants submitted that it should not be assumed that the Commissioner in undertaking these tasks, will steadfastly make the same findings. Rather, the undertaking of this process of redetermination may cause the Commissioner to make different findings.
I agree with the appellants. I would not presume that remittal of the proceedings to the Commissioner for determination according to my decision would inevitably result in the making of the same findings of fact and the determination of the same access management plans. Remitter is not futile. Accordingly, the Commissioner's decisions in these proceedings should be set aside and the proceedings remitted to the Commissioner for determination in accordance with my decision.
The usual order for costs on a s 56A appeal from a decision of a Commissioner in Class 8 of the Court's jurisdiction is that they follow the event: see s 98 of the Civil Procedure Act 2005, and Pt 42.1 and Sch 1 of the Uniform Civil Procedure Rules 2005. There are no circumstances in this case justifying departure from the usual order. Accordingly, the respondent should be ordered to pay the appellants' costs of the appeals.
The orders of the Court are: 1. The appeals are upheld. 2. The decisions and orders made by the Commissioner on 21 July 2015 in proceedings no 80652 of 2014 and no 80664 of 2014 are set aside. 3. Proceedings no 80652 of 2014 and no 80664 of 2014 are remitted to be determined by the Commissioner in accordance with the decision of this Court. 4. Proceedings no 80652 of 2014 and no 80664 of 2014 are listed before the Registrar for a telephone directions hearing on 18 January 2016 at a time to be advised. 5. The respondent is to pay the appellants' costs of these appeals.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2015

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