Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council - [2020] NSWLEC 66 - NSWLEC 2019 case summary — Zoe

NSWNSWLEC

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council

[2020] NSWLEC 66

Land and Environment Court (NSW)|2019-11-29|Before: Moore J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-11-29

Before

Moore J

Catchwords

[1959] HCA 8 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 79 NSWLR 724
(201) 211 LGERA 337 Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428 Portier v The Attorney General (2015) 89 NSWLR 284

Source

Original judgment source is linked above.

Catchwords

[1959] HCA 8 Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 79 NSWLR 724(201) 211 LGERA 337 Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428 Portier v The Attorney General (2015) 89 NSWLR 284

Judgment (103 paragraphs)

[1]

Introduction

To finance local government councils, each council is permitted to raise a portion of that council's revenue by the levying of a tax, known as a rate, on all properties in the relevant local government area that are liable to be charged such a levy. The legislative scheme for rating is established by the Local Government Act 1993 (the Local Government Act). For the purposes of rating, the Local Government Act mandates that all rateable properties are to be categorised. There are four different categories established by the legislation. Categorisation is effected by Council resolution allocating rateable properties into one or other of the categories that are established by s 514 of the Local Government Act. These categories are farmland, residential, business or mining. The relevant statutory provisions are later set out.
The Local Government Act provides that, for the purposes of calculating the rate to be levied, it is to be derived from the statutory land value for a parcel of land determined by the Valuer General pursuant to the provisions of the Valuation of Land Act 1916 (the Valuation Act). The dictionary in the Local Government Act defines a "parcel of land" in the following terms: parcel of land, in relation to rateable land, means a portion or parcel of land separately valued under the Valuation of Land Act 1916.
The applicable rate levied for each category is determined by a council to operate within a particular financial year, being a financial year running from 1 July in one year to 30 June of the following year.

[2]

The proceedings

Mangoola Coal Operations Pty Ltd (the Company) owns extensive landholdings that are located some 18 kilometres to the west of Muswellbrook. These landholdings are in the local government area administered by Muswellbrook Shire Council (the Council).
For local government rating purposes, the Company's landholdings can be regarded as being in three distinct parts. The first part, not the subject of any controversy in these proceedings, is the central element of the Company's landholdings which is used for the purposes of the open-cut coal mine operated by the Company.
The remainder of the landholdings can be regarded, in simplistic terms, as comprising a doughnut-shaped agglomeration of many parcels of land that surrounds the area used by the mine. Aggregation processes pursuant to s 26 of the Valuation Act permit the bringing together in one nominal landholding (described for the purposes of these proceedings as "assessment parcels") many individual parcels of land that would otherwise be separately rated. I later discuss the processes arising to permit such aggregation pursuant s 26 of the Valuation Act.
The surrounding land in these proceedings has been valued for council rating purposes (relevantly) in two assessment parcels pursuant to the permitted aggregation processes.
The Company has had the two assessment parcels that are the subject of these proceedings categorised by the Council as having the dominant use as a coal mine. The Company has exercised its right, pursuant to s 525 of the Local Government Act, to apply to the Council to change the categorisation of each of these assessment parcels. The provision that permits this application is, relevantly, in the following terms: 525 Application for change of category (1) A rateable person (or the person's agent) may apply to the council at any time - (a) for a review of a declaration that the person's rateable land is within a particular category for the purposes of section 514, or (b) to have the person's rateable land declared to be within a particular category for the purposes of that section. (2) An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within. (3) The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category. (4) If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land. (5) The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application. (6) If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.
The applications for recategorisation were made by the Company to the Council on 30 May 2018. They sought recategorisation from "mining" to "farmland" with an operative date of 1 July 2016.
The Council had not determined the applications to recategorise the two assessment parcels of the Company's land within 40 days. As a consequence, the existing mining categorisation was taken to be confirmed.
Because of this, on 7 August 2018, the Company exercised its right pursuant to s 526(1) of the Local Government Act to appeal to the Court against the Council's failure to recategorise each of the assessment parcels. The appeal right-creating provision also defines the scope of the power of the Court when dealing with such an appeal. The provision is in the following terms: 526 Appeal against declaration of category (1) A rateable person who is dissatisfied with - (a) the date on which a declaration is specified, under section 521, to take effect, or (b) a declaration of a council under section 525, may appeal to the Land and Environment Court. (2) An appeal must be made within 30 days after the declaration is made. (3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.
For the purposes of these proceedings, the dispute between the Company and the Council is how each of those two assessment parcels is to be categorised for council rating purposes in each of the 2016/17 and 2017/18 rating years.

[4]

The two assessment parcels

As earlier noted, these proceedings involve two assessment parcels that have been aggregated pursuant to s 26 of the Valuation Act for the purposes of land valuation by the Valuer General.
One of the assessment parcels is significantly larger than the other. The smaller assessment parcel has been given the Assessment Identifier 121111. The smaller assessment parcel comprises approximately 727 hectares in the 2016/17 assessment year. The area of the smaller assessment parcel was approximately 578 hectares in the 2017/18 assessment year as a result of boundary alterations (including, but not confined to, the land transferred from the larger assessment parcel). The change in area has potential consequences for the issues in Matter No 242760 of 2018 concerning rating categorisation of the smaller assessment parcel.
The larger assessment parcel has been given the Assessment Identifier 113969. This larger assessment parcel had an area of approximately 6,617 hectares in the 2016/17 assessment year. The area of the larger assessment parcel was approximately 6,581 hectares in the 2017/18 assessment year. The change was as a result of a boundary alteration transferring 36 hectares to the smaller assessment parcel. The change in area also has potential consequences for the issues in Matter No 242761 of 2018 concerning rating categorisation of the larger assessment parcel.
As earlier noted, the dispute is whether each of the assessment parcels, in each of the rating years, should be categorised as "farmland" or as "mining".
Although there are a range of uses conducted on these assessment parcels (particularly the larger assessment parcel), it is also to be noted, at this point, that the Company has an access licence agreement with Colinta Holdings Pty Ltd (Colinta), a cattle-grazing enterprise that operates at a number of locations across Australia. These locations are ones generally (if not exclusively) on lands in the vicinity of coal mines operated by Glencore, the parent company to the Company and to Colinta.

[5]

The Local Government Act provisions

There are a number of provisions of the Local Government Act which require consideration or noting in these proceedings. The first group of these provisions relates to the categories into which land in New South Wales is allocated for rating purposes. The first of these is s 514, the provision that establishes the four categories of land for rating purposes. This provision is in the following terms: 514 Categorisation of land for purposes of ordinary rates Before making an ordinary rate, the council must have declared each parcel of rateable land in its area to be within one or other of the following categories: • farmland • residential • mining • business. Note. Land falls within the "business" category if it cannot be categorised as farmland, residential or mining. The main land uses that will fall within the "business" category are commercial and industrial.
Two further provisions in this group of category-establishing provisions are engaged in matters raised by the parties to these proceedings. They are s 515 (the farmland category) and s 517 (the mining category). These two provisions are in the following terms: 515 Categorisation as farmland (1) Land is to be categorised as farmland if it is a parcel of rateable land valued as one assessment and its dominant use is for farming (that is, the business or industry of grazing, animal feedlots, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping, horticulture, vegetable growing, the growing of crops of any kind, forestry or aquaculture within the meaning of the Fisheries Management Act 1994, or any combination of those businesses or industries) which: (a) has a significant and substantial commercial purpose or character, and (b) is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made). (2) Land is not to be categorised as farmland if it is rural residential land. (3) The regulations may prescribe circumstances in which land is or is not to be categorised as farmland. 517 Categorisation as mining (1) Land is to be categorised as mining if it is a parcel of rateable land valued as one assessment and its dominant use is for a coal mine or metalliferous mine. (2) The regulations may prescribe circumstances in which land is or is not to be categorised as mining.
Finally, in this group of provisions, s 518 (the business category) is to be noted because it is the default provision into which land is mandated to be categorised if it does not fall within the "farmland", "residential" or "mining" categories. It is in the following terms: 518 Categorisation as business Land is to be categorised as business if it cannot be categorised as farmland, residential or mining.

[10]

The expert evidence

Expert evidence was given in four disciplines. These were: 1. Agronomy 1. Mr Joseph Lane, for the Council; and 2. Mr Neil Nelson, for the Company. Each of them provided an expert report and, together, they provided a single Joint Expert Report. 1. Mine management 1. Mr Michael White, for the Council Mr White's expert evidence was challenged by the Company and the admissibility of his evidence is later discussed in some detail; and 1. Mr David Lennard, for the Company. Each of them provided an expert report and, together, they provided a Joint Expert Report. 1. Forensic accounting Forensic accounting evidence was given by: 1. Dr Rodney Ferrier, for the Council; and 2. Mr David Mullins, for the Company. Dr Ferrier provided an expert report and Mr Mullins provided an expert report and a supplementary report. Together, they provided two Joint Expert Reports. 1. Geographic Information Systems evidence Geographic Information Systems (GIS) evidence (of a cartographic nature - comprising oral and written evidence and maps) was given by Ms Angela Moore, a GIS specialist employed at Glencore Coal Assets Australia. Ms Moore gave affidavit evidence (by affidavits dated 27 September; 29 October and 6 November 2019). Ms Moore was also required for cross-examination. Ms Moore prepared a significant number of maps showing various aspects of the two assessment parcels (including lot and deposited plan numbers within the assessment parcels); of surrounding lands; and within the mine site proper. A number of iterations of various maps were tendered. The various iterations of these maps came about as the necessary responses to other matters which emerged from the documentary or oral evidence. Annexure A to this decision shows what was accepted to be the relevant position of the displayed elements as at 1 July 2016 (that being the commencement of the first rating year under consideration). Annexure B shows what was accepted to be the relevant position of the displayed elements as at 1 July 2017. Annexure C comprises a map of the same area showing location information (for years 2016, 2017 and 2018) of various operational aspects and facilities used by, or relating to, the Company's coal mine operations. In the introduction to his closing submissions, Mr Ireland discusses a range of land area inconsistencies for the assessment parcels, which inconsistencies emerged during the course of the evidence. For the purposes of this decision, I have placed reliance on the information able to be gleaned from Ms Moore's evidence (particularly the two maps that appear as Annexures A and B to this decision). However, as Mr Ireland observed at [15] of his closing submissions: 15 In any event, the exact area of each parcel in each relevant year is not a matter that is determinative of the categorisation exercise. I accept the accuracy of that proposition.

[14]

The hearing challenge to Mr White's participation

Prior to the commencement of the concurrent oral evidence given by Mr White and Mr Lennard, I agreed to Mr White giving short, solo oral evidence to permit Mr Ireland to cross-examine him, on a voir dire basis, in order to seek to establish a basis upon which I should not have regard to Mr White's evidence (written or oral).
What follows, it is to be observed, is to be understood in light of two elements of Mr White's Expert Report. These elements are: 1. At Annexure C to his Expert Report, Mr White reproduced his curriculum vitae (CV), setting out the relevant elements of his training and experience that provided his qualifications for giving expert evidence in these proceedings (consistent with Uniform Civil Procedure Rules 2005, Sch 7, r 31.23). His qualifications, in this regard, are that he has a Bachelor of Engineering (Mining), Honours II; a Master of Business Administration; and is a Graduate of the Australian Institute of Company Directors. His experience in the coal-mining industry, shown in his CV, covered a period of some 25 years in a variety of positions in the industry, including as the general manager of a coal mine in the Hunter Valley. In addition, post his departure from full-time employment in the mining industry, Mr White has conducted his own business as, in his terms in his CV, a Resources Consultant. It is to be observed that, in this latter consultancy role, he disclosed in his CV that he had undertaken consulting work for Coolmore, Goldolphin and the Hunter Thoroughbred Breeders Association. It will be necessary to return to this aspect of his consulting work, as it was the subject of portion of Mr Ireland's voir dire cross-examination of him; 1. The second observation to be made concerning Mr White's Expert Report is that, at paragraph [4] , he said: I have read the Expert Witness Code of Conduct set out in annexure A and I agree to be bound by it. I have been instructed by Moray and Agnew Lawyers to give opinion evidence in relation to the Mangoola mine. In addition, a copy of the Expert Witness Code of Conduct (to which Mr White expressly agreed to adhere in the passage from his report quoted immediately above) formed Annexure A to his report.

[15]

The basis of the Company's objection

The basis of the Company's objection to Mr White giving expert evidence in these proceedings was that:

Mr White and his wife lived some five kilometres in a generally northerly direction from the mine pit currently operated by the Company;
Mr White and/or his wife had lodged, over the years since 2010, a large number of complaints about what they considered to be unacceptable impacts of the mine on them at their home. A graph showing the frequency of their complaints over this period was tendered (and admitted without objection from the Council), becoming Exhibit H. A schedule of complaints and information concerning them (taken from the Company's complaints register), showing the complaints made by Mr White or his wife, was tendered (and admitted without objection from the Council), becoming Exhibit G. This schedule disclosed that, with the exception of the most recent of the complaints made by either of them (it being made by Mr White on 24 May 2018), the relevant column in Exhibit G simply notes that, from the Company's perspective, the complaint had been completed. Nothing was included in any of the material tendered in support of the Company's objection to Mr White giving evidence that explained whether or not any of the complaints made by Mr White or his wife were accepted by the Company as having had any validity and, if so, what had been the Company's response. All that Exhibit G showed was the bland notation "completed" as earlier described;
Mr White had written, as recently as August 2019, an objection to Mangoola Coal Continued Operations Project explaining why, in his and his wife's view, an expansion proposal for the mine, in a northerly direction towards the White residence, should not be approved. This letter of objection was tendered (and admitted without objection from the Council), becoming part of Exhibit H;
Exhibit H also included a bundle of correspondence from 2013, being by e‑mail and letter, between the Whites and the then corporate entity operating the Mangoola Mine (Xstrata Limited (Xstrata)) in which the Whites proposed that that Company should acquire the Whites' property because of the various adverse impacts that operation of the mine was having on them (including on the value of their property). This bundle of correspondence included a letter from Xstrata dated 4 March 2013 that advised Mr and Mrs White that the request to purchase their property was rejected as it was not within the zone of potential acquisition identified in the mine's project approval.
The entirety of Exhibit H was admitted without objection from the Council.

[16]

The voir dire cross-examination of Mr White

Mr White was cross-examined extensively by Mr Ireland (the voir dire process and my short extempore judgment as its outcome), taking almost an hour and occupying 18 pages of transcript.
It is not necessary, for present purposes, to reproduce lengthy extracts from the transcript of Mr Ireland's cross-examination of Mr White on the voir dire. It is sufficient to reproduce but two short elements of it. The first of these relates to the consulting work undertaken by Mr White for the three entities earlier noted. This element of Mr White's evidence was in the following terms (Transcript, 28 October 2019, page 308, lines 14 to 50): IRELAND: And in your CV which is annexed to your affidavit, you indicate that your recent clients have included Godolphin and Hundred [Hunter] Thoroughbred Breeders Association, for example? WITNESS WHITE: Yes. IRELAND: They are interests in the Hunter Valley associated with the horse breeding industry, aren't they? WITNESS WHITE: Yes. IRELAND: And your work for them inter alia, I assume, would have involved managing or advising on their objections to mining projects. That's correct, isn't it? WITNESS WHITE: I disagree. IRELAND: You disagree with that? WITNESS WHITE: Yes. IRELAND: They do lodge - they are organisations which are engaged in the promotion of objections to coal mining projects in the Hunter Valley, aren't they? WITNESS WHITE: I disagree. IRELAND: Do you deny that in your work for Godolphin and a Hundred [Hunter] Thoroughbred Breed[er]s Association and Kumar you have been engaged in assisting them, you would say, as an expert in relation to their objections to coal mining projects? WITNESS WHITE: Mr Ireland, the premise of the question being - starting with it being an objection is the area I have the problem with. I provide independent objective advice on the mining portions of proposals, and it's then the determination of the individual organisation as to how they, overall, choose to respond in the planning process.
It is appropriate to note, in this context, Mr White gave this element of his evidence in a fashion that made it clear, to me, that he was uncomfortable with the implications of what was being put to him on the voir dire and that he certainly did not accept that his written evidence had been provided other than in a fashion compliant with the Expert Witness Code of Conduct or that his proposed oral evidence would not be so given.
The second element from this voir dire cross-examination, appropriate to be reproduced, concerned the 2013 correspondence proposing that the then operator of the Mangoola Mine should acquire the Whites' property and whether that position was one which was still maintained by Mr White. This element of the transcript was in the following terms (Transcript, 28 October 2019, page 310, line 46 to page 312, line 48): IRELAND: And you of course would agree with me that that is a property that is outside the area or the contours that are sufficient to trigger an acquisition requirement under the project approval for noise or dust or any other impact of that nature? It just sits outside that-- WITNESS WHITE: Yes. IRELAND: And, indeed, this is a matter that you have raised with the mine, isn't it? WITNESS WHITE: Well, the-- IRELAND: I withdraw that. The - your view - you hold the view that the mine should acquire your property, don't you? WITNESS WHITE: I don't know. IRELAND: Could I provide you - show you an e-mail, copy for the Court, copy for my learned friend? Now, just read that e-mail and let me know, Mr White, when you have read that e-mail-- WITNESS WHITE: I'm familiar with the-- IRELAND: --to yourself. WITNESS WHITE: I'm familiar with the e-mail, Mr Ireland. IRELAND: Yes. And, so, the e-mail indicates, firstly, doesn't it, that - well, before - I withdraw that. Before I do that, although the e-mail is signed off by you and your wife, I take it, it was sent out with your authority? WITNESS WHITE: Joint authority. IRELAND: Yes. And so you stand behind the views expressed in the e-mail? WITNESS WHITE: At the time. That was six years ago. IRELAND: And you said in the e-mail that in the second sentence the impacts from noise and dust from the operation were unacceptable to you. Do you see that? WITNESS WHITE: Yes. IRELAND: And that was a view you held at the time? WITNESS WHITE: Yes. IRELAND: And you said in the e-mail that you had grave concerns with the impact on your health and the health of your children and grandchildren into the future. Do you see that? WITNESS WHITE: Yes. IRELAND: And that was a view you held at the time, is that? WITNESS WHITE: Yes. IRELAND: And you also commented on the plant what you-- HIS HONOUR: He said it was sent with his authority. He [It] speaks for itself. You [do not] need to get into it and adopt that word for word, Mr Ireland. IRELAND: Yes, may it please the Court. The mine responded to that e-mail, didn't they, that in a way that wasn't satisfactory to you, do you recall that? WITNESS WHITE: The mine responded, refusing our request. IRELAND: Yes, and could I provide you with - ask you to look at this letter of 4 March 2013, and a copy to the Court and my learned friend? WITNESS WHITE: Thank you. IRELAND: You're familiar with that letter? WITNESS WHITE: Yes. IRELAND: And you see in the second last paragraph that in response to your request that the mine entered into what you termed "good faith negotiations" regarding the purchase of your property. The mine indicated that it would not do that as you were outside the relevant acquisition area, do you see that? WITNESS WHITE: Yes. IRELAND: And that remains the position as far as you and the mine are concerned in the acquisition of your property as far as you know, isn't it? WITNESS WHITE: I don't understand the question. IRELAND: The mine still hasn't acquired your property. WITNESS WHITE: Yes, that's correct. IRELAND: They haven't offered to do so. WITNESS WHITE: That's correct. IRELAND: And that's a source of dissatisfaction to you in relation to your attitude to and relationship with the mine, isn't it? WITNESS WHITE: If I may answer in this way, we have perhaps learned to live a little more with the mine, but it still does negatively impact us from time to time. Whether we wish to sell or not there are a number of factors in there that it would be difficult to actually have a clear answer on at the moment.

[17]

Determination of the basis for Mr White's evidence

Although I had earlier indicated, in an informal exchange with Mr Ireland and Mr Tomasetti, that I would deal with the question of admissibility of Mr White's evidence at a later time, I concluded, at the end of Mr Ireland's voir dire cross‑examination, that there was absolutely no proper basis advanced for the Company as to why there should be any complete rejection of Mr White's written evidence already provided or future oral evidence proposed to be given by Mr White. I gave a short extempore decision setting out this conclusion and my reasons for it. That decision, recorded in the transcript of 28 October 2019, at page 323, lines 20 to 32, was in the following terms: I propose to hear Mr White's evidence in absolute terms and not on the voir dire basis. I am satisfied that none of the answers given by Mr White in response to Mr Ireland's cross examination provide any basis for me declining to entertain his evidence. I base that ruling not merely on the cross examination that's been undertaken today but on my close reading of his expert report, which does not show any elements that would otherwise cause me to conclude that he was not, in an appropriate fashion, responding to his obligations as an expert witness. I have also closely read the joint coal mining expert report filed on 4 October 2019 and I am satisfied that there was nothing in that that would cause me to conclude that he has not abided by the expert witness code of conduct in the preparation of that document as well.
As Mr Tomasetti reminded me at that time, this ruling that I would accept that it was appropriate for Mr White to be permitted to give evidence and to have his Expert Report admitted did not preclude Mr Ireland from submitting, later, that the totality of Mr White's evidence, or specific elements of it, should be rejected and Mr Ireland indicated that he would do so in his closing submissions, if he considered that this was appropriate.
For completeness, I should also reproduce a further relevant transcript extract of an exchange with Mr Ireland (Transcript, 28 October, page 323, line 38 to page 324, line 2): IRELAND: I'll be making submissions at the end of the day in relation to weight. HIS HONOUR: You may and indeed that will arise out of whatever evidence Mr White gives and whatever evidence Mr Leonard gives and at the moment unless Mr Tomasetti wants to press an objection on the basis of Mr Leonard's curriculum vitae which would cause me to conclude he's never given evidence for anybody but a coal mine and I don't understand he to be proposing to make such an objection then I'll deal with that in a similarly summary fashion having carefully read Mr Leonard's statement of evidence and reached a similar conclusion with respect to him and I would also observe that during the course of the site inspection I did not observe any remark made by Mr White or Mr Leonard that would cause me to conclude they were doing other than giving me factual information in response to the duties under the expert witness code of conduct.
In his closing oral submissions, Mr Ireland made a number of criticisms concerning details of Mr White's evidence. However, on the broader topic of the weight to be given to Mr White's evidence, Mr Ireland said (Transcript, 8 November 2019, page 687, lines 8 to 49): IRELAND: … the submission that's made at the end of the day is that when weighing Mr Lennard's evidence with Mr White's evidence and your Honour would need to take into account Mr White's status as an objector. He has a personal history with the mine and his proximity - the fact that he lives within proximity to the mine and the nature of his responses the Court would decisively prefer Mr Lennard's evidence. The applicant accepts that in terms of the admissibility point, that may well be water under the bridge, that the Court does not need to decide having regard to the fact that Mr White has now given evidence and been cross-examined. So the applicant puts the matter in that way but in terms of weighing Mr White's evidence, the submission is maintained that due to his residential location, the fact that it's evident that he does have exposure to the mine that he didn't disclose, that's unknowable, that he does have this status as an objector and also the nature of his responses and the very extreme and stark nature, black and white nature of his conclusions. Although his expert report is carefully drafted, in my submission, all of those things, in terms of weighing the weight of his evidence, as against the weight of Mr Lennard's evidence - and this is the important thing, not the making of any findings in relation to Mr White personally - would lead the Court decisively to prefer Mr Lennard's evidence. And the authorities that I referred to in annexure A, they provide background and support to these submissions, but I accept that the admissibility submission, that has rather been superseded by, quite properly, the manner in which the proceedings by consent have been conducted, and Mr White's given oral evidence and been cross examined. So I'd ask your Honour to consider paras 103 and 104 in that - on that basis and the annexure as a submission in relation to the weight to be attributed to Mr White's evidence, and I accept that your Honour may well be principally in the normal way guided by the actual text of Mr White's report and his actual responses. But where a choice needs to be made between two expert witnesses, that these are matters that I feel obliged to take your Honour to and make submissions about. But careful to say Mr White has been placed in a difficult position. And although council employees, et cetera, do give evidence, and that's been accepted in this Court, the fact that he has been a very active objector to the mine, when it comes in the balance between Mr Lennard and Mr White, can't be discounted.
Shortly after the above quoted passage, Mr Ireland also submitted (Transcript, 8 November 2019, page 688, lines 27 to 38): IRELAND: The Court must - and is entitled to have doubt, in the manner in which Mr White has answered some of the questions and approached matters. Yes, sure, it may be an indication of a decided expert opinion and firm expert opinion, but the submission the applicant makes is that the Court cannot rule out the potentiality that the level of objectivity that Mr Lennard has provided this matter has not been accorded the matter by Mr White, having regard to all of this history and, ultimately, the basis for that is where a witness says - in relation to a huge area of land where there are various monitoring activities or historic exploration activities over one or two months, declares emphatically that the whole area is used for mining. It goes too far, it's extreme, and that alone would entitle the Court to have doubts about the evidence and indeed reject the evidence.
In his closing written submissions, Mr Ireland maintained his attack on Mr White's credit and the reliance that I might give to his evidence when there was any disagreement between Mr White and Mr Lennard about mining activities (whether in the northern extension area or for accessing monitoring equipment for the purposes of maintenance and/or data harvesting). Mr Ireland submitted, at [103]: 103 Mr White is a resident objector to Mangoola, and lives very close to the mine. He is not an independent expert in this particular case, and should not have been called to give independent expert evidence. Mr White has conceded that he feels a great sense of loss and sorrow as to the mine's impacts on his property which is very close to the mine: T309.49-50, T301.1-3, he has lodged objections with the mine about its operations over a long period of time: T314.39-41, including against the proposed northern expansion SSD application: T318.44-50, and has knowledge of activities around the mine that the Applicant is unable to question him about as they are not disclosed in his expert report: T316.15-45. The very fact that Mr White disagrees that he should have disclosed his history as an objector to the mine in his expert report is an additional matter from which the Court would infer that due to a "subjective blindspot", Mr White is unable (no doubt despite his best efforts) to view the mine the subject of these proceedings and is role as an independent expert objectively: T320.38-50. The problem is that Mr White has been asked to give evidence as an independent expert in relation to a matter in which he is involved as a partisan player. This puts him in an invidious position, but as this has occurred, the Court would either exclude his evidence, or in the alternative, give his very broad-brush conclusions, such as at par 225 very low or minimal weight by reason of Mr White's compromised independence alone. Mr White in his substantive cross examination has not responded in the way the Court would expect of an independent witness to some specific questions, for example, when viewing an aerial photograph that clearly shows no mining activity in the area being considered (the northern expansion area shown as green and grass covered in the aerial photograph), Mr White declined to agree: T347.30-50. Similarly, when asked as to whether a dust monitor on a fence across from Colinta's lands was in private property he was prepared to give and allow the Court to accept a negative answer until it became clear that he was making a casuistic point about the monitor being located on the road reserve rather than the adjoining farm.
In addition to that attack in the body of Mr Ireland's primary closing submissions, he appended a further specific more than one-page attachment addressed to what he said was the unreliability of Mr White's evidence.
A specific example of the extent of Mr Ireland's criticism of Mr White is to be seen at [38] and [39] of Mr Ireland's closing written submissions in reply where he wrote: 38 At T-699.8-.25, the Respondent, in closing (Mr Tomasetti SC) appeared to dispute that Mr White said that the presence of a monitoring device rendered a whole parcel one that was used for coal mining. However, with respect, this is exactly what Mr White said in cross-examination T-483.22-50, T-484.1-11. The Court will need to read those passages and decide what its understanding of that oral evidence is, for itself. 39 As earlier submitted, Mr White's evidence is tainted by this reasoning, that firstly moves from presence to the use of a whole parcel and secondly, considers the impacts of mining to render a parcel used for the coal mine. That latter reasoning is contrary to Peabody: [61]-[63]. The reasoning of Preston CJ at [62] of Peabody could not be clearer: "I do not agree that affectation of land by adverse impacts such as noise from land on which a coal mine is operated causes the effect of land to be used for the purpose of a coal mine."
The relevant portion of the transcript cited in the reference above to Mr White's cross-examination was in the following terms: IRELAND: It's not your expert opinion, is it, that simply due to the presence of that weather monitoring station on that 238 hectare paddock that I'm calling paddock 23, that that whole paddock, that 238 hectare paddock, is used by Mangoola, the miner, for mining purposes? That wouldn't be your expert opinion, would it? WITNESS WHITE: Well, the - yes, it is. IRELAND: So you say, do you, simply because of the presence of that small compound containing that weather monitoring station that we saw on the day of the inspection placed within that very large 238 hectare paddock, you would say, in your expert opinion, that the whole paddock is used by Mangoola for mining purposes? WITNESS WHITE: I would - yes, I would say that - I would say that that paddock is used by Mangoola for mining purposes because of its position being - effectively adjacent to the operating area and the impacts of that within that area from noise, dust and potentially blasting, that the reason Mangoola has that piece of ground is for the purposes of mining. IRELAND: So - so the - an important part of your reasoning, just so I can understand your - the answer to your question - is considering that the impacts of the mining, noise, dust et cetera as well as the presence of the weather monitoring station? WITNESS WHITE: Correct. IRELAND: And of course, that's the kind of reasoning, I take it, before we go into this further, that's underlined or underlays your opinion - for - for example, your - your opinion expressed in your report, your expert report, that the assessment areas are used by Mangoola for mining purposes, isn't it? That's - although I've asked you a question in relation to this paddock, paddock 23, that's a process of reasoning that you - you apply uniformly to the assessment areas, having regard to the impacts - on the assessment areas, the location at particular points, of particular monitoring, locations et cetera? WITNESS WHITE: And the consent and EPL conditions that the mine needs to comply with, yes.
Mr Ireland had earlier said in his closing written submissions, at [102]: 102 … Mr White's expert opinion on this point was established to be quite extreme - he maintained that a 238ha paddock was used as a whole for mining purposes because there was one weather station on it: T482.31-50, T483, T484.1-9 (White XXN)
I accept that Mr White's assertion that such a proposition might be advanced when it was necessary to weigh competing uses (grazing in a paddock compared to the occupancy of portion of that paddock by monitoring equipment for the mine) is not the correct approach. However, when the use of a paddock for monitoring equipment for the coal mine is the only use of that paddock, such a proposition is not untenable.
At all relevant monitoring stations located on the Wybong lands (for example, the monitoring equipment visited off Wybong PO Road, as later described), the monitoring equipment constituted the sole use in each of the relevant years of the Wybong lands' paddock in which it was located (my reasons for so concluding are later explained). To the extent that a finding might have needed to be (but was not, in fact, necessary to be) made concerning the use of that specific paddock during the relevant years, that monitoring equipment as the sole use of that paddock in those years must, as a matter of logical necessity, have been the dominant use of that paddock during those years.
Although Mr White obviously held firm views concerning the Company's coal mine and such of its activities as impacted on him and his wife, I am nonetheless satisfied that his contribution to the combined mine management expert evidence as needed to be taken into account did not warrant its rejection.
Indeed, to close this section of my analysis, there are two final points to be made. The first is that the Joint Expert Report produced by Mr Lennard and Mr White, whilst containing some significant differences between them on matters of emphasis, was couched in entirely appropriate terms of the professional dialogue mandated for that process.
Second, because of the limited matters of generality needing to be considered concerning mine management activities in the context of the necessary fact‑finding I have been required to undertake, to the extent that there were differences between Mr Lennard and Mr White it has not been necessary to resolve them. As a consequence of this final point, it is self-evident that I decline to reject Mr White's evidence either entirely or in any of its individual aspects.
Whilst Mr White had been subject to vigorous cross-examination by Mr Ireland (both on the voir dire as discussed above and during the course of his concurrent evidence with Mr Lennard), there was, in reality, comparatively little difference of relevance between them. To the extent that there was, it primarily concerned how I should understand the extent and intensity of the Company's exploration activities in the northern expansion area.
Although initially a matter of quite some difference between the experts, that dichotomy posed by the competing positions was subsequently rendered uncontroversial, as later discussed.
This issue arose as a matter of potential contention only because, as I later explain in detail, I am satisfied that, on the basis of Mr Hinze's evidence, Colinta undertook no grazing activities on the Wybong lands during either of the relevant years. The consequence of that finding is that the activities of mining personnel on the Wybong lands were the only use of those lands during the relevant years. As the only use, as a matter of logical necessity, they were the dominant use of such lands.
In light of the objections which Mr Ireland had raised concerning Mr White's evidence (as subsequently repeated in closing as set out above), I had paid particular attention to the content of, and manner in which, Mr White gave his oral evidence.
Although Mr White expressed his views firmly, I am satisfied that he had engaged, in the Joint Mining Experts' Report and in their concurrent oral evidence, in a genuine dialogue about the competing available conclusions.
As a consequence, although it may have been necessary for me to reach a conclusion as to whose evidence I might prefer, when there was a disagreement between them, I am satisfied that the necessity to do so would have been based on the usual and conventional weighing up of and assessing competing expert evidence. There was nothing in Mr White's evidence, per se, that would cause me to, in any sense, automatically prefer Mr Lennard's evidence over that given by Mr White.
Finally, I should observe that the areas of disagreement between them were comparatively minor and generally related to matters of flavouring and weight rather than any elements of completely contradictory presentation of information (rather being as to the conclusions to be drawn from such information).

[18]

Jones v Dunkel inferences

The closing written submissions on behalf of the Council proposed that I should draw Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) inferences on relevant matters concerning Colinta's activities. The submissions, from [195] to [199], were in the following terms: 195 Mangoola chose not to call any evidence from anyone involved in the management of the mine or of Colinta in the relevant years. 196 No one was called from Colinta to prove that it was using the subject lands for the business of grazing which has a significant and substantial commercial purpose or character and that it was engaged in that business for the purpose of profit on a continuous or repetitive basis (ES 515). 197 Those facts are necessary to establish for Mangoola's application to succeed. 198 Someone in the Colinta organisation must be making decisions of that kind if that was the case. 199 Given that Mangoola bears a "persuasive burden of proof", the persons from whom the Court would have expected assistance include: • Mr Garry Johncock, Colinta's pastoral manager; • Mr Lance Anderson, the station manager on Mangoola Station at that time; • Michelle Taylor, Colinta's accountant; • Mr Damien Ryba, who the Court met and assisted it during the site inspection.
Although this submission was put as a general one with respect to the use of both assessment parcels by Colinta and potential satisfaction for the tests in s 515 of the Local Government Act, I am not prepared to accept that I should adopt the proposed position on as general a basis. As I later discuss, where appropriate, there may have been instances where it is appropriate to draw such an inference and others where it clearly is not.
However, in his closing written submissions in reply, Mr Ireland said (at [150]): 150 Paragraph 195 is incorrect. Several persons involved in the management of Colinta in the relevant years were called. Firstly, Station Manager Mr Chris Hinze; secondly, Mr Michael Adamski, who is a financial controller and a director of Colinta.
As Mr Tomasetti observed in his closing written submissions, in [203], the above assertion concerning Mr Adamski was not correct. Mr Tomasetti wrote: 203 … Mr Adamski has only been a director of Colinta since September 2018 and was the financial controller only since February 2019. His evidence regarding Colinta's past land use is hearsay at best - the source of it is not disclosed. …
This position was confirmed by Mr Adamski in [2] and [3] of his affidavit of 19 June 2019 (an affidavit incorporated by adoption by [2] of his affidavit of 20 September 2019 read on 24 October 2019). As it is not necessary to consider Mr Adamski's evidence (as I do not need to address the tests raised by s 515 of the Local Government Act for the reasons later explained), it is not necessary to consider what evidentiary ruling I might (or might not) have needed to make concerning evidence about Colinta's activities in the relevant years not being given by Mr Johncock.

[20]

Introduction

The site inspection was undertaken on Tuesday 22 and Wednesday 23 October 2019. During the course of the site inspection, it was planned we would visit 26 locations, primarily ones on the larger assessment parcel or looking into it from roadside locations. We also traversed the area known as the Sustainable Agriculture Offset (SAO) area. We were unable to enter the north-western (larger) portion of the smaller assessment parcel as, at some time (the specific date being irrelevant) after 1 July 2018, this element had become incorporated in the active mining area (it being, at all relevant times, within the major mining lease). A list of the locations we visited across the more than a day-and-a-half of the site inspection appears below:
Mr Hinze's affidavit of 19 June 2019 had, amongst its annexures, a map showing identification numbers and a list of names associated with those numbers for the various land management paddocks used by Colinta. A copy of the paddock numbers map is reproduced as Annexure D and the list of paddock names is reproduced as Annexure E to this decision. The paddock number and name references in the second column of the above table are taken from Annexures D and E.
As is usually customary in merit proceedings involving site inspections, the legal representatives of the parties were requested to prepare notes of what was observed during the course of the site inspection and to agree on a settled version of those notes which could subsequently be tendered as an agreed summary of what took place. Unfortunately, in these proceedings, that has not been possible, as the legal representatives of the parties, although each preparing compendious notes (and attached photographs taken during the course of the site inspection) concerning what took place, remained in substantial disagreement as to what the notes should contain. As a consequence, a set of site inspection notes prepared on behalf of the Company (with attendant photographs) was tendered as Exhibit U, whilst a competing version tendered on behalf of the Council became Exhibit 7. These exhibits were tendered as electronic files on separate USB sticks.
I have reviewed the two competing sets of notes and looked at the attendant photographs in each instance. The difference in the approaches taken by the parties for the purposes of the preparation of these documents is readily discernible from a reading of them. The differences are to be characterised as being ones of emphasis and flavour rather than of substantial factual differences. Although I have read both documents for the purposes of refreshing my memory of what was seen during the course of the site inspection, to the extent it is necessary in this decision to refer to matters which were observed, I have done so from my own memory, refreshed by my reading of both of these sets of site inspection notes but without the necessity to express a preference as to the accuracy or appropriateness of one of them over the other.
I also observe that, on Monday 21 October 2019, during the first hearing day when I heard opening submissions from Mr Ireland, I indicated to the parties that I intended to take a camera to the site inspection and that I would have my Associate take photographs of what was observed (at locations and of subjects chosen by me) and, if I considered it appropriate that any of those photographs might be tendered, I would provide copies of them to the parties and invite one or other of them to tender such photographs. At the commencement of the hearing on 31 October 2019, I provided the parties with copies of five photographs taken by my Associate and these were tendered, becoming Exhibit 8.
We were accompanied during the course of the site inspection by Mr Lane and Mr Nelson who pointed out various matters at locations where matters which illustrated points potentially requiring weighing in my determinative process were able to be observed.
In addition, Mr Ireland, Mr Tomasetti and I were able to ask them factual questions concerning observable matters potentially relating to pasture, cropping, grazing and other land management issues relevant to Colinta's cattle-grazing activities on Mangoola Station.
Similarly, we visited the locations of a wide range of differing types of monitoring equipment, equipment designed to enable the harvesting of data to assist with the Company's compliance with its environmental monitoring and reporting obligations under the relevant statutory regimes applying to its mining activities. During the course of these elements of the site inspection, Mr White and Mr Lennard (who also accompanied us) responded to questions posed by Mr Ireland, Mr Tomasetti or me concerning factual matters we were observing.
Of utility to my understanding of Colinta's grazing activities, we were accompanied by Mr Hinze, Colinta's present manager of Mangoola Station. Mr Hinze was, similarly, questioned by Mr Ireland, Mr Tomasetti or me in order to obtain as complete a factual appreciation of Colinta's grazing activities as was possible during the course of a lengthy but necessarily somewhat constrained site inspection (given the total area of the various elements of the larger assessment parcel). However, it is to be noted that Mr Hinze performed the role of stockman for Colinta during the relevant years and was not Colinta's manager of Mangoola Station during that period.
Finally, in terms of noting what was undertaken during the course of the site inspection, it is appropriate to observe that:

we traversed the major Aboriginal cultural offset area located in the south-western element of the rim of the larger assessment parcel (as can be observed marked yellow in Annexures A and B to this decision - the provenance of these being later described at [88] and [89]). There was no change to this Aboriginal cultural offset area for the two years under consideration;
during the course of traversing this element of the Aboriginal cultural offset area, we stopped to observe several nest boxes at one location and to observe, from our vehicle, an orchid translocation site at another point of our traverse of this area;
early in the site inspection, we observed, from a roadside stop, an area where the Company had undertaken (and was continuing to undertake) offset vegetation planting activities;
at a location known as Hidden Valley (being toward the northernmost extension of the larger assessment parcel and adjacent to the area shaded light blue on Annexures A and B), we observed two fenced-off areas which were designated to be for the purposes of revegetation planting; where such revegetation planting had taken place at some time in the past (the timing not being relevant for these proceedings); although a few straggling saplings survived from those plantings, they had largely disappeared, primarily (on Mr Hinze's observation), as a result of the predations of herbivorous fauna (whether native or not being irrelevant) but not as a consequence of grazing. Although several dried cowpats were able to be observed in these offset areas, Mr Hinze explained this as being as a consequence of cattle having broken through fences for opportunistic grazing but being removed - rather than as a consequence of any systematic grazing of this offset area.

It is also appropriate to note that we also walked from our vehicles to observe, specifically, several areas which Mr Lane described in his written and oral evidence as being "adjusted Class 7 classification land" (a concept he later clarified during the course of his oral evidence, as elsewhere discussed).

[22]

The reduction in size in the smaller assessment parcel

In the various iterations of the map now reproduced at Annexure A, one piece of data in the smaller of the two keys in the top right-hand corner had caught my eye. This key indicated that, for the 2016-2017 rating year, the smaller assessment parcel had had an area of 727 hectares, as marked in boundaries on that map. However, the key to the map at Annexure B noted that, for the 2017-2018 rating period, the area of the smaller assessment parcel had decreased by 149 hectares, a reduction in size of a little over 20%. No explanation for, or apparent boundary adjustment reflecting, this was readily discernible for this difference. I raised this matter with Ms Moore during the course of her oral evidence.
It transpired that the keys to the maps were accurate and that portion of the north-western element of the smaller assessment parcel had been transferred out of it during the 2016-2017 rating year. A revised map, which had become the second sheet of Exhibit W (Annexure B), showed the removal of the tapering extension at the south-eastern end of the north-western portion of the smaller assessment parcel being removed from that assessment parcel and transferred to the Company's mining area. It also showed the transfer of the pipeline easement area from the larger assessment parcel to the smaller one. The categorisation consequences of these changes is later discussed.
As the map showed that this remained within Colinta's access licence area (by both colour and marking in confirmation of this status), I had an e-mail sent to the legal representatives of the parties to enquire whether there had been some alteration to the access licence thus resulting in a 2017 version of it. I was advised that there was not and that the 2016 access licence had a term of three years. It thus remained the single operative document for both the relevant years with which I am concerned in these proceedings.
As a consequence, the annexed 2017 map (Annexure B) enables the differences in the boundaries of the north-western element of the smaller assessment parcel readily to be discernible in a comparison between the two maps.
Although these differences do not change the conclusion drawn for each relevant year for this assessment parcel, my decision for the 2016/17 year is, for reasons later explained, more finely balanced than that for the 2017/18 year.

[24]

Introduction

Mr Lane had undertaken an examination of air photos of the Colinta access licence land. He had paid particular attention, when doing so, to areas that were classified as Class 5 land (this classification being one which described the land as being suitable for grazing purposes) and where he considered that, as a consequence of the extent of the canopy cover, the grazing functionality of these areas was likely to be so limited that they should be regarded as if they were Class 7 land. These areas of land he described as being "Class 7 adjusted" land. Class 7 land has very little functional utility for grazing purposes.
Mr Lane had marked these areas on a map which he had produced. For the larger assessment parcel, this land was shown on Figure 2 of his individual expert report (Evidence Book C1). Mr Lane had also marked areas on the smaller assessment parcel where he considered a similar approach should be taken. Mr Lane had not undertaken an inspection of these areas during the course of the pre-trial site visit by the agronomy experts.
Mr Nelson disagreed with the propositions advanced by Mr Lane in this regard. He was of the opinion that, although the grazing potential of the lands identified by Mr Lane warranted some qualification as to their utility, they in fact provided some limited grazing potential and also provided shelter for cattle-grazing on adjacent land. As a consequence, he considered that the land so identified by Mr Lane remained appropriately designated as Class 5.
It is to be observed, first, that during the course of his oral evidence, Mr Lane indicated that he considered that the land that he had identified as "Class 7 adjusted" was more appropriately identified as "Class 5 adjusted", this being a an appellation more consistent with the grazing lands adjacent to these areas (Transcript, 25 October 2019, page 173, line 48 to page 174, line 6).
It is also appropriate to observe that there is no evidence that any of these areas identified by Mr Lane have been fenced in any fashion to separate them from any of the adjacent grasslands used for grazing.
During the course of the site inspection, we walked through two elements of these lands so identified by Mr Lane. The first was near where we stopped in a location toward the north of the larger assessment parcel (in a paddock identified by Mr Hinze as Hidden Valley), as earlier discussed, and the second in the north-west of the larger assessment parcel (in a paddock identified by Mr Hinze as Ridgelands). This latter location was in close proximity to the boundary fence of Colinta's access licence area.
At the first of these stops, we were able to see patches of what was described as "weeping grass" in the understorey of portion of the land identified by Mr Lane. We were also able to observe that significant elements of the identified land were steep, with rocky outcrops. There was open grassed land on either side of the land identified by Mr Lane.
The second location was flat and had a quite dense canopy cover. There was open grassed land on the side of this identified land from which we approached it.
At several other locations, we were able to look toward land of the type identified by Mr Lane, but at a distance of a 100 or more metres so that detailed evaluation was not possible (but there was nothing observable that appeared to differentiate this land from the two sites closely inspected).
Although there was a semantic difference between Mr Lane and Mr Nelson with respect to these lands (Mr Nelson describing them as containing "grazing" opportunities, whilst Mr Lane preferred to use the word "browsing"), it seems to me that nothing turns on this for the purposes of my determination.
These lands are integrated in, and formed part of, Colinta's available land for grazing. Whilst of undoubtedly significantly less value in providing feed for cattle, I am nonetheless satisfied that they do provide limited to extremely limited foraging opportunities; value as shelter spaces from the rain and sun; and transit passageways between more open grassland areas within Colinta's access licence areas.
As a consequence of the limited evidence we were able to observe during the course of the site inspection concerning these elements said by Mr Lane to warrant being regarded as of less value than their land classification would otherwise warrant, I am unable to agree with this proposition. For the reasons noted in the immediately preceding paragraph, these land elements do make a sufficient contribution to the integrated use of the elements of the Colinta access licence area and therefore remain to be treated as Class 5 lands for present purposes.

[26]

Onus of proof

In his closing submissions, Mr Tomasetti wrote, at [57] to [60]: 3.5 Onus of Proof 57 The Applicant has a persuasive burden of proof in Class 3 matters: Michele Melino & Ors v Roads and Maritime Services [2017] NSWLEC 118. 58 This application is in Class 3 of the Court's jurisdiction. The rules of Court and the conduct of proceedings in Classes 1, 2 and 3 are generally collectively adopted. 59 Preston CJ described the burden of proof in similar terms in proceedings in Class 1 of the Court's jurisdiction: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2], as: "… a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed. 60 Bignold J held otherwise in Jakd Pty Limited v Randwick City Council (Unrep. NSWLEC 28 March 1996) and it is respectfully submitted he was wrong to do so. Whether land is used in one way or another is generally within the knowledge of the ratepayer so it is objectively reasonable that it, he or she should carry the persuasive burden. The statute acknowledges the ratepayer's primary role in this regard in s524.
In his closing submissions in reply, at [41] and [42], Mr Ireland responded, submitting: 41 As Bignold J reasoned in JAKD Pty Ltd v Randwick City Council [1998] NSWLEC 97: "The Act is silent on the question of the onus of proof applicable to such an appeal and in this respect may be contrasted with s.118(7) of the Local Government Act 1919. Although the Council submitted that the Applicant bears the onus of proof, I would think it more consistent with general principles that it is for the Council to prove the proper categorisation of the subject land. Under the Act [the LG Act 1993] the Council must declare the proper category of each parcel of rateable land conformably with the defined categories in s.515 - s.519 inclusive … and on the hearing of an appeal under s.526 of the Act, the Court "may declare … the category of land." (Subsection (3)). 42 The decision of Preston J in Australian Protein Recyclers Pty Ltd v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 in a Class 1 Appeal in relation to a development application, at [2], noting that the Applicant for development consent bears the persuasive burden of persuading the consent authority that development consent should be granted, a burden which includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed, is not applicable for the present rating characterisation exercise. It does not say anything about the present type of appeal at all.
Mr Ireland also submitted, at [32] of his closing written submissions in reply: 32 … It is well-accepted that the Court in a merits appeal must decide the proceedings on the issues raised in the evidence given in the appeal: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 at [9].
As I have commenced working through the matters which I need to determine (rather than merely describe) for the purposes of the decisions I need to make, I have concluded that the matters where the question of the onus of proof would have potentially been critical would only have arisen had it been necessary for me to determine whether Colinta's activities satisfied all three of the tests posed by s 515 of the Local Government Act. As I have concluded, for the reasons that a reading of the remainder of this decision will reveal, that it is unnecessary to address those tests, the question of where the onus of proof might lie is of significantly less importance as there were comparatively few matters of evidentiary contest actually engaged.
However, to the extent that it is appropriate to explain the path that necessarily underpinned my consideration (although playing no major role in my determination), I am satisfied that the view expressed by Bignold J in JAKD Pty Ltd v Randwick City Council [1998] NSWLEC 97 is not so clearly wrong that, despite judicial comity, I ought not follow it.
As I later discuss, when addressing the competing positions advanced with respect to one element of the Chief Judge's decision in Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86; (2013) 211 LGERA 337 (Peabody), it would have been necessary for the Council to demonstrate to me that that element was clearly wrong and that I should decline to adopt his Honour's reasoning. Putting the onus on the Council in those circumstances is the clearly correct and conventional approach.
Finally, on this point, generally, what has actually been required to be undertaken has been the weighing and balancing of factual elements where there has, in reality, virtually entirely been only matters of emphasis and flavour engaged in this process rather than in matters of stark difference.

[27]

The manner of assessment of uses

Mr Ireland submitted, at [37] of his closing written submissions: 37 The task required by s517 is to identify the use of land for a purpose, in this case, "for a coal mine". Similarly, s515 requires identification of the dominant use "for farming". The word "for" introduces a purposive element It requires identification of the objective purpose of the existing activities on the land. It does not mean the purpose for which land has been acquired: Bayside Council v Karimbla Properties (No 3) Pty Ltd [2018] NSWCA 257 at [109] (Emmett AJA with whom McColl JA agreed).
He also submitted in summary in his closing written submissions in reply at [67], that: 67 … Use in the sense used in s517 and s515 requires the identification of the actual physical activities carried out on that land and characterisation in accordance with the Shire of Perth v O'Keefe and Chamwell principles.
In Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue (2010) 79 NSWLR 724; [2010] NSWSC 867 (Leda Manorstead), Gzell J (albeit in a revenue statute context) described the approach to determining a dominant land use in the following terms: The dominant use test 69 Dominant in its ordinary meaning connotes ruling, prevailing, or most influential. The statute's reference to a dominant use presupposes that land may be used for more than one purpose and requires a determination of which use of the land is the main, chief or paramount use. 70 That is a question of fact and degree that may, in the end, be determined as an objective matter of impression having regard to the facts.
I am satisfied that the above paragraphs describe the appropriate approach for me to adopt in these proceedings (although I have not found it necessary to address the decision of Preston CJ in Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 in my reasons).
Although Mr Ireland made passing reference to the decision of the Court of Appeal in Foodbarn v Solicitor General (1975) 32 LGRA 157, I accept that it is not here relevant as there is no suggestion of any dominant/ancillary use issues arising - merely the weighing of distinct uses carried out (or said to be carried out) by different entities.

[31]

The basis for aggregation of the assessment parcels

Relevantly, the Valuation Act defines the statutory role of the Valuer General in preparing land value rolls to be provided to, and utilised by, local government councils for the purposes of making rate charge calculations. Those rate charge calculations are based on different percentages in the dollar of such values for land in the categories determined pursuant to Pt 3 of Ch 15 of the Local Government Act (issues of subcategorisation being permissible but irrelevant for present purposes).
As part of that process undertaken by the Valuer General, valuation assessments are undertaken with respect to assessment parcels. In residential areas, as a matter of general rule, those assessment parcels will also coincide with a single identifier (generally of a lot number within a deposited plan or a strata plan as those terms arise under relevant legislation for the registration of property titles).
However, the Valuation Act also permits the bringing together, for the purposes of a single valuation assessment, a number of individual parcels that are in common ownership as a single assessment parcel. The Valuation Act makes provision for this in s 26, a provision which sets out several preconditions before such aggregation can occur. That provision is in the following terms: 26 Where lands are to be included in one valuation (1) Where several parcels of land adjoin, are owned by the same person, and where no part is leased, they shall be included in one valuation, unless the Valuer General otherwise directs: Provided that any such parcels of land shall be valued separately if buildings are erected thereon which are obviously adapted to separate occupation.
As can be seen, there are three tests arising with respect to which the Valuer General must be satisfied before making such a valuation on an aggregated assessment parcel basis. These are: 1. Are the parcels proposed to be brought together, for the purposes of a single valuation, ones which are adjoining? 2. Are the parcels proposed to be included in the single valuation owned by the same person or entity? and 3. Is no part of any of the parcels proposed to be included in such single valuation subject to a lease?
When these three tests are satisfied, s 26 of the Valuation Act mandates that the valuation be on an aggregated basis unless the Valuer General directs otherwise. Clearly, here, the Valuer General has not so directed.
In the present circumstances, it is clear that the second of those questions is to be answered in the affirmative for both the larger assessment parcel and the smaller assessment parcel.
For the first question, the position appears the same for the two assessment parcels involved in these proceedings. For the larger assessment parcel, as can be seen from Annexures A and B, there is contiguity of the elements of this assessment parcel in the north-eastern portion where the gap is a road. The parcels on either side are likely to be regarded as adjoining in a Hornsby Shire Council v Malcolm [1986] 60 LGRA 429 sense. However, in the south-eastern portion, there is a clear break in this assessment parcel caused by a combination of the SAO area, Lot 186 DP 750924 and Lot 180 DP 750924. As a result, it would appear unlikely that the more southerly element could properly be said to adjoin the remainder of this assessment parcel.
For the SAO, the parcels on either side of the railway line are likely to be regarded as adjoining in a Hornsby Shire Council v Malcolm sense. However, each of Annexures A and B also makes it clear that, for the smaller assessment parcel, the north-western section and the south-eastern section (although these sections vary in composition between the two years requiring consideration, nothing turns on that for these purposes) cannot be regarded as adjoining as there is clearly a gap of approximately 1.25 kilometres between these two sections.
It would thus appear that there is no valid basis for the first test upon which the various parcels included in either assessment parcel were aggregated for the purposes of s 26 of the Valuation Act.
Quite separately, the third test proposed by s 26 of the Valuation Act requires consideration of whether any part of the parcels proposed to be aggregated are the subject of a lease. In considering this question, it is appropriate to note the definition of "lease" in s 4 Definitions of the Valuation Act. That definition is in the following terms: Lease includes agreement to lease, licence, or any other document for the tenancy or occupancy of land.
For the purposes of both of the assessment parcels in these proceedings, the Colinta Land Access Licence Agreement - referred to throughout this decision as the Colinta access licence (Annexure B to Mr Hinze's affidavit of 21 June 2019) would appear to constitute a licence for the purposes of this definition. Indeed, on the basis of Mr Ireland's submissions concerning s 14F(3) of the Valuation Act, Colinta must be taken to "occupy" the smaller assessment parcel.
In making that observation, I am not to be taken to be making a formal finding in that regard. The purpose of the observation is to draw attention to the fact that there may be a second basis, for the smaller assessment parcel, to conclude that the aggregation process for the purposes of s 26 of the Valuation Act may not have been available to be applied to the various separate parcels which are the constituent elements of that smaller assessment parcel.
It is also the position that the existence of the Colinta access licence may also preclude the various individual parcels forming the larger assessment parcel also being aggregated by application of s 26 of the Valuation Act.

[32]

Aggregation processes

It is clear that this Court has no direct role to play in determining whether or not such aggregation is permissible. This arises because the role assigned to this Court by the Valuation Act is limited to appeals against valuation determinations made pursuant to Pt 3 of the Valuation Act. This is made clear by Pt 4, Div 1 of the Act. Section 26 is in Pt 2 of the Act, and therefore the question of whether or not aggregation pursuant to that provision should take place is not amenable to appeal or challenge in this Court.
The only possible direct basis upon which any matters concerning s 26 could be considered by this Court would be if the Valuer General stated a case to seek an advisory opinion from this Court pursuant to Pt 4, Div 2, s 42 of the Valuation Act. That process, clearly, has no relevance in these proceedings.
For the purposes of these proceedings, it is clear that the Valuer General has aggregated (whether validly or not) the various individual parcels in both the assessment parcels for the purposes of a single valuation in each instance. Whether that was undertaken at the request of the Company or on the Valuer General's own initiative is a matter of irrelevance. Whether that aggregation has been undertaken validly or not is also a matter of irrelevance for these proceedings.
Although there is no direct avenue in this Court by which the Council could challenge either the aggregation of land into a multi-allotment assessment parcel or the use of s 14F(3) as appropriate to be used for the determination of a value to be assigned to such an assessment parcel, there would appear to be an indirect avenue available to the Council to do so. This is because s 31 of the Valuation Act provides, to a council relevantly, a right of objection to a value attributed to a parcel. This provision is in the following terms: 31 Objection by rating or taxing authority (1) Any public taxing or rating authority may within the prescribed time object to any valuation, and shall at the same time give notice of such objection to every owner or occupier who is liable for any rates or taxes which may be payable to such authority in respect of the land.
This objection process would appear to provide a basis upon which a council could challenge a value derived by more traditional means such as proposing that, for example, different comparable sales should be relied upon or a different valuation methodology used. However, it would also appear to extend to challenging whether or not aggregation pursuant to s 26 of the Valuation Act was available to designate the aggregation land area for the purposes of a valuation or, if s 14F(3) was proposed to be relied upon, whether it was appropriate for this to be utilised for the particular valuation.
If such a challenge was to be made, however, it would necessarily need to be made pursuant to s 31 of the Valuation Act (and then to the Court pursuant to s 37(1) if the objection was unsuccessful) and a council would need to be the initiator of such a challenge. That is, self-evidently, not the position here where the challenge is made by the Company, and is one made pursuant to the statutory provisions in the Local Government Act rather than the Valuation Act.

[33]

A proper understanding of the function of s 14F(3) of the Valuation Act

Mr Tomasetti's closing written submissions addressed the function of s 14F(3) of the Valuation Act at [133] to [135]. He wrote: 133 Mangoola has contended in these proceedings that by reason of s14F(3), the SAA "… cannot as a matter of law be characterised as "mining" pursuant to … the Local Government Act 1993". The reference to characterisation must be an intended reference to the categorisation of rateable land under the LGA. 134 Mangoola contends that the legal effect of s14F(3), is that the Court is bound, as a matter of law, to categorise the SAA for rating purposes as "farmland" because s14F(3) says that the SAA is to be "valued and rated accordingly". This outcome is said to arise as a result of an implied limitation upon the operation of s517. 135 The submission should be rejected. That is not the operation of s14F(3) and it is not relevant to the issues before the Court.
Mr Ireland's response to these paragraphs was contained in [129] of his closing written submissions in reply. Mr Ireland wrote: 129 Paragraph 134 of the Respondent's Closing Written Submissions, with respect, does not properly grapple with the Applicant's submissions in relation to s.14F(3). The Applicant merely asked that s.14F(3) be given the work that its text provides for, which is that the smaller assessment area, being the subject of a grazing licence and thereby separately occupied for a grazing purpose, which is a purpose other than mining, firstly be taken to be distinct from the mine; and secondly, be valued and rated accordingly. That is, as something other than a coal mine. The argument is based on a proper interpretation of s.14F(3) which precludes the attribution of the s.517 category to the smaller assessment area; s.14F(3), operating together with Ch 15 in a cohesive way to select amongst the provisions of Ch 15, identifying particular categories that may be applicable to such s.14F(3) land.
In his closing written submissions in reply, Mr Ireland also criticised the final sentence in Mr Tomasetti's [146]. The criticised sentence was in the following terms: 146 … It would be absurd not to categorise land as mining where it is used for mining as well and some other purpose which was not dominant.
Mr Ireland's criticism of this proposition was in the following terms: 135 The absurdity identified in the last sentence of paragraph 146 does not exist. The whole area of operation of s.14F(3) is on a mine. The operation prevents local government authorities from unfairly obtaining a windfall gain in terms of higher rates that come from the mining categorisation even where an area of land, although being part of a mine, is occupied separately; such as land that is grazed for farming over an underground colliery and for that reason forms part of a mine.
At [47] of his closing written submissions in reply, Mr Ireland also set out his understanding of the role of the Valuer General broadly and, by implication, pursuant to s 14F(3) of the Valuation Act. Mr Ireland wrote: 47 The Applicant does not and has never suggested that the Valuer General has a role in rating. The Valuer General produces the end valuations. They are then applied by Local Councils and the Court on appeal in relation to rating. That is the beginning and end of the Valuer General's functions under the Local Government Act in relation to rating. That is not to say the valuation of land as at a particular date by the Valuer General is not regarded and made a relevant matter by Ch 15. It, namely a parcel of land, must be one that is rated and valued as one assessment. Rather a parcel of rateable land is one that is valued as one assessment. The valuation is by the Valuer General so it is the Valuer General's valuation of a parcel that determines the areal extent and four corners of a parcel for the purposes of Ch 15. As has been noted, this also follows from the definition of "parcel" in the Dictionary to the Local Government Act 1993.
As can be seen in the immediately above extract, in its sixth sentence, Mr Ireland uses the words "rated and valued as one assessment" - not reflecting the order of the terms prescribed in s 14F(3) of the Valuation Act - namely, "valued and rated accordingly". It is this transposition of the relevant words, it appears to me - of separating the elements of the provision - which causes the Company's case on this point to have fallen into error.
The words "valued and rated accordingly" in s 14F(3) of the Valuation Act require to be read as a composite concept. To the extent that the statutory provision may be regarded as preventing a local government authority from unfairly obtaining a windfall gain in terms of higher rates that come from land to which the section (validly) applies, that protection comes from the separate valuation rather than the necessary Local Government Act categorisation. Although categorisation as mining would result in a different (likely higher) rate in the dollar being applied, that rate is nonetheless required to be applied to the lower land value derived pursuant to the s 14F(3) process.

[34]

The determined value for the smaller assessment parcel

It is clear from the evidence that the dollar value for the smaller assessment parcel determined by the Valuer General for rating purposes has been made on the basis that s 14F(3) of the Valuation Act was appropriately engaged for this parcel. There is one primary and one secondary piece of evidence that establishes that this is in fact the position.
The first is an e-mail exchange in 2017 between Mr Ross Franklin, the then Acting Chief Financial Officer of the Council, and Mr Josh Etherington, the District Valuer (an officer of Property NSW - the New South Wales Government entity which, at that time, housed the Valuer General and that statutory officer's functions). The two e-mails are to be found, electronically, in Exhibit Z in "Defendant's Tender Bundle Volume A" at Tab 111. The two e-mails involved are there reproduced, as is the usual position in the reproduction of any e-mail chain, in reverse temporal order.
The earlier of the two e-mails was sent by Mr Franklin on 29 June 2017. It is unnecessary to reproduce any of the contents of this e-mail for present purposes. It is sufficient to note that Mr Franklin was seeking information about the basis upon which an assessment parcel (identified by the Valuer General's processes as PID 4004788) had been derived. The e-mail was addressed to Mr Etherington. PID 4004788 is the Valuer General's identifier for the smaller assessment parcel.
On 25 July 2017, Mr Etherington replied to Mr Franklin. This e-mail confirmed that the valuation of the smaller assessment parcel had been undertaken pursuant to s 14F(3) of the Valuation Act at the request of the Company. The first element of the e-mail, an image of which is reproduced below, makes that clear:
I note that the attachment referred to in the e-mail does not appear to be in evidence but nothing appears to turn on whatever might be its contents.
The e-mail then provided some information about the comparative valuation basis from which the dollar value ascribed to PID 4004788 had been derived. It is unnecessary to reproduce that information. The e-mail then continued to note:
Then followed further information concerning the comparable sales of what is to be inferred to be agricultural land. It is clear that the value per hectare of these sales was a matter of consideration in the derivation of the dollar rate per hectare applied to the smaller assessment parcel on the assumption made by the Valuer General that s 14F(3) of the Valuation Act applied.
Finally, it is appropriate to note that Mr Etherington advised Mr Franklin of the avenues available to the Council should it wish to object to the valuation which had been determined through this process for the smaller assessment parcel. This advice given to the Council can be seen from the final reproduced element of the e-mail from Mr Etherington:
Although, as was pointed out by Mr Etherington in this final element of his e‑mail to Mr Franklin, any such objection which might be sought to be brought by the Council would have been late (but not significantly so), it is clear that there was no suggestion that the Council would have been precluded from seeking to initiate an objection (whether or not an extension of time might have been granted under the circumstances, would be, for present purposes, an irrelevant speculation).
The second document in Exhibit Z relevant to the above material is a marked‑up air photo which appears at Tab 115 of "Defendant's Tender Bundle Volume A". This marked-up air photo (reproduced below) contains only tangential corroboration of what is to be taken from the e-mail chain set out above. The air photo clearly shows the area of the coal mine outlined in red and the area of the smaller assessment parcel marked in pink. The annotation on the top right-hand corner is that of the PID allocated to the mine proper. The inference to be taken clearly is that PID 4004788 is that which has been allocated to the smaller assessment area.
There is no doubt that the entirety of the elements of the smaller assessment parcel fall within either Mining Lease 1626 or Mining Lease 1747 (in both years) and are therefore to be regarded as being part of the Company's coal mine for the purposes of s 14F(3). I do not understand that this proposition is contested by the Council.

[35]

Conclusion concerning s 14F(3) of the Valuation Act

The above material reproduced from the e-mail chain provides a proper foundation to draw the following relevant conclusions concerning the smaller assessment parcel: 1. The Valuer General valued the smaller assessment parcel pursuant to s 14F(3) of the Valuation Act; 2. This statutory basis for valuation was engaged at the request of the Company; 3. The valuation methodology engaged by the Valuer General for this purpose was that which utilised comparable sales; 4. The comparable sales which were relied upon were sales of agricultural land; 5. The Council was informed of the basis of, and valuation methodology used for, this valuation with this occurring in July 2017; 6. The Council was made aware of the potential for the Council to seek to object to this valuation by using s 31 of the Valuation Act but did not do so.
It also follows that there is no basis in these proceedings pursuant to the Local Government Act by which I could purport to make any determination concerning the validity or otherwise of the approach adopted by the Valuer General in determining that a s 14F(3) valuation for the smaller assessment parcel was appropriate.
However, for reasons I have endeavoured to explain, the effect of the words "valued and rated accordingly" at the conclusion of s 14F(3) of the Valuation Act constitute a composite expression that mandates that the monetary amount determined by the Valuer General pursuant to that section based on the valuation methodology employed to determine that monetary amount is the sole element carried over from that statute's processes for utilisation by a council in charging a rate in that dollar value. Such rate is derived after the relevant council has determined what that rate in the dollar should be applied to that parcel of land after it has been categorised pursuant to the provisions of Ch 15, Pt 3 of the Local Government Act.
As can be seen from the material that I have earlier set out, there is no basis that would permit me to conclude that the delegate of the Valuer General undertook any detailed consideration of the necessary precursor steps that would have arisen had there been some effective declaratory outcome beyond merely the determination of a monetary value that would follow from the combination of the s 26 aggregation process and the s 14F(3) valuation step under the Valuation Act.
Indeed, had such a detailed examination been undertaken by the delegate of the Valuer General, it is not beyond contemplation that, for the reasons earlier explained with respect to s 26 of the Valuation Act, the valuation exercise undertaken for the smaller assessment parcel might well not have been undertaken in the fashion that has led to the contest in these proceedings.

[40]

Mr Tomasetti's closing oral submissions

Mr Tomasetti, in his closing oral submissions, drew attention to the nexus between the project approval, the published reports and monitoring activities (Transcript, 14 November 2019, page 711, lines 1 to 13).
He submitted that environmental monitoring is part of the mining activity, and all part of the same land use (Transcript, 14 November 2019, page 716, line 32 to page 718, line 29). This includes the offset areas themselves, and the monitoring undertaken therein.
Mr Tomasetti addressed the submission that exploration does not constitute "mining operations". Mr Ireland had contended that mining use and exploration are to be distinguished, as set out by the definitions of the Mining Act 1992 and the definitions in the Project Approval. However, the Mangoola Annual Review 2017 (Respondent's Tender Bundle A, Tab 16) clearly clusters the two together (Transcript, 14 November 2019, page 725, lines 9 to 29). Later, the document ties the necessity for environmental performance, which involves environmental monitoring, and exploration, particularly with regard to the proposed northern expansion area. These monitors lie in part within the larger assessment parcel (Transcript, 14 November 2019, page 725, lines 38 to 44). Checking these monitors is an essential part of the operation of the mine. Indeed, Section 6.6 of the Mangoola Annual Review 2017 states that ecological monitoring forms part of the mining operations (Transcript, 14 November 2019, page 726, lines 19 to 20).
He noted that such monitoring equipment is also found in the north-western portion of the smaller assessment parcel (Transcript, 14 November 2019, page 736, line 46 to page 727, line 3).
Furthermore, the pasture monitoring, that was due to occur for conservation purposes, must be considered for mining purposes as they are "inspired purely by the mine" (Transcript, 14 November 2019, page 727, line 42 to page 728, line 4).
The Company, he said, is the entity running the monitoring, in and out of the void area, including the larger assessment parcel (Transcript, 14 November 2019, page 729, lines 45 to 48).
Ecological monitoring was being conducted in the smaller assessment parcel by consultants for the mine and is therefore a mining activity (Transcript, 14 November 2019, page 730, lines 16 to 24).
Work was being conducted beyond the mine void by the Company, particularly in the smaller assessment parcel and larger assessment parcel, as evident by the surface water and groundwater monitoring pursuant to the Water Management Plan (Transcript, 14 November 2019, page 733, lines 3 to 29).

[44]

Introduction

Assessment parcel 121111 is the smaller of the two assessment parcels whose categorisation requires determination in these proceedings. For the rating years 2016/17 and 2017/18, the Council categorised this assessment parcel as "mining" and rated it accordingly. The Company proposes that I should, for each of these two years, re-categorise this assessment parcel as "farmland".
The land in the smaller assessment parcel was identified for the purposes of these proceedings as being in two separate elements. The first element of this assessment parcel is located to the north-west of the other and is entirely surrounded by land that is not in the larger assessment parcel but is land controlled by the Company. It is, thus, an island but it is joined, for rating categorisation purposes, to the second element (pursuant to the provisions of s 26(1) of the Valuation Act, by the aggregation process earlier described). The second element comprises the SAO.
There are boundary (and therefore area) differences for both elements of this assessment parcel for the 2016/17 year compared to the 2017/18 year. This means that differing issues arise for consideration for this assessment parcel for each of those years.
The smaller assessment parcel is an irregularly shaped grouping of a number of allotments (or part allotments) and had an area of 727 hectares in the 2016/17 year. An image of the smaller assessment parcel for this year is reproduced below. The two areas are those within the heavy black lines. The pipeline easement area, marked in green only outline, was not part of this assessment parcel for this year.
The smaller assessment parcel had an area of 578 hectares in the 2017/18 year. An image of the smaller assessment parcel for this year is reproduced below. This assessment parcel is the land within the heavy black lines (with the dotted grey outlines showing the area excised from the north‑western portion when compared to the 2016/17 year), with the pipeline easement (now marked in heavy green and black lines) added to it and excised from the larger assessment parcel (but not forming part of the designated SAO by the transfer process).
The long, thin, south-west to north-east-running portion of the pipeline easement commences near a turn in Mangoola Road and runs to the north‑east. Nothing concerning the nature and location of this easement element was discussed, to my recollection, during the site inspection or during the hearing. It is not separately noted on the map forming Annexure B but the overall annotation for the transferred land is "Pipeline section of ML1747 taken from Assessment 113969 and added to Assessment 121111". However, it appears to encompass the internal road element we traversed, during the site inspection, providing access from Mangoola Road to the major pumping station on the Hunter River sourcing water for the Company's mine. This internal road ran parallel to the railway line, running toward the north-east.
The above noted area calculations and map extracts are taken from Annexures A and B.

[46]

Introduction

An air photo showing the extent of vegetation on this element of the smaller assessment parcel (as part of a much larger air photo) formed Figure 1 of Mr Lane's Expert Report (Exhibit 1). It is for the 2016/17 year but there did not appear to be any relevant differences observable during the site inspection. I have extracted, for the purposes of this judgment, that element of Mr Lane's air photo, isolating the north-western element of the smaller assessment parcel for this purpose. It is reproduced below (the north-western element is bounded by the white and red lines and is central in the image):
As can be seen, there is a cleared area through the centre of this element of the smaller assessment parcel with heavily canopied land to the left and right of that cleared area.
During the course of the site inspection, at the final stop of inspection, we looked down into the centre of this element. Although there had been some mining‑related activities (the outcomes of which were able to be observed by us) on this element of the smaller assessment parcel, these activities took place after the two rating years being considered and are, therefore, to be disregarded.
It is to be observed that there was a dispute between Mr Lane and Mr Nelson as to how I should regard the vegetated areas under the canopy for the purposes of grazing. Mr Lane described them as his "Adjusted Class 7" lands rendering them, at best, of marginal utility for grazing, whilst Mr Nelson disagreed, considering them to have some grazing value as well as providing shelter for cattle. Although it was necessary to address this difference between Mr Lane and Mr Nelson in more detail in my earlier consideration of matters relating to land classification within the larger assessment parcel, it is unnecessary to deal with that difference in this element of my decision, as no grazing was actually undertaken on this north-western element of the smaller assessment parcel during either of the rating years requiring consideration in these proceedings. This was conceded by Mr Ireland in his closing written submissions (at [122]).

[52]

Introduction

Establishment of the SAO was a condition of the Company's Consolidated Project Approval. The requirement was contained in Condition 34 as a consequence of the Biodiversity Offset Management Plan and Strategy (Exhibit Z, Respondent's Tender Bundle B, Document 7, page 5). It is also to be observed that there were two small, concurrently established, biodiversity offset areas established toward the western edge at approximately the middle of the western portion of the SAO. These areas were established pursuant to this process.
The SAO is divided into two constituent parts by the Company's rail line and rail loop that provide train access to and from the Company's coal-loading facilities. The rail line runs in a generally south-to-north direction before going around the rail loop and it is, therefore, convenient to refer to the two portions of the SAO as the eastern SAO and the western SAO.
For the relevant years, the SAO formed part of the Colinta access licence area and, on the evidence of Mr Hinze, its eastern and western elements were managed in different fashions. Both elements are fenced-off from the rail corridor and both areas are also fenced-off from the other grazing lands that abut them that are within the Colinta access licence area. As observed during the site inspection, there were farm gates permitting movement between the two portions of the SAO across the rail line and to-and-from adjacent portions of the larger assessment parcel.
It is also to be observed that the Colinta Access Licence Agreement (Annexure B to Mr Hinze's affidavit of 19 June 2019) sets out, in cl 6, the obligations concerning grazing on the SAO by Colinta (the Licensee). This clause was in the following terms: 6 Sustainable Agricultural Offset Area (a) The Licensor is required to establish and maintain the Sustainable Agricultural Offset Area in accordance with Approvals at the location shown on the Plan. (b) The Licensee may only graze livestock within the Sustainable Agricultural Offset Area with the prior written approval of the Licensor. (c) If approval is provided to the Licensee under clause 6(b), the Licensee must comply with the specific grazing management requirements provided by the Licensor, which shall include stocking rates determined by the Licensor considering current vegetation and seasonable conditions.
Mr Hinze was cross-examined by Mr Tomasetti concerning cl 6 of the Colinta Access Licence Agreement. This evidence is at page 64, line 3 to line 45 of the transcript of 24 October 2019. It is appropriate to set out only a small segment of this evidence (lines 37 to 45), this passage being in the following terms: Q. And do you see in the subclause B it says, "The licensee may only graze livestock within the sustainable agricultural offset area with a prior written approval of the licensor"? A. Yes. Q. To your knowledge, did you, prior to grazing in any part of the sustainable agricultural offset area shown on the image on the court wall, obtain that written approval of the licensor? A. Not - not to my knowledge.
During re-examination, Mr Ireland took Mr Hinze to the topic covered above. Mr Hinze's evidence was (Transcript, 24 October 2019, page 107, lines 2 to 14): Q. Mr Hinns [Hinze], do you recall you were also - moving on to another topic - asked a question about in the relevant years whether you were aware as to whether written approval was obtained for grazing on the SAO or agricultural offset A. Yeah. Q. and your evidence was, as I recall, "No," not to your knowledge. You weren't the station manager at the time, were you? A. No, I was just a station hand. Q. And when you say that there was no written approval to your knowledge, that is not excluding the possibility, for example, that written approval may have been provided but not come to your attention? A. Yeah, I - I was not to know. I wasn't in - I wasn't in the position to know.
There was no other evidence concerning this aspect of Colinta's grazing regime.
This is one matter with respect to which Mr Tomasetti submitted I should draw a Jones v Dunkel inference that the evidence which might be given by any of the earlier nominated persons would not be of assistance to the Company.
As will be seen in my later consideration of the categorisation of the south‑eastern element of the smaller assessment parcel, taking the Company's case at its highest concerning the grazing by Colinta of the SAO as being permissible, as a matter of weighing the facts, the Company's case concerning categorisation of the smaller assessment parcel still fails. It is, therefore, unnecessary to draw a Jones v Dunkel inference concerning this topic.

[55]

Closing submissions concerning grazing in the SAO

Mr Tomasetti's closing written submissions addressed the question of grazing in the SAO in the following terms: 124 Mr Hinze said in his affidavit that the SAO in the SAA was frequently grazed since 2016. In his oral evidence he said that he left a gate open on the north-eastern boundary of the SAO from time to time and that he ran bulls through a gate on the southern boundary of the western portion of the SAO. By reason of his lack of records, he could only rely on his recollections. His recollections appear to be flawed having regard to the contemporaneous public and published statements of Mangoola in its Sustainable Agriculture Offset Annual Grassland Monitoring Report for each of 2016, 2017 and 2018, prepared with the assistance of Mr Damien Ryba. Figure 2 in the 2018 report, shows areas permanently fenced out of the SAO 1 and 2 contradicting Mr Hinze's evidence.
Mr Ireland's response to this, in his closing written submissions in reply at [125], is set out below. It is to be observed that the reference in the opening line to [123] should, on my reading, be a reference to [124] of Mr Tomasetti's submissions set out above. Mr Ireland wrote: 125 The submission at paragraph 123 that the Court should not accept the evidence of Mr Hinze that there was grazing on the SAO in relevant years cannot be made pursuant to the rule in Browne v Dunn (1893) 6 R 67. This proposition that Mr Hinze's evidence that there was grazing on the SAO in the relevant years was not put to Mr Hinze and the submission at paragraph 122 cannot be made. The proposition at paragraph 124, that Mr Hinze's recollections appear to be flawed based on documents that were not put to Mr Hinze cannot now be made. It would be grossly unfair to Mr Hinze, who was a highly credible witness with an intimate knowledge of the operations of Mangoola Station.
It is unnecessary to resolve the conflict inherent in the above submissions. This is because I have reached the conclusion, taking Mr Hinze's evidence at its highest concerning his recollections of grazing activities in the SAO during the relevant years, that his evidence does not tip the scales in favour of a finding that the dominant use of the smaller assessment parcel in either of those years should be regarded as being Colinta's grazing activities (this being particularly so with respect to the 2017/18 year, when the water supply pipeline and portion of the electricity transmission line providing essential services to the Company's mine are taken into account).

[56]

The area added to the smaller assessment parcel for 2017/18

For 2017/18, the south-eastern portion of the smaller assessment parcel had additional land added to it as earlier discussed. As a consequence, the south‑eastern portion did contain mining infrastructure used for the coal mine for this year. This was as a result of the transfer of land within an easement within ML1747 being transferred from the larger assessment parcel to the smaller one. Although Ms Moore gave evidence on the provenance of this transfer on 31 October 2019, nothing turns on this in my view.
First, the electricity supply for the mine utilises the easement (marked in green on Annexures A and B) in this portion of the smaller assessment parcel in a generally east-west direction. For at least part of the distance, there are two sets of wires toward the railway line - with one of these being high voltage transmission lines which also run in the vicinity and do not serve the mine. The mine electricity supply lines are entirely separate from the high voltage lines. There were a small number of power poles for the mine's electricity supply within this easement.
Second, the 600-millimetre water supply pipeline from the pumping station adjacent to the Hunter River also runs across this element of the SAO, generally parallel to and in the vicinity of (but a little offset from) the power lines.
During the course of the site inspection, we were able to observe two concrete structures, each of approximately 600 millimetres in diameter and rising some 500 millimetres or so above ground level along the line of the underground pipeline.
During the course of the site inspection, Mr Lennard was asked what information he had concerning the use of the major Hunter River pumping station located at the eastern end and within the boundaries of the easement, added to the smaller assessment parcel for the 2017/18 assessment year. He did not have that information but undertook to obtain it.
During the course of his oral evidence, Mr Lennard was subsequently able to provide information about use of the facility for pumping water to the mine and the extent to which the facility was visited for maintenance purposes. His evidence, and that of Mr White, on this point was (Transcript, 28 October 2019, page 327, line 38 to page 329, line 22): IRELAND: Thank you. I also understand that recently there has been information provided to yourself and Mr White in relation to the pumping station by the mine. Is that correct? WITNESS LEONARD: Yes. IRELAND: Yes? WITNESS LEONARD: Yes. IRELAND: Referring to the joint report and the third last page, or page 9 of the joint report, does that information require a correction or addition to that line in that table dealing with pumping station. WITNESS LEONARD: Correct. Their attendance in time requirement-- IRELAND: What should that be? WITNESS LEONARD: --information was supplied, and there are two pumps, so we have information by pump, and pump number 21 was operated for 1743 hours for an average of 73 hours a month, and pump number 22, was operated for 1771 for an average of 74 hours a month. IRELAND: And those two pumps are in the pumping compound at the end of the mining purposes we saw on the site view, they're both in there, are they? WITNESS LEONARD: Correct. HIS HONOUR: How many hours for pump 21, please? WITNESS LEONARD: 1743 for an average of 73 per month. So that was operation. We also received information on maintenance and there is a schedule, a schedule to be maintained for 936 hours and the actual attendance was 835. IRELAND: 835 hours over what period? WITNESS LEONARD: Over the period in question. IRELAND: Which was? WITNESS LEONARD: Over two years, yes. IRELAND: All right, thank you. And, Mr White, you'd agree with that correction to the joint report? WITNESS WHITE: Did Mr Leonard give you the average scheduled and actual maintenance hours per month that those last two totals worked out as? IRELAND: No, I don't believe he did. Mr Leonard, what are those figures? WITNESS LEONARD: Averages 39 hours a month scheduled and 35 hours a month actual. IRELAND: Maintenance? WITNESS LEONARD: Maintenance. IRELAND: Thirty-five hours a month? WITNESS LEONARD: A month. IRELAND: And you'd agree with those figures, Mr White? WITNESS WHITE: I do. HIS HONOUR: Have you been provided - I think you were asked during the course of the site inspection, the volume of water that was pumped. Have you been given that information? WITNESS WHITE: Yes, I have - I have that information. I don't know whether we discussed that as a joint report. HIS HONOUR: I recollect it was asked for during the site inspection so, if that's available - is it any report, Mr White? I haven't specifically looked for that. WITNESS WHITE: Yes, it's my report, your Honour. HIS HONOUR: Page? WITNESS WHITE: One moment. Page 36, paragraph 157, and those numbers come from the annual review. HIS HONOUR: All right, thank you.
Mr White's evidence concerning the volumes of water extracted from the Hunter River for the coal mine and transported via the 600-millimetre pipeline for use in the mine was in the following terms (Consolidated Evidence Book with Index, Tab B2, folio 537): 157 In FY2016-2017 942 megalitres (ML) was extracted from the river. In FY 2017-2018 2,452 ML was extracted.41
The footnote in the above image references the relevant location in the Company's annual review.
As earlier described, the south-west to north-east-running portion of this easement land comprised the access road from Mangoola Road to the pumping station immediately adjacent to the Hunter River.
I have earlier noted, in my description of the site visit, the pipeline easement and the electricity supply line for the coal mine (that runs along part of that easement). It is appropriate to note the very large volumes of water transported by that pipeline, without which it would not be possible for the mine to function. Those water volumes have been set out above. The necessary operating periods for the pumping station in order to permit the transmission of that water from the Hunter River to the mine to enable the mine to function were also set out above. That operational information also included detail of the extent to which mining personnel attended the pumping station on the banks of the Hunter River for the purposes of its maintenance.
In his closing written submissions, at [100], Mr Tomasetti noted that: 100 The mine operates 24 hours a day 7 days a week with 391 full time employees.
Mr Ireland's closing written submissions in reply, at [111], dismissed the relevance of this information but did not contest its accuracy. He wrote: 111 Paragraph 100 of the Respondent's Closing Written Submissions is irrelevant. The fact that the mine operates 24 hours a day and employs a certain number of employees is not relevant to the present exercise.
I noted, early in this decision, that many thousands of pages of documentary material were tendered (electronically and/or physically) for the purposes of these proceedings. Given that the operating information set out in the short extract from Mr Tomasetti's submissions above is not contested by the Company, it has not been necessary to return to that evidence to establish the source of that information and the extent (if any) to which the employment level at the Company's mine might have fluctuated during the relevant years.
Although not directly relevant in any specific numerical sense, this (together with the other information discussed below) gives a proper understanding of the scale of the Company's operations and their dependence on the water conveyed by the pipeline under, and the electricity supply conveyed over, the easement.
I am, therefore, content to continue my analysis of matters relating to the extent to which the pipeline easement and the facilities for the mine made possible by it contribute to the weight to be given to the use of this pipeline easement for the smaller assessment parcel in the 2017/18 year and to the larger assessment parcel in the year prior to that.
Although we were not, for understandable time pressure reasons, taken into the mine workings proper during the course of the site inspection (those mine workings proper within ML1626 being irrelevant, in any specificity to the issues which I am required to assess concerning the use of either assessment parcel), the maps reproduced in the annexures to this decision, when coupled with other air photos in the evidence (it being unnecessary to cite their location as the annexures are sufficient for this purpose), demonstrate the extensive and complex nature of the activities of the Company's coal mine located within the "hole in the doughnut", as it were, created by the annular shape of the smaller and larger assessment parcels.
The mining use activities carried out by the Company in its coal mine resulted in coal production of: Year Tonnes of coal mined (saleable product) 2016 11,073,865 2017 8,983,751 2018 10,563,220

[57]

The reporting period for each of the years is stated to be from 1 January to 31 December for each of the relevant years (Section 2.1 of each Annual Review).
The sources for the tonnages set out in the table above were Mangoola Open Cut Annual Review 2016 (Respondent's Tender Bundle A, Document 15, page 10), Mangoola Open Cut Annual Review 2017 (Respondent's Tender Bundle A, Document 16, page 23) and Mangoola Open Cut Annual Review 2018 (Respondent's Tender Bundle A, Document 17, page 12), respectively.
The Company has a substantial coal washery within ML1626. It is to be inferred that the use of this coal washery for preparation of coal product prior to its being transported from the mine by rail as the first step on the journey to the end users of the product is a necessary step in the mine's production process. This process, critical to the functioning of the Company's mine, self-evidently, could not be undertaken without the supply of the large volumes of water along the 600‑millimetre pipeline in the pipeline easement or the availability of a continuous electricity supply along that part of the transmission line that was within that easement supplying that energy to the Company's mine.
I contemplated, as I was undertaking this analysis, whether or not I should invite the parties to provide short further written submissions to address these water and electricity supply matters I have discussed in the above analysis. I concluded that it was unnecessary to do so as nothing dealt with above has been derived in any speculative fashion but is purely the result of actual consideration of the evidence tendered and matters which were discussed during the course of the site inspection.
In this latter regard, it is appropriate that I note that I have carefully read the elements of the separate and competing notes of the site inspection prepared by the parties' legal representatives where those notes refer to the visit to the easement location and to the pumping station. Nothing arising from either set of notes warrants specific comment on this topic.
I also carefully read the individual expert reports of Mr Lennard and Mr White and their Joint Expert Report to see whether there was any discussion of the importance of the supply of water and electricity to the Company's mine via this easement. Several elements of these documents are relevant.
In his individual expert report (Exhibit O), Mr Lennard wrote (emphasis added): 36 The Hunter river pipeline, pump and access road. This infrastructure is used on an as needs basis to supply water to the mine water dam. Without sufficient water the operations would not be able to process coal or maintain adequate dust suppression. … 38 113969 - Hunter River pipeline. The Hunter river pipeline is used supply raw water from the Hunter River to the mining operation (under license). Mangoola Coal has approval under PA 06_0014 for a HRSTS discharge point, to date the conditions required under EPL12894 have not been enacted. Therefore, no time would have been taken looking at HRSTS in this area. Condition E1.4 of EPL 12894 explains this. … 45 113969 - Hunter River pipeline shown in Figure D.11. The coal mine's site water balance indicates a gross water deficit; hence it heavily relies on water extracted from the Hunter River (under license) to sustain mining operations, processing of coal, dust suppression, etc Without the Hunter river pipeline, the adjacent coal mine could not operate. … 47 113969 - Hunter River pipeline Under condition 31(28) in Consolidated_Project_Approval_MOD+8.PDF) of Schedule 3 (Project Approvals 06_0014) Mangoola must prepare and implement a site water management plan. The Hunter River pipeline forms the key part of Mangoola's site water management plan, since the site relies on Hunter river water to meet the water balance deficit. Raw water from the Hunter river is used for dust suppression to help meet approved air quality requires as set out in condition 24 of Schedule 3
In his individual expert report (Exhibit 5), Mr White wrote: 30 Although not observed I have assumed that the pump equipment is powered by electricity and assume that the supply runs through the Subject Lands. … Hunter River Pumping Station and HRSTS Discharge Point 156 This permanent infrastructure is on Subject Land 113969 and is used principally to obtain water for coal washing and dust suppression at the mine for the purposes of Mangoola's mining operations. Its location is shown in Map 5, Annexure "J" of this report. This facility has two mains-powered river pumps connecting to a pipeline (buried). Water is pumped as required from the Hunter River via the pipeline to the mine Raw Water Dam. I would expect that the main demand for water to be for coal washing. 157 In FY2016-2017 942 megalitres (ML) was extracted from the river. In FY 2017-2018 1,452 ML was extracted. 158 This facility is also the discharge point for excess saline mine water. A pipeline (buried) from the infrastructure area to this facility allows the mine to discharge saline water to the Hunter River at certain times under licence as part of the Hunter River Salinity Trading Scheme.
Their Joint Expert Report (Exhibit N) included (emphasis added): Question (c) Question Agreed Opinion David Lennard Michael White Variance to original reports We agree that consent conditions need to be met to continue to operate. Consent refers to Project Approval and EPL. Question (c) The Hunter River pumps and pipeline and HRSTS discharge point As per "Question A" As per "Question A" What infrastructure or equipment, both permanent and temporary was present on the Subject Land which was used for the purposes of Mangoola's mining operations and without which those mining operations could not have operated? The noise, blast, Meteorological stations and Air quality stations are required. Ground water monitors are required.

[61]

The Company's position

The role of s 14F(3) of the Valuation Act for rating purposes was addressed by Mr Ireland during the course of his more wide-ranging submissions concerning the validity of the Valuer General's valuation made pursuant to s 14F(3) of the Valuation Act. These submissions advance the proposition that the words rated accordingly, at the conclusion of that provision of the Valuation Act, mandated that I should assume that the Valuer General had, effectively, made a determination about the use of the land and that that use was to be applied for the purposes of categorisation pursuant to s 514 of the Local Government Act, resulting in the smaller assessment parcel being categorised as "farmland" as defined in s 515 of that Act. I have earlier explained why I reject this proposition.
Mr Ireland submitted that the mere existence of the s 14F(3) valuation is the complete answer to why the smaller assessment parcel should be valued and rated as farmland. The Company proposes that this removes the necessity for the smaller assessment parcel to satisfy the definitional tests for categorisation as farmland contained in s 515(1) of the Local Government Act.
Mr Ireland's closing written submissions on s 14F(3) matters are relevant, in part, to the issue of use for the purposes of categorisation under the Local Government Act (at [19], [21] to [28] and [30]). The relevant paragraphs of his closing submissions were in the following terms (footnotes omitted): 19 Section 14F(3) operates on Pt 3 of Ch 15 of the LG Act to provide and prescribe that land is not to be categorised as mining for rating purposes if is separately occupied for another purpose, even though it is "part of a mine" and to provide and prescribe that if land is occupied for another purpose, it is not to be rated as "mining". This is the required statutory result even if the dominant use of the land is as a coal mine. … 21 As between two pieces of legislation enacted by the same legislature there is a presumption of non-contradiction or non-contrariety (Ferdinands v Commissioner of Public Employment (2006) 225 CLR 130 at 138 (Gummow and Hayne JJ)), but if this is displaced by the statutory language the more specific provision will be found to prevail over the latter to the extent of any contrariety: Potier v Attorney-General for the State of NSW [2015] NSWCA 129 at [53] and [54] (Leeming JA). 22 This law gives rise to two constructional approaches, that are put by the Applicant in the alternative. 23 First, the Applicant's principal submission is that both s14F(3) and Ch 15 do operate together (in accordance with the Ferdinands presumption of non-contrariety), and what s14F(3) does is deem the part of land to be distinct from the mine and require it to be so rated, which operates with Ch 15 and s517 thereof by providing a deemed fact which is then the starting point for the application of s517 and which entails that as the part is distinct from the mine, its dominant use is not for the mine. 24 In the alternative, it is submitted that this is a case of limited implied repeal as the very specific provision of s14F(3) displaces what may have been the operation of the more general provision of s517 and precludes any conclusion that the dominant use is within the s517 mining category. This alternative construction relies on the fact that 14F(3) is a very specific provision dealing with the rating and valuation of land that is part of a mine, and in accordance with the accepted principles of statutory construction and the maxim generalia specialibus non derogant, would be construed as constituting an implied limitation on the operation of s517. 25 Both of these alternative approaches to construing s14F(3) are supported and required by another fundamental principle of statutory construction. This is that all words must be given meaning and effect: Pearce and Geddes, Statutory Interpretation in Australia, 7th Edition, [2.26], Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. The words 'and rated' In s14F(3) need to be given work to do. An essential step in 'rating' land is the categorisation of the land as it is the categorisation of the land that will determine the rates (ad valorem and base) that apply to the land. The sub -section represents a clear direction as to the required result of categorisation under Ch 15 of the LG Act 1993. 26 The words "rated accordingly" apply to the intermediate clause "the part is taken to be distinct from the mine". This becomes a statutorily deemed fact that is required to be the foundation on which s517 of Ch 15 is applied. It follows that if land, as a factual matter, is distinct from the coal mine, then ipso facto its dominant use cannot be for that coal mine. This is because categorisation based on dominant use under Ch 15 is based on the actual activities on the ground in that part: Bayside Council v Karimbla Properties (No 3) Pty Ltd [2018] NSWCA 257 at [109] (Emmett AJA with whom McColl JA agreed). The effect of s14F(3) is that these actual activities are distinct from the mine. 27 The effect of s14F(3) in these proceedings is that upon proof of Colinta's occupancy of parcel VA 121111, which is within the mining lease, the Court must conclude (due to the operation of s14F(3)) that it cannot be rated as in the mining category. The only live question for Pt 3 of Ch 15 then becomes whether it is within the s515 "farmland" category or the residual s518 "business" category. Section 14F(3) does not apply to VA 113969 as it is not within the mining lease, and not "part of a mine". … 29 If the construction of s14F(3) contended for by the Applicant is not adopted, then the words "and rated accordingly" would not have any work to do. It would not be rating 121111 as "distinct from the mine" to rate it as within the mining category. That would be rating it indistinguishably from the surrounding mine, which is the exact opposite of what s14F(3) says and provides for.
His oral submissions, as relevant on this point (Transcript, 31 October 2019, page 553, line 45 to page 563, line 13), are summarised below.
Mr Ireland began by addressing the task of statutory construction - highlighting that the words "distinct" and "separately" are both used in s 14F(3) of the Valuation Act. This use evinces an intention by Parliament that the former term ought to have a stronger meaning than merely "separate". The separate occupation of land does not require the occupation to be exclusive, evident by the omission of "exclusive" from the clause.
Mr Ireland submitted that there is no tension between s 14F(3) of the Valuation Act and s 517 of the Local Government Act. First, s 14F(3) operates to designate the existence of a factual situation, upon which s 517 then operates to effect the requirement to apply the valuation for rating purposes. These two provisions work in tandem to preclude the possibility of the separate area being classified as a mine. As the separate area has been deemed to be distinct from the mine, evident from its separate occupation, s 14F(3) makes it clear that it cannot be considered a mine. Therefore, its dominant purpose cannot be a mine. On this reasoning, it cannot be categorised as a mine for the purposes of the Local Government Act.
Mr Ireland asserted that s 14F(3) was intended to operate harmoniously with Ch 15 of the Local Government Act. Since there is no contrariety, on the Company's construction of the terms, any considerations of implied repeal are not warranted. If there is a supposed contradiction between s 14F(3) of the Valuation Act and s 517 of the Local Government Act, then principles of non‑contrariety ought to be invoked (citing Ferdinands v The Commissioner of Police (2006) 225 CLR 130; [2006] HCA 5 at 138).
Mr Ireland highlighted Potier v The Attorney General (2015) 89 NSWLR 284; [2015] NSWCA 129 as authority for the proposition that principles that seem to be in contradiction may, in truth, merely only be showing an apparent contradiction once both laws have been construed and read together. Only once the two apparently competing provisions have been construed and read together can they be said incapable of living together. In the event that the Court finds that there is an inconsistency, Mr Ireland contended that the standard principles of statutory construction must apply. Specifically, the principle that a law governing a specific subject matter will displace a more general provision in the event of an inconsistency is applicable.
Finally, in his closing written submissions, he returned to this topic at [18] and [19] then [22] to [27], submitting: Section 14F(3) - Parcel 121111 18 Section 14F(3) of the Valuation of Land Act 1916 provides that land which is "part of a mine" that is separately occupied for a purpose other than a mine shall be valued and rated accordingly. The reference to "rated accordingly" can only be read as a reference to rating under the Local Government Act 1993 (LG Act), as the Valuation of Land Act 1916 does not otherwise deal with rating and the LG Act is the Act that contains provisions in Ch 15 dealing with that topic. Ch 15 of the LG Act and the Valuation of Land Act 1916 are both intended to operate together, as can be seen from the numerous cross references in the LG Act to the Valuation of Land Act 1916. 19 Section 14F(3) operates on Pt 3 of Ch 15 of the LG Act to provide and prescribe that land is not to be categorised as mining for rating purposes if is separately occupied for another purpose, even though it is "part of a mine" and to provide and prescribe that if land is occupied for another purpose, it is not to be rated as "mining". This is the required statutory result even if the dominant use of the land is as a coal mine. 20 … 21 … 22 As between two pieces of legislation enacted by the same legislature there is a presumption of non-contradiction or non-contrariety (Ferdinands v Commissioner of Public Employment (2006) 225 CLR 130 at 138 (Gummow and Hayne JJ)), but if this is displaced by the statutory language the more specific provision will be found to prevail over the latter to the extent of any contrariety: Potier v Attorney-General for the State of NSW [2015] NSWCA 129 at [53] and [54] (Leeming JA). 23 This law gives rise to two constructional approaches, that are put by the Applicant in the alternative. 24 First, the Applicant's principal submission is that both s14F(3) and Ch 15 do operate together (in accordance with the Ferdinands presumption of non contrariety), and what s14F(3) does is deem the part of land to be distinct from the mine and require it to be so rated, which operates with Ch 15 and s517 thereof by providing a deemed fact which is then the starting point for the application of s517 and which entails that as the part is distinct from the mine, its dominant use is not for the mine. 25 In the alternative, it is submitted that this is a case of limited implied repeal as the very specific provision of s14F(3) displaces what may have been the operation of the more general provision of s517 and precludes any conclusion that the dominant use is within the s517 mining category. This alternative construction relies on the fact that 14F(3) is a very specific provision dealing with the rating and valuation of land that is part of a mine, and in accordance with the accepted principles of statutory construction and the maxim generalia specialibus non derogant, would be construed as constituting an implied limitation on the operation of s517. 26 Both of these alternative approaches to construing s14F(3) are supported and required by another fundamental principle of statutory construction. This is that all words must be given meaning and effect: Pearce and Geddes, Statutory Interpretation in Australia, 7th Edition, [2.26], Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. The words 'and rated' In s14F(3) need to be given work to do. An essential step in 'rating' land is the categorisation of the land as it is the categorisation of the land that will determine the rates (ad valorem and base) that apply to the land. The sub -section represents a clear direction as to the required result of categorisation under Ch 15 of the LG Act 1993. 27 The words "rated accordingly" apply to the intermediate clause "the part is taken to be distinct from the mine". This becomes a statutorily deemed fact that is required to be the foundation on which s517 of Ch 15 is applied. It follows that if land, as a factual matter, is distinct from the coal mine, then ipso facto its dominant use cannot be for that coal mine. This is because categorisation based on dominant use under Ch 15 is based on the actual activities on the ground in that part: Bayside Council v Karimbla Properties (No 3) Pty Ltd [2018] NSWCA 257 at [109] (Emmett AJA with whom McColl JA agreed). The effect of s14F(3) is that these actual activities are distinct from the mine.

[62]

The Council's position

It is to be noted that Mr Tomasetti contested the proposition that engagement of s 14F(3) of the Valuation Act for the purposes of determining the rateable value of the smaller assessment parcel had the automatic effect of determining its categorisation for the purposes of the Local Government Act. In the Council's closing written submissions at [149], it was put that: 149 Mangoola erroneously submits that the VG determination binds the Council and the court to rate the land as farmland where is the only logical effect of s 14F(3) is that the Council is obliged to rate the land as a separate parcel viz. as a distinct parcel from the mine. Once the land is to be rated as a separate parcel, the Council is obliged to categorise the land into one of the four categories, and in doing so, to engage the tests in s 515 - s 518.
The relevant portions of Mr Tomasetti's oral closing submissions on this point (Transcript, 14 November 2019, page 742, line 46 to page 744, line 46) are set out below. TOMASETTI: … The second matter is that where it says it is to be valued and rated accordingly it simply means it's to be valued separately or distinctly from the mine and rated separately and distinctly from the mine. It doesn't mean that it's to be valued and rated by the Valuer General. In our submission it's valued by the Valuer General and it's rated by the local council. Inferentially, from the Valuer General's list as furnished to the council, para 132 it appears the Valuer General was advised by Mangoola that the SAA was separately occupied by Colinta for the purpose, a purpose other than mining. ... Your Honour, in paras 140 and following, we say there's a misconstruction of the words "to be valued and rated accordingly". And by some means, my learned friend says the council's statutory obligation in s 514 to categorise land is somehow impliedly overridden. We say the section operates in this way: if the valuer general is determined to value the separately and does so, then it must be rated separately; no more, no less. And from time to time, that land will fall to be categorised in terms of its use. And as a separate parcel, it will be categorised by the council in accordance with the evidence and the facts then known to it, and inevitably supplied in part by the relevant occupier. The Valuation of Land Act long title says it's an Act to make provision for valuation of land, and we can't any expression of intention by parliament to confer jurisdiction on the valuer general to assess, categorise or levying municipal rates or otherwise take that power away from the local council in these circumstances. ... The valuer general's determination doesn't bind the council, as Mangoola submits. The council has to categorise the land, and as I have said a moment ago, that can change from time to time. ... We do not accept that s 14F(3) applies at all, except that it appears the valuer general did something pursuant to it based on advice which we say was erroneous. Now, we then deal with the larger assessment parcel in more detail and having regard to those headings to which I've referred.
The closing written submissions on behalf the Council on this point (adverted to by Mr Tomasetti in the above transcript extract) were in the following terms: The two statutes serve discrete functions 141 Mangoola also misconstrues the words "is to be valued and rated accordingly" to mean the Council's (and, in these proceedings, the Court's) statutory obligation in s514 to categorise land is somehow impliedly overridden or removed. 142 Section 14F(3) operates in this way. If the Valuer General has determined to value land separately and does so then it must also be rated separately. The rating task is always performed in accordance with Ch 15, Pt 3 of the Local Government Act by the Council (subject to any appeal). 143 The VLA's long title says, relevantly, "An Act to make provision for the valuation of land …". The VLA does not confer jurisdiction upon the Valuer General the power to assess, categorise or levy municipal rates. Those duties fall upon local councils under the LGA. 144 The VG has no power to make or consider for himself the facts that give rise to the declaration by a council under s514. 145 Section 14F(3) was enacted to address the unwarranted inflation of the valuation of a parcel merely because it was part of a mine where it was "separately" occupied for a purpose than mining (and not being mined). The Council's function under Ch 15 Pt 3 is to determine, make and levy the ordinary and special rates to fund council municipal activities. The VLA and the LGA serve different functions and purposes. 146 Moreover, the relevant factual tests that arise, differ in each of s14F(3) and sections 514-517. Section 14F(3) concerns "purpose" and s514 concerns "dominant use"; these are not synonymous terms. The fact that a person may occupy land for a purpose other than mining does not, of itself, exclude the fact another person also uses that land for mining and that that mining use is the dominant one. It would be absurd not to categorise land as mining where it is used for mining as well and some other purpose which was not dominant. 147 The Valuer General's determination that land is separately occupied by a person for a purpose other than mining is a determination at a specific point in time. That moment may not coincide with the date upon which a council categorises land under s514. For the purposes of rating, that land value remains operative until a new land valuation is made. It does not follow, however, that any factual assumptions giving rise to that valuation remain static after the date of the valuation. The dominant use of land can change from one day to the next and can change between valuation dates and between a valuation date and the date that council categorises the land to fix a rate. 148 The fact that Colinta had a licence to "use and occupy" the land is not enough: see Mangoola's submission para [11]. It does not follow that, as a matter of law, the dominant use was not for mining at the date of the categorisation of the land. The error can be illustrated. If Mangoola gave Colinta a licence to use and occupy the whole mine site (including the void) on the same terms as the present licence, including clause 16.1(b), on Mangoola's argument, the whole of the mine site (including the void) would have to be valued pursuant to s14F(3), and then must, ipso facto, be categorised as something other than mining. That conclusion is absurd and necessarily conflicts with the policy underpinning and the express terms of s514 and s517.

[63]

Characterisation of the smaller assessment parcel for 2016/17

For the reasons earlier explained, the s 14F(3) valuation of the smaller assessment parcel does not constitute anything more than a determination of the land value to which the appropriate rating factor is to be applied. What is required is for me to undertake, based on the evidence set out in this portion of my judgment (and after considering the submissions made as to how that evidence is to be considered), a determination of what is the dominant use of this assessment parcel for rating categorisation pursuant to Ch 15, Pt 3 of the Local Government Act.
I have concluded that the appropriate categorisation of the smaller assessment parcel for this assessment year is that its dominant use is for the purposes of a coal mine. I now explain why I have reached this conclusion.
Taking it at its highest for the Company and assuming that Colinta's grazing activities on the SAO should be taken into account despite the absence of evidence that permission had been granted to Colinta pursuant to cl 6(b) of the Colinta access licence for this grazing, the evidence of Mr Hinze was that the grazing of both the eastern and western portions of the SAO by Colinta's cattle was intermittent at best. Although the grazing regime for the two portions differed as earlier described, with the grazing by the bulls of the western portion occurring in a more predictable fashion and over a longer period of time, it was certainly not the position that, during either of the assessment years, either element of the SAO constantly formed part of Colinta's grazing activities. No grazing took place on the southern half of the eastern portion of the SAO in either year.
On the other hand, the SAO is not only an offset area for the reasons earlier described, but also contained, within its western portion, two small Biodiversity Offset Planting areas. For the detailed reasons later set out in my analysis with respect to the role of offset areas in categorisation analysis for the larger assessment parcel, offset areas are to be characterised as being used for the purpose of the coal mine. For this offset area, that mining purpose is permitted to coexist with Colinta's grazing activities. However, the use of the SAO as an offset area (and incorporating the Biodiversity Offset Planting areas component) is one which was present throughout the entirety of the 2016/17 assessment year.
On the basis of all the above factors, I am satisfied that (on balance) the dominant use of this south-eastern portion of the smaller assessment parcel should be regarded as being for the purposes of the coal mine.
The north-western portion of the smaller assessment parcel fell within the Colinta access licence area for this assessment year. I have earlier reproduced a map showing the boundaries of the north-western portion for this assessment year together with the elements of mine-monitoring infrastructure located on it. I have also reproduced a plan of the extensive track network across this north‑western portion, a track network which served, during this assessment year, only the purpose of providing access to the mine‑monitoring equipment. My conclusion in this regard is founded on the fact that there is no controversy that, during this assessment year, although Colinta had grazing rights over this portion of the smaller assessment parcel, it did not graze any cattle on it. The consequence of this is that the only potential utilisation of the track network would be by the Company for the purposes of mine monitoring or servicing of the mine-monitoring equipment.
It is, therefore, clear that the only use made of the north-western portion of the smaller assessment parcel during this assessment year was for the purpose of a coal mine.
Therefore, taking the uses of the smaller assessment parcel overall, it must be concluded that the appropriate categorisation of it pursuant to the Local Government Act is as a coal mine because its dominant use was for that purpose.

[64]

The changes for the 2017/18 year

As can be seen from the earlier reproduced map extracts concerning the composition of the land encompassed by the smaller assessment parcel, elements of the north-western portion were removed and became part of the operational mine site. In addition, the easement associated with the Hunter River pipeline and pumping station supplying water to the mine was transferred from the larger assessment parcel into the smaller assessment parcel.
I have earlier set out, in my description of the Company's mining-related infrastructure on the north-western parcel, the reduction in the mine‑monitoring sites as a consequence of the change to the north-western portion. Given that Colinta did not use the north-western portion for its grazing activities in this assessment year, there is no change required to my assessment of the use of this area for this second assessment year.
However, the addition of the pipeline-related easement to this assessment parcel for this year simply adds another (and highly significant) element of coal mine land use to this assessment parcel. The easement provides, principally, the method by which the primary mining use water supply is provided to the mine. In addition, the power lines supplying electricity to the mine also run, for significant part, along this easement.
The countervailing element of Colinta's right to graze the surface of this easement - a grazing right, interrupted only to a trifling extent by the presence of the various power poles and concrete access portals to the water supply pipeline - is of limited utility in offsetting this coal mine use.
It would be simplistic to say, with respect to the use of this easement that, because the facilities serving the coal mine for water and electricity supply were services without which it would not be possible for the mine to operate at all, these coal mine uses are of such importance to the mine that, at least in the context of the smaller assessment parcel, this mining use should sufficiently colour the overall use of this parcel so as to constitute the dominant use of the entire smaller assessment parcel during this year.
I am satisfied that such an approach would be incorrect.
However, the importance of the use of this easement for the purposes of supplying services to the coal mine, without which it would not be possible for the mine to operate, is a significant factor weighing in the overall conclusion for the whole of the smaller assessment parcel for the 2017/18 year that there can be no doubt that the dominant use of this parcel for that year was for the purposes of the Company's coal mine.
As a consequence, given my conclusion that, for the 2016/17 assessment year, the smaller assessment parcel is to be categorised as being used for the dominant purpose of a coal mine, the changes to this assessment parcel for the 2017/18 year merely reinforce the necessity for that categorisation to apply in this subsequent year.

[68]

The Council's position in summary

The Council's position is a more nuanced one. First, it does not accept the proposition that Colinta's activities on that portion of the larger assessment parcel, which is subject to the Colinta access license agreement, were: 1. Carried out over the whole of the area so marked in Annexures A and B; and 2. Those portions of the larger assessment parcel within Colinta's access licence area that were not used by Colinta were, however, used by the Company for mining purposes; but 3. Even if all of the area within the Colinta access license was used by Colinta for its grazing activities, some of that area was also used by the Company for mining purposes and that the areas so used should be characterised as being used with that mining purpose being dominant; and 4. The various offset areas within the larger assessment parcel, on a proper understanding of the statutory framework, were to be regarded as being used by the Company for the purposes of its coal mine; and 5. As a consequence, when all of these factors are taken into account, the dominant purpose for which the larger assessment parcel was used was for the purposes of the Company's coal-mining activities resulting in the necessity to categorise the larger assessment parcel as being used for a coal mine. Thus, there is no basis upon which its present categorisation should be disturbed.
In addition, as an alternative proposition, the Council proposed that I should conclude that the activities carried out by Colinta pursuant to that Colinta access licence were not ones which satisfied the third of the tests in s 515 of the Local Government Act, this being the requirement in s 515(1)(b) that the grazing activities carried out by Colinta were ones which were for the purposes of profit on a continuous or repetitive basis (whether or not a profit was actually made).
The Council's position is that, during the relevant years, a proper examination of Colinta's activities, in the context of its relationship with the Company, discloses a significant degree of artificiality by which Colinta's financial accounts do not reflect, in any accurate fashion, a proper picture of Colinta's activities across the two assessment parcels.
I note that, given the conclusion I have reached concerning the proper characterisation on the facts of the larger assessment parcel, it is not necessary for me to consider whether or not Colinta's activities on the larger assessment parcel satisfy the tests in s 515 of the Local Government Act.

[69]

The mining experts' evidence concerning the larger assessment parcel

Mr White and Mr Lennard gave evidence concerning what they understood of the mine-related activities of the Company that were carried out in the larger assessment parcel during the relevant years. Portions of their evidence necessary to understand their views are set out or referenced in the following section.
In oral evidence, Mr White gave evidence that the air-monitoring equipment measured dust deposition and pollutant levels, which in turn informed the management of airborne pollutants from the mine (Transcript, 30 October 2019, page 472 to page 475).
Mr White gave evidence that monitoring stations appeared to be located on private land (Transcript, 30 October 2019, page 475, line 22 to page 476, line 6): IRELAND: Looking at the site overview map once again, Mr White, if you may, there are numerous monitoring devices that you see there located on private land. Do you agree with that? For example-- WITNESS WHITE: I'm not aware of that. Would you - could you indicate to me, specifically, where you'd be talking about, please? IRELAND: Certainly. For example, if you go to the top left of this plan, being exhibit R, to the left of the cross hatched assessment area, to the right of what I understand to be Wybong Creek, in that location you see a green dot that is not within the area marked as the Colinta land access licence area by the blue crosses on this plan. Do you see that? WITNESS WHITE: Mm-hmm. Mm-hmm. HIS HONOUR: You have to say "Yes" or "No?" WITNESS WHITE: Yes. Sorry. Yes. Yes, I do see that. My apologies. IRELAND: Moving round in a clockwise direction, under the second box of legend from the left‑hand side of this plan at the top of the page, you see a yellow dot indicating a noise monitoring site? WITNESS WHITE: Yes. IRELAND: You see that? WITNESS WHITE: Yes. IRELAND: You can see that that's on lot DP848496, which appears to be outside the Colinta land access licence agreement area as marked on this plan? WITNESS WHITE: Yes. Yes.
Mr Lennard confirmed that there was a total of 161 monitoring stations inside the assessment parcels and 241 outside them.
Mr Ireland returned to Mr White, who confirmed that there were monitoring sites outside of land part of the Colinta Access Licence Agreement (Transcript, 30 October 2019, page 478, lines 9 to 15). Mr White also confirmed that there were monitoring stations on property run by Colinta; specifically paddock 23, the South Cruickshank paddock (Transcript, 30 October 2019, page 482, lines 17 to 25). Mr White acknowledged that grazing was currently taking place on that paddock. However, the presence of the monitoring station was enough for Mr White to conclude that the entire paddock was being used for mining purposes; its proximity to the mine site necessitated measurement of the impacts of noise, dust and, potentially, blasting (Transcript, 30 October 2019, page 483, lines 30 to 40).
Mr Tomasetti questioned Mr Lennard and Mr White on the activities involving the environmental monitoring equipment, for which Mr Lennard confirmed that use of the land was not confined purely to the existence of the monitors themselves (Transcript, 30 October 2019, page 499, line 48 to page 501, line 34): TOMASETTI: You're a very, with respect, soft-spoken man. That's not a criticism but I've got to hear your answer. You agree with me that in order to get to and from these monitors you have access tracks? WITNESS LEONARD: Yes. TOMASETTI: Which have to be traversed over back and forth by the miner in order to get to them? WITNESS LEONARD: Yes. TOMASETTI: And you agree with me that those access tracks and the monitors themselves have to be maintained from time to time so as to make access and operation continuous and effective. WITNESS LEONARD: Yes. Yes. TOMASETTI: So there's a multitude, I suggest to you, of activities which are related to at least the mining operations part from the mere identification of the monitor itself. Correct? WITNESS LEONARD: Sorry, could you just run that by me once more? TOMASETTI: There are a multitude of activities apart from the mere placement of a monitor and it's a visitation that are involved in the - in meeting the monitoring requirements of the project approval. WITNESS LEONARD: Yes. HIS HONOUR: Before you move on, you would accept, wouldn't you, Mr Leonard, that on a number of locations where we visited monitoring stations of varying types that were in the middle of a paddock, there was no defined track to them, and that access to them could be effected in a number of - from a number of different directions and without being confined to what would be regarded as a track, that is, access could meander in different directions over the paddock from time to time? WITNESS LEONARD: Correct. There were some truck tracks and you would vary off them to get to the final destination. TOMASETTI: And in some instances monitors were mobile monitors. We saw some monitors on wheels, did we not? WITNESS LEONARD: There were certainly solar panels that were on trailers. Yeah. I can't recall a monitor itself that was on wheels. TOMASETTI: Mr White, are there mobile monitoring facilities as well as fixed? WITNESS WHITE: In the Mangoola documentation they talk about three mobile noise monitors and in our initial site inspection with the council we saw one of those on‑‑ TOMASETTI: But not on the Court view. Is that what you're saying? WITNESS WHITE: No, I don't recall seeing one on the Court view. TOMASETTI: The three mobile monitors what's your understanding as to their deployment, Mr White, in a sense? Are they moved regularly to different locations? WITNESS WHITE: I don't know. TOMASETTI: But they appear in any event to be by their construction mobile and able to be shifted to different places at will? WITNESS WHITE: Absolutely. It's mounted on a box trailer with a tow bar at the front of it, clearly as a mobile unit. TOMASETTI: Mr Lennard, I suggest to you then that his Honour has gone into an area that I was just about to go to. The use of the land by Mangoola you would agree involves the use of it over defined tracks on the assessment areas in the relevant years to gain access to, maintain, take recordings of, various types of monitoring equipment? Do you agree with that? WITNESS LENNARD: As your Honour mentioned there's defined tracks plus traversing in the paddock. TOMASETTI: The use of Mangoola of the land also involves moving over the land without reference to defined tracks? WITNESS LENNARD: Yes. TOMASETTI: In order to carry out these environmental management measures. Correct? WITNESS LENNARD: Yes.
In relation to the northern expansion area, Mr Tomasetti and Mr Lennard had the following exchange (Transcript, 30 October 2019, page 510, lines 22 to 39): TOMASETTI: Excuse me one minute, your Honour, while I find this. I'll just leave that image, now, and go to a different image and that's in Mr White's report in the February 2017 activity plan in respect of the northern expansion area which is his primary report at page 25. That was the diagram. Thank you. So Mr Leonard, when you look at this diagram - and I know it's been produced for a different purpose. I'll come to that later. This is exploration activity, as you call it, I think. But if you look at the activity demonstrated by this figure, the northern expansion area there is criss‑crossed with infrastructure and works, I'd suggest to you, like a hive of mining activity. Would you agree with that? WITNESS LEONARD: I've been to many exploration sites and I agree that plan looks like a hive of activity. But from what we can determine it's one drill plus support crew and so they would be all over those areas. There are items on there which were not in the current activity, as you're aware. So, yes, I can see that plan looks like a lot of activity. In reality, if you went out on a particular day, it would not be like Pitt Street with traffic all over that.
Then, later (Transcript, 30 October 2019, page 512, lines 9 to 35): TOMASETTI: What I'm getting you to agree with me is this. That in order to implement these environmental management measures - which I started my questioning of you about - in order to implement them the miner has to engage and supervise and approve of activities taking place over a wide area of land, not just the singular points shown on the plan by different coloured dots. WITNESS LEONARD: Agreed. TOMASETTI: So as to deploy staff, deploy men, boots on the ground and they're moving all over the land for the purposes, I suggest to you and from your knowledge, of ensuring that coal mining activity can continue, winning the coal out of the ground, whilst monitoring its effects around that mine. Isn't that right? … TOMASETTI: Isn't that right, Mr Leonard? WITNESS LEONARD: Correct.
Mr Lennard clearly agreed that there was an intense range of exploration activities in the northern expansion area throughout the limited period during which this occurred.

[72]

Although I do not have precise calculations, it can be seen from Annexures A and B that the Colinta access licence area in the larger assessment parcel covers portion, but not the entirety, of the Northern Corridor (coloured in light blue on those maps). It would appear, roughly, that the Colinta access licence covers approximately 30% of the Northern Corridor. However, the entirety of the Northern Corridor is within the larger assessment parcel.
It can also be seen from Annexures A and B that the Colinta access licence area in the larger assessment parcel covers portion, but not the entirety, of the Aboriginal Cultural Heritage Offset areas (coloured in yellow on those maps). It would appear, again roughly, that the Colinta access licence also covers approximately 30% of the Aboriginal Cultural Heritage Offset areas within the larger assessment parcel.
However, although it is also to be noted that portion of the Aboriginal Cultural Heritage Offset areas are within ML1626, those areas play no role in these proceedings.
Conditions for the implementation of the Biodiversity Offsets Strategy are contained in the Consolidated Project Approval (both Mod 6 and 7) with the relevant conditions being 34 to 39, with the requirement for the Aboriginal Cultural Heritage plan being the subject of Condition 41 in the approval (both Mod 6 and 7). It is unnecessary to repeat the terms of these conditions. It is sufficient to note that the creation and management of these areas is a required element of the approval of the coal mine.
Details of what works or activities are required for each of the five designated offset areas are contained in Table 3.1 of the final Mangoola Coal Biodiversity Offset Management Plan, dated May 2015 (folios 22 and 23). It is unnecessary to list them in detail. It is sufficient to note that the Company is mandated to give effect to these requirements as obligations arising from the approval of the coal mine and to offset the impacts of that mine.
The listed management activities for each of these five offset areas make it clear that the only one of them within which managed grazing is to be permitted is the Strategic Agriculture Offset area. Those managed grazing activities were earlier discussed in my consideration of the various elements of the smaller assessment parcel. They play no role in my consideration of these other offset areas in this assessment parcel.
It is unnecessary to set out any further matters of detail concerning the offset areas. It is sufficient to note that, although the majority of the Northern Corridor and some elements of the Aboriginal Cultural Offset area are marked on Annexures A and B as being within the Colinta access licence lands forming part of this larger assessment parcel, it is clear that none of those areas so marked are areas where grazing activities by Colinta are permitted. That position is acknowledged in the expert witness report of Mr Nelson, the Company's land use management expert, at folio 645 of the Consolidated Evidence Book, and by Mr Hinze (in his 19 June 2019 affidavit at [22]).
The parties have not directed my attention to (and I have been unable to find) any direct authority considering the question of the use of offset areas of the nature required by the Company's coal mine approval.
However, there is consideration (of utility by implication) of matters relating to buffer zones owned by mining companies and their consideration in a rating categorisation sense. As a consequence, the decision of Preston CJ in Peabody did address matters relevant to the issues requiring consideration in these proceedings.
Although his Honour's decision was one addressing the issue of costs (in circumstances where a council had endeavoured to categorise land as mining rather than being a matter of principled determination concerning categorisation), the discussion in the decision by his Honour was extensive and involved issues for determination of use of land owned by a mine. The relevant portions of his Honour's decision are at [63], [72] and [77] to [90]. These paragraphs are extracted below: 63 Virtually all uses of land have external impacts to varying degrees. Use of land for farmland, residential, mining or business can each cause pollution (air, water, land, noise, light or visual), traffic and parking problems, or biodiversity impacts external to the site of the farmland, residential, mining or business use. Such externalities do not result in the land subject to the externalities being used for the purpose of the activity that causes the externalities. The residence affected by air pollution from an adjoining factory is not thereby used for the purpose of factory. A wetland affected by water pollution from an upstream farm is not thereby used for the purpose of a farm. So too land that is affected adversely, such as from noise impacts, by an open-cut coal mine is not thereby used for the purpose of a coal mine. Affectation of land is to be distinguished from use of land. … 72 I do not consider that the purpose for which land has been acquired, by itself, is imprinted on the use of the land upon acquisition. First, a mere intention to use land that is to be acquired for a purpose that is different to the purpose for which the land is currently being used is not sufficient to effect a change of use of the land for that purpose upon acquisition. Only when the acquired land is devoted to use for the different purpose for which it was acquired can there be a change in the purpose of the use. The intended purpose of the use of the land must be manifested by the commencement of some activity on the land: Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 at [22] and Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867; (2010) 79 NSWLR 724 at [59]-[60]. … Mere holding of land for mining purposes not a use for a mine 77 The Council contended that the definition of "mine" in the Dictionary of the LG Act extends the concept of the use of land to include the holding of land for a mining purpose. My view is that this is incorrect. 78 I do not consider that the word "mine" where twice occurring in s 517(1) of the LG Act is used with the meaning defined in the Dictionary to the LG Act. There are at least four indicators. 79 First, the word "mine" in the Dictionary and in s 517(1) are directed to different concepts. The defined word "mine" concerns land: it defines what particular types of land will be a mine. Land will be a mine if it is "land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose." The definition incorporates the purpose for which land is used or held. 80 Section 517(1) does not use the word "mine" to refer to a particular type of land. Rather the word "mine" is concerned with the purpose of the use of the land. The purpose is the end to which the use of the land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]. 81 Hence, it is not possible to substitute the definition of "mine" from the Dictionary, which is concerned with a particular type of land, for the word "mine" in s 517(1) which is concerned with a particular purpose for which land is used. 82 Secondly, the word "mine" in s 517(1) is qualified by the adjectives "coal" or "metalliferous". The Dictionary definition of "mine" has no such qualification. 83 As a consequence of these two differences, substitution of the defined term for "mine" for the word "mine" where twice occurring in s 517(1) would lead to a nonsensical statutory provision, as the following shows: Land is to be categorised as "mining" if ... its dominant use is for a coal 'land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose' or metalliferous 'land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose'". This cannot have been the legislative intention. 84 Thirdly, s 517(1) is only concerned with whether the dominant "use" is for a coal mine, while the defined word "mine" in the Dictionary is concerned with the use of land for mining purposes as well as the holding of land for mining purposes. The concepts of the use of land and the holding of land are different. The legislature defined "mine" in the Dictionary using both the concepts of use and holding of land but, by contrast, only identified in s 517(1) the criterion of use, not holding, of land for a coal mine or metalliferous mine. This must be seen to be deliberate. This deliberate decision to limit categorisation of land as mining only on the basis of use of land and not holding for a mine would be undermined if the word "mine" in s 517(1) had the meaning defined in the Dictionary of including not only use but also holding for any mining purpose. 85 Fourthly, the adjective "dominant" that qualifies "use" in s 517(1) cannot sensibly be applied to a holding of land. The adjective "dominant" that qualifies "use" in s 517(1) makes sense where land is used for a coal mine or metalliferous mine but not where land is merely held and not used for a coal mine or metalliferous mine. Land cannot have "its dominant use" for a coal mine or metalliferous mine if it is not used, but is only held, for a coal mine or metalliferous mine. This is a further indicator that land held for a coal mine is not within the ambit of the concept of dominant use of land for a coal mine in s 517(1). 86 Hence, in my view, the Council was in error in this case in considering that the mere holding by Peabody of the properties in question was sufficient to enable categorisation of the properties as mining under s 517 of the LG Act. 87 The Council also submitted that mere holding of land for a mining purpose could amount to a use for a mining purpose. It relied on the dicta of Bignold J in Ulan Coal Mines Ltd v Mudgee Shire Council (unreported, 11 January 1988) at p 17, relying on the Newcastle Hospital case (concerning exemption of land from rates), that "the non-use of land to provide an environmental buffer for mining operations may constitute a use of that land for mining purposes". 88 My view is that this statement is too dogmatic. The question of whether land is used for a particular purpose is a question of fact and degree in each case. The approach to categorisation of use also depends on the statutory provision under which categorisation is required. The statutory provisions governing categorisation for the purposes of planning law or for determining whether land is exempt from rates are different to those governing the categorisation of rateable land for rating purposes. Hence, care needs to be taken in applying dicta in cases dealing with what constitutes a use of land under other statutory provisions in determining the use of land for rating categorisation purposes. 89 In any event, however, the dicta in Ulan Coal Mines Limited v Mudgee Shire Council relied on by the Council was followed by the statement that where "there is an actual use of those lands for grazing purposes, it cannot be concluded that there is a concurrent 'mining purpose' use of the buffer lands based upon their non-use. The fact of actual use necessarily excludes the fact of non-use" (at p 17). 90 Applying this statement to the facts of the present appeals would mean that the actual use of Peabody's lands for residential or farming purposes would exclude any "non-use" of the lands as a buffer to attenuate noise from the coal mine. Hence, even if Peabody could be said to hold the lands for a mining purpose (being for attenuation of noise from the coal mine), the actual use of the lands for residential or farming has the consequence of precluding a use of the lands for a coal mine.
As can be discerned, his Honour was addressing the question of whether land functioning as a buffer for the impacts of mining activities could be regarded as a use of that land when there was some other use (in that instance either residential or farming). His Honour discussed the concept of holding of land by a mine. As his Honour observed in [85], land cannot have its dominant use for a coal mine or metalliferous mine if it is not used, but is only held, for a coal mine or metalliferous mine. This is a further indicator that land held for coal mine is not within the ambit of the concept of dominant use of land for a coalmine in section 517(1).
That council appealed his Honour's decision. The matter was dealt with by Leeming JA and Tobias AJA in the Court of Appeal in comparatively short compass (Mid-Western Regional Council v Peabody Pastoral Holdings Pty Ltd [2013] NSWCA 322). It is not necessary to quote from that decision as there is nothing in it, in my view, which is antipathetic to the general thrust of the matters earlier set out from the decision of Preston CJ.
In this instance, the various offset areas are used, in an active sense, for purposes required of the coal mine as part of the Company's right to operate that mine. It is sufficient, in this context, to identify a limited range of matters of that nature that were observed during the course of the site inspection. I have earlier referred to the elements in the northern extent of the Northern Corridor where we had observed unsuccessful revegetation planting. During the course of traversing portion of the Aboriginal Cultural Heritage offset area, we observed several nest-box sites, nest-box sites that had been established, monitored and maintained by mining personnel for the Company's mining purposes.
The activities in Condition 35 of the Consolidated Project Approval Mod 7 requires that the Biodiversity Offsets Strategy, relevantly, is focused on the re‑establishment of a series of nominated plant communities or plant species. Condition 36 of the same approval requires the Company to ensure that the regeneration of grassland within the Biodiversity Offsets Strategy is focused on the re‑establishment of flora species typical of the Ironbark Woodland Complex as defined under the Threatened Species Conservation Act 1995.
Condition 38, dealing with translocation of orchids and other threatened flora, mandates the implementation of mitigation and management measures. During the course of the site inspection, we observed one such orchid translocation site and were informed that there were others located within the vegetated area.
Condition 39, dealing with the Biodiversity Management Plan, contains requirements for an active management function by the Company for the purposes of the condition.
A similar position arises, although expressed in differing terms, imposing functional management obligations on the Company for Aboriginal Cultural Heritage offset areas through the preparation and implementation of an Aboriginal Cultural Heritage Management Plan.
These are all mandated activities that evidence positive use for these required purposes.

[73]

Consideration

Mr Ireland summarised the range of matters encompassed by the offset areas in his closing written submissions at [94] to [98], writing, relevantly: 94 Mr White accepted that the biodiversity offset areas are used for conservation purposes: T464.24-32. The assumptions were that the biodiversity offset areas were to be established to focus on the re-establishment of significant and or threatened plant communities, significant or threatened plant species, and significant or threatened plant communities (Respondents Tender Volume A, Doc 1, Condition 35), that it had to be an area for the establishment of over a thousand ha of trees (Condition 34 Project Approval, page 15, Respondent's Tender Bundle A), that by December 2017, some 49,000 trees had been planted in the offset areas across 66.8has in that year alone (2017 Review, Doc 16 Respondents Tender Bundle A, page 53), and that in 2018, some 60,000 trees and shrubs across 68.15 in the biodiversity offset area (page 47, 2018 Annual Review, Respondents Tender Bundle A). With or without Mr White's acceding to this proposition, the reservation or management of these areas for conservation is clear. That is not a mining use, and it is, considering the entirety of Mangoola Station and the larger assessment area, a use that is secondary and not dominant having regard to the respective areas involved. 95 The Aboriginal Cultural Heritage offset area is evidently managed for protection of that cultural heritage: T471.20-25 (White XXN). 96 The conservation measures such as nest boxes in the assessment areas could be removed entirely without compromising the operation of the mine in engineering terms: T472.28-36. They are not the use of the land for a coal mine and in fact have no bearing on those operations at all. … 98 There are many more monitors, nest boxes and the like outside the assessment areas: Lennard expert report, Table 3.2. 241 outside versus 161 inside.
His primary submission concerning how these areas were to be viewed was set out, succinctly, at [125] of these submissions in the following terms: 125 As earlier noted the offset Aboriginal heritage and other conservation areas are used for neither farming nor coal mining, they are neutral areas of the parcels being categorised, and represent the use of land for a conservation purpose. That this may be required by a condition of the project approval does not convert that purpose into a mining use, and it would be perverse to so conclude.
In his closing written submissions, Mr Tomasetti turned to the offset areas in two passages. First (in needing to be noted but not first in the document) was a list of the various offset areas and activities and the sources from the foundational evidence from which they were derived. This listing was at [162] to [170] of the document. It is not necessary to set out this material (Mr Ireland making no criticism of it).
The second element of Mr Tomasetti's closing written submissions that is relevant was contained in [55] and [56]. These paragraphs address the decision of Preston CJ in Peabody and the propositions to be derived from that decision as were submitted to be relevant here. Given that Mr Ireland does not criticise the entirety of what Mr Tomasetti wrote, it is not necessary to set out Mr Tomasetti's paragraphs in full. It is sufficient to reproduce that which is set out below to enable understanding of Mr Ireland's response to it. Mr Tomasetti wrote, relevantly: 55 In the decision of the Chief Judge in Peabody Pastoral Holdings Pty Ltd v. Mid-Western Regional Council [2013] NSWLEC 86, his Honour observed: (a) …. (b) … (c) … (d) … (e)An intended purpose of use must be manifested by some physical activity on the land for it to affect the purpose of use of the land within the meaning of s517: [72] (f) … (g) ... 56 None of these propositions with the exception in (e) can be doubted. Cases such as Blacktown City Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259. Steedman, Brickworks, Royal Newcastle Hospital and Peak (albeit in a different statutory context) suggest that physical activity is not necessary to sustain a finding of fact the land is being actually used.
In his closing written submissions in reply, Mr Ireland turned his attention to the above submission both directly and indirectly. First, directly, he wrote, at [59] and [60]: 59 At paragraphs 55 and 56 of the Respondents Closing Submissions, it is made clear that the Respondent is expressly asking the Court to go against Peabody and the proposition that: "An intended purpose of use must be manifested by some physical activity on the land for it to affect the purpose of use of the land, within the meaning of s.517": [72] 60 However, none of the decisions referred to in paragraph 56 of the Respondent's Closing Submissions establish the contrary proposition referred to. As Bignold J noted in Ulan, land that is used as an environmental buffer may be used for mining but if it is used for grazing, the grazing use is the dominant use.
He later returned to the decision in Peabody, writing, at [161] and [162]: 161 Peabody is to be followed by this Court unless this Court finds that it is "clearly wrong": Fullerton Cove Residents Action Group Inc v Dart Energy Limited and Anor (No 2) [2013] NSWLEC 38 at [281]-[283] (Pepper J). 162 There is no basis for concluding that the Peabody decision is clearly wrong, especially having regard to its implicit endorsement by the Court of Appeal (in a leave application).
First, I should indicate that I accept both propositions advanced by Mr Ireland in the two paragraphs quoted immediately above.
Mr Ireland relies on the reasoning of Preston CJ in Peabody at [72] and my decision in Ulan Coal Mines Pty Limited v Mid-Western Regional Council [2013] NSWLEC 1167 at [143] and [144] for the proposition that offset areas cannot constitute, in these circumstances, areas which are being used for the purposes of the Company's coal mine.
As a consequence, it is necessary for me to indicate that I do not accept what Mr Ireland posits is the outcome for these proceedings by my adoption of the Chief Judge's reasoning in Peabody. The first step in this analysis is to set out in full precisely what the Chief Judge said in Peabody at [72] and the immediately preceding paragraph. These paragraphs are in the following terms: 71 The Council submitted that acquisition of noise affected land by Peabody for this purpose caused the acquired land to be used for the coal mine. 72 I do not consider that the purpose for which land has been acquired, by itself, is imprinted on the use of the land upon acquisition. First, a mere intention to use land that is to be acquired for a purpose that is different to the purpose for which the land is currently being used is not sufficient to effect a change of use of the land for that purpose upon acquisition. Only when the acquired land is devoted to use for the different purpose for which it was acquired can there be a change in the purpose of the use. The intended purpose of the use of the land must be manifested by the commencement of some activity on the land: Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 at [22] and Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867; (2010) 79 NSWLR 724 at [59]-[60].
As can be seen from his Honour's reasoning, when there is the commencement of some activity on the land, it then becomes appropriate to consider what is the intended purpose of the use of the land manifested by that activity.
I have earlier described the nature of the activities on the offset lands required of the Company by the various conditions of approval for its coal mine. Those activities were evidenced, at least to sufficient extent for present purposes, during the site inspection. The purpose served by these uses is satisfaction of the conditions permitting the Company's coal mine to exist. Consistent with Peabody, they are uses for the purpose of the coal mine. There is no inconsistency, as discussed below, between this reasoning founded on Peabody and the element quoted from my decision in Ulan.
In his closing written submissions, Mr Ireland also wrote, at [40]: 40 If there is more than one present use of land, the dominant use must be identified: Bayside at [128]. This requires consideration of the mosaic of uses across a parcel: Ulan Coal Mines Pty Limited v Mid-Western Regional Council [2013] NSWLEC 1167 at [4] (Moore J). It is the parcel as a whole that must be categorised. Areas that are merely vegetation, are Aboriginal heritage or other offset areas or have no active use, are to be disregarded: Ulan Coal Mines Pty Limited v Mid-Western Regional Council [2013] NSWLEC 1167 at [143] and [144] (Moore J). See also Peabody at [89] (Preston CJ). This principle applies to the various offset areas in the present case, rendering them neutral for the purposes of the present categorisation exercise.
It is now appropriate that I set out the two paragraphs ([143] and [144]) of my decision in Ulan in order to explain why Mr Ireland's submission concerning my view on this point is not correct. The paragraphs from my decision were in the following terms: 143 As all of this parcel must be analysed collectively in balancing uses in an endeavour to establish what is the dominant use, any of those locations (1, 4, 6, 9 and 10) that are, at present, merely vegetated or have no active use on them, are to be disregarded. I have adopted this position on the basis that provided there is, somewhere (as is undoubtedly the case for various locations within this parcel) some positive use, that will displace any non-use. Although these various elements might be regarded as vacant, they are merely part of the elements forming the whole and do not have some default vacant land use to be ascribed to them as if they were a separate parcel in their own right to be treated as "vacant land" pursuant to s 519 of the Act. 144 Location 3, the most north-western portion of this parcel, is to be preserved for ecological and Aboriginal cultural heritage reasons. This is a use (if it be a "use" at all) of the type displaced by active uses elsewhere.
There are two matters expressly to be pointed out concerning my comments. First, I did not hold, in any definite sense, that the land of the type there discussed was incapable of being a use (the parenthetical words used by me were (if it be a "use" at all)) in circumstances where there was not (unlike in these proceedings) any proper evidentiary basis to understand the nature and extent of what use (if any) was imposed on that coal mine with respect to those vegetated lands.
Second, of particular relevance here with respect to the second element of the sentences from my decision, unlike the position in Ulan, there is no evidence of any other use on any of the offset lands (with the exception of the SAO where this is specifically discussed) that requires to be balanced as to which use is dominant on the non-SAO plans. The only relevant use of those lands is that which is mandated by the relevant conditions and incorporated documents from the Company's consent to conduct its coal mine. It is consideration of whether that single use for each of the non-SAO offset areas constitutes a use for a coal mine, thus bringing those lands potentially within the scope of s 517 of the Local Government Act that requires my consideration in these proceedings.
All of the matters set out at [340] to [344] are indicative of an active use by the Company of the offset lands for the requirements of its coal-mining activities pursuant to its coal mine approval.
This is not a position of simply holding the land in the offset areas in some sort of passive sense, as was considered in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493.
In this case, the purpose served by the use of the land as an offset to the impacts of the Company's coal mine clearly characterises the use of the land as being for the purposes of the coal mine. As said in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535, what is required is "asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date".
In this instance, the use of each of the offset areas is to offset the impacts of the Company's coal-mining activities that would otherwise not be acceptable. The purpose that those offset activities (uses) therefore serve is to permit the Company to undertake its mining activities, including activities that would otherwise have unacceptable impacts. The purpose served of the use (and only use) of the offset areas is, therefore, that of a coal mine.
As with the necessity for the water and electricity supply via the easement earlier discussed in the context of the smaller assessment parcel, it is clear that the proposition "no offset areas, no mine" is an equally apposite conclusion to draw. Without the establishment of the offset areas, the Company was not permitted to establish its coal mine.

[77]

Colinta's use of the Wybong lands

In Mr Tomasetti's closing written submissions, he wrote at [95]: 95 There were no cattle grazed in the Wybong grazing country except for the Ridgeland paddock 22 in 2016 and following years.
At [100] and [101] of his closing submissions in reply, Mr Ireland responded, relevantly: 100 The proposition at paragraph 95 of the Respondent's Closing Written Submissions that there was no cattle grazed in the Wybong grazing country exception for the Ridgeland paddock 22 in 2016 and no evidence that cattle grazed anywhere except on the Hunter River alluvial flats, is surprising as it is totally contrary to the evidence. As is the proposition that there was no grazing in the SAO. 101 The Hinze affidavit of 19 June 2019 at paragraphs 46 and 49 documents that paddocks 20, 21 and 22 were the subject of cattle grazing in the relevant years. The evidence that is that cattle could not be placed in paddocks 24, 25 and 26 increasingly from 2016, due to the drought. Even Mr Lane at T-277 on the day of his site inspection (the area is still in drought) identified 150 head of cattle in the northern area of the property. The submission at paragraph 95 in relation to there being no cattle grazed in the Wybong grazing country except for Ridgeland paddock 22 in 2016 and following years cannot be sustained. What Mr Hinze says about Wybong grazing country at T-87.15-.20 excludes Ridgeland paddock 22. The question is asked about the majority of the Wybong grazing country and about access to water. Mr Hinze clearly does not give evidence that there were no cattle in those areas. He is talking about cattle being placed in those areas, not cattle grazing in those areas, in any event.
The comment in the final sentence of the above quotation that there should be some distinction drawn between "cattle being placed" in an area and "cattle grazing" in that area is one that is incapable of rational understanding.
Mr Tomasetti also wrote at [183] to [186]: 183 In the Wybong grazing country. If there was any grazing, it was only in paddock 22 "Ridgelands" then only early 2016. Mr Hinze gave no evidence of cattle numbers or other details of stocking rates anywhere on the LAA at all. 184 Mr Hinze said that due to limited pasture availability and little to no water for cattle to drink, cattle could not be placed in the majority of the Wybong Grazing Country. He referred to this in his affidavit as paddocks 24, 25 and 26. In cross-examination, however, he identified the relevant paddocks as all those north of diagonal line drawn by Wybong Rd and the extension of the diagonal line; specifically paddocks 20 to 26. 185 By sometime in 2016, the last of these paddocks, the Ridgeland's Paddock No 22, was completely destocked. 186 Mangoola provided no other evidence to assist the Court to conclude that the Wybong grazing country was used in any significant or substantial way in the Relevant Years. Mr Nelson opined that land even if class 7 land could be used by cattle to browse but he could not say if it actually was.
Mr Ireland's response to these submissions was, at [147]: 147 Paragraph 185 is incorrect. Mr Hinze did not say that Ridgelands was completely destocked some time in 2016. Paragraph 49 of Mr Hinze's affidavit, which is referenced at paragraph 185 of the Respondent's Closing Written Submissions does not say anything about Ridgelands paddock 22, in fact.
I consider below what I should make of theses submissions. My conclusion concerning the destocking of the Wybong lands is to be derived from my analysis of Mr Hinze's written and oral evidence on this point.
I have earlier noted that Mr Hinze provided two affidavits. In his affidavit of 19 June 2019, he dealt with the use of this element of the larger assessment parcel in the following terms: 49 The land has been subject to severe drought over the period 2016 to 2019 which has limited the amount of pasture available in some of the paddocks and therefore resulted in less cattle being grazed in these paddocks. Since 2016, the drought also resulted in there being little to no water for cattle to drink in the majority of the Wybong grazing country and so cattle could not be placed in those paddocks. The Wybong grazing country as shown on Annexure E is paddocks 24, 25 and 26
During the course of his cross-examination by Mr Tomasetti on 24 October 2019, Mr Hinze was questioned at several points in his evidence concerning whether or not Colinta had grazed cattle on these lands during the relevant years. The first, shorter element of his oral evidence (Transcript, 24 October 2019, page 86, line 44 to page 87, line 20) was in the following terms: Q. For the sake of ease of reference, correct me if I'm wrong, Wybong grazing is broadly speaking paddock 20, 21, 22, 23, 24, 25 and 26? A. Yes. Q. You say that the, which is all the land essentially to the approximate north of Wybong Road. A. Yep. Q. You say in the relevant periods there was little to no water for cattle to drink in the majority of the Wybong grazing country, do you not? A. Yes, correct. Q. So cattle could not be placed in those paddocks. A. Correct. Q. You say in your affidavit in paragraph 49 that the Wybong grazing country is shown on annexure E as paddocks 24, 25 and 26 but as you've now explained it incorporates other paddocks as well? A. Well, that's all Wybong. That's what I class as Wybong country through there. Q. Is it correct for the Court to proceed on the assumption because there was little or not water to drink in the relevant years 2016 to 2019, it says here 2019, there was little to no water for the cattle to drink in the majority of the Wybong grazing country so cattle could not be placed in these paddocks? A. Yeah, in - in majority of those paddocks water was drying up. Also feed was - was - was part of it too.
Later in his questioning of Mr Hinze, Mr Tomasetti returned to the topic, seeking further detail concerning whether or not Colinta had grazed cattle on these lands during the relevant years. That element of the transcript (with irrelevant procedural elements removed) is in the following terms (Transcript, 24 October 2019, page 91, line 36 to page 94, line 21): TOMASETTI … In paragraph 49 of your affidavit you say: "The land has been subject to severe drought over the period 2016 to 2019 which has limited the amount of pasture available in some of the paddocks and therefore resulted in less cattle being grazed in these paddocks. Since 2016, the drought also resulted in there being little to no water for cattle to drink in the majority of the Wybong grazing country and so cattle could not be placed in those paddocks. The Wybong grazing country as shown on annexure E is paddocks 24, 25 and 26." Weren't you there conveying to the Court in your affidavit that you couldn't graze or place cattle in the Wybong grazing country between 2016 and some time in 2019? A. Am I able just to read this again, cause I got a bit lost through there when you were talking. … Q. You say in the second last sentence, "Since 2016, the drought also resulted in there being little to no water for cattle to drink in the majority of the Wybong grazing country, and so cattle could not be placed in these paddocks." When, in that sentence, you refer to water, you're also referring, by the word "also", to the limited amount of pasture A. Well, I've Q. in the second line. A. Yes. Q. So in the Wybong grazing country, in the period 2016 to 2019, there was such little amount of pasture available and so little water, to use your words, that cattle could not be placed in these paddocks. Isn't that correct? A. Resulting in - in less cattle being grazed in these paddocks. So I still - I still had Q. Sorry, go on. A. I still had cattle in the Ridgelands paddock that I was feeding, which I trucked out of there when I - they were the last mob of cows to leave. They were in the Ridgelands paddock. I moved those cattle out of there when that was the last mob of cows to go from that area, which the water was in - in my opinion, wasn't efficient enough to carry them through. We were feeding cattle in there and then we trucked them - well, trucked them and - well, we trucked them all cause we didn't want to walk them at that stage, back over to Mangoola. Q. Mr Hinns, just focus on my question. The words that you've used in your own affidavit. They are in that second last sentence, "Since 2016 the drought also resulted in there being little to no water for cattle to drink in the majority of the Wybong grazing country, and so cattle could not be placed in those paddocks". Are you now telling the court that you did place cattle in those paddocks, but them out in 2019? … Q. Mr Hinns, you've said in this paragraph of your affidavit in the final words of the second last sentence, "So cattle could not be placed in those paddocks". Are you now saying that you could place fewer number of cattle in those paddocks than you otherwise would've, and you removed them in 2019, or something like that? A. No, I'm saying what happened, and the way I'm reading this is, since the drought, I've started in 2016 to 2019, the water and everything dried up, and there was limited amount of grazing, pastures, and the water's dried up, and you couldn't put cattle in those areas, and the last lot of cattle to go out left Ridgelands. It'd have to finish somewhere like the last lot of cows. Q. Where do you say in this affidavit that the last lot of cattle to go out from the Wybong grazing country occurred at any particular time? A. I haven't said that in here; in this section, no. Q. No. Do you agree with me that when you said, "So cattle could not be placed in those paddocks", you were referring to the period of the severe drought, over the period 2016 to 2019. The words in the first line of the paragraph. A. Well, yes, but there were cattle in there at the start of it, and it gradually got worse, and then the cattle fed, and then slowly moved over, as I said, I moved cattle from the Wybong to the Mangoola areas. Q. What I'm putting to you is this; that in the Wybong grazing country which included not just paragraphs [paddocks] 24 and 25 and 26, but the other paragraphs [paddocks] you've-- … Q. That the other paddocks that you've referred to earlier, after the morning tea break, that you did not have cattle in those paddocks, or had so few cattle in there, because of the severe drought, whilst at the same time, to your knowledge and observations, activities relating to mining occurred in the same area? A. They obviously had vehicles in there doing something, yep. Q. So when you say - do I understand you to be telling the court now, that there were cattle in the Wybong grazing country during the period of severe drought? A. Yes, there was. Q. Why didn't you say that in paragraph 49? A. Well, I've obviously - it's obviously not entirely clear there, because that's what's in there. But resulted in being little to no water for cattle to drink, and resulted in less cattle being grazed in these paddocks. It did result in less cattle being grazed in these paddocks because they were slowly moved out.
As can be seen from this longer passage, Mr Hinze sought to walk back from his evidence in [49] of his affidavit and from his oral evidence given during the earlier questioning by Mr Tomasetti on this point.
Mr Tomasetti returned to [49] of Mr Hinze's affidavit later in his cross‑examination, as can be seen in the following passage (Transcript, 24 October 2019, page 97, lines 14 to 40): Q. What you said in your affidavit in paragraph 49 you read that paragraph carefully before you executed your - before you signed your affidavit. A. Yeah, mind you I'm not the best reader either so but 49 yeah. It says here. Q. I mean this with the greatest of courtesy to you, when you say you're not the best of readers you don't suggest that you were unable to read this affidavit and understand what was written down? A. No, no, not saying that at all, no. Q. You did read paragraph 49 before you signed it in front of your solicitor. A. Yes. Q. When you signed it at the time you knew that you were saying something which was very serious and important to be correct about? A. I understand, yes, yep. Q. When you signed it you believed what you said in paragraph 49 was true and correct? A. I believe so, yeah. Q. Do you change that paragraph 49 now in any respect or do you say that it's accurate still? A. I believe it's accurate. Can I just talk about this or that's I can't answer that question? Q. Do you believe it's accurate or not today? A. Yes.
It is to be observed that, in his re-examination of Mr Hinze, Mr Ireland sought to question Mr Hinze about his evidence concerning the Wybong lands and whether or not Colinta actually carried out any grazing of cattle on them during each of the relevant years. Following objection by Mr Tomasetti as to the course sought to be followed by Mr Ireland, nothing of substance concerning the Wybong lands is to be taken from the re-examination of Mr Hinze (the relevant procedurally related passage concerning the Wybong lands is at Transcript, 24 October 2019, page 107, line 47 to page 109, line 50).
It will be necessary, later, in my consideration of what conclusion I should draw concerning the use of the Wybong lands in the relevant years not only to have regard to the submissions advanced by Mr Ireland and Mr Tomasetti on this point, but also to my own observation of Mr Hinze's demeanour during his giving of the above set out portions of his oral evidence (particularly the later, longer element of this evidence).

[79]

A number of these monitoring stations were visited during the course of the site inspection. In addition to the physical area occupied by these various monitoring stations, mining personnel were required to access them, for the purposes of maintenance and/or data recovery, at periodic intervals throughout the relevant years.
The second aspect of mining activities carried out on the Wybong lands related to exploration drilling and exploration track construction carried out in portion of the Wybong lands. This portion was identified as the potential northern expansion area of the mine.
There was a dispute concerning two aspects of the activities carried out on behalf of the Company in the northern expansion area. The disputes related to the extent of the activities that were undertaken by the Company in its exploration drilling activities and, second, whether, for the purposes of the categorisation process here being undertaken, those exploration activities should be regarded as being for the purposes of the Company's coal mine.
With respect to the first of those points, during the course of the oral evidence given by Mr Lennard and Mr White, Mr Ireland was questioning concerning the extent of the activities undertaken by mining personnel at the various locations depicted on Annexure F (being a marked-up air photo reproduced at Figure 3.7 - Exploration Sites Northern Area at page 20 of Mr Lennard's Statement of Evidence, Exhibit O).
I intervened in the flow of the questioning to put the following to Mr Ireland (Transcript, 28 October 2019, page 354, lines 19 to 27): HIS HONOUR: But it seems to me, I have - and I don't understand Mr White's objected to this evidence, Mr Leonard's evidence that they do about - that it would take about two days, as I understood him, to drill a single one of these holes, that there are about six inches in diameter or slightly less, that it's going to take longer than a month for all of this to happen. Therefore, it seems to me, as a broad proposition, the highest that this could be taken against your client for the purposes of these proceedings is that within the area encompassed by all of those holes in the purple tracks, the dominant use of that for a month or two months in 2017 might have been for mining.
Mr Ireland, as a consequence of my putting that proposition to him, did not continue questioning on this topic.
In his closing written submissions, at [88] to [90], Mr Ireland explained why he said I ought not conclude that these exploration activities undertaken by the Company in the northern expansion area should be regarded as ones that could contribute to concluding the use of the Wybong lands was for the purposes of the Company's coal mine. He wrote: 88 The fact that on assessment 113969 there were exploration drill sites at various sites over the relevant years and that it was an area the subject of exploratory activities, does not convert exploration for future possible mining from a subsidiary or incidental activity, into the dominant use, and certainly does not make coal mining the dominant use. As noted in Bayside, the question of dominant use is determined by current not future uses. Exploration may precede a future mining use (depending, inter alia on the results of the exploration), but is not coal mining within the meaning of s517 (for one thing, it does not involve extraction) and is a distinct activity having regard to the ordinary meaning of "mining" and "exploration". 89 The Project Approval's definition of "mining operations" is also significant, and it is submitted that on the evidence before the Court the Court would conclude that that activity is only occurring within the Mining Lease. 90 Mr White's classification of the activities (on the evidence occurring over 1-2 months in 2017 only: T352.35-50, T353.1-2) in the northern expansion area as "supplementary information gathering" (T349.46-49) is enough on its own to demonstrate that there is no "use" of land involved, rather discrete activities and desktop analysis elsewhere.
Mr Tomasetti said, at [98], in his closing written submissions: 98 Meanwhile, the mining uses of the Subject Land intensified.
It is to be observed that the statement immediately above was footnoted as being sourced from: Mangoola's 2016 Annual Review, paras 3.2 (last paragraph), 4.1.2 & Table 9, 4.3.2 (Council's Tender Bundle A.015);Mangoola's 2016 Annual Review 2017, paras 4.1.2 and 4.3.2 (Council's Tender Bundle A.016); Appendix 1 (Council's Tender Bundle A.006AA) to Mangoola's Exploration Activities Application 02.02.3017 (Council's Tender Bundle A.006A).
Mr Tomasetti did not address the question of the exploration activities in the northern expansion area with any specificity in his closing written submissions. He noted, at [99], that the Company's 2017 Annual Review, at Section 4.1.1, recorded the Company as having undertaken exploration drilling. It is this exploration drilling in the northern expansion area that is the subject of this consideration.
Mr Ireland's closing submissions in reply, at [108] to [110], on this point were in the following terms: 108 The proposition here that the mining uses of land intensified in the relevant years is incorrect. Mining use must be distinguished from exploration; it is distinguished as such by the relevant NSW legislation such as the Mining Act 1992 and also the applicable approval AL 9 (Assessment Lease 9). The Project Approval defines "mining operations" with particularity and they do not include exploration. 109 The submission at paragraph 98 in relation to the assessment areas cannot be accepted. There were no mining uses of the subject land in the relevant years. There were monitoring activities, air monitors, noise monitors, nest boxes and the like; but these do not constitute mining use of the land, or mining operations. 110 The evidence of the coal mine management experts is that the exploration activities to the north were carried out for a very short and transient period: see paragraph 90, Applicant's Closing Written Submissions. The documents referred to at footnote 78 in the Respondent's Closing Written Submissions do not show an intensification of mining uses of the assessment areas. For example, Section 4.1.2 of Mangoola's Annual Review 2017 and section 4.3.2 are useful cases in point. These sections of the annual review do not show an intensification of mining uses at all; for example, section 4.3.2 says: "4.3.2 Exploration Mangoola also submitted an ESF 4 Application for the exploration of a further 50 open and 12 core holes within AL 9 associated with the MCCO project feasibility assessment. This application is currently being assessed by the DRG; however, it is anticipated that subsequent to approval the additional exploration activities will be completed in 2018."
I also note, but do not need to address that, at [70] to [72] of his closing written submissions in reply, Mr Ireland proposed that I should have regard to the terms of Assessment Lease 9 granted under s 41 of the Mining Act 1992 and the conditions which were attached to that assessment lease. As earlier noted, I am satisfied that the issue of interpretation of other statutory instruments and documents subordinate to them (save to the extent of obligations imposed on the Company by its coal mine approval) are of no assistance to me in undertaking the assessment required for these Local Government Act categorisation purposes.
However, given the conclusion that I have reached for the reasons explained below that Colinta carried out no grazing activities on the Wybong lands during the relevant years and that the various monitoring activities carried out on those lands were for the purposes of the Company's coal mine, the conclusion (which I do reach) that the activities in early 2017 of exploration in the northern expansion area were for the purposes of the Company's coal mine merely reinforces the conclusion that the Wybong lands were used for the purposes of the coal mine during the 2016/17 year - it is certainly not the sole foundation for that conclusion for that year.
In addition, it is also to be noted that seed-harvesting activities were undertaken by mining personnel on the Wybong lands during the relevant years. Seed‑harvesting locations in the Wybong paddocks (from Annexure C) were 12 (2016), 0 (2017) and 2 (2018).

[80]

Consideration of the use of the Wybong lands

I have earlier set out the passages from Mr Hinze's written and oral evidence concerning whether or not, during the relevant years, Colinta grazed cattle in the area known as the Wybong lands. In both the early portion of his oral evidence and the short, final portion of his oral evidence on this point, Mr Hinze was quite emphatic that the position in [49] of his affidavit was correct and that Colinta had not grazed cattle in the seven paddocks identified by him from the map in Annexure D during either of the relevant years.
However, as also can be seen from the lengthier further extract from the transcript of his oral evidence, when Mr Tomasetti returned to questioning him on this point, Mr Hinze sought to walk back from the position of certainty in [49] and his earlier oral evidence.
Mr Ireland proposed, in his closing written submissions at [57], how I should approach Mr Hinze's evidence. He wrote: 57 Mr Hinze would have impressed the Court, as a completely honest "salt of the earth" character, a hard working cattle farmer and a witness with detailed and extensive knowledge of what is after all, the farm he manages and also works on and generally runs on a day to day basis and has done for a long period of time. Mr Hinze's oral evidence and the view only reinforced this evidence of an operational farm of significant proportions and character.
In his closing written submissions, at [201], Mr Tomasetti submitted that: 201 Mr Hinze's evidence is unreliable and where his evidence differs from that from the published reports of Mangoola [they] should be preferred over his recollections.
In response to the above submissions from Mr Tomasetti, Mr Ireland submitted (closing written submissions in reply at [28]): 28 This is without foundation, and contrary to Browne v Dunn. Mr Hinze, although impeccably honest and self-effacing, clearly knew his business - that of farming Mangoola Station - very well. There is also no basis for doubting his credibility, and it is surprising the submission is now made. He made concessions, against his employer's interest, when the truth required the same. It is incorrect to suggest that his evidence about there being reduced grazing on the northern part of the smaller assessment parcel had to be dragged out of him. It is in his affidavit (par 42, Hinze affidavit 19 June 2019, last sentence), and was an observation made on site on location in response to a question from the Court, even before he was cross examined.
I have earlier explained why I have rejected general criticisms of Mr Hinze's evidence. At this point, I need to address the resolution of a much more confined point arising from his oral evidence - namely, what conclusion should I draw as to the extent, if any, of Colinta's grazing activities on the Wybong lands in the relevant years.
On this point, I paid particular attention to Mr Hinze during the delivery of his oral evidence. I did this for three reasons. These reasons were: 1. Mr Hinze had been open and helpful on factual matters during the course of the site inspection, particularly where the matters about which he was asked for information, by Mr Tomasetti, Mr Ireland or me, were matters that were not controversial; 2. The fact became obvious during the course of interaction with Mr Hinze during the site inspection that he was a humble and unsophisticated witness; 3. For reasons earlier discussed, I have rejected the general attack on Mr Hinze's reliability as a witness; and 4. Despite the clarity of his written evidence (clearly prepared with the assistance of the Company's legal advisers - this is not to be taken to be a criticism, but merely a factual observation arising from the more skilful use of the English language than was observable during the interactions with Mr Hinze during the course of the site inspection), he was clearly thinking through potential consequences of his oral evidence as he went along.
During the course of his oral evidence, when he was under close questioning by Mr Tomasetti (including the element of his more lengthy oral evidence concerning the use, or lack of use, of the Wybong lands by Colinta), Mr Hinze was, to my observation, uncomfortable about the process to which he was being subjected. This, of course, is a not uncommon reaction from witnesses who are entirely unfamiliar with the courtroom and with court processes. However, to my observation, Mr Hinze was distinctly more uncomfortable when giving this element of his oral evidence than he had been during the course of the more introductory passages of his questioning by Mr Tomasetti.
Of relevance to the portion of his oral evidence when he was resiling from his earlier written and oral evidence that the Wybong lands had not been used by Colinta for grazing during the relevant years, he appeared to me to be less certain and more discomfited in the giving of this evidence than he had earlier been.
When the final, third questioning on this point was undertaken by Mr Tomasetti, Mr Hinze seemed to me to appear relieved to revert to the position of adopting the accuracy of [49] of his affidavit.
As a consequence, I am satisfied that, on the balance of probabilities, I should accept that the true position was that, during each of the relevant years, Colinta did not use the Wybong lands for grazing purposes.
In reaching this conclusion, I accept that the reason for this was, as described by Mr Hinze, the drying up of water sources in those lands from which the cattle could drink and the lack of pasture in those paddocks. Both of these occurrences were, as Mr Hinze observed, consequences of the extent and effect of the drought impacting the region. In this regard, I note that this position of particularity concerning the impact of the drought on the Wybong lands is consistent with the evidence concerning drought impacts in this part of the Hunter region given by Mr Nelson, the Company's agricultural land use expert (and, as a general matter, agreed with by Mr Lane for the Council).

[81]

Fencing

For completeness, I should also address the question of fencing activities carried out on the Wybong lands by Mr Hinze or others supervised by him employed by Colinta or contracted by Colinta to undertake fencing activities. Two types of fencing activity were undertaken on the Wybong lands.
The Colinta access licence provides, in Clause 13.5 Fencing, what the respective roles of the Company and Colinta are with respect to fencing. The clause is in the following terms: 13.5 Fencing (a) The Licensor will, at its sole cost, provide boundary fencing around the Property to a standard acceptable for the Purposes. (b) The Licensee will construct, maintain and repair internal fencing within the Property to a reasonable standard normally practised on farms of the same character and in the same neighbourhood as the Property, normal wear and tear excepted. (c) The Licensor must promptly repair or renew any boundary fences, gates and stock crossings damaged or destroyed by any cause other than the wilful or negligent act or omission of the Licensee. The Licensee must report any such damage to the Licensor as soon as is practical after it becomes aware of such damage. (d) The Licensee must not alter or remove existing fencing without written consent from the Licensor.
The first element relates to boundary fencing. Although issues of costs' quantum and attribution for this fencing might arise for consideration had I needed to address matters relating to s 515 of the Local Government Act, it is sufficient to note, for present purposes, that the Colinta Access Licence Agreement makes it clear, in Clause 13.5(a), that the cost of boundary fencing as necessary for the Colinta access licence areas is to be met by the Company and not by Colinta. Therefore, to the extent that this fencing was carried out by Colinta, it cannot be regarded as forming part of Colinta's grazing activities at any location (particularly, here relevant, for the Wybong lands). In any event, I have no evidence of any precision readily ascertainable as to the location and extent of Colinta boundary fencing activity on the Wybong lands.
The second element relates to internal fencing removal (Clause 13.5(d)). Mr Hinze also gave informal evidence during the course of the site inspection concerning internal fencing activities undertaken by him or under his supervision. This included very limited reinstatement of internal fencing but, more particularly, the removal of dilapidated legacy fencing carried over from prior ownerships of grazing properties before they had been acquired by the Company.
For the purposes of the Wybong lands, we observed some of this legacy fencing at several locations during the site inspection. At the location mentioned below where we turned from Wybong PO Road into a paddock to inspect an air quality-monitoring station, I observed, from the road, a modestly significant pile of the legacy fencing which had been removed and stacked in the vicinity of the gate.
To the extent that such internal fencing removal may have been undertaken by Mr Hinze or under his supervision on the Wybong lands, I have no evidence that such removal was carried out during the relevant years. In addition, even if such removal was carried out during those years, I have no evidence of the extent of it and such visual manifestation of it as was able to be observed during the course of the site inspections traversing of the Wybong lands would indicate that the activity was de minimus.
It is to be observed that Clause 13.5(d) of the Colinta Access Licence Agreement operating during the vast majority of the relevant years, provided that Colinta must not alter or remove existing fencing without written consent from the Company. There is no evidence that such written consent was obtained for any of this legacy fencing removal. However, under the circumstances, it seems to me that nothing of significance should be regarded as turning on this point and I certainly do not propose to draw a Jones v Dunkel inference concerning this.
It is sufficient, for this consideration (and also applicable to my subsequent consideration of the Colinta access licence lands to the east and south), that these legacy fencing removal activities were minor and do not weigh, to any significant extent at all, in my consideration of the dominant use of the Wybong lands.
Having concluded that I should accept that Colinta had undertaken no grazing activities in the Wybong lands during the relevant years, I now turn to the mining activities on these lands during the relevant years. These activities, as earlier set out, fall into two distinct categories.
The first is the presence of the various elements of mine activity-related monitoring equipment, equipment which was present on the Wybong lands throughout the entirety of the two relevant years. Not only was this equipment continuously present and operating for mine operational compliance reasons throughout this period, such maintenance and/or data harvesting as was periodically necessary for this equipment took place throughout each of the relevant years.
Whether that access by mining personnel was along clearly marked tracks or was merely obtained, informally, by driving across a paddock (as we did when we visited the air quality monitor a 100 metres or so from Wybong PO Road within PO Box Hall paddock (paddock 26) within the Wybong lands) being irrelevant.
Whilst there was also some seed-harvesting activity by mining personnel on the Wybong lands during the relevant years, this is a matter of minor (but confirmatory) use of these lands for the purposes of the Company's coal mine.
I have also earlier described the evidence given by Mr Lennard and Mr White concerning the various exploration activities carried out by mining personnel in the portion of the Wybong lands described as the northern expansion area.
These experts were in agreement concerning the extent and/or duration of these activities by mining personnel in this area within the Wybong lands (and for other monitoring sites) during the relevant years. This was set out in Table 2 of their Joint Expert Report (Exhibit N).
It is sufficient that, for the purposes of this consideration of what might be regarded as the dominant use of the Wybong lands during the relevant years, such activity by mining personnel on behalf of the Company on this portion of the Wybong lands was taking place during a period when Colinta was not undertaking any grazing activities.

[86]

Introduction

As can be seen from a combination of Annexures C and D, the Colinta access licence area in the east and south of the larger assessment parcel comprises paddocks 1 to 19 and 27 to 33 of those named on Mr Hinze's list at Annexure E. It is to be noted that the portions of the Northern Corridor to the east of ML1626 shown on Annexures A and B fall within my discussion of the offset areas and not here. The consideration I am here undertaking is confined to the permitted grazing utilisation of the portions outside the Northern Corridor paddocks.
There are a number of matters to be noted concerning these lands within this element of the Colinta access licence lands.
First, Mr Nelson's expert report set out, at Table 6 (at folio 659 of the Consolidated Evidence Book), the land and soil capability classifications of the land within the larger assessment parcel. The table included those classifications for the entirety of this assessment parcel. A copy of the map, incorporated in his expert report, visually displaying this (Figure 1 at folio 659 of the Consolidated Evidence Book) is reproduced as Annexure G to this decision. Mr Nelson's Table 6 is reproduced below:
A proper understanding of where the various elements depicted in this table are located can be seen from Annexure G. It is clear that the Class 2 and Class 3 land (described by Mr Nelson as being situated along the rivers and creeks and land capable of being regularly cultivated so long as conservation practices are observed) can be seen to be located, principally, along the Hunter River along the south-eastern edge of this element of the larger assessment parcel. What was observed during our visit to elements of these Class 2 and Class 3 lands as part of the site inspection was earlier described in my setting out of matters then observed.
As can be seen from Mr Nelson's Table 6, a small portion of the eastern and southern lands of the larger assessment area is Class 4, with the vast majority of it being Class 5 land described by Mr Nelson as being not capable of being regularly cultivated but suitable for grazing with occasional cultivation. It is to be observed that there was no evidence from Mr Hinze that any of the land outside the Class 2 and Class 3 land in this portion of the larger assessment parcel was cultivated during either of the relevant years.
With the exception of Mr Lane's "adjusted Class 7" land earlier discussed (and a matter not here relevant) there was no relevant difference in the approaches by Mr Nelson and Mr Lane to these land classifications.

[92]

Cropping activities

During the course of the site inspection, we visited several locations in the Class 2 and Class 3 lands along the Hunter River in this element of the larger assessment parcel. We also drove parallel to the riverbank for portion of the site visit for the purposes of access. The present extent of cropping activities seen on these highly productive lands was earlier been described at [96].
In his affidavit of 19 June 2019, Mr Hinze described the nature of Colinta's cropping activities at [88] to [97] in the following terms: Cropping and Irrigation 88 Colinta engages in centre-pivot irrigation, half-pivot irrigation, soft tow irrigation and general ploughed up cropping for the purpose of planting and growing crops on the Properties. 89 Under the Water Licences, Colinta is able to irrigate 80 hectares using three centre pivots and one half pivot for cropping. One of the centre pivots is towable. 90 Colinta can irrigate a further 40 hectares using soft tows. 91 Colinta is able to irrigate a further eight hectares on the flats adjacent to the Hunter River with moveable pivots for the purpose of cropping Lucerne. The crops of Lucerne are used to make hay for the cattle. 92 Colinta can also use a further 60-80 hectares of dry land, which was previously ploughed up for seasonal cropping. This land has not been used for cropping since late 2016 due to the drought because it relies on seasonal rainfall rather than irrigation for crops to survive. Colinta will use the land when it can for future cropping. 93 The total area used for cropping described above amounts to around 200 hectares. 94 Of the total area, the land that can be irrigated is located within the south-eastern portion of the Properties because it is adjacent to the Hunter river irrigation pumps. On this land, Colinta sows and crops oats and Lucerne. 95 In previous years Colinta has also plant sorghums in the summer months. 96 Crop yields are used to grow out calves for sale and produce fodder for the cattle generally. 97 Every year on a rotating basis Colinta replants the pasture, Lucerne, and forage sorghum under 1 of the pivots, so that all pasture, Lucerne, and forage sorghum in the area is replanted once every 5 years. Oats and winter based cereals are also sown under some of the pivots. In the period between 2016 and 2018 we have also planted a summer crop of forage sorghum.
Whilst matters relating to cost attribution (or the lack thereof) for the irrigation equipment available to Colinta for these purposes might potentially require discussion, it does not do so in the present context. That consideration would only arise if I needed to turn to the tests in s 515 of the Local Government Act.
By reason of my conclusions that flow from my dominant use conclusions concerning the larger assessment parcel, I do not need to do so.
During the course of his oral evidence, Mr Hinze was questioned concerning Colinta's cropping activities. This evidence is recorded in the transcript of 24 October 2019. It is not necessary to set out significant elements of this evidence. It is sufficient, for present purposes, to set out what Mr Hinze accepted during Mr Tomasetti's cross-examination was a summary of Colinta's cropping activities in the relevant years (Transcript, 24 October 2019, page 99, lines 18 to 40): Q. So in the relevant years, I'd be accurate to summarise your evidence for the Court by saying you grew crops of barley, sorghum and oats. Is that correct? A. Barley, sorghum and oats, yeah. Q. The total cropping area was 128 hectares. Is that correct, including the lucerne block? A. I - I do believe so. Actually, no, I think it's only 80 hectares under irrigation. I think I'd have to double-check with you. I think there is other - there's dry land crops there that we put in, but we struggled to get crops in the dry land areas due to the - to - to the - you know, no rain. I think we got - I believe it was one or two failed crops and we didn't - last year we didn't put in - I don't think they put anything in on some of them because we couldn't afford to lose a crop. Q. It's 80 hectares, is it‑‑ A. I'll just‑‑ Q. --that was available for irrigation of crops and - or pastures? A. I can add it up for you if you'd like, if you want an exact - I sort of broke it down the best I could with my knowledge, but it's ten, 20, 30, 40 - 40, 50, 60, 70 - 70, 80 - 80 hectares under the centre pivots and then the eight hectares out the front.

[93]

The impact of the drought on Colinta's grazing activities

Mr Hinze also gave evidence concerning the impact that the drought had had, during the relevant years, on Colinta's grazing activities. A significant element of that impact was discussed in the earlier portion of this decision dealing with what I have concluded was the abandonment by Colinta of grazing in the Wybong lands during each of the relevant years.
However, Mr Hinze also gave more general evidence concerning the impact that the drought had had on Colinta's grazing activities. In his 19 June 2019 affidavit, he said (at [79] to [83]): Drought 79 At the end of 2016 I noticed that the drought had begun to affect Colinta's business operations because paddocks available for grazing were significantly drier than in previous years. 80 Since 2016 Mangoola Station has undergone a process of selling livestock at an increased rate to alleviate pressure on the lands from reduced feed and silage on the Properties because of drought. 81 The stock records referred to in Annexures "H" and "I" above reflect the reduction in cattle numbers on Mangoola Station from 2016 to present. 82 Of the cattle sold since 2016, there were a few truckloads that went to Bobadeen Station in Ulan but the majority of the cattle were sold at the public yards up in Dubbo and also to Singleton-based abattoirs. 83 Colinta runs what cattle it can on the land even though Mangoola Station has been continuously impacted by drought from at least mid-2016 onwards. The dryness on the land improved in 2019 because of rainfall on the Properties that year.
During the course of his oral evidence, in addition to questioning about drought impacts on activities on the Wybong lands, Mr Hinze was questioned by Mr Tomasetti concerning the broad impact of drought on Colinta's activities. This evidence was (Transcript, 24 October 2019, page 65, lines 7 to 27): Q. So that in the relevant period, 2016 to 2018, the Court is correct to understand that the Mangoola Station was in a period of very dry times, drought? A. It was, yeah. It started at - it starts, well, in 16, got dry and it just continued to get drier, yes. Q. And the amount of feed on the ground was, in many parts of the property, less than what was observed during the Court view in the last two days? A. Yes. Q. Is that correct? A. Yes. Q. And you've been working at Mangoola Station for how long? A. Approximately eight - eight years. Q. And it would be right to say that in the relevant years, this two year period, the weather was drier than it's been at any other time when you were working there? A. Yeah, we - we haven't had a severe as drought as what we're in now, prior to me being there, no, to - in those relevant years.
This evidence concerning the impact of the drought on Colinta's activities was entirely consistent with the expert land management evidence concerning the impact of the drought on more general cattle-grazing activities within this portion of the Hunter Region.

[95]

Consideration

For the purposes of assessing the balance of the use of this element of the larger assessment parcel for each of the relevant years, it is necessary to weigh the uses of this element for the coal mine by the placing of the monitoring equipment and its continuous use throughout the entirety of the two relevant years (together with the necessity for intermittent access to that equipment for data recovery and/or maintenance purposes) with the extent of the use by Colinta of this element of the larger assessment parcel for grazing and cropping purposes. In this process, for reasons earlier described, the importance of the use of the water and electricity supply easement to permit the Company's coal mine to operate as a coal mine is an element of importance in my assessment of the 2016/17 uses of this land.
For the 2016/17 year, I am not satisfied that the use of this portion of the larger assessment parcel by Colinta is greater than the use of elements of this land for the purposes of the coal mine.
However, for the 2017/18 year, I am satisfied that the use of this portion of the larger assessment parcel by Colinta is greater than the use of elements of this land for the purposes of the coal mine. This forms part of my assessment of what should be regarded as the overall dominant use of the larger assessment parcel in this second of the relevant years.
I now explain why I have reached these differing conclusions.
Although it is clear that the intensity of Colinta's activities for grazing purposes was diminished in each of the relevant years as a consequence of the drought, I am nonetheless satisfied that Colinta's grazing activities carried out across this element of the larger assessment parcel, when coupled with the extent earlier described of the cropping activities on the limited, more productive portion of this element of this assessment parcel, constitutes a significant use of this area to be balanced against the coal mine uses in in each of the relevant years.
As earlier noted, a differential consideration arises between the years with respect to the use of the water and electricity supply easement earlier discussed. That is because of the water and electricity supply facilities and their necessity for the existence of the Company's mine at all. This was explained in detail in the 2017/18 discussion of the smaller assessment parcel. This forms a significant part of my assessment of what should be regarded as the overall dominant use of the larger assessment parcel in the 2016/17 year.
The use of the various locations for the coal-mining monitoring facilities earlier set out, when coupled with the need for access to them for data-gathering and/or maintenance is also to be considered in the aggregation of the overall uses of the larger assessment parcel.

[98]

Conclusion concerning the dominant use of the larger assessment parcel

To reach a conclusion as to the overall dominant use of the larger assessment parcel and the purpose it serves, it is necessary to bring together all three of the assessments I have made of the disparate elements that make up this larger assessment parcel.
At the commencement of doing so, I should note that I do not have land area break-ups that permit any comparison with precision of the area of the Wybong lands together with the offset areas with the area occupied by Colinta for its grazing and cropping activities in the east and the south of the larger assessment area.
However, although I acknowledge that this is impressionistic (Leda Manorstead), it appears to me that the area of the Wybong lands available to, but not used by, Colinta for grazing purposes, together with the various offset area elements within the larger assessment parcel, are roughly equal to the area occupied by Colinta for grazing and cropping in the east and the south of this assessment parcel.
I have earlier explained, in the context of my assessment of the dominant use of the smaller assessment parcel in the 2017/18 year, the importance of the use of the pipeline and electricity supply easement. This easement was within this element of the larger assessment parcel for the 2016/17 assessment year and its importance to the ability of the Company's coal mine to operate at all requires to be taken into account in my consideration of what should be regarded as the weight to be given to the two uses (those for the coal mine weighed against those for Colinta's grazing and cropping activities) in the larger assessment parcel in that year.
As a consequence of all the matters informing a conclusion of the dominant use of the larger assessment parcel, I am satisfied that, for 2016/17, there is no doubt that the dominant use (and overwhelmingly so) was for the purpose of the Company's coal mine.
As a further consequence of all the matters informing a conclusion of the dominant use of the larger assessment parcel, I am satisfied that, for 2017/8 - adding the uses of the Wybong lands, the offset lands and the limited mining uses of the east and south portion of the larger assessment parcel when compared to Colinta's grazing and cropping uses in the east and south portion of this parcel - on balance, the dominant use of the whole parcel was for the purpose of the Company's coal mine.

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (103 paragraphs)

Parties

Cases Cited (26)

Cited By (4)