Moolarben Coal Mines Pty Ltd v Director-General of the

Land and Environment Court (NSW)|2011-10-17|Before: Moore AJ, Mr J

t respondent) Ulan Coal Mines Ltd ACN 000 189 248 (Second respondent) Representation: Mr M J Leeming SC with Ms V R Brigden (Applicant) Mr I V Knight (submitting appearance) (First and Second Respondents) Mr J E Griffiths SC with Mr R C Beasley SC (Third Respondent) Mr M J Leeming SC with Ms V R Brigden (Applicant) Mr I V Knight (submitting appearance) (First and Second Respondents) Sparke Helmore Lawyers (Applicant) Crown Solicitor (First and Second Respondents) McCullough Robertson Lawyers (Third Respondent) Sparke Helmore Lawyers (Applicant) Crown Solicitor (First and Second Respondents) File Number(s): 40623 of 2011 80373 of 2011

Introduction 1Certain areas of land were "agricultural land" in the opinion of the Director-General of the Department of Industry and Investment NSW (Agriculture Division). Ulan Coal Mines Ltd ("Ulan") owned land which included those areas. However Moolarben Coal Mines Pty Ltd ("Moolarben") had been granted an exploration license under the Mining Act 1992 (NSW) ("the Act") over a large tract of land which also included those areas. More recently Moolarben applied for a mining lease over a portion of the tract of land which again included those areas. Ulan objected to the grant of the lease on the footing that the areas were "agricultural land". Ulan advanced its objection in its capacity as a landowner though it, like Moolarben, is a coal mining company. 2The Director-General's opinion decisively influenced the operation of certain provisions of the Act. Somewhat simplified, the Act provided that a mining lease could not be granted in relation to land which was "agricultural land" unless the owner of that land consented. Ulan has not, to this point, consented. In these proceedings Moolarben challenged the determination of the Director-General that the areas of land were "agricultural land".

The background in detail 3The following chronology of events is either agreed or is apparent from documents in an agreed tender bundle. On 20 July 2004 Moolarben lodged Exploration Licence Application 2398 (ELA 2398) over an area of approximately 111 square kilometres in the Upper Hunter area of New South Wales. The Minister granted a licence (EL 6288) that was expressed to operate for 5 years and was the subject of specified conditions and provisions. One condition required the completion of work programs and further studies that had been identified in an earlier Expression of Interest document. The cost of these works and studies had been estimated to be approximately 1 million dollars per year for the first three years. 4On 21 April 2009 Moolarben lodged Mining Lease Application 331 (MLA 331), in relation to part of the land the subject of EL 6288. The area involved was approximately 37 square kilometres. Moolarben gave notice to Ulan of MLA 331 on 21 April 2009. Ulan objected to the grant of the lease under clause 22 of Schedule 1 of the Act, by letter dated 26 May 2009. Moolarben was provided with a copy of that letter. Ulan's objection was based on a claim that land it owned within the 37 square kilometre area was agricultural land. 5Mr John Furner, a Senior Projects Engineer with Moolarben, wrote to the Director-General of the Department of Primary Industries on 23 June 2009. The letter was marked to the attention of Ms Melanie Brown. 6I should, at this point, note one matter of some significance. It was common ground. The relevant Departmental structures have changed in the last few years. However there were two relevant units within the Departmental structure. One was a unit concerned with mineral resources and based in Maitland ("the Mining Section") and the other was concerned with primary industries and based in Orange (the "Agricultural Section"). Each Section had a Director-General as the administrative head. This last proposition emerged from the maintenance of the proceedings against the first and second respondents and from the points of claim and the points of defence. It was asserted and admitted there was a Director-General (Agriculture Division) and a Director-General (Minerals Division). What precisely was the Departmental structure at various times is a matter I need not explore. 7The Director-General of the Agriculture Section was the officer who was to determine whether the areas of land were "agricultural land". However, more generally, the application for the mining lease was to be processed within the Minerals Section. It was Ms Brown in this Section who ultimately referred the question of whether the areas of land were "agricultural land" for determination by the Director-General of the Agriculture Section. From this point, I will refer to this office as the Director-General (Agriculture). 8The letter from Mr. Furner, headed "Mining Lease Application No 331, Agricultural Land Objection lodged by Ulan Coal Mines Limited (Ulan)", said: "We refer to the attached letter dated 26 May 2009 from Ulan Coal Mines Limited ( Ulan ) a copy of which was forwarded to Moolarben by your office. Ulan's letter states that "a large amount of the land is 'agricultural land' for the purposes of the Mining Act 1992...Consequently, in accordance with Schedule 1 Part 2 Division 4 Clause 22 of the Mining Act, UCML objects to the granting of MLA 331 over all such land." Ulan does not state in its letter the exact area of land which Ulan claims is agricultural and accordingly Moolarben has assumed that Ulan is claiming the entire area of its land within MLA 331 as agricultural. Moolarben is aware of the character of Ulan's land within MLA 331 and there are no areas which would satisfy the criteria imposed by clause 1 of Schedule 2 of the Mining Act 1992, which defines 'agricultural land'. This opinion is supported by land and soil capability studies which were undertaken by Moolarben as part of Moolarben's development application for stage 2 of the Moolarben Coal Project which has recently come off public exhibition. Ulan's claim is general in nature and provides no specification regarding the land and soil capabilities of the area. Moolarben has commissioned its own agricultural expert to provide a report which will address whether there are any circumstances in which Ulan's land within MLA 331 is capable of being able to satisfy the criteria imposed by clause1 of Schedule 2 of the Mining Act. Please advise when this matter has been referred to the Director-General of the Department of Agriculture or any officer of the Department for determination. Moolarben will make submissions and provide the Director-General of the Department of Agriculture with a copy of Moolarben's agricultural expert's report to assist the Director-General in assessing Ulan's agricultural land objection." 9In response to Ulan's objection, Ms Brown wrote to Mr Freyberg, Chief Executive of Ulan, three days later on 26 June 2009, detailing the relevant date for the agricultural land determination: "At the time this application was lodged, the applicant for the mining lease was also the holder of a current Exploration Licence No. 6288 which underlies the subject application area. The relevant date to determine whether or not the land is agricultural land is therefore 20 July 2004 (the date of receipt of application for the exploration licence)". 10On the same day, 26 June 2009, Ms Brown also wrote to Mr Flannery, Managing Director of Moolarben. The letter said: "As a consequence of notices served on affected landholders within the application area in accordance with Clause 21(3) of Schedule 1 of the Mining Act 1992, agricultural land objections have been received from Ulan Coal Mines Limited. The objector has been requested to provide a paddock and history plan of the land which they consider to be classed agricultural. Once this is received this information will be passed to the Department of Primary Industries - Agriculture division (sic) for determination. You will be advised of the determination. Should you have any further queries please do not hesitate to contact me." 11Mr Freyberg replied to Ms Brown on behalf of Ulan on 11 August 2009 and confirmed that: "Ulan Coal Mines Limited ("UCML") maintains that a large amount of its land that is embraced and affected by Mining Lease Application No 331 is " agricultural land " for the purposes of the Mining Act 1992 ." Mr Freyberg enclosed a copy of a GHD Hassall report ("the Hassall Report"), entitled "Assessment of Agricultural Land". The report had been prepared by Mr Joseph Lane, Principal Consultant GHD Hassall, on behalf of Ulan and was dated 7 August 2009. 12On 25 January 2010 Ms Brown sent a letter to the Director-General (Agriculture), marked to the attention of Mr David Coleman, attaching the objection, a Paddock Plan and "other information supplied by the objector" and extracts from the Mining Act relating to agricultural determinations. The letter read in part (in relation to relevant dates): "A determination is requested, in accordance with Clause 22 of Schedule 1 of the Mining Act 1992 , as to whether or not the land to which the objection relates was agricultural land, within the meaning of Schedule 2 of the Act, as at 21 April 2009. The applicant, at the time of lodgement of this application, was the holder of Exploration Licence No 6288. The application for this licence was lodged on 20 July 2004. In accordance with the Act you may not decide that the land concerned was agricultural land on 21 April 2009 unless you are satisfied that it was also agricultural land on 20 July 2004." 13Mr Coleman and Ms Jenene Kidston inspected the land said to be agricultural land on 13 April 2010. Three days later, on 16 April 2010, Mr Coleman prepared a brief and sent it to the Director-General (Agriculture). The brief included the field notes of Ms Kidston dated 13 April 2010, a draft letter of recommendation (which had, attached, a Schedule of Property Determinations) and briefing notes. It also included what Mr Coleman described in his oral evidence as incoming correspondence (including the 25 January 2010 letter from Ms Brown) and the Hassall report. The brief was supported, checked and endorsed by officers at higher levels. The briefing notes read: "INDUSTRY & INVESTMENT NSW Primary Industries - Industry Development, Agriculture & Forestry Director-General Letter Director-General Agricultural Land Determination under Mining Act 1992 Mining Lease Application No 331 Issue: Agricultural Land Determinations, under the Mining Act 1992, have been conducted on the Swords Property and separately on land owned by Ulan Coal Mines Limited, which are affected by Mining Lease Application No 331. Background: The Director-General has been requested to make a Determination of Agricultural Land in accordance with Clause 22 of Schedule 2 of the Mining Act 1992 for Mining Lease Application No 331 (MLA 331) at Ulan. Moolarben Coal Mines Pty Limited is the applicant for MLA 331. MJ & H Swords and Ulan Coal Mines Limited (UCML) have each lodged objections to MLA 331 on the grounds that areas of their properties affected by MLA 331 are "agricultural land" under Schedule 2 of the Mining Act 1992 . The areas subject to MLA 331 were previously included in Mining Lease Application 290 (MLA 290) and Mining Lease Application 316 (MLA 316). Agricultural Land Determinations relating to MLA 290 and MLA 316 were sent to the Deputy Director-General, Mineral Resources on 29 June 2007 (OUT07/4195) and 5 September 2008 (OUT08/10765). Three separate property owners objected to MLA 290 and MLA 316 on the grounds that areas of their properties were "agricultural land". In applying for MLA 331, Moolarben Coal Mines Pty Limited has modified previous lease applications (MLA 290 and MLA 316) to exclude much of the land determined to be "agricultural land". Agricultural Land Determinations were conducted by David Coleman, Resource Management Officer and Jenene Kidston, District Agronomist at Mudgee on the Swords property and separately on land owned by UCML on 13 April 2010. The Determinations were made through a review of relevant background information (maps and historical use information) and landholder interview, in combination with a detailed field inspection in the presence of the landholders. Comment: Based on the procedure outlined above, and in accordance with the criteria in Schedule 2 of the Mining Act 1992, the land shown hatched on the attached original maps within the accompanying Schedule of Property Determinations is determined to "agricultural land" at the relevant date (20 July 2004). If an area is determined to be "agricultural land", a mining lease can not be granted over the surface of the area without the written consent of the landholder, except for provision of access to other parts of the land to which the lease applies (Schedule 1 Clause 23 of the Mining Act 1992 ). These Agricultural Land Determinations are not deemed controversial. However, any objections may be referred to the NSW Land and Environment Court." 14Some months later, on 17 December 2010, the Director-General (Agriculture) signed the draft letter of recommendation sent by Mr Coleman on 16 April 2010. The letter was sent to Ms Tracey Godwin, Team Leader Coal and Petroleum Titles (Minerals Section). It said: "Thank you for your letter of 25 January 2010 requesting a Determination of Agricultural Land under the Mining Act 1992 , on property owned by Ulan Coal mines Limited and separate letter of 16 February 2010 requesting a Determination of Agricultural Land under the Mining Act 1992 , on property owned by MJ & H Swords, which are affected by Mining Lease Application No 331 at Ulan. The areas subject to Mining Lease Application No 331 were previously included in Mining Lease Application 290 and Mining Lease Application 316. These properties were inspected by officers from the Industry Development, Agriculture & Forestry Branch of Industry & Investment NSW on 13 April 2010. The land that has been determined to be "agricultural land" at the relevant date (20 July 2004), under Schedule 2 of the Mining Act 1992 , is shown hatched on the attached maps within the accompanying Schedule of Property Determinations." 15The Schedule of Property Determinations read (in so far as it related to Ulan's objection): "AGRICULTURAL LAND DETERMINATION UNDER MINING ACT 1992 . MINING LEASE APPLICATION NO 331 Property #2: Ulan Coal Mines Limited Landholder: Ulan Coal Mines Limited Relevant Date: 20 July 2004 Determination: The land shown hatched on the attached map (Map 2) is determined to be "agricultural land" since at the relevant date: (a)Two areas as hatched within Paddock 3 comprise "land that has been sown with not less than 2 crops of an annual species during the period of 10 years immediately preceding the relevant date" (clause 1(a) Schedule 2 Mining Act 1992) and "pastures: (i)That are sown with seed of a species and at a rate of application, or treated with fertiliser of a composition and at a rate of application, satisfactory to the relevant authority, and (ii)That have, as a result of that sowing or treatment, maintained a level of pasture production that is substantially above that which might be expected of natural pastures" (clause 1(d)(i) and (ii) Schedule 2 Mining Act 1992); (b)Paddocks 4 & 5 comprise "land that has been sown with not less than 2 crops of an annual species during the period of 10 years immediately preceding the relevant date" (clause 1(a) Schedule 2 Mining Act 1992 ) and "pastures: (i)That are sown with seed of a species and at a rate of application, or treated with fertiliser of a composition and at a rate of application, satisfactory to the relevant authority, and (ii)That have, as a result of that sowing or treatment, maintained a level of pasture production that is substantially above that which might be expected of natural pastures" (clause 1(d)(i) and (ii) Schedule 2 Mining Act 1992 ); (c)An area within the northern part of Paddock 6 comprises "land that has been sown with not less than 2 crops of an annual species during the period of 10 years immediately preceding the relevant date" (clause 1(a) Schedule 2 Mining Act 1992 ) and "pastures: (i)That are sown with seed of a species and at a rate of application, or treated with fertiliser of a composition and at a rate of application, satisfactory to the relevant authority, and (ii)That have, as a result of that sowing or treatment, maintained a level of pasture production that is substantially above that which might be expected of natural pastures" (clause 1(d)(i) and (ii) Schedule 2 Mining Act 1992) ; (d)Paddocks 7, 8, 9, 10 and 11 comprise "land that has been sown with not less than 2 crops of an annual species during the period of 10 years immediately preceding the relevant date" (clause 1(a) Schedule 2 Mining Act 1992 ) and "pastures: (i)That are sown with seed of a species and at a rate of application, or treated with fertiliser of a composition and at a rate of application, or treated with fertiliser of a composition and at a rate of application, satisfactory to the relevant authority, and (ii)That have, as a result of that sowing or treatment, maintained a level of pasture production that is substantially above that which might be expected of natural pastures" (clause 1(d)(i) and (ii) Schedule 2 Mining Act 1992) ; and (e)Paddock 12 comprises "land that has a preponderance of improved species of pasture grasses" (clause 1(f) Schedule 2 Mining Act 1992) . It should be noted that the un-cleared mid to upper slopes that border Paddocks 7, 8, 9, 10 and 11 are not "agricultural land" under Schedule 2 Mining Act 1992 . The Schedule was accompanied by an aerial photograph with markings (which was described as Map 2). I will refer to the letter of 17 December 2010 together with the Schedule of Property Determinations and the marked aerial photograph as "the Determination". 16On 1 February 2011 the Minerals Section provided a copy of the Determination, as it concerned Ulan's objection, to both Moolarben and Ulan. 17Two weeks later, on 14 February 2011, Moolarben wrote to the Department acknowledging receipt of their letter of 1 February 2011, and stating that it was preparing a formal response. 18On 16 February 2011 Moolarben sent a letter to the Department, again marked to the attention of Ms Brown. The letter asked for confirmation that "everything relating to the issue had been provided" and that there was "no more precise determination of the land said to be agricultural land", as "the aerial photograph with freehand markings on which Map 2 is based does not adequately define the areas the subject of the determination". The letter also stated: "The determination was made without any consultation with Moolarben. I refer to Moolarben's letter of 23 June 2009 to you, to which we received no reply." 19Ms Brown replied to Moolarben on 22 February 2011 and advised that "there is no more precise description of the land determined to be agricultural land" and that "all relevant documentation in relation to the determination" had been provided. A copy of the Determination and copies of Maps 1A, 1B and 2 were attached. The letter also said: "There is no provision under the Mining Act 1992 for an applicant for a mining lease to be consulted when determining agricultural land, therefore material provided by the agricultural land objectors is not provided to the mining lease applicant."

The witnesses 20Affidavits from the following witnesses were filed and read by the third respondent: (i) Ms Kidston, District Agronomist, Department of Primary Industries, dated 19 September 2011 and 13 October 2011. (ii) Mr Coleman, Resource Management Officer, Department of Primary Industries, dated 16 September 2011 and 11 October 2011. 21Affidavits from the following expert witnesses were filed and read by the applicant: (i) Mr Ross Watson, Consultant Agronomist, dated 1 August 2011 and 4 October 2011; (ii) Dr Brian Button, Principal Technologist, dated 9 August 2011 and 4 October 2011; (iii) Mr Kenneth Bullen, Senior Agricultural Loss Assessor and Agricultural Consultant, dated 1 August 2011 and 4 October 2011. 22An affidavit from an expert witness, Mr Lane, was filed and read by the third respondent. 23I will refer to the evidence given by these witnesses, to the extent necessary, later. As I hope will be apparent from these reasons, it is unnecessary to rule on detailed objections made in relation to specific evidence.

The statutory framework 24It is desirable to refer to some of the statutory provisions in the Act central to these proceedings. The first substantial part (following Part 1 Preliminary) of the Act, Part 2, prohibited prospecting for or mining any publicly owned mineral unless authorized. The word "mineral" was defined in the dictionary as including coal. The right to prospect (s 29) was conferred by the grant of an exploration license under Part 3. Similarly the right to mine (s 73) (together with the right to prospect) was conferred by the grant of a mining lease under Part 5. Both Parts create conditions, qualifications or limitations concerning the grant of the license or lease or the exercise of the right to prospect or mine either directly in the Act or indirectly through the licence or lease. 25In certain circumstances a person could object to an application for the grant of a mining lease. In the present case, of central importance was an objection on the basis that the land (or part of it) to be the subject of the lease was agricultural land. The right to object and how the objection was to be considered was addressed by Schedules 1 and 2 of the Act. The relevant provisions were: "SCHEDULE 1 - Public consultation with respect to the granting of assessment leases and mining leases 22 Objections to granting of mining lease (1) A landholder of any land may object to the granting of the mining lease concerned on the ground that the land, or any part of the land, over which the lease is sought is agricultural land. (2) An objection must be in writing and must be lodged with the Director-General on or before the date specified in the relevant notice under clause 21. (3) Subclause (1) does not apply if the landholder consents in writing to the granting of the mining lease over the land or if the applicant for the mining lease consents in writing to the surface of the land being excluded from the application. (4) A written consent given under this clause is irrevocable. (5) On receipt of an objection under this clause , the Director-General is to determine the objection in accordance with Schedule 2. 23 Agricultural land (1) If land is determined to be agricultural land as a consequence of an objection under this Division: (a) in the case of an objection to the invitation of tenders - the invitation must not be made, or (b) in the case of an objection to the granting of a mining lease - the lease must not be granted, except with the written consent of the landholder. (2) A written consent given under this clause is irrevocable. (3) A mining lease may not be granted beneath the surface of any agricultural land except at such depths, and subject to such conditions, as the Minister considers sufficient to minimise damage to the surface. (4) A mining lease may nevertheless be granted over any part of land that has been determined to be agricultural land, including the surface of any such land, if the Minister considers that the granting of the lease over that part of the land is necessary to give access to any other part of the land to which the lease applies. .... SCHEDULE 2 - Agricultural land 1 Definitions (1) In this Schedule "agricultural land" means: (a) land that has been sown with not less than 2 crops of an annual species during the period of 10 years immediately preceding the relevant date, or (b) ... (c) ... (d) pastures: (i) that are sown with seed of a species and at a rate of application, or treated with fertiliser of a composition and at a rate of application, satisfactory to the relevant authority, and (ii) that have, as a result of that sowing or treatment, maintained a level of pasture production that is substantially above that which might be expected of natural pastures, or (e) ... (f) ... "the relevant authority" means the Director-General or any officer of the Department authorised by the Director-General to exercise functions under this Schedule. "the relevant date" means the date or dates with reference to which the relevant authority is required under clause 2 to decide whether or not any land is agricultural land. (2) For the purposes of paragraphs (a) and (b) of the definition of "agricultural land" in subclause (1), land is not to be treated as having been sown with a crop of an annual species unless, in the opinion of the relevant authority, the crop sown was carried through to a successful use. 2 Decision by the relevant authority as to whether or not land is agricultural land (1) When the relevant authority is required to decide whether or not any land is agricultural land, the relevant authority must do so: (a) ... (b) ... (c) in the case of a reference under clause 22 of Schedule 1, by deciding whether or not the land was agricultural land on the date on which the invitation for tenders for the mining lease concerned was first published or the application for the mining lease concerned was lodged. (2) If the Director-General, when referring a question for decision under clause 22 of Schedule 1, certifies a date pursuant to clause 3 of this Schedule, the relevant authority may not decide, pursuant to subclause (1)(c), that the land concerned is agricultural land unless satisfied that it was agricultural land on the date so certified. 3 Date to be certified by Director-General When referring a question for decision under clause 22 of Schedule 1, the Director-General, if the tenderer or applicant for a mining lease over any land was, when the invitation for tenders was first published or the application was lodged, the holder of an exploration licence or mineral claim over that land, must issue to the relevant authority a certificate to that effect and as to the date on which the invitation for tenders for that licence was first published or the application for that licence or claim was lodged. 4 Relevant authority may decide that part only of land is agricultural land ...." 26Apart from clause 22, Schedule 1 of the Act contained a number of procedural steps concerning the grant of a mining lease. I repeat a summary of them in Ulan's submissions which advanced the argument they constituted a code of procedural requirements concerning objections to the grant of such a lease. The provisions were: " Clause 5 provides that before granting a mining lease, the Minister must cause notice of the proposal to be served on each government agency that, in the Minister's opinion, would be materially affected by the granting of the lease. Detailed particulars are required to be given in any such notice. Clause 6 provides that before granting a mining lease, the Minister is obliged to give notice of the proposal to the Director of Planning, and, again, detailed particulars are to be provided. Clause 7 provides that before inviting tenders for a mining lease the Minister must provide detailed particulars of the proposal to be served on the Dams Safety Committee. Clause 8 provides that before inviting tenders for a mining lease the Minister must cause detailed notice of the proposal to be served on the controlling body of each exempted area to which the lease will relate. Clause 9 entitles the Dams Safety Committee or a body served with a clause 8 Notice, to serve a Notice of Objection to the mining lease. Clause 10 sets out the means by which such objections are to be resolved. Clause 11 provides that there is a prohibition on the grant of a mining lease if an objection is made, unless the objection is withdrawn, resolved or rejected by the Premier. Division 3 of Schedule 1 contains detailed provisions concerning notification to Councils before the grant of a mining lease, and for the right of a Council to object, as well as the Minister's obligation to take any such objection into account in deciding whether or not to grant a mining lease: clauses 17 to 19. Division 4 of Schedule 1 deals with notification to landholders of a proposal to grant a mining lease. The key features are: (f)The obligation to notify landholders of a mining lease application falls on the applicant for the mining lease ( subclause 21(3) . (g)Detailed particulars relating to the land and right to object to the grant of the lease are stipulated ( subclause 21(4) ). (h)The applicant is obliged to lodge a copy of every notice served under this provision with the Director-General ( subclause 21(5) ). (i)A landholder may object to the granting of a mining lease on the ground that the land, or any part of it is agricultural land: see clause 22 above. Clause 23 of Schedule 1 deals specifically with the making of a determination whether or not land is "agricultural land", as claimed in any objection. Clause 23A contains detailed provisions for a landholder to lodge an objection on the basis that its land houses "significant improvements". Clause 24 contains similar provisions relating to the notification by the Minister to the general public of a proposal to grant a mining lease, including the need to publish a notice in the Gazette and in a newspaper circulating generally in the State, as well as in a local newspaper. Clause 26 provides that any person is entitled to object to the grant of a mining lease by lodging a written objection with the Director-General; and Clause 27 provides that the Minister is bound to take into account any objection made by a person under clause 26 in deciding whether or not to grant a mining lease.

Grounds of review 27In summary the grounds of review were: (i)Moolarben was denied procedural fairness having regard to the procedures adopted by the Director-General (Agriculture) in making the Determination. (ii)The Director-General (Agriculture) failed to follow procedures. This ground contained two elements. The first was that the Determination is vitiated by the failure of the Director-General (Agriculture) to address the question of whether the areas of land satisfied the definition of agricultural land at two dates. The second was that the Director-General (Agriculture) failed to consider the relevant question posed by the definition of "agricultural land" as it is defined by par (a) of sub-clause 1(1) of Schedule 2, because he misconstrued the expression "successful use" in subclause 1(2). (iii)The Determination was uncertain. It did not identify with sufficient precision the land which was determined to be agricultural land. The Director-General (Agriculture) did not perform the statutory task required of him. (iv)The Determination was tainted by Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, in that the decision was so unreasonable that no reasonable decision-maker, acting within jurisdiction and according to law, would have come to such a conclusion.

Procedural fairness 28Moolarben's argument was, as a first step, that the Director-General (Agriculture) was obliged to afford it procedural fairness. As to the content of the obligation, Moolarben identified a number of events which did not occur and, by implication, steps which should have been taken. They were first that it was entitled to know what land was the subject of the objection and the basis upon which the objection was made. Secondly, it was entitled to an opportunity to respond to the Hassall Report and thirdly it should have been given an opportunity to inspect the land for lengthy period with the Departmental officers, Ms Kidston and Mr Coleman (as had occurred when those officers inspected the land on 13 April 2010 accompanied by a representative of Ulan). Fourthly, it should have been provided with a copy of the field notes made by Ms Kidston and should have been told of the recommendations to the Director-General (Agriculture) (that the land was "agricultural land" and presumably the reasons why that was so). Lastly it should have been given an opportunity to make any submissions or provide evidence following the receipt of that recommendation by the Director-General (Agriculture). 29Ulan submitted that the Act contained a procedure for the consideration of an objection of this type which left no room for the operation of principles of procedural fairness. The Act contained an exhaustive procedural code. But, Ulan submitted, even if those principles might apply, Moolarben did not have an interest sufficient to give rise to an obligation on the part of the Director-General (Agriculture) to afford it procedural fairness. Finally it submitted that, in any event, Moolarben was afforded procedural fairness. 30The argument that the principles of procedural fairness had no application can be dealt with comparatively briefly. It is well settled that the repository of a statutory power is obliged to afford procedural fairness to a person whose rights or interests may be adversely affected by the exercise of the statutory power and that position is displaced only by "plain words of necessary intendment": for a recent statement of this principle see Plaintiff M61/2010E v Commonwealth [2010] 272 ALR 14 at [74]. In my opinion, the clauses in Schedules 1 which identified procedural steps and other acts attending the grant of a mining lease (those relied on by Ulan were summarized earlier in those reasons at [26]) neither constitute, collectively, plain words of necessary intendment nor an exhaustive code which can be taken to have displaced the obligation to afford procedural fairness. 31The Act did not say expressly the principles of procedural fairness had been displaced. Were they displaced impliedly by the enactment of a number of procedural steps concerning how applications for mining leases are dealt with and objections raised and resolved? I think not. The most obvious reason, in my opinion, why this is so is that nowhere in the legislative scheme was there a provision requiring the applicant for the mining lease to be notified of an objection under clause 22 notwithstanding that such an objection, if successful, would or at least might have a material and adverse impact on the application. A successful objection would have prevented the applicant securing a lease over the agricultural land unless the applicant was able to procure the objector's (the landholder) consent for the purposes of clause 23. 32It might be said (and Ulan made a submission to this effect) that the omission of a requirement to give such notice was deliberate and, in truth, reinforced the proposition that the Act was an exhaustive procedural code. That was because, at this stage of the process, the focus was only on the interests of landholders of agricultural land and the procedures in the code were moulded to further those interests and not those of the applicant for the mining lease. However the Act was concerned, amongst other things, with balancing the interests of miners and the interests of landholders. It is difficult to accept that Parliament took the deliberate step of skewing the procedures, at this point, substantially in favour of landholders. If a code, the scheme would have facilitated the making of objections under clause 22 by landholders which would have been uncontested and possibly uncontestable by an applicant for a mining lease. This is unlikely even accepting that the process was almost certainly intended to be non adversarial. I am satisfied that the principles of procedural fairness had application to an objection under clause 22 though it must be immediately acknowledged that the fact that the Act detailed a number of procedural steps which led to and followed the lodging of the objection would have informed the content of what had to be done to afford procedural fairness to the applicant for the mining lease. 33Ulan placed particular reliance on the judgment of the Full Court of the Supreme Court of South Australia in Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557. It is unnecessary to descend into the details. It is sufficient to note that the Full Court rejected the argument that the Development Act 1993 (SA) and Development Regulations 1993 (SA) contained a code for the resolution of objections to development applications though did, in one respect only (access to information for a limited purpose), codify the procedures. This case, in my opinion, is of limited assistance in resolving the legal issue raised in this matter. It concerned (as to what was a code) an express and detailed regulation specifying what material might be accessed by the public in particular circumstances and for what period. 34What has been said to this point suggests an answer to the question of whether Moolarben had an interest which required that it be afforded procedural fairness. Again this issue of interest has recently been addressed by the High Court in Plaintiff M61/2010E v Commonwealth at [75] and following. The Court noted that the contrast sought to be drawn by the Commonwealth in that matter between destruction, defeat or prejudice of rights, on the one hand, and the discretionary power to confer the right, on the other, proceeded from too narrow a conception of the circumstances in which an obligation to afford procedural fairness might arise. 35I have little difficulty in accepting that Moolarben had a requisite interest. Under the Act, it had been granted an exploration licence which not only conferred a right to explore but imposed obligations to do so in a particular way requiring it expend significant amounts in undertaking the exploration. 36In a real and practical sense it would have made a significant investment in exploring for coal in the area to which the license related (and it was not suggested this had not occurred), which included the area for which the mining lease was sought. Having made that investment it sought to exploit the fruits of its exploration activity by seeking the statutory permission necessary to mine and thereby secure ownership of the mined minerals from the State (s 11). A licensee had no express presumptive right to secure a mining lease for the area or part of the area to which the licence relates. However the special position of a licensee was recognized by the Act in that the licence continued in force beyond its specified duration if a licensee applied, inter alia, for a mining lease: see s 29(2). During the currency of the licence (as it related to a particular mineral or minerals) a mining lease could not be granted (in relation to that mineral or minerals) over the relevant land without the consent of the licensee: see s 58 and a licensee had to be notified of any application for such a lease: see s 59. 37Having regard to Moolarben's statutory position as licensee together with the activities it had undertaken as a licensee, it had an interest attracting procedural fairness as an applicant for a mining lease for part of the area to which its licence related. It was entitled to seek to secure, if lawfully possible, a lease unencumbered by any limitation as to specific areas in which it could mine and free of the attendant burden of having to obtain the consent of landholders of the specific areas. In other words, Moolarben was entitled to resist objections asserting any of the land was agricultural land and to be afforded procedural fairness in that process. 38This leads to the question of what was the content of the obligation to afford procedural fairness and whether, in fact, it was provided. It cannot be doubted that the statutory scheme embodied in Schedules 1 and 2 and the broader statutory context in which it arose, pointed to a comparatively straightforward process attending the making and resolution of objections to an application for a mining lease which raised for consideration whether the land was "agricultural land". That statutory framework is of "critical importance" in determining what procedural fairness requires: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 231 ALR 592 at [26]. The existence and content of that scheme would militate against a procedure which, at an extreme, might involve an "infinite regression of counter-disputation": see Mason P in Minister for Local Government v South Sydney City Council [2002] 123 LGERA 367 at [267]. 39However I do think that procedural fairness would require, in a case such as the present, creating at least some of the opportunities discussed by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] 49 FCR 576. First, this would include an opportunity to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. I might add that obviously this opportunity can only be taken in any real sense if the person or party concerned had a sufficiently clear understanding of the issue or issues the decision-maker would address. At a level of generality those issues are likely to be identified by the terms on which the decision-making power was conferred and the statutory context in which it was conferred. However often the determinative issues will also depend on the particular facts. 40Secondly, as the Full Court observed, procedural fairness might, in addition, also required an opportunity to rebut and comment on adverse material from other sources which was put before the decision-maker though, I should add, whether this was so in any given case might depend on what the material was. Ulan submitted that procedural fairness only required the disclosure of adverse material for the purposes of commenting on it if the adverse material was personal to the individual or party whose interests were affected by the decision. Some support for this view is found in the recent judgment of the Court of Appeal in Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42 at [66]. However the boundaries of procedural fairness do not end at this point. Cases may arise where adverse material not personal to the individual or party should be made available for comment: see Re Minister for Immigration and Multicultural Affairs ex parte Miah [2001] 206 CLR 57 at [140]. 41I turn now to the specific facts of this case. I was originally inclined to approach the matter on the footing that Moolarben was aware of the objection and, in substance, took no steps to protect its interests. That certainly was the import of a closing submission Ulan made, referring to Re Association of Architects of Australia ex parte MOAA [1989] 63 ALJR 298 at 305. However I do not think that fairly reflects events as they unfolded. 42I earlier set out the terms of a letter dated 23 June 2009 from Mr Furner representing Moolarben to Ms Brown which was received by the Department on 26 June 2009. I also set out the terms of a letter from Ms Brown to the Managing Director of Moolarben dated 26 June 2009. That second letter makes no reference to the first. The second is cast in terms which make it tolerably clear it was drafted, and probably also sent, before the letter of 23 June 2009 was actually received. This sequence of events is of some significance. While the letter of 26 June 2009 concluded with the invitation from Ms Brown to "not hesitate to contact" her, it answers none of the complaints in the letter of 23 June 2009 to the effect that Moolarben was unaware of what land was being said to be agricultural land and the basis upon which it was land of that character. Importantly the letter from Mr Furner requested that Moolarben be advised when the matter was referred to the Director-General (Agriculture) or any officer of his Department and foreshadowed that when this occurred Moolarben would provide an agricultural expert's report to the Director-General (Agriculture). It is comparatively clear that this request related to the point in time when the Mining Division sought an agricultural determination from the Director-General (Agriculture). No such advice, as requested, was ever forthcoming. 43It is probable that no substantial response was ever given to Moolarben, (to Mr Furner's letter of 23 June 2009) not because of administrative oversight or confusion, but rather because Ms Brown believed it was unnecessary to consult an applicant for a mining lease when determining agricultural land objections or to provide them with material provided by the agricultural land objectors. She said this in the letter dated 22 February 2011 and I think it can reasonably be inferred that this would have been her attitude a year and a half earlier. 44I doubt that Moolarben was entitled to a copy of the Hassall Report and, all the more so, Ms Kidston's notes and an opportunity to inspect the land with the Departmental officers. To take the approach that it was would tend towards the process deprecated by Mason P in South Sydney City Council. However had Moolarben requested particulars of the location of the land and in general terms the basis on which was said to be agricultural land it would, in my opinion, have been entitled to those particulars. However, as it is apparent from its letter of 23 June 2009, it was prepared to proceed without those particulars on the basis that it could demonstrate no land to which the lease would apply, was agricultural land presumably on any basis. 45Nonetheless procedural fairness required, in my opinion, Moolarben to be told when the objection was referred to the Director-General (Agriculture) so that it had a real and not theoretical opportunity to submit to the Director-General (Agriculture) such material as it wished which might have included a report of the type foreshadowed in its letter of 23 June 2010 in order to persuade the Director-General (Agriculture) not to uphold the objection. I should add that there was no evidence that Moorlaben actually prepared a report of the type foreshadowed. Also I am conscious that the obligations of procedural fairness must be assessed against practical realities: see the observations of Basten JA in Greyhound Racing NSW v Cessnock District Agricultural Association [2006] NSWCA 333 at [72]. However Moolarben had not unreasonably requested that it be told when the objection would go before the decision-maker and had indicated that at this time it would press its opposition to the objection. It was not told and this was procedurally unfair. 46The failure of the Department to give the advice sought constituted a denial of procedural fairness which vitiates the Determination.

Failure to apply procedures 47This ground contained two elements. The first was that the Determination is vitiated by the failure of the Director-General (Agriculture) to address the question of whether the areas of land satisfied the definition of agricultural land at two dates, namely the date ELA 2398 was lodged (20 July 2004) and the date MLA 331 was lodged (21 April 2009). 48The second was that the Director-General (Agriculture) failed to consider the relevant question posed by the definition of "agricultural land" as it was defined by par (a) of sub-clause 1(1) of Schedule 2, because he misconstrued the expression "successful use" in subclause 1(2). 49This second element need not be explored at length. If there was error of the type alleged (which I doubt), it was not a material error. That is because each area of land was adjudged to be agricultural land on other and independent bases (mainly as pastures for the purposes of par (d) of the definition). Even if the alleged error was demonstrated, it does not provide a basis, in my opinion, for making an order disturbing the Determination. 50The first element requires more careful consideration. While initially in issue, it was ultimately common ground that the "relevant date" was not only 20 July 2004 but also 21 April 2009. This is correct having regard to subclauses (1) and (2) of clause 2 and also clause 3 of Schedule 2. The relevant date of 21 April 2009 arose directly from the operation of clause 2. The other relevant date of 20 July 2004 arose indirectly from the operation of clauses 2 and 3 together with the certification under the latter clause. Precisely what form the certification took in the present case is not clear but that was not an issue raised by the parties. 51The question is whether the Director-General (Agriculture) considered the position as at (and preceding) both dates and whether, in the result, the Determination addressed both dates. There are obvious pointers to him having not considered both dates. The Determination itself identified only 20 July 2004 as the relevant date. It does so in two places. In the last paragraph of the letter of 17 December 2010 reference is made to the relevant date as 20 July 2004. There was no reference to 21 April 2009. In the first few lines of the Schedule of Property Determinations attached to the letter the relevant date was identified as 20 July 2004. Again there was no reference to 21 April 2009. 52The briefing notes which formed part of the brief to the Director-General (Agriculture) referred, and only referred, to the relevant date as 20 July 2004. Having regard only to the references in these documents, it is difficult to avoid the conclusion that the Determination addressed the status of the areas of land only at 20 July 2004 and the preceding decade. Objectively construed, this is the import of the Determination. The only possible qualification I would make is that in the applicable Schedule to Property Determinations the prefatory words after the side heading "Determination" include the words "...is determined to be agricultural land since at the relevant date" (emphasis added). This is obviously grammatically incorrect. However this ambiguous formulation does not sustain a conclusion that as a matter of construction the Determination, viewed as a whole, determined the status of the land on two dates and for the decade before, namely on 20 July 2004 and 21 April 2009. It did not. 53However, and notwithstanding the terms of the Determination, can it be inferred that the Director-General (Agriculture) understood that the two dates had to be addressed, addressed the character of the land as at those two dates (and the preceding 10 years) and, in so doing, performed the statutory task required of him? Or should it be inferred that the Director-General was led to believe that only one date had to be addressed, addressed the character of the land as at that date only (and the preceding 10 years) and thereby failed to perform his statutory task? 54Conceivably the first inference might be drawn having regard to the terms of the letter of 25 January 2010 from Ms Brown and the evidence of both Ms Kidston and Mr Coleman. In her affidavit of 19 September 2011 Ms Kidston said, in substance, she was aware before undertaking the inspection that she had to consider the status of the land "from the period ending 21 April 2009 back to 20 July 2004 and 10 years preceding" and that after the inspection she formed the view that the areas hatched in the recommendation were agricultural land "on both relevant dates, being 21 April 2009 back to 20 July 2004". Mr Coleman's evidence was that prior to and during the inspection of the site he was aware of the two dates and that they were looking for physical evidence which "indicated agricultural land from 21 April 2009 back to 20 July 2004 and 10 years prior to that". He also explained that the reference to 20 July 2004 in the draft determination reflected his standard practice of referring only to one relevant date even if there were two. He did not explain the rationale for this approach which, for my part, is really inexplicable. The oral evidence of Ms Kidston, viewed as a whole, created some real uncertainty in my mind whether the unequivocal statements in her affidavit were correct. However the uncertainty is not sufficient for me to reject her evidence. 55Ulan submitted that the knowledge and understanding of Ms Kidston and Mr Coleman was to be treated as the knowledge and understanding of the Director-General (Agriculture) at the time he made the Determination. A general reference was made to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and the reference in that case to Bushell v Environment Secretary [1981] AC 75. This was probably a reference to a passage in the judgment of Brennan J at pages 65-67. But as is apparent from his Honour's reasons, the decision maker's decision (in that case the Minister) can be vitiated if a decision depended upon him or her having regard to the salient facts and the Department failed to draw attention to those facts: see also Gibbs CJ at 31. 56It is permissible to look at material before a decision-maker (when no reasons for decision have been given) to discern the reasons for the decision: East Melbourne Group v Minister for Planning [2008] 166 LGERA 1 at [312]. I should note, at this point, that in these reasons I have referred to 21 April 2009 and the preceding decade and 20 July 2004 and the preceding decade. In so doing I have not overlooked the obvious, namely that the periods overlap. 57But, in my opinion, overwhelmingly the second inference should be preferred even accepting the need for restraint in undertaking judicial review of administrative decisions. Not only did the briefing notes, the draft letter of determination and the Schedule of Property Determinations refer only to 20 July 2004, the Hassall Report did likewise. The instructions recorded at the beginning of the report were that "... the relevant date to determine whether or not the land is "agricultural land" is 20 July 2004...". No mention was made of 21 April 2009. Also, and understandably, the analysis within the report focused, and only focused, on 20 July 2004 and the preceding 10 years. 58The only reference to 21 April 2009 in the material before the Director-General (Agriculture) was in the letter from Ms Brown. But that letter simply identified the analysis that needed to be undertaken. It did not provide (and could not have provided) the analysis and the results of the analysis of the character of the land as it related to 21 April 2009. If the Director-General (Agriculture) had appreciated that the character of the land had to be assessed at the two relevant dates because of the letter from Ms Brown, probably he would not have signed the draft letter in the terms presented to him. He would not have done so because the draft letter was obviously in terms which were at odds with what Ms Brown had requested. 59Also the briefing notes did not tell the Director-General (Agriculture) in any explicit way what the character of the land was at 21 April 2009. The practice of Mr Coleman referred to earlier (at [54] - its detailed content and its rationale was not explained in the evidence) was not explained in the briefing notes and there is no basis for inferring the Director-General (Agriculture) was aware of it. Nor can it be inferred that the Director-General (Agriculture) was aware that the reference to 20 July 2004 and the commentary about the character of the land in the Schedule should be taken to be a commentary about the character of the land on 21 April 2009. Indeed the use of the statutory expression "relevant date" in the briefing notes, draft letter and the Schedule of Property Determinations is likely to have been understood by the Director-General (Agriculture) as a term of art derived from the Act with a particular meaning requiring him to focus, and only focus, on the nominated relevant date and the preceding decade. 60As noted earlier, the fact that the document recording the Determination (in substance the letter of 17 December 2010) referred only to 20 July 2004 fortifies the conclusion that the Director-General (Agriculture) did not address the position as at 21 April 2009 and the preceding decade. 61The Director-General did not perform a task required by the Act. That is, he did not determine whether the areas of land were "agricultural land" at (and preceding) the two dates required to be addressed by operation of subclauses (1) and (2) of clause 2 and also clause 3 of Schedule 2. Given the explicit direction in the Act to consider the character of the land "...on the date...on which the application for the mining lease ... was lodged", the failure of the Director-General (Agriculture) to do so invalidates the decision insofar as the Determination is said to finally determine the objection of Ulan (which, apart from the criticisms made by Moolarben, appeared to be accepted by the parties as the effect of the Determination).

Uncertainty 62Moolarben challenged the Determination on the ground that it did not identify with sufficient precision the land which was determined to be agricultural land. The terms of the Determination are set out earlier. The aerial photograph forming part of the Determination had been marked, probably by hand. The markings took the form of black boundary lines outlining areas on the photograph with black hatching within each area. The black boundary lines and hatching were superimposed on other markings (either hand written or computer generated) in yellow which were also boundary lines. The yellow markings had been made by Mr Lane and appeared in the Hassall Report. The areas marked in black were the agricultural land. In some instances they were within the yellow marked areas, in some instances went beyond the yellow marked areas and in one instance they were broadly the same. 63It became clear from the cross-examination of Mr Watson that mostly, but not in all instances, the black boundary lines coincided with fence lines or topographical features sufficient to identify each area. His evidence more generally was that the photograph with the black markings provided a sufficiently reliable indication of the areas in dispute for him to undertake his task of expert assessment. However, in his report, he suggested that field 3a was difficult to identify with any real precision. 64The legal underpinning of this ground of challenge is that the decision in question is sufficiently uncertain to fall outside the decision the statute expressly or implied permits: see Ulan Coal Mines Ltd v Minister for Planning (2008) LGERA 20 at [49]-[50]. 65Clause 22 of Schedule 1 required the Director-General (Agriculture) to "determine the objection" being that "the land or part of the land ... is agricultural land". In making that decision, the Director-General (Agriculture) (as the relevant authority) could determine that a part only of the land was agricultural land (clause 4 of Schedule 2). If the mining lease was ultimately granted and the owner of any agricultural land had not consented then the land the subject of the lease would not include this agricultural land (subject to presently irrelevant exceptions - see sub-clauses 23 (3) and (4) of Schedule 1). However before a mining lease was granted the land must be surveyed (s 66(1) and this could have been required to be done by the applicant (s 66(2)). 66In my opinion, having regard to his legislative scheme, the Determination was authorized by the Act. While the markings on the aerial photograph are a little crude, they sufficiently identify the areas which are agricultural land particularly given that the markings are intended to identify paddocks or parts of paddocks which, as Mr Watson said, existed in the real world which was depicted in the photograph. Should any greater measure of exactitude have been necessary (and I doubt that it was), that could have been achieved by a survey undertaken pursuant to s 66. 67This ground of review is not made out.

Manifest unreasonableness 68The principal plank of Moolarben's attack on the Determination on the grounds of Wednesbury unreasonableness was the evidence of three experts referred to earlier in these reasons. Ultimately the plank centrally became the joint opinion of all experts (including Ulan's expert, Mr Lane) advancing the view, with some limited qualifications, that none of the land the subject of the Determination was "agricultural land" for the purposes of Schedule 2 the Act. 69However a fundamental question arises as to whether this evidence can be called in aid of this ground. That is, can the question of whether a decision can be impugned on the ground of Wednesbury unreasonableness be determined by reference to evidence or material which had not been before the decision-maker. One view, supported by some authority, is that the ground can only considered by reference to the evidence or material before the decision-maker: McCormack v Commissioner of Taxation (2001) 114 FCR 574 at [88]. The other view, again supported by some authority, is that recourse can be had to evidence led in the judicial review proceedings in which the challenge is made: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [457]. 70A starting point in considering this question is the content of the ground. There is ongoing debate about where Wednesbury unreasonableness fits in the panoply of grounds of judicial review (and the content of the ground) probably most recently evidenced by the reasons of the various Justices of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. Fundamentally, however, the ground is concerned with rectifying the abuse of power. A convenient statement of the ground can be found in the joint judgment of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] 197 CLR 611 at [39] namely that the decision "was so unreasonable that no reasonable [decision-maker], acting within jurisdiction and according to law, would have come to such a conclusion". 71There is an immediate and obvious tension between ascertaining whether the ground is made out, focusing as it does on whether a reasonable decision-maker would have come to the same decision, and having recourse to material that was not before the decision-maker who is said to have made the perverse or manifestly unreasonable decision. The yardstick for testing the reasonableness of the decision could change dimensions, potentially significantly, by the introduction and consideration of fresh material in the judicial review proceedings. 72It is desirable to refer to the judgment of the Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707. It was an appeal from a judgment of Talbot J in this Court. His Honour had declared a Council consent to a development application void because it was a prohibited development under the applicable LEP. Relevantly, development consent could only be given if the use was a 'drive-in take-away establishment". His Honour concluded it was not though the Council had, in substance, concluded it was. The central issue in the appeal was whether Talbot J had been correct in approaching the matter on the basis that whether the use was of the requisite character was a jurisdictional fact the existence of which was foundational to the exercise of the Council's power and also in finding that jurisdictional fact had not existed. The leading judgment was that of Spigelman CJ who decided that the question of whether the use was of the requisite character was a jurisdictional fact which had not existed when the Council had made its decision. 73A subsidiary issue was whether Talbot J had been entitled to determine, as his Honour had, whether the jurisdictional fact existed by reference to the evidence before the Court even though it included material which had not been before Council. On this subsidiary issue, the Court of Appeal concluded Talbot J was correct in having regard to all the evidence before the Court in determining whether the jurisdictional fact existed. 74However another subsidiary issue was whether Talbot J had been correct in concluding that the Council's decision was vitiated by Wednesbury unreasonableness. Precisely how this ground of appeal was framed is unclear from the Court's reasons. The ground was addressed in the following passage of the judgment of the Chief Justice: "His Honour gave no reasons for this conclusion [that the Council's decision was unreasonable in the Wednesbury sense]. The reasons earlier expressed in his Honour's judgment did not distinguish in any respect between the documents available to him and the documents available to the Council. Although he purported to act only on the basis of documents before the Council, his Honour did not identify what aspects of those documents formed the basis of this conclusion. Nor did his reasons indicate why the conclusion on the more limited range of evidence, with respect to the proper characterisation of the development proposal, was overwhelmingly clear so that a decision to the contrary was so plainly incorrect as to satisfy the stringent requirements of the Wednesbury unreasonableness test ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). 75It is tolerably clear, in my opinion, that this analysis proceeds on the premise that the ground of judicial review based on Wednesbury unreasonableness should have been determined by reference to (and only by reference to) the material before the Council which was to be contrasted with the approach to be taken in relation to determining the existence of a jurisdictional fact. This limitation on the evidence to be used to determine unreasonableness was expressly adverted to by Cripps AJA at [207]. 76Ultimately the specific question for determination is whether the evidence of the experts is relevant and therefore admissible to make good the ground of Wednesbury unreasonableness. I am not aware of any binding authority requiring me to either admit it or reject it. There is persuasive authority supporting both approaches. I prefer the approach that the evidence is irrelevant. Accordingly I reject the tender of the evidence of the experts in so far as it is relied on to make good the ground of Wednesbury unreasonableness. 77As I understood Moolarben's position, it did not seek to make good this ground by reference to other evidence.

Conclusion 78Moolarben has made out a case, on two bases, for the relief it seeks. Its costs should be paid by Ulan. 79Counsel for Ulan was concerned to ensure that I did not purport to exercise jurisdiction in this matter under Class 8, a jurisdiction it has and continues to challenge (a challenge resisted by Moolarben). It is unnecessary to detail the history of the proceedings save to note that the matter before me includes proceedings commenced in the Supreme Court transferred to this Court which can be heard as a Class 4 matter. It was not suggested by any party that this Court did not have jurisdiction to determine the issues raised by Moorlaben and to grant the relief it sought if it was successful. Accordingly I propose to make the orders without addressing, let alone resolving, this jurisdictional issue. 80The orders that I make are: (1)A declaration that the agricultural land determination made by the first respondent in response to the third respondent's objection in relation to Mining Lease Application No 331 over land owned by the third respondent is invalid and of no effect. (2)An order that the third respondent pay the applicant's costs of these proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2011

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