Normans Plant Hire Pty Limited & (2) Ors v South Coast Concrete Crushing & Recycling Pty Limited & Anor

FIRST RESPONDENT: South Coast Concrete Crushing & Recycling Pty Limited

SECOND RESPONDENT: Abib Pty Limited

KEY ISSUES: Construction and Interpretation :- mining lease - existing mine - immunity from planning controls under Mining Act 1992 - immunities not applying where development consent has lapsed

Environmental Planning and Assessment Regulation 2000 cl 8K Environmental Planning and Assessment Act Model Provisions 1970 cl 8 Interpretation Act 1987 ss 5(2), 30(1)(a), 35(2) LEGISLATION CITED: Mining Act 1906 Mining Act 1973 s116, Sch 2, cl 16 Mining Act 1992 ss 65, 74, Sch 6, cll 4, 8 Mining Regulations 2003 cl 5, Sch 2 Supreme Court Rules 1970 Pt 31 r 4

P E Bakers Pty Limited v Yehuda (1988) 15 NSWLR 437; Kembla Coal & Coke Pty Ltd v Wollondilly Council (1994) 84 LGERA 263; Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465; CASES CITED: NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 78 LGERA 1; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [1995] NSWLEC 61; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [No 2] (1997) 42 NSWLR 641; Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508

APPLICANTS: J A Ayling SC SOLICITORS: Kearns & Garside with RMB Lawyers

LEGAL REPRESENTATIVES: RESPONDENTS: I J Hemmings (barrister) SOLICITORS: Access Business Lawyers

JUDGMENT:

• 19 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

NORMANS PLANT HIRE PTY LIMITED & (2) ORS v SOUTH COAST CONCRETE CRUSHING & RECYCLING PTY LIMITED & ANOR [2006] NSWLEC 390

JUDGMENT 1 HIS HONOUR: The first respondent, South Coast Crushing & Recycling Pty Limited, occupies land at South Nowra in the City of Shoalhaven being part of lot 464 in deposited plan 1058778 situated immediately south of land formerly known as "Nowra Brickworks" now identified as "Mineral Lease 5087" ("ML1") and "Mineral Lease 6322" ("ML2"). The second respondent, ABIB Pty Limited, is the lessee from the Crown of ML1 and ML2. ML1 was first granted on 8 January 1948 and remains effective until 8 January 2019. ML2 was granted on 8 March 1972, it has since been renewed and expires on 8 March 2020. ML1 authorises the extraction of "brick clay and clay shale" and ML2 authorises the extraction of "brick clay". The second respondent causes, suffers and permits the first respondent to carry out development consisting of a quarry for shale on ML1 and ML2. 2 The applicants, Normans Plant Hire Pty Limited, Tomerong Quarry Pty Limited and South Coast Resources Pty Limited, seek declarations that the carrying out of development consisting of quarries for shale on ML1 and ML2 requires development consent and that no such consent has been given. They further seek orders that the first respondent be restrained from carrying out such development under ML1 and ML2 and that the second respondent be restrained from causing, suffering or permitting the carrying out of such development. 3 The parties have agreed that it is appropriate to consider and determine as a preliminary question of law whether the respondents are entitled to the immunity from planning controls conferred by s 74 of the Mining Act 1992 and if so what benefit this allows them. The determination of this question could provide a complete answer to the dispute between the parties. I thus agreed to the separate determination of the question as allowed by Pt 31 r 4 of the Supreme Court Rules 1970, which continue to apply in this Court. 4 The parties agree that the areas subject to ML1 and ML2 are mines for the purposes of the Mining Act 1992. As noted above, ML1 provides for the extraction of brick clay and clay shale and ML2 allows extraction of brick clay. The dictionary to the Act defines "mining" to be the extraction of material from land for the purpose of recovering minerals from the extracted material. It defines mineral as any substance prescribed to be a mineral by the regulations. Clause 5 of the Mining Regulations 2003 prescribes all the substances listed in Sch 2 to be minerals, one category of which is "clay/shale". The materials extracted under ML1 and ML2 are minerals and thus the areas of the leases are each a mine for the purposes of the Mining Act 1992. 5 It should be noted here that there is no allegation as to the invalidity of the mining leases. They are assumed to be valid in these proceedings. In any case, as the Land and Environment Court does not have jurisdiction to determine their validity under the Mining Act 1992 this is not an exercise I can undertake. 6 Section 74 of the Mining Act 1992 was repealed on 16 October 2005. However, cl 8K of the Environmental Planning and Assessment Regulation 2000 states that the section continues to have effect in respect of an existing mining lease. Section 74 states: (1) While a mining lease has effect: (a) nothing in, or done under, the Environmental Planning and Assessment Act 1979 or an environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area, and (b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease.

(2) Subsection (1) ceases to apply to a mining lease over land for which development consent to the use of land for the purpose of obtaining minerals is required if mining operations under the lease have not begun within 5 years after the date on which the development consent is given. (3) This section does not exempt the holder of a mining lease from obtaining any consent under the Environmental Planning and Assessment Act 1979 that the person is required to obtain in connection with the erection of buildings, the opening of roads or the subdivision of land. 7 Mr J A Ayling SC, appearing for the applicants, argues three bases for which the lands subject to ML1 and ML2 do not enjoy the benefit of s 74:

(a) on the proper understanding of the operation of the mining leases, the activity which is being conducted is not the same activity as was conducted in the first place;

(b) section 74 must be read in conjunction with s 65 of the Mining Act 1992 meaning there must be development consent in order for s 74 to excuse the carrying out of an extractive industry;

(c) from the decision of Stein JA in Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508, s 116 of the Mining Act 1973 cannot be read to apply to the leases and therefore the savings, transitional and other provisions of the Mining Act 1992 cannot extend the benefit of ss 65 and 74 to the leases. 8 In support of contention (a) Mr Ayling SC argues that the substances extracted and the use to which they are put are consequential to the question at hand. Mr I J Hemmings, appearing for the respondents, contends that such an inquiry is not for judicial determination, rather it is something to be dealt with by the Department of Mineral Resources and the relevant Minister and is assumed to have been satisfied by the Department's regular audits of the respondents. I find it unnecessary to go into details of the substances extracted and the use to which the respondents put them to as this is a factual inquiry outside my jurisdiction. If the mining lease has effect s 74(1)(a) allows "carrying on mining operations in the mining area". It does not say "carrying on mining operations in accordance with the mining lease". Therefore it is irrelevant whether the substance being mined is other than that stipulated in either lease, as this Court does not have jurisdiction to restrain breaches of mining leases. 9 Contentions (b) and (c) of Mr Ayling SC turn on the differing factual circumstances of each mining lease and it is convenient to consider them separately. ML1 10 ML1 was granted in 1948 pursuant to the Mining Act 1906. The parties agree that, since that time and until the Nowra Brickworks ceased operation, believed to be about the year 2000, the land subject to this lease was continuously used for the extraction of brick clay to be used to make bricks at the neighbouring brickworks. This is a lease of some antiquity and was made under an earlier legislative scheme. 11 Mr Ayling contends for the applicants that consent or permission was required in addition to the mining lease to conduct extraction operations upon the site of ML1. To establish this he first goes through a rather lengthy exposition of the history of the legislative schemes relating to development and planning in Shoalhaven. I do not find it necessary to go into those details. I find, as I shall later explain, that Mr Hemmings' approach of looking at the current and positive effect of s 74 of the Mining Act 1992 to be correct. 12 Taking this approach to the question, Mr Ayling contends that it would be misleading to treat s 74 as disposing of the applicant's claim in relation to ML1. He submits that consent is still required for the respondents' current activities as s 74 is not a stand-alone provision. Rather, Mr Ayling contends that s 74 must be read in conjunction with s 65 of the Mining Act 1992, which states: (1) This section applies: (a) in relation to a mining lease for a mineral or minerals, to land for which development consent is required before the land may be used for the purpose of obtaining minerals, and (b) in relation to a mining lease for a mining purpose or mining purposes only, to land for which development consent is required before the land may be used for that purpose or those purposes. (2) The Minister must not grant a mining lease over land to which this section applies unless an appropriate development consent is in force in respect of the land. (3) If a mining lease is granted over land for which an appropriate development consent has been given (being a mining lease granted and a development consent given before the commencement of Schedule 7.11 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 : (a) any condition (being a special purpose condition within the meaning of Division 2 of Part 2 of Schedule 1, as in force immediately before that commencement) imposed on the development consent by a consent authority, or by a body hearing an appeal from a consent authority, is void, and (b) the development consent (to the extent only to which it relates to the use of the land concerned for the purpose of obtaining minerals) is taken to have been given free of the condition. 13 Mr Ayling argues that sub-s (3) indicates an intention of Parliament that those conditions not made void should remain in effect. He contends that reading s 74 as a stand-alone provision would make such conditions incapable of enforcement. Mr Ayling further argues that the scheme of the current mining legislation is designed to both: (i) recognise the differing roles played in relation to mining by the Mining Act 1992 and the Environmental Planning and Assessment Act 1979; and (ii) to allow each to operate subject to a constraint upon potential overlap between the control mechanisms. Mr Ayling contends that this scheme cannot operate as intended unless s 74(1) is read in the light of s 65. Not to do so, he argues, would mean a mining operation which requires development consent may lawfully be conducted without consent as the operation is authorised by a mining lease. Mr Ayling points to the case of Kembla Coal & Coke Pty Ltd v Wollondilly Council (1994) 84 LGERA 263 as authority for this proposition. 14 In Kembla Coal & Coke Talbot J did apply s 65 of the Mining Act before applying s 74. Talbot regarded s 65 as specifically requiring "...that an appropriate development consent is in force before the minister grants a mining lease" (at 273). His Honour describes the intention of the legislative scheme (at 273): It is the intention of the legislative scheme that each new mine be considered by due process under the Environmental Planning and Assessment Act before a mining lease is granted. Once that process has been completed and a lease is granted, s 74 of the Mining Act applies. 15 Mr Hemmings argues, however, that this case can be distinguished as the factual situation in consideration in that case was different to that of the present case before me. He contends, correctly, that Kembla Coal & Coke relates to the grant of a new mining lease, whereas in the present case the mining lease was granted some time ago. I find Mr Hemmings' arguments persuasive in this respect. Indeed, on my own reading of Kembla Coal & Coke I find Talbot J's interpretation to be entirely reconcilable with the interpretation for which Mr Hemmings argues. Talbot J reads the two sections not together, but consecutively; in the current legislative scheme development consent under s 65 is necessary before a mining lease can be granted, after which s 74 applies. In the case before me now there is an existing mining lease (which I will discuss in more detail below) granted at a time when no planning controls applied, not a new lease, so that s 65 is irrelevant to my determination. Section 74 of the Mining Act 1992 alone applies. 16 Mr Ayling finally contends that the decision in Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508 precludes the continued operation of the mining lease. He submits that in applying that decision, the statutory scheme under the Mining Act 1992 applies and the lease does not enjoy the benefit of s 116 of the Mining Act 1973. Section 116 relevantly states: (1) Where the consent of an authority is necessary under the Environmental Planning and Assessment Act 1979 to the use of land for the purpose of obtaining minerals the Minister shall, before a mining lease over the land is granted to the applicant for the mining lease (being an applicant who has not already obtained that consent), cause an instrument in writing to be served - (a) on the applicant for the mining lease, requiring him, within such time as is specified in the instrument, to make the appropriate application to the appropriate authority for that consent; and (b) on the authority concerned - (i) notifying the authority that the applicant for the mining lease has been required to apply for the consent of the authority and stating, in the instrument, the conditions proposed to be included in the mining lease, if granted; and (ii) informing the authority that proposals for the inclusion in the mining lease, if granted, of conditions (including prescribed conditions) which the authority wishes to have included in the lease should be lodged with the Director-General within such period as is specified in the instrument. (2) - (3) …. (4) Subject to subsections (5) and (7), where - (a) an applicant for a mining lease over land obtains the consent of an authority, or of a body hearing an appeal from the authority, to the use of the land for the purpose of obtaining minerals (whether pursuant to a requirement under subsection (1)(a) or not); and (b) the mining lease is granted to that applicant, nothing in or done under the Environmental Planning and Assessment Act 1979, or an environmental planning instrument within the meaning of that Act, shall operate so as to prevent the registered holder of the mining lease from carrying on mining operations in the mining area, and to the extent that anything in, or done under, that Act or any such instrument would so operate, it shall be of no force or effect in relation to the mining area or the registered holder of the mining lease. (5) Subsection (4) does not operate so as to exempt the registered holder of a mining lease - (a) from obtaining any consent which he is required to obtain in connection with the erection of buildings, the opening of roads or the subdivision of lands; or (b) from complying with any condition (not being a prescribed condition) subject to which the consent to use the land for the purpose of obtaining minerals was given. (6) Nothing in this section shall operate so as to prevent the Minister from rejecting at any time an application for a mining lease. (7) Subsection (4) shall cease to apply in the case of a mining lease where mining operations under that lease have not been commenced within five years from the date on which the consent was given to the use of the land (subject to the lease) for the purpose of obtaining minerals. ... 17 Winn was an appeal against a decision of Talbot J dismissing an action in this Court. The appeal involved a question of the validity of mining operations under five mining leases and whether those mining leases would enable mining operations to be continued on the relevant areas. In particular, application had been made for one lease under the Mining Act 1906 but it was not granted until 1978, after commencement of the Mining Act 1973. Notably, development consent for the mining operations was not granted until after the grant of the mining lease. In his determination of the appeal Stein JA gave particular consideration to the operation of s 116 and cl 16 of the transitional provisions to the Mining Act 1973 and ss 65 and 74 and cll 4 and 8 of the transitional provisions to the Mining Act 1992. 18 Stein JA found that as the application was made under the Mining Act 1906 the transitional provisions of the Mining Act 1973 meant that Pt 6 (including s 116) of that Act did not apply to the application and it was unnecessary to obtain development consent before granting the mining lease. As a result of this there was no ministerial requirement that development consent be granted before the grant of the lease and thus Stein JA held that s 116(1) could not apply to the lease. Further, his Honour found that s 116(4) of the Mining Act 1973 only confers immunity on an applicant for a mining lease who obtains development consent prior to the grant of the mining lease. Stein JA thus stated (at [241]): Where a mining lease was granted without the opportunity for the planning consent authority to consider it under s 116(1), the conditions of a development consent and the planning legislation remain in force 19 Stein JA found an anomaly in the decision of Talbot J at first instance whereby Talbot J had found an immunity was provided under the transitional provisions of the Mining Act 1992 to mining leases which had not been provided under the Mining Act 1973. Stein JA stated (at [245]): This cannot have been the intention of the 1992 legislation. Such a construction would mean that "legacy" mining under the 1906 Act would become immune from planning legislation in 1992 when it was not so immune in 1973. It would mean, as counsel for the appellant correctly points out, that a later mining lease granted for a different mining project, but covering part of an area of an earlier development consent (perhaps issued decades before), would not need to obtain development consent and would have no planning scrutiny imposed on it. 20 Stein JA instead found cl 8 of Sch 6 of the Mining Act 1992 to apply to ensure both:

(i) that mining leases which did not have immunity under s 116 of the earlier Act, do not have the benefit of the immunity conferred by ss 65 and 74 of the Mining Act 1992 , and that they be subject to planning scrutiny and development consent; and

(ii) that leases which were protected under s 116 of the earlier Act retain that protection under ss 65 and 74 of the current Act. 21 Clause 8 of Sch 6 (which is headed "Savings, transitional and other provisions") states: Sections 65 and 74 of this Act apply to and in respect of a mining lease granted in accordance with section 116 of the Mining Act 1973 or section 91 of the Coal Mining Act 1973 before the relevant commencement in the same way as they apply to and in respect of a mining lease granted in accordance with this Act. 22 Stein JA read cl 8 to contain a plain pre-condition that ss 65 and 74 of the Mining Act 1992 can only apply where a mining lease is "granted in accordance with section 116 of the Mining Act 1973". As s 116(1) was not applicable to the mining lease in that case, Stein JA found the lease did not fulfil this pre-condition and ss 65 and 74 of the Mining Act 1992 could not apply to it. 23 Mr Ayling argues that s 116 cannot apply to ML1 in the present case for the same reasons as Stein JA found it could not apply to the mining lease in Winn. There was never a development consent for the use of the land over which ML1 was granted for the purpose of obtaining minerals. No such consent was required by the Mining Act 1906. Mr Ayling thereby argues that ss 116(1)(a) and 116(4) are not satisfied and the lease cannot be taken to have been granted in accordance with s 116 of the Mining Act 1973. He further argues following Stein JA's finding in Winn that cl 8, Sch 6 of the Mining Act 1992 precludes the application of ss 65 and 74 of that Act to ML1. As there was no development consent issued for ML1 under s 116 (1), Mr Ayling argues that ML1 was not made in accordance with s 116. 24 Mr Hemmings points out, however, the different factual matrix that existed in relation to the mining lease here and development consent in Winn. He correctly highlights that Stein JA's decision turned upon two critical matters in relation to the mining lease in that case which are not relevant here. 25 Firstly, the mining lease in Winn was an application for a mining lease under the Mining Act 1906, which had not yet been determined when the Mining Act 1973 commenced. This is different to the situation of ML1 which was granted under the Mining Act 1906 in 1948 and is assumed to have been operating as a mine both when the Mining Act 1973 commenced and when the current Act commenced. Mr Hemmings points to a distinction drawn in cl 16 of the transitional provisions of the Mining Act 1973 between applications for leases (dealt with by cll 16(5) - (10)) and leases already granted (dealt with by cll 16(1) - (4)). In Winn, cl 16(7) excluded the application of Pt 6 of that Act to the mining lease in that case as the application for the lease was made under the Mining Act 1906. However, the application of Pt 6 to ML1 in the present case is not excluded as cl 16(1) merely deems a mining lease granted under the Mining Act 1906 that is in force immediately before the commencement to be a mining lease granted on the commencement of s 53 (2) of the Mining Act 1973 on the same terms as those of the mining lease granted under the earlier Act. 26 Mr Ayling argues that even if this interpretation is accepted the only consequence is that the leases are "deemed to be leases" under the Mining Act 1973. He argues that they still have not been granted in accordance with s 116(1) and thus cannot claim immunity under s 116(4). Mr Hemmings contends that, in the absence of the express exclusion of the application of Pt 6 of the Mining Act 1973 by the transitional provisions. the proper interpretation of the transitional provision is that Pt 6, including s 116, does apply to a mining lease "deemed" to be one under the Mining Act 1973 by operation of cl 16(1). This conclusion appears to be self-evident and I concur with Mr Hemmings' contention. 27 Secondly, Mr Hemmings turns to Stein JA's concern expressed at [245] and quoted at par [18] above. Mr Hemmings argues that, as ML1 is deemed to be a lease made under the Mining Act 1973 it obtains immunity under s 116(4). The effect of the transitional provisions of the Mining Act 1992 is to maintain that immunity. It would be an inappropriate interpretation to read those provisions as removing the immunity granted by the Mining Act 1973 in the Mining Act 1992 without express words to that effect. Again I agree with Mr Hemmings on this point. It would be an anomalous result to rule that, by virtue of the introduction of new legislation, a mining operation duly commenced under a previous Act would suddenly be required to become the subject of a development consent to continue the conduct of an activity which had been lawfully conducted under the earlier scheme. 28 Mr Hemmings then turns to the transitional provisions of Sch 6 to the Mining Act 1992. He recognises the specific protection given leases granted in accordance with s 116 of the Mining Act 1973 by cl 8 as Stein JA found in Winn. However Mr Hemmings argues that cl 8 need not operate to exclude the operation of cl 4(2) of Sch 6 which deems mining leases granted under the Mining Act 1973 to be leases granted under the Mining Act 1992. I agree with Mr Hemmings that ML1 is deemed to be granted and thereby obtains all the benefits of the Mining Act 1992 subject to any specific exclusions in the transitional provisions. By both cl 4(2) as well as s 74, ML1 is unaffected by the Environmental Planning and Assessment Act 1979. 29 Once it is accepted that Winn is distinguishable from the present case, there is, however, a far simpler and clearer way of looking at the matter. I accept the submissions of Mr Hemmings in this respect. It involves simply reading the legislation and accepting the plain meaning of the words used. 30 Although the heading to s 74 of the Mining Act 1992 is not taken to be part of the Act - see s 35(2), Interpretation Act 1987 - it nevertheless correctly describes in this instance the operation of the section: "Mining unaffected by Environmental Planning and Assessment Act 1979". The words of the section itself make this plain. 31 The opening words of sub-s (1) are, "While a mining lease has effect - ...". In the present case, both ML1 and ML2 have effect. Although they were originally granted under previous legislation, the transitional provisions have a deeming effect and they are taken to be mining leases granted under the Mining Act 1992. (See Sch 6, cl 4(2) of the Mining Act 1992 and Sch 2, cl 16 of the Mining Act 1973.) 32 Sub-section (1)(a) of s 74 then states the consequences of a mining lease having effect - "nothing in … the Environmental Planning and Assessment Act 1979 or an environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area, …". Nothing could be clearer. 33 The position is made even stronger by sub-s (1)(b) - "to the extent to which anything in, or done under, that [Environmental Planning and Assessment] Act, of any such instrument would so operate, it is of no effect in relation to the holder of the mining lease". 34 In the present case sub-s (1)(a) clearly protects mining operations under ML1, whereas sub-s (1)(b) is more directly applicable to protect ML2. 35 The next question is therefore what is the effect of s 65? That section governs the actual grant of a mining lease by the Minister. See sub-s (2) - "The Minister must not grant a mining lease over land to which this section applies unless an appropriate development consent is in force in respect of the land." The section focuses on the time of granting a mining lease. 36 In the present case s 65 does not apply to ML1. That lease was granted in 1948, well before the first planning control commenced (being Interim Development Order No. 1 - Shire of Shoalhaven ("IDO No. 1") which commenced on 28 February 1964). 37 Neither does s 65 apply to ML2, because that lease was granted before the commencement of the Mining Act 1992 and, of course, the commencement of s 65. In any event ML2 was granted on 8 March 1972, whilst the interim development consent of 24 September 1971 was extant. 38 Section 74 operates according to its tenor and mining operations under ML1 are unaffected by the Environmental Planning and Assessment Act or any environmental planning instrument. 39 The effect upon ML2 is, however, slightly different, as I shall explain below.

ML2 40 I will now apply the law discussed above to the different factual situation of ML2. On 24 September 1971 the State Planning Authority issued an instrument of allowance of an appeal in respect of an interim development application under Interim Development Order No. 1 - Shire of Shoalhaven ("IDO No. 1") (made 28 February 1964) to quarry brick clay, thus granting development consent for the quarrying of ML2. 41 Before the grant of this consent IDO No. 1 had been amended to adopt the Environmental Planning and Assessment Act Model Provisions 1970, cl 8 of which provided for the lapse of any consent under an interim development order twelve months after the grant, failing substantial commencement. 42 On 8 March 1972, before the expiry of the purported lapsing provision, ML2 was granted under the Mining Act 1906 for the extraction of brick clay for a period of 20 years. 43 On 29 March 1974 the Mining Act 1973 came into force. 44 Counsel for both parties agree upon the facts up to this point. The dispute is in relation to whether the consent lapsed under the purported twelve-month lapsing provision and whether this rendered the quarrying on ML2 unlawful. 45 Mr Hemmings contends, for the respondents, either:

(a) that ML2 is deemed to have been granted under s 53(2) of the Mining Act 1973 and thereby under the protection conferred by s 116(4) the lapsing provision is of no effect as it would prevent the registered holder of the mining lease from carrying on mining operations; or

(b) that as the consent was granted by the Minister rather than council, the twelve-month lapsing provision did not apply - it only applied to a consent granted by council (as I understand the submission). 46 In the case of ML2 the consent was given to the use of the land on 24 September 1971. The mining lease was then granted on 8 March 1972. Mr Hemmings argues that although that consent lapsed under the terms of the relevant interim development order if there was no substantial commencement within twelve months of that date, the mining lease continued to have effect. The Mining Act 1973 then came into force and it provided for a five-year lapsing period. According to the submission, that provision, applying to an extant mining lease, prevails over the subordinate legislation, which provided a twelve-month lapsing period. Moreover, the language used in sub-s (7) of s 116 is "commenced", not "substantially commenced". According to the submission, by application of s 116(7) the relevant factual inquiry is whether mining operations were commenced prior to 24 September 1976. 47 Mr Ayling contends that there was no substantial commencement of mining operations by 24 September 1972 and that, as a result, the 1971 consent lapsed. He argues that as the consent lapsed before the Mining Act 1973 came into force the immunity conferred by s 116 of that Act cannot save the lease.

48 Mr Ayling further submits that the lawfulness of the extractive industry conducted on ML2 has been conclusively determined by the decisions in the NSW Aboriginal Land Council v Minister Administering the Crown Lands Act litigation. That litigation related to determining whether the land subject to ML2 was "lawfully used or occupied" within the meaning of s 36(1)(b) of the Aboriginal Land Rights Act 1983. At first instance, in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 78 LGERA 1, Bignold J held that the lands were not "used" at all for the purposes of the section and further in obiter he remarked that even had he been able to conclude that the land was "used" under the relevant mining lease, it would not have been lawfully used because the interim development permission given by the State Planning Authority in 1971 "lapsed by virtue of the development not having been substantially commenced within twelve months of the grant of that permission". In the first appeal to the Court of Appeal, Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106, Priestley, Clarke and Sheller JJA held that Bignold J's conclusion was founded upon an incorrect test and land held in reserve for mining purposes, as they found ML2 was, might be so "used" for the purposes of s 36 Aboriginal Land Rights Act. The case was then remitted to this Court for determination on this basis.

49 In NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [1995] NSWLEC 61, Bignold J reheard the case and applied the test approved by the Court of Appeal in determining whether the land held in reserve was "used", albeit in a passive way, not involving the actual or physical use of it. His Honour determined that if the land was "used" for the purposes of the quarrying of extractive materials, it could only be lawfully so used if that use was one permitted by the applicable planning law. Bignold J found that the 1971 consent had lapsed after twelve months due to lack of substantial commencement and therefore the use of ML2 was unlawful. An appeal was again brought to the Court of Appeal against Bignold J's finding that ML2 was not lawfully used because the 1971 consent had lapsed. However, the finding that the consent had lapsed was not in issue. Priestley, Handley and Sheller JJA found in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [No 2] (1997) 42 NSWLR 641 that Bignold J had erred in taking the step of finding that because there was a use of a passive kind it was a use subject to the requirement for consent. The Court of Appeal found that the lapse of the 1971 consent was not decisive of the question whether the land was lawfully "used" for the purposes of the Aboriginal Land Rights Act. Bignold J's decision was reversed, but his finding that the 1971 consent lapsed on 24 September 1972 was undisturbed on appeal.

50 Mr Ayling submits that in P E Bakers Pty Limited v Yehuda (1988) 15 NSWLR 437, findings as to the validity of conditions to a consent were held to operate in rem. Therefore, a finding as to the existence, or the non-existence, of a development consent is also one which operates in rem. In accordance with Lazarus-Barlow v Regent Estates Co Ltd [1949] 2 KB 465 such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers, of the matters actually decided. It would therefore seem that I am bound by the prior finding of Bignold J in this Court that the 1971 consent lapsed due to lack of substantial commencement.

51 There is, however, an alternative way of resolving the question. Section 30(1)(a) of the Interpretation Act 1987 provides: The amendment or repeal of an Act or statutory rule does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, It would thus follow that a consent that was not in existence at the time of the repeal of the Mining Act 1906 could not be revived by the introduction of a new Act, the Mining Act 1973 , which provided for a longer lapsing period.

52 Section 30(1)(a) of the Interpretation Act 1987 was given specific consideration by Spigelman CJ in Winn. His Honour points out that a prescribed condition that was "void" by reason of the operation of s 116(3A) of the Mining Act 1973 could not be "revived" by reasons of the repeal of that subsection. Similarly, a consent that expired before the commencement of the Mining Act 1973 could not be revived by the provision of a different lapsing period by the subsequent Act. As Spigelman CJ points out, as required by s 5(2) of the Interpretation Act its provisions apply subject to any contrary intention in the subsequent Act. There is no such intention evinced in the Mining Act 1973. In fact, cl 16 of the transitional provisions to that Act provides that a mining lease granted under the Mining Act 1906 be deemed to be "...granted on the commencement under section 53 (2) of this Act on the same conditions as those of the mining lease, granted under the 1906 Act". As there was no provision in the Mining Act 1906 which voided any conditions attached to the consent of an authority, the lapsing provision is taken to be a condition of the grant of ML2. The operation of this condition is maintained by the Mining Act 1973.

53 The relevant lapsing period applicable to ML2 is twelve months. If substantial commencement of mining operations had not occurred within this period, then the consent in relation to ML2 has lapsed. There would be no development consent for the current operations under ML2 and, in accordance with the decision of the Court of Appeal in Winn, the current operation would be unlawful.

Conclusion 54 These findings would appear to be determinative of the proceedings - that is, the mining operations under ML1 are lawful, but the mining operations under ML2 are unlawful. Nevertheless, it is appropriate that the parties be given the opportunity of considering these reasons and conclusions and of determining the form of appropriate declaratory, or other, orders and, in relation to ML2, the question of the appropriate exercise of the Court's discretion.

I hereby certify that the preceding 54 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.