O'Brien v Slack-Smith & Anor

O'Brien v Slack-Smith & Anor - [2015] NSWLEC 1271 - NSWLEC 2015 case summary — Zoe

[17]

Cup and saucers

As noted at the time of providing my earlier judgment I understood that there were several 'cup and saucer' tanks of different sizes on 'Allawah' around which access was sought. At the view I was shown some of them.
I had hoped that the parties might have resolved how these sensitive elements might be protected.
The Halls have identified 4 particular cup and saucers as blue dots on Attachment 2. Consistent with my earlier judgment, I accept that these 4 cup and saucer tanks on 'Allawah' as depicted on the map should also be avoided and, a notation to that effect needs to be made on the relevant Attachments and map.
However, the extent of any buffer is an arbitrary matter. The 200m buffer around the large cup and saucer tank on 'Sorrento' was determined by the parties. The defendants submit that 200m is also an appropriate distance for the 4 identified cup and saucer tanks on'Allawah'. Ms O'Brien does not agree and Mr Moore submitted at the hearing that the distance is "an ambit claim" (transcript (D2 p68 at [5]-10])
As the parties have not come to any agreement on this issue I must determine the distance based on the evidence before me.
There is no evidence to support a 200m buffer for these cup and saucers on 'Allawah'. However, given their plotted locations it would appear that they are proximate to proposed access routes and therefore it is appropriate that they be protected. Therefore, based on my understanding of the evidence including that taken on the view and the size and locations of these sensitive features I am of the opinion that a 50m buffer is appropriate.
I have considered the wording proposed in paragraph 19 of the letter from Holding Redlich dated 30 June 2015 for inclusion in Attachments 3 and 4. Subject to the insertion of a distance of "50m" and the deletion of the words" …and this area is to be avoided" I accept the proposed drafting.
As was made clear in my earlier judgment, an AMP is not a vehicle to be used to restrict a titleholder from legally accessing a title under the terms of their SST or OPL. The notations in the Attachments for 'Allawah' are to be :

[21]

The remaining 2 disputed access paths on Allawah

I need to determine the two remaining disputed access paths on 'Allawah'. They are marked red and identified with the words "not agreed" on the second map called Attachment "A" for 'Allawah' attached to the Holding Redlich letter dated 30 June 2015.
The Plaintiff wants these access paths approved because they provide access to land which is difficult to access on existing paths or has no access. The defendants contend that there are already existing routes which provide suitable access to all of these areas. The proposed roads are said to encroach on sensitive features such as 'cup and saucer' tanks and black soil areas and are not necessary given the alternate routes available.
With respect to the proposed access path near the word 'Allawah' on Attachment 'A' I accept that there is no existing alternative access path in that part of the site and, therefore access should be allowed for any existing and future SSTs to this part of the land. Part 10A the Mining Act facilitates access in these circumstances.
With respect to the other access path marked red from the Highway to the land, the plaintiff's position is that this route requires significant backtracking along the highway which is unsatisfactory for mining vehicles/machinery. The defendants' position is that the existing road should be preferred over a new access route particularly when the proposed access is proximate to an existing 'cup and saucer'.
As the parties cannot agree I must decide the issue on the evidence such as it is. Having regard to my inspection of the land and the fact that the 'cup and saucer' will be protected under the AMP by a 50m buffer, I am satisfied that the more direct proposed access route is appropriate in this case. It not only avoids back tracking of drilling rigs etc. along the public Highway but also allows access into a central area of the land which is not currently readily accessible. Furthermore, it avoids the proliferation of numerous access points diverging from the main road into the site.
For the above reasons I am satisfied that the two red lines which are the disputed access routes on 'Allawah' are acceptable and should be included under the AMP and on the relevant Attachments for 'Allawah'.

[23]

Muttabun

At the telephone mention on 29 June 2015 Ms O'Brien made some brief oral submissions in response to Mr Slack- Smith's proposed AMP and written submissions dated 25 June 2015.
Ms O'Brien took issue with Mr Slack-Smith's reliance on documentation which was not before the Court at the hearing. It included a document entitled Narran Warrambool Reserve Interim Lightning Ridge Mining Board Buffer Zone - Guidelines and other correspondence with the Department.
I do not propose to rely upon any document which was not before the Court hearing. That said, I appreciate that Mr Slack-Smith's is not lawyer and that he is no longer legally represented. Despite that fact, his reference to the LRMA's standard mineral claim conditions and opal prospecting licence conditions which were tendered at the hearing as exhibit "G" is relevant and I have had regard to that document in my consideration of his submissions.
Mr Slack-Smith's submission is offered to assist the Court not to cavil with any findings made. He states: "The application from the Lightning Ridge Miners Association (LRMA) was for nominated access roads through Muttabun. Most of the roads were agreed and I accept the Court's decision "(p2 submission dated 25 June 2015). To that end his proposed AMP generally follows the format of Attachment 1 of the AMP prepared by Ms O'Brien and dated 25 June 2015. However, he would like the restricted zones in Attachment 3 to record numerous areas and sensitive items and features on his property at Muttabun. Relevantly, many of the areas and items listed are already protected under the Mining Act or by SST licence conditions as detailed in exhibit G. Therefore, for the reasons stated in my earlier judgment it is not necessary to repeat these restrictions in the Attachments to the AMP. In short, they are enforceable under the terms of the particular licence and the Mining Act. Repeating that detail in the AMP does not improve their enforceable. Nor is it necessary to repeat in the Attachments what is already referenced in the clauses of the AMP.
Mr Slack-Smith also submits that it appropriate to dictate the access path for each SST holder to any particular mineral claim area or OPB in Attachment 4. Under the terms of the AMP an SST holder must access their title or any relevant OPB or mineral claim area in accordance with the terms of the AMP. Repeating or dictating a path of access in any Attachment to an AMP is not necessary or anticipated under Part 10A of the Mining Act.
For the reasons stated I am satisfied that the AMPs proposed by Ms O'Brien dated 25 June 2015 for 'Muttabun' satisfactorily reflect my earlier findings and I do not propose to change them.
Having said that I note that the draft prepared by Ms O'Brien invites Mr Slack- Smith to mark on a map which fences have a 50m fire break and this has not yet been done. As I do not propose to delay my final orders in these appeals to accommodate the preparation of further maps, I do not propose to include such a map in the Muttabun AMP. However, if Ms O'Brien and Mr Slack-Smith agree to the inclusion of such a map in the future then they have the Court's leave to include that map in the AMP for 'Muttabun'.

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Judgment (27 paragraphs)

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