O'Brien v Slack-Smith & Anor; O'Brien v Hall & Anor; O'Brien v Hall

O'Brien v Slack-Smith & Anor; O'Brien v Hall & Anor; O'Brien v Hall - [2015] NSWLEC 1179 - NSWLEC 2014 case summary — Zoe

[8]

A summary of the plaintiff's position

The plaintiff's principal contention is that Part 10A of the Mining Act conveys a right to any existing or future SST holder to access any part of the land the subject of an AMP. An AMP is not limited to facilitating access to the particular SST but also entitles the SST holder to use the AMP to access another work site, or a designated mullock dump or a puddling site (at [143] Parkins v LRMA 75 NSWLR 427), or other roads/ access paths if the most direct and convenient route to their title is unavailable for some reason or other, or it otherwise becomes inaccessible.
The AMP does not merely provide access from a particular point 'A' being the entry point marked on a map along a particular access route also marked on the map to a particular point 'B' being a SST as though it were a right of way under s211 and 235C of the Mining Act to a particular SST holder (PWS p6). In fact, the plaintiff submits that Part 10A replaces multiple rights of way for SST holders wherever possible subject to the Act by an overriding AMP. It does not to seek to duplicate those processes unnecessarily.
The plaintiff contends that this is supported by the fact that under, Part 10A of the Mining Act, the miners' representative is not required to identify any particular SST holder within the area or locate particular routes of access when notifying a landholder of her intention to negotiate an AMP in respect of the land. It is sufficient to simply identify by "a plan and description the area of land over which access is sought, sufficient to enable the ready identification of that area , and (b) a description of the mining or prospecting methods intended to be used in that area : 236E(2)."
Hence, the plaintiff submits that the AMP is a "blanket" document providing access across 'Allawah', 'Sorrento' and 'Muttabun' except for those areas that are statutorily exempt from access to all existing and future SST holders. Under s236C of the Mining Act the Court may determine an AMP for land within an access management area either before or after small titles are granted in relation to the land. Therefore, it is expected that any AMP determined by the Court in these proceedings shall include a general provision for future access to be provided for future SSTs wherever their title on the land (clause 5 and 9 of the plaintiff's draft AMP).

[9]

A summary of the defendants' position

The defendants contend for an entirely different meaning of the legislation and the jurisdiction of the Court. They say that an AMP manages access granted under the Mining Act and does not empower the Court to create universal access rights to use the whole of a track network across the properties the subject of the AMPS. Access is only from an access point via an access route to a SST holder for that SST (DWS p3 at [6] Sorrento).
They do not accept the plaintiff's assertion that any SST holder should be able to travel along any road marked on Exhibits A, B and C effectively making this road networks a public road system (DWS p3).
The defendants contend that s236D can regulate access points, routes of access and, the manner and times during which access may be granted. The AMPs' relied upon by the defendants are said to do just that. They delineate the routes of access for each collection of mineral claims or each OPB depending on their location. The Mining Act does not confer a right on the SST holder to go anywhere on a network of tracks described in the AMP. If confers a right on a SST holder to use one specified access route from one specified access point; the one which is relevant for the particular SST (DWS p13-16). The Mining Act and regulations define the right of access. That right can be managed for example by restricting or varying a particular route to suit the particular circumstances of the case but it cannot expand in the way contemplated by the plaintiffs.
In summary, the defendants contend that the Court has no power to make an AMP which grants greater rights of access than are conferred by the Act in s211 and s235C respectively. The AMP does not grant a right of access but only manages it. The legislation specifically refers to conditions imposed pursuant to an AMP on a person's exercise of a right of way conferred by the Act. Nothing could be clearer than that the rights managed by an AMP are those conferred by a right of way: s293 Mining Act.

[11]

Issues modified during the hearing

Some of the other issues identified by the parties during the hearing were modified.
The first relates to the defendants' claim for compensation. At the commencement of the hearing the defendants' counsel advised me that the defendants were not pursuing a claim for compensation in these proceedings. They accept that any such claim must be a separate application under the Mining Act.
However, they draw a distinction between compensation and maintenance and the defendants' claim for the ongoing cost of the maintenance of certain roads particularly on Muttabun are pressed (cl 6 of the Defendants final AMP).
It is based on a submission that roads are valuable improvements. They cost money to maintain. They are the property of the landowner. The landowner has the right to control repairs and maintenance.
In light of the uncontested evidence before the Court of the ongoing cost of maintenance of just the main road from the highway west, the defendants' submit it is reasonable to seek a contribution to this particular maintenance, regardless of the capacity to apply for some funds from the Secretary.
The defendants submit that the plaintiff is trying to secure control over repairs and maintenance and funding from the levy established by the Minister of Energy and Resources (the Minister) for repairs to the Lightning Ridge Miners Association pre-empting the exercise of discretion which is reserved to the Secretary s292D(2) of the Mining Act. They contend this is impermissible.
The defendants no longer seek to have the routes of new access tracks pegged. Rather, they seek to have the new routes identified by survey on a plan, much as a title holder is currently required to do when making an application and this new access track to become part of the AMP. This they submit has the benefit of making the AMP a "living document" and, providing an automatic means of new access routes being made public so that future applicants can know of and use these routes, thereby avoiding a multiplicity of roads.
The defendants no longer seek to have the right to negotiate on the location of routes. Provided the proposed route is notified to them when notice is required to be given under s177 of the Mining Act, the defendants will be able to make representation to the Department about the route. Further, if the restricted zones are adhered to in choosing the access routes, then the defendants' contend that most of their concerns are likely to be addressed. This will avoid disputes and facilitate prompt access to the SST.
The defendants accept Ms O'Brien's oral summary of the Plaintiff's scheme that a SST holder would: "…use the primary access route which would be marked on the plan and from that particular point he would use the shortest practical (route) to his title, avoiding sensitive areas and if there are other titles in the same vicinity as his title they should try and use the same track…." (Transcript D2 p41 Lines 42-48)
"…one of the points I believe of an access management plan is to keep (the) number of tracks to a minimum so if …there was a hot area …It would be preferable to have …the route to that hot area marked on a map so that everyone's using the same route…." (Transcript D2 p43 Lines 23-27)
The defendants require any change of route to be formally amended on the AMP and a replacement plan to be lodged with the Department for registration (transcript D2 p46 line 49).
The defendants reject the plaintiff's assertion that the basic minimum controls on access found in the legislative scheme such as hours of access, preventing access over significant improvements and preventing access after wet weather should be abandoned: the Mining Regulation 2012 (the Regulation), s236K(3) and 292SD (2) of the Mining Act . The defendants submit that there is no evidence to justify removing the controls imposed by the legislature. Furthermore, they submit that the controls cannot be removed for existing SSTs (s236K (3) of the Mining Act) and to remove them from future SST creates two tiers of regulation within the one AMP.

[33]

(iv) the determination of the Secretary in relation to an objection to the granting of a mining lease,

In summary, the amendments to the LEC Act require Class 8 applications that relate to an SST (other than proceedings in the nature of a judicial review of a decision by the Secretary) to be dealt with by a mandatory conciliation conference, which may be conducted on site or at any other place determined by the Commissioner who presides over the conference. If an agreement cannot be reached between the landholder and the Miners' representative, then the Commissioner is to terminate the conciliation conference and dispose of the proceedings following an immediate hearing or, if the parties agree, on the basis of what occurred at the conciliation conference.
In certain circumstances the Court will allow a short adjournment between the conciliation and the arbitration hearing if for example it is required to deal with new evidence airing from the conciliation. However, generally the parties will be required to attend the conciliation ready to proceed to an immediate arbitration if no agreement is reached.
In certain circumstances the Court or the Commissioner may determine at the first directions hearing that the application is better dealt by a traditional hearing.

Amendments to the Mining Act

Although the amendments to the Mining Act preserve the existing and future access of prospectors and miners to land, they also make clear that permit holders are responsible for their actions to landholders. However, what might previously have been thought to be included in an AMP is now clearly dealt with separately under the Mining Act for example; compensation and compensational losses under s266 and Part 14AA.
The Mining Act now clearly states that upon the granting of an SST a landholder is entitled to compensation under s266 and this compensation is in lieu of compensation for any compensational loss suffered, or likely to be suffered by the landholder as a result of the exercise of the rights conferred by the SST: s266 (1).
The Minister under s266 (2) may determine the compensation payable for the purposes of s266 (1).
The Minister in determining the amount of standard compensation payable cannot vary or substitute an amount previously determined unless 5 years have passed since that determination and the Minister has caused an independent review into the appropriate levels and considered the findings of the review.
Under the amendments the Secretary is not permitted to grant a SST unless satisfied the applicant has paid to the collection agency standard compensation for the term of the SST (unless the applicant and the landholder have entered into an agreement as an alternative to standard compensation (a compensation agreement).
The amendments empower the Secretary to regulate the compensation paid by the holders of small scale titles over land to landholders and to impose levies on small scale titles for purposes associated with those titles and the establishment of the Small-Scale Levy Fund in the Special Deposits Account. These purposes include the provision and maintenance of roads servicing small scale titles and rehabilitation or environmental maintenance work on stockpiles of mullock on other land affected by work related to SST: s292SA(1) (a)-(e).
Any dispute in connection with compensation payments and compensation agreements can now be dealt with by the Court: 266(6). For example, if there is no standard compensation applicable to a SST, the applicant for the title or the landholder can apply to the Court to determine the amount of compensation payable. In making that determination, the Court is to take into account any determinations for compensation made by the Minister but ultimately the amount of compensation determined by the Court is taken to be the standard compensation in respect of the granting of the particular SST and, if there is no subsequent determination of standard compensation by the Minister for the renewal of the title: s266.
Furthermore, the Court may - in exceptional circumstances in accord with s266 (8), award a landholder compensation for the compensational loss suffered, or likely to be suffered, by the landholder as a result of the exercise of the rights conferred by the SST.
Compensational loss is defined in s262 of the Act. It provides:

[54]

(b) to the person by whom royalty is payable as if the person were the holder of a mining lease.

To be clear, a 'right of way' granted under s211 and 235C of the Mining Act only relates to access along a designated route from a public road to one ultimate mining title. In circumstances where there is no registered AMP in place, access cannot be exercised unless the small scale title holder obtains the consent of the landholder or a 'right of way' between the claim area and a public road.
However, upon publication of the registration of an AMP and, subject to s236K (3), all existing and future SSTs are bound by its terms until it is replaced under s236L or terminated under s236M.
I agree with the plaintiff that an AMP provides access for the land to all existing and future SSTs within an access management area except for those areas that are agreed or statutorily exempt from access. Section 236C of Part 10A of the Mining Act clearly provides that an AMP for land within an access management area may be agreed between the miners' representative and the landholder, or determined by the Secretary or the Court in accord with that Part either before or after SSTs are granted in relation to the land.
The Supreme Court in Parkins determined the meaning of access under Part 10A to be access for all SSTs on a particular property. It is access for the land not access to a designated access route. Having regard to the reasoning in Parkins, I must accept the plaintiff's submission that an AMP determined under Part 10A ultimately has the effect of replacing multiple rights of way for access to land for all SSTs holders (PWS p10). Any existing or future SST holder should be able to travel along any road marked on the approved map referred to in the AMP as far as possible and from their travel to their title by the shortest and most practical route via a new track or a secondary access route (PWS p3).
Given that these AMPs under Part 10 A will provide access for all future SSTs wherever they are on the land I do not accept that it should be necessary for the plaintiff to be required to obtain owner's consent to any new access or approach the Court for a variation of the AMP to provide this as new tracks are required.
As the defendants do not seek to negotiate the location of new routes for SST holders because they will be given notice by the Department of any proposed new route under s177 of the Mining Act and will be able to make representations to the Department at that time (DWS p2 3.b) it is not necessary that every new route be marked on the registered AMP.
It is impractical to require the plaintiff to update the AMP to record new access routes for existing and future SSTs for the land. A later registered access management plan can always be determined if required. It prevails over an earlier registered access management plan to the extent to which they relate to the same land: s236K (5).
It is important to appreciate that the Mining Act only authorises the appointed miners' representative to negotiate the terms of an AMP with the landholder. The functions are not extended to overseeing, enforcing or implementing the AMP. These functions belong to the Minister, the Director General and the provisions of an AMP must be enforceable by the Department or the landholder under s293.
With that in mind I must agree with the plaintiff that an AMP cannot be used as an instrument to control prospecting and mining purposes on the land where other provisions of the Mining Act or other legislation deals with such matters. Accordingly, matters such as unregistered vehicles on the land, public liability insurance (see: s383C general indemnity against liability for claims brought against the landholder), the licensing of drivers, environmental protection, and firearms etc which are dealt with under other conditions of the SSTs or provisions of the Mining Act and/or under separate legislation are not matters to be covered in an AMP.
It needs to be appreciated that an AMP determined under Part 10A of the Mining Act is different to an access agreement for a mining lease or an exploration licence determined under the Part 8 Division 2 of the Mining Act. The SST holder is not a party to the AMP determined under Part 10A. The person or entity with the relevant mining interest must be a party to the access agreement with the landholder under Part 8. Therefore, the decisions of Rosane Pty Limited v T&P Clarke;N Perry& R Armstrong v T&P Clarke [2009] NSWLEC 1282 have no relevance to these applications .
While there is nothing to stop a SST holder from reaching an agreement with the landholder on a new road or track, any amendment to the AMP must proceed through the Miners' representative.

[59]

Attachment 1 - the common conditions applicable to all Access Management Plans

Attachment 1 of each AMP is to include a modified version of the common conditions proposed by the plaintiff in their draft AMPS (Exhibits D, E and F) which are based on the format approved by the Court in Parkins. (I have followed the numbering in Exhibit F but appreciate that clause 3 has inadvertently been omitted and this should be corrected in the final AMPs which the parties are directed to provide to the Court within 1 month of this judgment).
The common conditions for each AMP are to include the following clauses from Exhibit F :

RECITALS - unchanged apart from the deletion of the reference to holders of a permit to enter.
Clause 1 - DEFINITIONS- unchanged.
Clause 2 - EXERCISE OF ACCESS -unchanged
Clause 4 - REVIEW OF THE ACCESS MANAGEMENT PLAN - delete the last two paragraphs of cl 4. (As Section 236M of the Mining Act deals with the duration of an AMP. It does not run with the land and terminates if the landholder of the land to which it relates ceases to be a landlord or if the AMP is superseded by another registered plan (s236K (5) or terminated. It is not necessary that the AMP be reviewed every 5 years rather meetings between the landholder and the miner's representative should be on a needs basis as the plaintiff submits (PWS p3)).
Clause 5 - ACCESS- cl5 (1) and (3) are to be included and 5 (2) is modified to read: "Subject to clause 9 hereof access for roads and tracks not shown on the map to the small scale title shall be by the shortest and most practical route taking into consideration sensitive features of the area and wherever possible should be used by adjacent claim holders on a shared basis" - (Clause 5 (3) restricts driving within 10m of a fence where there is a cleared 50m fire break except on those roads and tracks shown on the map/plan (attachment 2). In my opinion this clause imposes an important restriction of access for the reasons outlined in the evidence of Mr Slack - Smith. I have considered the plaintiff's concern that such fire breaks are not always easy to see but have formed the view that in the circumstances of this case that it is appropriate to impose cl 5(3) as it assists in avoiding trucks running off the road particularly during wet weather and causing significant damage to fences :( exhibit 10 and Mr Slack-Smith evidence and Transcript D2 p91 line 36 p92 line17). I accept Mr Slack-Smith's evidence that roads can end up impinging on fences and compromise the stability of the fence. However, his evidence that a 50m distance is necessary is in my opinion excessive and excludes land that should be available for mining. (Transcript d2 p93 at 1-15). A distance is of 10m is reasonable of the facts.
Clause 6- REPAIRS TO ACCESS ROADS AND TRACKS - unchanged
Clause 7 - REPAIRS TO ACCESS ROADS AND TRACKS - LIMITATIONS is modified to read : "Titleholders shall not drag tyres or any other levelling device on access roads and tracks except with the consent of the landholder".
Clauses 9, 11, 12, 13 and 14 - unchanged.
Clause 10 - modified to include the following additional subclauses: 1. "Existing and proposed access roads and tracks are to be through existing gates and grids unless otherwise agreed with the landholder". 2. "Small scale title holders when exercising access shall not discharge any firearms without the landowner's consent".

[60]

Attachment 2 - will be a marked plan showing routes that have been designated as access routes for the purposes of this Access Management Plan

The parties have essentially agreed the designated access routes for the purposes of each AMP and this need to be marked on a map as Attachment 2 for each AMP.
There are two access points in issue between the parties on Muttabun. The first is that the plaintiff seeks access across Rexeen to get to Muttabun (transcript D2 p69 lines 31-36). It would seem however, that unless the landholder of Rexeen were a party to an AMP then the SST holder could not access that land without the permission of the owner of that property or under a right of way granted under the Act. However, if there were to become a right of access across Rexeen pursuant to an AMP I consider it appropriate that such access should continue into Muttabun. Therefore, the Muttabun AMP and its incorporated map are to provide for this by including a provision (and marking the map to reflect this) that reads as follows: 1. For the purposes of the Access Management Plan , access to and from the boundary of Rexeen is not authorised until there is an Access Management Plan for Rexeen that authorises access across that property to and from the boundary of Muttabun.
The second area of dispute concerns the black soil agriculture land on Muttabun. At the view I travelled along that access path and given its location appreciate that after a certain amount of rain access along that path is potentially dangerous and likely to cause significant damage to the road. For that reason I have determined that it is appropriate to restrict access along that road after rain unless agreed to by the landowner. However, the precise terms of the restriction need to be determined by the parties. Therefore, I direct them to attempt to agree upon the terms of such a condition including a level of rain (i.e. 2mm) set to trigger the restriction of access and the duration of such a restriction. This condition is to be included I the AMP Attachment 3 and shown on the map as a (notation).
With respect to AlIawah I have determined that there should be no access on the road under the transmission line because I accept the defendants' submission following my inspection of the site that there is already access for the land from the Castlereagh Highway and the Goodooga Road, both sealed public roads. As these sealed public roads are reasonably proximate they should be utilised by the SSTs with little travel time inconvenience. This avoids unnecessary private costs for the landholder for the maintenance of this private road and accords with the scheme of the Act which encourages the using public roads where possible.
In respect of the road on Allawah which has a fence running across it and which Mr and Mrs Hall wish to rehabilitate I have determined that it should be an access road under the AMP. Having inspected the area, and after a consideration of the evidence and submissions in my assessment there is little work needed to reinstate access along this old road. The area appears to have been fenced off relatively recently and provided that the LRMA pay for the cost of the gate and associated road infrastructure (grid etc) I am of the opinion that this existing access road should be used to provide access. This is consistent with the objectives and provisions of the Mining Act.

At a glance

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Judgment (65 paragraphs)

Cases Cited (1)

Cited By (3)