Ulan Coal Mines Limited v Minister for Mineral Resources & Anor

5 The Court is not concerned with the wide ranging environmental issues which arose nor whether the development should have been approved. Its task is to deal with the issues of statutory construction and whether the procedures specified in the Statute and Regulations have been followed and the consequences if these have not been followed in whole or in part.

6 Consequent upon being granted exploration licences and carrying out exploration work Moolarben lodged Mining Lease Application (MLA) 264 in July 2005 with the Department and Mining Lease Application 290 in about October 2006. Much of the land the subject of MLAs 264 and 290 was owned by Ulan. It was not enamoured of the surface of its land being disturbed by coal mining operations on the part of Moolarben. Ulan had acquired its land over many years.

7 MLA 264 sought a lease to permit the conduct of coal mining by underground methods approximately 3 kilometres east of the village of Ulan between the Goulburn River National Park and the existing Ulan Mine. The MLA 264 resource is estimated to contain 74 million tonnes of thermal quality coal. MLA 290 sought a lease to permit the conduct of 3 open cut mines in the lease area south of the MLA 264 project and the Gulgong-Sandy Hollow railway and west of the Munghorn Gap Nature Reserve. The MLA 290 resource is estimated to contain 130 million tonnes of thermal quality coal.

8 Section 63(1) of the Mining Act 1992 provides that after considering an application for a mining lease the Minister may grant a mining lease to the applicant or refuse the application. By virtue of s. 68(3) of the Act a mining lease may be granted over the surface of the land and also below the surface.

9 These proceedings involve the surface of the areas the subject of MLAs 264 and 290.

10 Section 62(1)(c) of the Act broadly provides that a mining lease may not be granted over the surface of any land on which is situated any substantial and valuable improvement other than an improvement constructed or used for mining purposes and no other purposes. (See Kayuga Coal v Ducey & Ors [2000] NSWCA 54 esp at [17].)

11 It was common ground that the relevant date for the existence of such an improvement was in July 2004, Exploration Licence Application Number 2395 being lodged by White Mining Limited, a predecessor of Moolarben, on 9 July 2004 and Exploration Licence Application Number 2398 being lodged by White Mining Limited on 20 July 2004. At the hearing the relevant date was taken by Ulan and Moolarben to be 20 July 2004.

12 Ulan sought a declaration that by reason of s. 62 of the Mining Act and the existence of nominated improvements (not being improvements constructed or used for any mining purpose) situated on the surface of specified land (being the subject of MLAs 264 and 290) the Minister for Primary Industries, Mineral Resources, was not entitled to grant or approve MLA 264 and MLA 290.

(a) that Moolarben had correctly served on Ulan notice of MLAs 264 and 290 as required by cl 21(3) of Schedule 1 and s. 383 of the Mining Act . The notices were not served at the registered office of Ulan but posted to a Private Mail Bag at Mudgee, used by Ulan. Ulan had substantial mining operations and a substantial office at Ulan in the Mudgee District. (b) the notice caused to be published by the Minister in the Mudgee Guardian on 5 August 2005 as to MLA 264 on the ground that it contained errors and was misleading and deceptive in stating that Moolarben had obtained development consent and that no person was entitled to object to the Minister in relation to the grant of a mining lease and on the ground that the published notice did not comply with cl. 24(4) of Schedule 1 of the Act. Moolarben complained that the notice did not state that objections to the granting of the lease may be made in writing to the minister and did not explain (having regard to the provisions of cl. 28) what persons were entitled to object. Nor did it state that such objections should be made on or before the date specified in the notice, being a date not less than 28 days after the date of publication of the notice. There was an unresolved debate about the validity of a 1985 development consent and whether it could still be used. Without in any way conceding the point Moolarben subsequently sought a further and wider development consent from the Minister for Infrastructure and Planning. (c) Moolarben's notices of 3 and 5 August 2005 to Ulan as to MLA 264 in that they did not comply with s. 51(2) and (3) and also (5) of the Mining Act and cl. 21(4)(b) of Schedule 1 of the Act. A principal complaint of Ulan was that the Mining Regulation , (cls. 16 & 9) required a particular type of map, namely a standard topographic-cadastral map published by nominated Government bodies and that such a map was neither submitted with the applications to the Department nor served on Ulan.

(d) Moolarben's notice of 1 November 2006 at to MLA 290 on the same basis as in (c). 14 Moolarben did not accept Ulan's complains and contended that in any event the breaches alleged, even if established, did not prevent the Minister granting Moolarben the mining leases which it sought. Moolarben also pointed to s 135 of the Mining Act empowering the Minister to grant an authority, which the Dictionary states means, inter alia, a mining lease, even though it has failed to comply with a requirement of the Act or the regulations as to the details to be contained in any notice or as to the particulars to accompany any application.

15 Moolarben relied on and sought to invoke the discretionary power of the Court to refuse relief on a number of grounds.

16 Moolarben relied heavily on the approval given on 6 September 2007 by the Minister of Infrastructure and Planning to the Moolarben Project. This had previously been declared as a major project by the Minister under s. 75B of the Environment Planning and Assessment Act (EP&A Act). Thus it became a project to which Pt 3A of that Act applied. Having regard to the terms of Pt 3A and especially ss. 75U and 75V, Moolarben contended that the approval of the Minister of Infrastructure and Planning under Pt 3A of the EP&A Act superseded the provisions of the Mining Act. Section 75(V)(1)(c) of the EP&A Act provides that a mining lease cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with approval under Pt 3A of the EP&A Act. The approach under the Mining Act and the EP&A Act where a major project was approved by the Minister of Infrastructure and Planning was a matter of substantial debate. Ulan contended that the prohibition contained in s 62 of the Mining Act still applied and sought to read the provisions of the two Acts together. It did not accept that Pt 3A of the EP&A Act and the approval of the Minister of Infrastructure and Planning under that Act over-rode the prohibitions contained in s. 62 of the Mining Act. Ulan accepted that Pt 3A and the approval of the Minister of Infrastructure and Planning did mean that the Minister for Primary Industry no longer had a general discretion under s 63(1) to refuse to grant the mining lease which was sought but that was a different issue from the prohibitions in s 62.

17 If Moolarben's submissions as to the effect of Pt 3A of the EP&A Act and the approval of the Minister of Planning are correct then the points raised by Ulan as to the construction and operation of the Mining Act have no or little utility.

Section 62 of the Mining Act and Associated Factual Issues 18 Section 62 provides: "62 Dwelling-houses, gardens and improvements (1) A mining lease may not be granted over the surface of any land: (a) on which, or within the prescribed distance of which, is situated a dwelling-house that is the principal place of residence of the person occupying it, or

(b) on which, or within the prescribed distance of which, is situated any garden, or

(c) on which is situated any improvement (being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure) other than an improvement constructed or used for mining purposes and for no other purposes,

except with the written consent of the owner of the dwelling-house, garden or improvement (and, in the case of the dwelling-house, the written consent of its occupant). (2) The prescribed distance is: (a) 200 metres (or, if a greater distance is prescribed by the regulations, the greater distance) for the purposes of subsection (1) (a), and

(b) 50 metres (or, if a greater distance is prescribed by the regulations, the greater distance) for the purposes of subsection (1) (b). (3) A written consent given under this section is irrevocable. (4) Subsection (1) does not apply in respect of a dwelling-house, garden or improvement that was not in existence at the relevant date. (5) The relevant date is: … (c) in the case of a mining lease for coal the subject of an application made by the holder of an exploration licence for coal in respect of the same land, or of an assessment lease for coal granted over the same land to the holder of such an exploration licence, the date on which the application for the exploration licence was lodged. …

(6) Any dispute as to whether or not subsection (1) applies in any particular case is to be referred to a warden for inquiry and report and is to be decided by the Minister on the basis of the warden's report.

(7) A mining lease must not be granted over land below the surface of land referred to in subsection (1) except at such depths, and subject to such conditions, as the Minister considers sufficient to minimise damage to that surface. (8) In this section, valuable work or structure includes anything taken to be a valuable work or structure for the purposes of this section by clause 23A of Schedule 1, but does not include anything declared not to be a valuable work or structure by clause 23B of that Schedule." 19 On this section questions arise as to the meaning of the word "land" in the first line of subs. (1), the word "improvements" in subs. (1)(c) and what constitutes a substantial and valuable improvement. The question also arises whether this Court should determine whether certain nominated structures or works are substantial and valuable or whether that is the sole province of the Warden under subs. (6).

20 In the Schedule to the Further Amended Summons (FAS) Ulan has listed some 49 instances of claimed substantial and valuable improvements on the land the subject of MLAs 264 and 290 or close by. Ulan did not press as such improvements the claims listed under stations 14, 15, 16, 23, 29, 34, 44 (as to the fence), 45, 46 and 49 (part) in the Schedule to the FAS. (In item 44 it still pressed that the pasture was an improvement.) On the view it was apparent that the claimed improvements had been in existence for many years and that the issue was whether they were substantial and valuable as at 20 July 2004. Attention concentrated on the extent, nature and quality of the improvements. 21 Before Ulan can obtain the primary declaration which it seeks that on the true construction of the Mining Act including the Schedules it should appear

(a) the prohibitions contained in s 62(1) were absolute; and

(b) were not subject to the time limits imposed by cl 21 of Schedule 1, those time limits being that the landholder had to lodge objections to the granting of the lease on the grounds that the land is agricultural land and claims with respect to valuable works and structures on the land to the Minister within 28 days after service by the applicant for the lease of the notice stipulated in the Schedule; and

(c) if the time limits mentioned in cl 21(4) applied, that the resolution of any dispute as to whether there was a substantial and valuable improvement did not lie within the sole province of the warden under s 62(6) of the Act. 22 For the purposes of Points (b) and (c) it is assumed that the Notices served complied with the requirements of the Act or that any non-compliances do not prevent the leases being granted. I will deal later with Ulan's point that the Notices did not comply with the requirements of the Act.

23 If there are no improvements that could reasonably be classed as substantial and valuable, Ulan's case under s 62(1)(c) evaporates. If there are some improvements that could be reasonably so classed these will be identified. There are at least these possibilities: (a) the improvements (or some of them) are substantial and valuable;

(b) the improvements (or some of them) are capable of being held to be substantial and valuable with the ultimate decision being left to the warden.

(c) the improvements could not reasonably be regarded as substantial and valuable. 24 To obviate a multiplicity of hearings in this Court I will express my views on the improvements. 25 Ulan sought to have its claims of substantial and valuable improvements considered against the background of its long history of land acquisitions and the leases it has granted of parts of its land, some of these leases extending back to 1985. This history is set out in the affidavit of Mr V Istomin. He has explained that strategic grazing of livestock for the maintenance and rehabilitation of land and agricultural use of land are particularly reflected in the history of lands owned by Ulan. As the drought has continued that use has not been able to be as extensive as previously.

26 Moolarben did not accept that any of the improvements were substantial and valuable although it was conceded that some of the dams were well constructed and that stock would use them. As to many of the fences Moolarben asserted that they were not stock proof and in poor condition. Some were acceptable. It was Moolarben's alternative case that if the Court held that some of the improvements were substantial and valuable (and there were few of them, it contended, which were capable of being so categorised) the Court should identify such improvements as s. 69 of the Mining Act enabled the Minister to grant a mining lease which differed in size or shape from, but may not include land other than, the land over which the lease was sought.

27 Ulan sought to include the clearing of large areas of land as substantial and valuable improvements. In the Schedule to the Summons the description given was "Former Cultivation Now Pasture Lands". Moolarben disputed that such clearing could constitute a substantial and valuable improvement within s. 62(1)(c) of the Act. Moolarben contended that even if land clearing could be classed as a substantial and valuable improvement the current condition of some of the cleared land with its re-growth including weeds and other adverse growths did not constitute a substantial and valuable improvement. Having regard to the quality of the land it would be uneconomic to remove such re-growth, weeds and other adverse growths. Ulan directed attention to the words in s. 62(1)(c): "Any improvement (being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure)." 28 Ulan submitted that:

(i) "an improvement" in relation to land is defined as something that has the effect of "enhancing the land's value compared with its natural state": Trust Company of Australia v The Valuer General [2007] NSWCA 181 at [10] and [68] and the cases on "improvement" referred to at [25], [26] and [30];

(ii) In Kayuga Coal v Ducey & Ors [2000] NSWCA 54 Meagher JA, with whom Powell JA agreed, made it clear that the word "valuable" should not be construed with any gloss. It does not mean "of special value, considerable value or very valuable";

(iii) if "valuable" is not to be construed as something requiring an item to be of considerable worth or very valuable this word in the context of s. 62(1)(c) of the Act can only refer to a thing that has "some value" or adds "some value" to the land. All of the remaining items referred to in the Schedule to the Summons add some value to the land - some more so than others - and are all capable of being "improvements" within s. 62(1)(c);

(iv) Meagher JA erred in holding in Kayuga at [16] that the word "substantial" qualified all subsequent nouns. (This was a formal submission to enable the point to be raised on appeal. It was recognised that I was bound by the view expressed by Meagher JA and concurred in by Powell JA, although Priestley JA did not express a view on this point, regarding it as unnecessary to do so);

(v) "substantial" in the context of s. 62(1)(c) means no more than having substance, not illusory: The Australian Concise Oxford Dictionary. It means "real or of substance" as distinct from large, weighty or big: Tillmans , infra at 348. In short, a substantial and valuable improvement must be no more or less than an improvement that is of real value to the land. It need not however be of either considerable size or be something that is either very valuable or that adds considerable value to the land. 29 Moolarben submitted that:

(i) an "improvement" for the purposes of s. 62(1)(c) is a work or structure created by a landholder to assist in the conduct of non-mining activities on the land and which has a continuing presence on the land. The catchment areas seen on the view were not "improvements" but features of the landscape;

(ii) a work or structure is "valuable" for the purposes of s. 62(1)(c) only if there can be attributed to that particular improvement a value which would be reflected in the price paid by a prudent purchaser. (I think that is putting the position too high. It may, on occasions be difficult to separate the value of the land and the value of the improvement). An improvement which is not functional would (at least ordinarily) not be valuable for that reason. Nor would an improvement be valuable merely because it is functional and adds marginal value to the land as a whole;

(iii) an improvement is "substantial" if it is material, functional and has a significant presence on the land having regard to the scale of the land, the improvements and its intended use. It calls for a qualitative judgment;

(iv) the correct construction of ss. 62 and 63 could never have been intended to restrict the Minister's power to grant a mining lease over the surface of land in respect of the poor quality improvements on Ulan's land, such improvements being neither substantial nor valuable. 30 In Kayuga at [17] Meagher JA remarked, "as a matter of English, the wording of paragraph (c) of s. 62(1) requires such of the objects listed to be both 'substantial' and 'valuable', notwithstanding that this involves a certain measure of tautology."

31 In construing s. 62(1)(c) account has to be taken of three concepts, namely an improvement which had the effect of enhancing the land's value compared with its natural state and one which was substantial and valuable. There is some overlapping. An improvement enhances the value of the land. In that sense it is valuable, it adds some value to the land. But enhancing or adding value to the land does not necessarily mean that the improvement is valuable. The word "valuable" adds emphasis and a qualitative element. It is hard to imagine an insubstantial improvement being valuable. To be valuable an improvement must be of more than minimal or little value.

32 Making all due allowance for the sustained drought and the recent extensive rainfall, the Ulan land the subject of MLA 264 and MLA 290 appeared to be of poor quality and quite "stoney". There was relatively little feed evident on the land including the cleared sections and the feed seemed to be widely spread. While there were extensive cleared areas there were also extensive uncleared or timbered areas. There was a large mostly timbered area in the southern section of MLA 290 which consisted of rocky ridges or hills which were difficult of access. Heavy duty vehicles were needed. Experience and skill were required to drive them successfully. The conditions in July 2004 were probably substantially similar.

33 An expert from each side accompanied counsel, solicitors and assistants and me on the view. Mr Baguley had been retained by Ulan and Mr McMichael by Moolarben. Both were knowledgeable and helpful.

34 Mr Baguley estimated the approximate dimensions of this dam to be 20 metres by 20 metres and the approximate volume to be 533.3 (m3) as at 26 April 2007.

35 As at 30 April 2007 Mr McMichael estimated that the dam had a capacity of approximately 900 (m3). He was of the opinion that the north south fence on the northern side of this dam was not stock proof and performed no function and that the area serviced by this dam was approximately 66 ha. Mr McMichael thought that, assuming normal water consumption, the paddock could carry 41 cattle on an annual basis. He regarded the dam as badly silted and thought that it would quickly turn into a bog which could cause livestock to flounder and become stranded with the water becoming fouled and therefore unusable. Mr McMichael thought that the dam would not adequately support livestock in its current state due to its limited capacity, extensive silting and unreliability caused by the potential failure of the badly eroded spillway.

36 On about 23 August 2007 Mr McMichael again inspected the lands the subject of MLAs 264 and 290. He was informed that there had been 7 inches of rain in early August 2007. In his evidence in Court Mr McMichael was questioned as to his general approach and conclusions as to some specific claimed improvements but not as to Station 1.

37 On the view on 3 October 2007 Mr McMichael adhered to what he had written in his report and his evidence in Court. Mr McMichael commented that this dam had more water in it than it did have as depicted in the photographs on p. 12 of his report. In a tight drought situation, he thought that this would be a dangerous water point for bogging and pollution of the water.

38 Mr Baguley accepted that there were "obviously some pollutants there now from cattle accessing it and so forth". He added that in the drought situation it was also providing a water resource for the cattle that were in that area. He was "not exactly sure" as to the long term. While the region was drought declared, Mr McMichael did not think it was a drought situation on the day of the view at this station.

39 On the view there was vegetation evident in the dam and there was evidence of the potential for cattle to become bogged, particularly as the water level dropped. My assessment was that this dam did provide a water resource for cattle within the general area of this dam in drought conditions but that in times of extreme drought, when the going was particularly tough it would be dangerous because of the potential for bogging and pollution of water. There was no direct evidence as to the condition of this dam in July 2004. The dam could be improved by the removal of the vegetation and improvements to the walls of the dam so as to render them less likely to become "boggy". I thought that this dam in July 2004 was probably substantial and valuable, but it was not of high value or especially valuable. Nor was this dam of minimal value. While I appreciate the desirability of a dam being able to function adequately in times of extreme drought and that such a dam would have greater value, that does not mean that a dam which can function adequately in times of drought but not in times of extreme drought is not valuable. More stock management is required when a dam does not function adequately in times of extreme drought.

Station 2 - Fencing within Lot 24, DP 755439 - Northern fence for MLA 264

40 In his report, Mr McMichael wrote that the fence was old and constructed with wooden posts and hinge joints/barbed wire, that the wires were badly rusted, that there was no bottom wire to hold the base of the fence down, that the fence had no signs of maintenance being carried out over recent years and that the fence was not stock proof and would not adequately control livestock.

41 Between late April 2007 and the view the fence had been the subject of some repair. Mr McMichael said that when he inspected the fence some of the strands of barbed wire were not there and some of the bottom wire was not there; the stock could go straight underneath the fence. He pointed to a hole where he said the kangaroos were still coming through.

42 It was not in dispute that parts of the fence were not in the MLA area. The line of MLA 264 was pointed out to me.

43 Having seen the fence, I would conclude that as at July 2004 this fence was neither substantial nor valuable. It would have required extensive repairs. Its value was minimal. Station 3 - Fence - Eastern Section of Lot 24, DP 755439

44 On the view it was agreed that the fence was adequate and stock proof as at July 2004. This was a substantial and valuable improvement. Station 4 - Stockyards within Lot 24 and Dam

45 Ulan withdrew its claim that the old stockyards constituted a substantial or valuable improvement.

46 There was some question as to whether the dam was on MLA 264 or right beside it. Mr Baguley doubted whether this dam was on MLA 264 and thought that it was probably only in times of rain that water would extend into MLA 264, that is, past the boundary fence. Mr McMichael thought that the dam was an unreliable structure. In a drought situation it would not sustain livestock. I would exclude this dam from consideration as the dam as distinct from the overflow does not appear to be on MLA 264.

Station 5 - Fencing between Lot 24, DP 755439 and Lot 50 DP 736630 47 The fence north of the marker was not within MLA 264 and may be excluded from consideration. The fence south of the marker was conceded to be stock proof. It was adequate and constituted a substantial and valuable improvement.

Station 6 - Fencing Lot 24, DP 755439/ Lot 2, DP 722822 and Former Public Road (Lot 2)

48 The fencing did not appear to me to constitute a substantial and valuable improvement, either as of July 2004 or presently. Attention was focussed on the dirt road. There was marked erosion. The viewing party was able to travel along it in substantial 4 wheel drive vehicles. I agree with the comment of Mr McMichael that this road was severely eroded at Station 6 and has not been maintained for a long period. Mr McMichael was correct that the road was currently usable by suitable heavy duty vehicles. Ordinary cars could not use it safely. Mr McMichael wrote that without remedial action on the erosion of Station 6 the road will become impassable. This is probably correct. Blue metal had been placed on the road when the viewing party travelled along it and this helped to make it passable.

49 My view was that in July 2004 and presently the road was passable but with some difficulty. With some work it could be made readily passable. Debris had to be removed from it periodically and the road required maintenance and supplementary works to be kept passable. In my opinion the road was a substantial and valuable improvement as at July 2004.

Stations 8 & 36 - Stock Water Dam, Drainage Channel and Former Cultivation Now Pasture Lands

51 Mr McMichael wrote that this was a large dam with an estimated capacity of 1,700 cubic metres, with a sound catchment suitable for stock watering in the paddock in which it is located. He estimated the paddock to be approximately 100 hectares and that it would carry approximately 62 cattle.

52 On the day of the view there were a lot of cattle, including young calves, around the dam. It was agreed that this was a well constructed dam. There did not appear to be a lot of feed in the vicinity of the dam and the cattle and calves appeared to be in but moderate condition.

53 As the viewing party approached the dam we drove past a lengthy drain with signs of erosion along most of its distance.

54 Mr McMichael wrote that the drainage channel showed considerable deep "moving" erosion and that it was in urgent need of repair. He expressed the opinion that the channel did not perform any function related to livestock grazing.

55 Mr Baguley thought that the reason the drain was put in was to direct water away from the railway line. Mr Baguley commented that the drain would still move water when it rained but there was noticeable erosion. Ulan submitted that as the drain near Station 36 directed water away from the railway line it was still a valuable and substantial improvement.

56 Mr Baguley also made the point that the overflow water in times of heavy rain in the vicinity of the dam at Station 9 could travel down to the dam at Station 8 but for this to happen there would need to be a lot of water.

57 The dam at Station 8 is a substantial and valuable improvement. Despite the extensive erosion I would regard the drainage channel as a substantial and valuable improvement as at July 2004 because of its capacity to divert water from the railway line. With the prolonged drought it may not have seemed necessary to remove the silting and vegetation from the drainage channel until substantial rains fell with some consistency.

Station 9 - Stock Yards, Fencing, Dam and Former Cultivation Now Pasture Lands

58 The stockyards were small in size. Recent work involved replacing material (the race) that had been taken off and removed by the previous lessee/licensee in February 2007.

59 There were extensive pasture lands in the vicinity of this dam but they were dry and there did not appear to be much feed on those lands. The drought had left is mark. I will deal later with the issue whether such cleared pasture lands constitute an improvement within s. 62(1)(c) of the Mining Act.

60 I was shown the old loading ramp and the race which is now in existence. Mr McMichael thought that the previous race was not as long as the present race. Counsel for Ulan and Mr Baguley pointed out that the present race was a replacement and disagreed with Mr McMichael's opinion. The latter pointed out that there was no crush and expressed the opinion that trying to treat animals in the existing race would be unsafe and difficult. Mr McMichael indicated that some of the metal planks ("w" strap panels) had pretty sharp edges. Mr McMichael pointed to other non-compliant features with occupational health and safety requirements.

61 Mr Baguley commented that by installing the race as was done there was no facility to handle cattle in them but that there was the facility to unload cattle and reload cattle onto a truck. That was so. He assumed that any animal husbandry work was done elsewhere. b He agreed that there were some occupational health and safety issues.

62 By modern standards, and I include those that applied in July 2004, the stockyards did not comply with occupational health and safety requirements because of the sharp edges on many of the panels, the lack of a reasonable drafting yard or man gate and the lack of safe latching devices. If any animals are to be treated there a crush would be needed either permanently or temporarily. The point was made that very few stockyards in the Mudgee District complied with occupational, health and safety requirements but they were still used.

63 The stockyards needed some alteration and improvement. Mr Baguley thought that with such improvements and alterations they could be used for the purpose of loading and unloading stock. That is probably so. There were a lot of metal panels or W-straps with sharp edges. I cannot disregard the non-compliance with occupational, health and safety requirements. As at July 2004 these stockyards were probably not a substantial or valuable improvement.

64 Mr McMichael estimated the dam near Station 9 was approximately 700 cubic metres and that it should serve the paddock estimated to be approximately 17 hecatres with an annual carrying capacity of 11 cattle. Mr Baguley estimated the approximate dam dimensions as 30m x 30m and the approximate volume as 1,800 (m3). I prefer the estimate of Mr Baguley based on the photographs and my view.

65 Mr McMichael wrote that this dam was open to all areas south of the railway line and north of Wollar Road and that there was poor "open gate" management of cattle, that the two dams at Station 10 were sufficient to water the whole areas given the open gate management and that while the Station 9 dam would adequately support livestock grazing, it was surplus to requirements as livestock had access to nearby water supplies. The photograph at p. 25 of his report shows a large dam with a large amount of water in it. This is the dam at Station 9. See T 384, l. 18 - 29. The photograph shows a lot of cattle on the nearby pasture lands. The dam appears to have sound walls. As at July 2004 the dam was a substantial and valuable improvement.

66 Mr McMichael wrote that fencing in the area of Station 9 was sound but lacked maintenance. He said that he was referring to the fencing adjacent to Station 9. The fencing generally appeared to be sound. If the fencing was generally sound and the gate was closed the cattle could feed on the pasture and use the dam.

67 There were extensive pasture lands in the paddocks around the dam shown in the photograph on p. 25 of Mr McMichael's report. I noted these on the view. The lands had been cleared of timber and other items and stock were grazing. I will deal subsequently with the question whether the cleared pasture lands can be deemed as a substantial and valuable improvement under s. 62(1)(c) of the Mining Act.

68 As to the fencing, I regarded Mr McMichael's description as sound but lacking maintenance as reasonable. While I had some doubts as to this fencing it probably falls within the description of a substantial and valuable improvement.

Station 10 - 3 Dams, Fencing and Former Cultivation, now Pasture Lands

69 Mr Baguley estimated the three dams to have approximate dimension of 20m x 20m, 20m x 20m and 6m x 6m, and approximate volumes of 533.3 (m3), 533.3 (m3) and 14.3 (m3) respectively. Mr McMichael described the eastern dam as small, unnecessary and surplus to requirements as the two dams just to the west of the small dam have a significant catchment area and have a combined capacity in excess of 2,800 cubic metres. Mr McMichael wrote that the two larger dams were badly silted. He estimated that the area serviced by these two dams was 70 hectares and would carry approximately 44 cattle. He thought that there was sufficient volume in these dams to safely water this number of cattle. The photograph of the twin dams at p. 27 of Mr McMichael's report does show one dam which is badly silted up and a relatively small volume of water. The second dam area or "twin dam" is marginally visible. Mr McMichael, on the view, pointed out that the catchment area for the dam was relatively small and that the dam was very small in its entirety.

70 The photographs attached to Mr Irwin's report taken at Station 10 indicate somewhat better dams and one, which while it has some vegetation in it, has more water. On the evidence and what was seen at the view it is hard to draw any conclusion as to the position at July 2004.

71 The size and capacity of the dams do not take them out of the category of being a substantial and valuable improvement. They are capable of safely watering an appreciable number of cattle as stated by Mr McMichael.

72 As at July 2004, the dams were capable of being regarded as and were probably a substantial and valuable improvement. A contrary view could also be reasonably held.

73 The fence in the vicinity of Station 10 separates a public road and the lands the subject of MLA 290 and is about 1 km in length. Some parts of the fence require repair and some of the posts are loose or suspended and no longer serve any useful purpose. They need to be replaced. The fence appeared to be in better condition as it went up the hill and along the road from the dam. Mr McMichael pointed out that in relation to the area of the fence near the dam that the stock had been pushing underneath the fence, this being evidenced by the area being grazed out. Mr Baguley thought that livestock had probably not gone through the fence but that the gaps or depressions had been created by kangaroos and native wombats. I thought that both points were soundly made. Generally the land around the dam at Station 10 was pretty dry and there did not appear to be much pasture.

74 The fence needed repair and strengthening but what was needed did not strike me as too costly or time consuming or difficult a task. In my opinion as at July 2004 this lengthy fence, even allowing for the repairs and strengthening needed probably constituted a substantial and valuable improvement. I accept the statement in the report (p. 12) of July 2007 of Mr J Lane, a well qualified and very experienced agricultural consultant: "Use of electric wires with the power supplied by solar energisers can be used simply, effectively and cheaply to shore up an old fence or to create temporary subdivisions. At the subject land, they would have the benefit of avoiding expensive repairs made necessary by kangaroos." 75 The pasture lands in the general vicinity of Station 10 were extensive. The lands had been cleared but were dry. Despite the heavy rain in early August 2007 the lands had not recovered from the prolonged drought. As at July 2004 the lands were probably dry and much affected by the drought. The question whether cleared drought affected land as at July 2004 constitutes a substantial and valuable improvement is dealt with later.

Station 11 - Airstrip 76 While this was seen from a distance on the view it was agreed that this was outside MLA 290 and does not require consideration.

Station 12 - Subdivisional Fencing 77 This was an internal subdivision fence. It was agreed that it was in need of some repair. Mr Baguley remarked "there is lots of different styles of fencing on this fence." He was not sure if the most recent looking repairs had been effected since his first inspection. Mr McMichael thought that they had been effected since his April inspection and he is probably correct.

78 In his report Mr McMichael wrote that the fence was old and constructed with wooden posts, wooden battens, netting and barbed wires, that all wires were badly rusted, that there was no bottom wire to hold the base of the fence down and that the fence had no signs of maintenance being carried out over recent years. On the view I thought that many of the old wooden posts were not robust.

79 As at July 2004 this fencing was not a substantial and valuable improvement, even allowing for the use of inexpensive electrical wiring.

Station 13 - Stock Water Dam with Lot 253 DP 755442

80 Mr Baguley estimated the approximate dimensions of the dam as 20m x 20m and a volume of 533.3 (m3). It was a rather small dam. Mr Baguley said that this dam adequately held water but it would be difficult in the terrain to service livestock. Mr McMichael thought that it served no purpose because livestock could not access it. The dam was surrounded by scrub and there was a fence nearby.

81 Ulan contended that this dam was a water resource for the land but it appeared to be a small resource.

82 In my opinion as at July 2004 this was neither a substantial nor valuable improvement.

Stations 14, 15 & 16 - Old Ruins, Old Stockyards, Old Fencing

83 Claims in respect of these items were withdrawn.

84 Mr Baguley estimated the approximate dimensions of the dam as 30m x 30m and a volume of 1,800 (m3). Mr McMichael estimated its capacity as 1,300 cubic metres and wrote that it had a significant catchment area. He estimated that it serviced an area of 18 hectares with a capacity to carry approximately 11 cattle. He wrote that this dam would adequately support livestock grazing. This dam had firm sides and cattle using it would not get bogged. It was not a large dam. Moolarben submitted that this was perhaps the most debatable of all the dams. It accepted that it had a good catchment and would support livestock grazing but in an area able to carry only 11 cattle. To that limited extent it performs its function. Moolarben submitted that when considered against the scale of the land the dams which were substantial (the quarry dam and the dam at Station 8) this dam was neither a valuable nor a substantial work.

85 Ulan submitted that this dam was well constructed and a good water resource and a valuable and substantial improvement. I agree that this was and is a well constructed dam and a good water resource. Mr McMichael was correct when he said that it had a good catchment area.

86 There is force in the contention that it services a relatively small area which was able to carry only 11 head of cattle. Other cattle could be brought to this dam to drink from it or water could be taken from it to cattle in other areas in drought conditions.

87 In my opinion, notwithstanding the limitations to which Moolarben has pointed, this well constructed dam and good water resource constituted a substantial and valuable improvement as at July 2004. It impressed me as a dam that any competent farmer grazing cattle would wish to have.

88 Mr Baguley estimated the approximate area of the dam as 20m x 20m and its volume as 533.3 (m3). Mr McMichael estimated its capacity as approximately 860 cubic metres. Mr McMichael wrote that this dam was in an un-maintained poor state as it was heavily infested with Cumbungi, that it was in urgent need of de-silting/Cumbungi removal and that without this work the dam was in jeopardy of bogging which could cause livestock to flounder and become stranded leading to the water becoming fouled and therefore unusable. Mr McMichael wrote that this dam would not adequately support livestock grazing. Mr Baguley agreed.

89 On the view this appeared to be fairly shallow. Mr McMichael added that effectively this was a silt trap not a dam. The construction was for the purpose of collecting silt coming down preventing it from silting the dam below. Mr Baguley agreed. The dam below is the one at Station 19.

90 The contour bank was associated with the overall dam construction and was there to divert water into the silt trap and from the silt trap into the dam.

91 This needs to be considered in conjunction with Station 18 which is close by. Because they are so close together it may well be that the dam dimensions and capacity referred to by Mr Baguley and summarised under Station 18 apply to this dam.

92 Mr McMichael wrote that the bank assists in the collection of water for Station 18 dam and that the bank is small and would only provide a limited supply of water to the dam.

93 On the view it was noted that this dam was very heavily silted. Roughly 75 - 80% appeared to be occupied by vegetation (Cumbungi). There was some water in it. Removing the cumbunji was not a difficult or expensive task.

94 On the view it is probable that the numbering of Stations 18 and 19 was reversed when compared with the numbering in the Schedule to the Summons. The whole area appeared to be neglected. The Cumbungi was quite tall and appeared to have been there for some years.

95 I did not regard the works at Stations 18 and 19, namely, the contour bank, the silt trap and the heavily silted dam as substantial and valuable improvements as at July 2004.

96 The general position of these lands is shown on the map on p. 5 of Mr Irwin's report of 19 April 2007. There are two useful photographs of the lands at p. 38 of that report. The lands have been cleared. Mr McMichael is correct that the pasture lands identified do not include any physical structures or works. Mr McMichael wrote that the pastures were native only and there were no legumes evident as at late April 2007. I will deal later with the issue whether cleared lands constitute a substantial and valuable improvement under s. 62(1)(c) of the Mining Act.

Station 21 - Subdivisional Fencing and Track on Boundary of Lots 179 & 227, DP 755442

97 From one of the aerial photos part of MLA 290 attached to Mr Baguley's report on 4 May 2007 the track and cleared area along the fence line can be seen. They can also be seen in PB Ag Photos 42 & 46.

98 Mr McMichael wrote that this fence was constructed with wooden and steel posts, hinge joint and barbed wire and that vermin are commuting under this fence. I would not put the matter so broadly. There were a couple of places where there appeared to be kangaroo holes or a depressed area where the earth had been scratched away which would let kangaroos and vermin through.

99 Mr McMichael wrote that the fence was old and at least 75% through its life and that there were no signs of maintenance over recent years. He also wrote that the fence would control livestock but was in need of repair to maintain this status. The fence abutted a timbered area and I did not think that it was in as poor a condition as Mr McMichael. I agree that it would control livestock. Limited repairs would be advantageous. Good fences, unless supported with electric wires would not normally be proof against determined kangaroos and native wombats scratching the earth away under parts of them.

100 Mr McMichael wrote that the track claimed as an improvement was merely a track caused by vehicular access with no formation or maintenance work being carried out. On the day of the view the track was clear of obstacles and easy to drive along and it was reasonably level. I was unable to tell whether a grader had been used on the track or other work done on it.

101 As at July 2004 the fence was probably a substantial and valuable improvement but I am not satisfied that the track was.

Station 22 - Subdivisional Fencing & Track in S/W corner Lot 179 DP 755442

102 On the view attention was focussed on the fence between Stations 22 and 23.

103 In the previous six months there had been some maintenance work to the fence. Mr McMichael said that the fence had had "two high tensile barbs put along it and the old number 10 wire had been strained. He said that on 30 April 2007 the fence was in a dreadful state.

104 In his report (pp. 44 & 45) Mr McMichael described the fence as very old, obsolete and beyond repair. The fence was not stock proof and would not adequately control livestock. The photographs taken by Mr McMichael illustrate his view. Mr Baguley estimated that it would take two men about half a day to repair the fence. Mr Baguley said that the fence was in a lot better condition than previously and that it would now hold stock in place. Mr McMichael thought that the fence would not be stock proof. I thought that the fence was now in a reasonable condition. It would benefit from further maintenance.

105 As at July 2004 this fence was neither a substantial nor valuable improvement.

106 The track was in much the same condition as that near Station 21, possibly a little worse. I was not satisfied that the track was either a substantial or valuable improvement.

Station 24 - Stock Water Dam on Northern Boundary of Lot 178, DP 75542

107 Mr Baguley estimated the approximate dimensions of this dam as 5m x 5m and its volume at 8.3(m3). It was described by Mr Baguley as a small water dam for the purposes of some holding yards (now seemingly defunct) and in its current state as having very little value.

108 As at July 2004 this dam was neither a substantial nor a valuable improvement.

Station 25 - Subdivisional Fencing N/W corner Lot 178 & within Lot 14, DP 755442

109 Mr McMichael wrote that this fence was old and constructed with wooden posts and hinge joint/ barbed wire, that the fence had no signs of maintenance over recent years, and that it was not stock proof. The photographs at pp. 49 - 50 of his report illustrate the poor condition of the fencing.

110 At T556, ll. 34 - 36 I recorded on the view that part of the fence south of Station 25 was lying on the ground.

111 As at July 2004 this fencing was neither substantial nor valuable.

Station 26 - Graded Bank to Direct Water from Airstrip & Subdivisional Fencing Within Lot 14 DP 755442

112 It was common ground that the airstrip was outside the MLA area. The area is shown in photograph 51 annexed to Mr Baguley's report.

113 Mr McMichael wrote that the graded bank drains a very small area, that the structure is very small and that a grader could construct a similar structure in about two hours. Mr McMichael thought that the structure benefited the adjacent airstrip but not livestock grazing.

114 The airstrip fence was stock proof but it seemed to be outside the MLA area. The fence appeared to be designed to keep stock off the airstrip.

115 Neither the graded bank nor the fencing constituted a valuable or substantial improvement within s. 62(1)(c) of the Mining Act. No time was spent on these items at the view save that they were pointed out from a distance.

Station 27 - Subdivisional Fencing, Track & Former Cultivation Now Pasture Lands within Lot 92, DP 755442

116 There was a disagreement as to the fencing. Mr McMichael wrote that the fence was old and constructed with wooden posts, rabbit netting and barbed wire, that the fence had no signs of maintenance over recent years and that it was not stock proof and would not adequately control livestock. On the view Mr McMichael adhered to what he had written. He pointed to some kangaroo holes and areas of vermin access. Mr Baguley said that these were vermin access holes. He thought that the majority of the fencing from where we were standing could contain livestock. The fencing was old and there were areas where vermin including kangaroos had created access ways under the fence.

117 On the whole, but not without some doubt, I thought that this fence probably did not constitute a substantial and valuable improvement within s. 62(1)(c) of the Mining Act.

118 Mr McMichael thought that the track was one caused by vehicular access with no formation work being carried out. I could not tell whether a grader had been used or other construction work had been carried out.

119 I was not satisfied that as at July 2004 the track was a substantial and valuable work.

120 Large areas of land had been cleared. There was no evidence of introduced species. The pastures were native, predominantly red grass with either no legumes or minimal areas of legumes. Mr Baguley added that native grasses tended to come away reasonably quickly and, when young, can be quite palatable. Stock will survive on these pastures. The land clearing had been done to allow grazing to occur.

121 Whether as at July 2004 these pastures constitute a substantial and valuable improvement within s. 62(1)(c) of the Mining Act will be dealt with later.

Station 28 - Subdivisional Fencing between Lots 14 and 92 DP 775442

122 This fencing is shown in photos 54 and 57 of Mr Baguley's report and at pp. 56 and 57 of Mr McMichael's report.

123 Mr McMichael wrote that these fences were old and constructed with wooden posts and various types of wire including netting / barbed wire, plain wire and hinge joint, that there were some signs of maintenance but with little effect and that the fences were not stock proof and would not adequately control livestock. Parts of the fence were leaning over and did not appear to be stable.

124 This fencing did not constitute a substantial and valuable improvement within s. 62(1)(c) of the Mining Act.

Station 29 - Old Boundary Fence between Lot 92 DP 755442 and Lot 7010 DP 1025345 (Crown Lands)

Station 30 - Subdivisional fencing within Lot 92, DP 755442

126 This is captured in photograph 59 of Mr Baguley's report and on pp. 60 - 62 of Mr McMichael's report.

127 Mr McMichael wrote that this subdivision fence is of sound quality being constructed with steel posts, hinge joint and barbed wire. However, he also wrote that there was no evidence of ongoing maintenance as it has fallen timber over it in places and has lifted in several points through which vermin or sheep could commute. The fence was stock proof and would adequately control livestock. There is a picture on p. 62 of his report where Mr McMichael points out that the bottom wire is not low enough to retain sheep or vermin.

128 On the view (T 558, ll. 41 - 45 and 55) Mr Mc Michael said that this fence was a relatively new fence and that in a section about 20 metres in length it was significantly above ground. This could readily be repaired with little expense and effort.

129 I thought that this fencing should probably be regarded as a substantial and valuable improvement as at July 2004.

130 Both Messrs McMichael and Baguley thought that the purpose of this contour bank was to enlarge the catchment of the very large Moolarben Dam. Moolarben Dam has a very large catchment. It was common ground that Moorlarben Dam was not on the land the subject of the MLAs - T 75, ll. 8 - 15. On the view, Mr McMichael expressed the opinion that when compared to the catchment area in the valley above the Moolarben Dam, the contour bank would be insignificant. Mr Balguley thought that the contour bank added to the catchment area by increasing its size and that any increase in the catchment area had to be beneficial (T 559, ll. 9 - 11). I would not go so far as to say that the contribution made by the contour bank to the Moolarben Dam would be insignificant but it would probably be small. About 14-15 per cent of the catchment area of Moolarben Dam is located within MLA290. The contour bank assists in adding water to the dam by increasing the catchment area. 131 As at July 2004 this contour bank on the balance of probabilities was a substantial and a valuable improvement but one directed to increasing the catchment area of a dam not on the land the subject of the MLAs. It was not suggested that for this latter reason the improvement was not caught by s. 62(1)(c) of the Mining Act, but I am prepared to hear further argument on this point.

Station 32 - Boundary Fencing and Cleared Pasture - Lot 242 DP 755442

132 This marks the boundary between Ulan's land and that of the Swords family. The fencing is shown in photographs 68 and 69 attached to Mr Balguley's report and at pp. 65 - 67 of Mr McMichael's report.

133 Mr McMichael wrote that this boundary fence was of fair quality and parts would be considered stock proof but there were areas where the fence was not stock proof as fallen timber had demolished parts of it. Mr McMichael thought that because of what he regarded as a seriously damaged section the fence as a whole was not stock proof and would not adequately control livestock. Mr Swords was a very experienced and capable grazier and it was obvious on the view as we looked across the Swords family lands that he and his family were major landholders who ran an extensive and quality grazing operation. He has run both sheep and cattle. He was familiar with the boundary fence between the "Swords" property and Ulan. Mr Swords accepted that by the look of the photo taken in April 2007 the fence was not stock proof but added that nothing went through it. Mr Swords said that he had fixed the fence quite a while ago. It took but a short time to fix it - "five minutes". 134 Mr Swords insisted that he first obtained access to Ulan's land in about April 2004 following an invasion by grasshoppers. He asked Mr Gibb of Ulan if he could agist stock on Ulan's land. He said that at various times he had placed up to 300 sheep and 30 head of cattle on the Ulan lands and that the infrastructure on the Ulan lands which he used included boundary fencing, gates and stock dams. Such infrastructure on the Ulan lands was in a condition which allowed him to carry out grazing and agistment tasks as part of his farming operations and it was adequate for these purposes. I accept Mr Sword's evidence.

135 As at July 2004 the boundary fencing was a substantial and valuable improvement. In this instance I thought that Mr McMichael was being overly critical and did not allow sufficiently for Mr Swords' supervision of his operations, and his capacity and willingness to carry out repairs and maintain the boundary fence.

136 There was a large area of cleared pasture land in the vicinity of this Station. It was not suggested that it consisted of other than native grasses. I deal later with whether this constitutes a substantial and valuable improvement within s. 62(1)(c) of the Mining Act.

Station 33 - Small Stock Water Dam (Spring Fed) - Lot 242 137 This spring fed stock water dam was dry at 30 April 2007. Mr McMichael did not regard it as a safe and reliable livestock watering point. Mr Swords remarked that as at April 2007 not too many dams had water in them. Mr Swords said that the dam now had water in it. He described this dam as "very small". Mr Swords said that in April 2007 the condition of the lands around Ulan in relation to drought was "devastated". There had been good rains since and the dams in the area have filled.

138 This very small dam is neither a substantial nor a valuable improvement.

Station 34 - Old Subdivision Fence - Lot 24, DP 755439

139 This is shown on photograph 7 attached to Mr Balguley's report and pp. 69 - 70 of Mr McMichael's report. Mr McMichael wrote that this fence consists of a line of old posts with minimum wires in place, that it was beyond repair and that it was not stock proof. Mr Swords agreed that the fence was in very poor condition and not stock proof. Ulan withdrew this claim.

140 Mr Baguley estimated its approximate dimension as 20m x 20m and its approximate volume as 533.3 (m3). Mr McMichael wrote that this dam was very small and was dry as at 30 April 2007, that it was not a safe and reliable livestock watering point, that it was showing a bad "moving" erosion area adjacent to the wall and spillway and that it would not adequately support livestock grazing. The erosion is highlighted in the photograph at p. 72 of his report. While this dam was virtually empty as at April 2007 it was full when seen on the view and contained vegetation.

141 Mr Baguley said that in its present state (October 2007) the dam adequately serves the purpose of watering cattle. That was correct.

142 The dam appeared to be relatively shallow. While it would continue to serve the purpose of watering cattle in the early years of a drought, I doubt if it would continue to do so in a prolonged and severe drought.

143 On the balance of probabilities I am not satisfied that as at July 2004 this dam was a substantial and valuable improvement. It falls marginally short.

Station 36 - Drainage Channel 144 See earlier under Stations 8 & 36. The drainage channel was probably a substantial and valuable improvement. Station 37 - Dam - Lot 53, DP 736630

145 Mr Baguley estimated the approximate dimensions of this dam as 10m x 10m and its approximate volume as 66.7 (m3). On the view it was accepted that this small dam was just within the boundary of MLA 264. There was a large amount of vegetation in it.

146 Mr Baguley stated that this dam had a very small catchment area and that it would have a very shallow short-term water supply. Mr McMichael said that as at 30 April 2007 there was a small amount of water in the dam.

147 Mr McMichael pointed out that the Station 8 dam, which was substantial and in close proximity, serviced the area.

148 This dam was neither a substantial nor a valuable improvement as at July 2004.

Station 38 - Airstrip Fence - Lot 14 DP 755442 149 Mr McMichael wrote (p. 76 of his report) that the southern airstrip fence to the eastern end of the airstrip appeared to be within the MLA area, that it was stock proof and would adequately control livestock. It was probably constructed and maintained to keep livestock off the airstrip. We observed this fence from a distance on the view. 150 The question whether this is a substantial and valuable improvement is not directly touched upon in the extensive submissions of the parties. The evidence does not seem to disclose the length of this section of the fence. Moolarben's submissions seem to proceed on the basis that there is no dispute about this section of the fence not being a substantial and valuable improvement, whereas Ulan's submissions also seem to proceed on the basis that there is no dispute but for the opposite reason. Perhaps I have overlooked some relevant factor. This may need to be further argued. A complicating factor was that part of the airstrip fence - see earlier under Station 26 - was outside the lands the subject of the MLAs. That part of the airstrip fence was also stock proof. Station 39 - Dam Adjacent to Airstrip within Lot 14

151 Mr Baguley estimated the approximate dimensions of this dam as 10m x 10m and its approximate volume as 66.7(m3). At p 77 of Mr McMichael's report there is a photograph of this structure which Mr McMichael describes as having no bank and therefore not holding water.

152 On the view it was noted that this structure did not appear to have any water in it. Mr Baguley commented that it was a small dam with not a lot of ability to hold water, that the water tended to flow through and that there was not a lot of formation around the dam.

153 This was neither a substantial nor valuable improvement.

Station 40 - Drainage Channel Adjacent to Airstrip - Lot 14

154 This is shown in photograph 52 attached to Mr Baguley's report, more clearly on p. 78 of Mr McMichael's report and also clearly on p. 47 of Mr Irwin's report.

155 Mr McMichael wrote that this drainage channel directs water from land to the south of it, to a culvert going under the airstrip, that vegetation had grown over the structure and reduced its effectiveness, that because of the lack of maintenance the channel would have limited effect in directing water in the event of a lot of rain and that the drainage channel provided no benefit to livestock grazing on the property.

156 On the view it was noted that parts of the channel appeared to be silted and parts eroded. The channel ran roughly parallel to the fence that separates MLA 290 from the airstrip.

157 Messrs McMichael and Baguley thought that the purpose of the drain was to stop the airstrip from flooding. With the lack of sustained rain over an extended period the risk of flooding has not been a major consideration over recent years. It would take a lot of rain to remedy the drought conditions and the drain could be maintained and cleared as necessary if rains in sufficient quantity returned. The main potential beneficiary of this drain is Ulan in its continued use of the airstrip in very wet conditions. The drain does not appear to be of benefit to the grazing operations on the lands the subject of MLAs 264 and 290. I am prepared to hear further argument on the question of whether s. 62(1 )(c) of the Mining Act applies to improvements which are of direct benefit to operations conducted off the land of the subject MLAs but close to it. The issue may be able to be better framed. My provisional view is that the channel despite its shortcomings and its need of maintenance was a substantial and valuable improvement as at July 2004.

Station 41 - Subdivision Fence Within Lot 14 158 This is shown in photo 51 attached to Mr Baguley's report, on p. 48 of Mr Irwin's report and on pp. 79 - 80 of Mr McMichael's report.

159 Mr McMichael wrote that this fence is of very light construction consisting of wooden strainer posts and widely spaced steel posts together with hinge joint and barbed wire, that the fence was of fair quality and parts would be considered stock proof. Parts of the fence have been demolished by fallen timber. As a whole the fence was not stock proof.

160 This fence is neither a substantial nor a valuable improvement.

Station 42 - Dam Adjacent to Airstrip within Lot 14

161 Mr Baguley estimated the approximate dam dimensions as 20m x 20m with an approximate volume of 533.3 (m3). This is shown on p. 42 of Mr Irwin's report and on p. 81 of Mr McMichael's report.

162 Mr McMichael wrote that the dam is small but does have a reasonable catchment area, that it is in a state of disrepair, and that it would adequately support livestock grazing. On the view Mr McMichael observed that in its present state the dam would only support a small number of cattle. The dam needed extensive vegetation clearing or de-silting. That should not prove to be too difficult or expensive.

163 As at July 2004 this dam was probably a substantial and valuable improvement. It has a reasonable catchment area and if cleaned it would support livestock grazing. It is probable that the vegetation has increased over the years.

164 This is shown on p. 49 of Mr Irwin's report, in photo 42 attached to Mr Baguley's report and on pp. 82 and 83 of Mr McMichael's report.

165 Mr McMichael wrote that the fence was old and constructed of wooden posts, steel posts, hinge joint and barbed wire, that there were no signs of maintenance over recent years, that the fence was stock proof and that in its current state it could adequately contain stock.

166 On the view Mr McMichael thought, in hindsight, that he had been very generous in his assessment in his report. He stated that there were a significant number of "roo" holes. Mr Baguley stated that even with "roo" holes the fence was still stock proof for retaining cattle. Mr McMichael disagreed. He thought that cattle and small calves could go through and get trapped on the wrong side of the fence.

167 I agreed with Mr Baguley that the holes were not big enough for cattle, but they were big enough for small calves to get through. Mr Baguley thought that any calves that passed through the holes would return to their mothers. There was a good chance of that happening.

168 Mr McMichael thought that, in a location like this where there was a significant vermin problem, a prudent operator would do more than patch the fence with some wire and put a stick across it; he would install a trap door - otherwise "roos" would break the fence again and again. That struck me as sensible and taking such a step would not be expensive. Of course, the operator would have to determine how many trap doors were desirable.

169 On the whole, whilst appreciating the points made by Mr McMichael, I thought that as at July 2004 this fence was probably a substantial and valuable improvement.

170 I thought that Mr McMichael was probably correct when he assessed the track as one caused by vehicular access with no formation work or maintenance being carried out. The track, while useful in facilitating access, was not a substantial or valuable improvement as at July 2004.

Station 44 - Old Subdivision Fence, Former Cultivation Now Pasture Lands

171 The claim as to the old subdivision fence was withdrawn.

172 As the viewing party approached Station 44 it came through an area which was particularly hilly, rocky, heavily timbered and very steep. The skill and experience of the drivers was notable in negotiating the difficult terrain. After passing through this terrain there was a large and extensive area of cleared land which the party drove across for some distance. This cleared land joined up with cleared land claimed under Station 48. The biddy bush which was prominent there was not the subject of comment in relation to Station 44.

173 The question whether cleared lands can constitute a valuable and substantial improvement is dealt with later.

Station 45 - Boundary Fence Station 46 - Electricity Line

Station 47 -Fence (north-south) Station 48 - Fence and Cleared Land

175 Part of the fence at Station 47 is shown in picture 67 attached to Mr Baguley's report, on p. 50 of Mr Irwin's report and on pp. 88 and 89 of Mr McMichael's report.

176 Mr McMichael wrote that the fence at Station 47 was very old and obsolete and beyond repair. It was not stock proof. On the view Mr McMichael stated that some repairs had been carried out on this north-south fence but he was not sure how recently. There were some new steel posts propping up the fence where posts had rotted. Mr Baguley stated that this fence had been repaired by the use of some iron posts.

177 Part of the fence at Station 48 is shown in photograph 69 attached to Mr Baguley's report, on p. 50 of Mr Irwin's report and on pp. 88 and 89 of Mr McMichael's report.

178 Mr McMichael wrote that the fence at Station 48 was very old, obsolete and beyond repair. It was not stock proof. On the view Mr McMichael adhered to these views. Mr Baguley stated that this fence had "a lot of holes which would allow livestock to go through with the probably limiting factor" that the fence had been put in this position to restrict livestock from moving up to the top of the hill (or rocky outcrop) where the actual boundary was. He stated that the cattle would be unlikely to go up there because of the steepness of the hill (or cliffs), the makeup of the terrain (rocky and difficult) and the availability of pastures in the area that stretches away from the fence. That was some of the land over which Mr Swords had a licence to agist.

179 As to the large area of cleared land Mr McMichael stated that there was a significant problem with the regrowth of biddy bush which livestock will not eat. It had been let go and become a significant problem.

180 Mr Baguley stated that it would be a big job to remove some of the regrowth. Mr McMichael commented that given the carrying capacity of the country it would not pay you to do it agriculturally.

181 Mr McMichael placed emphasis on there being no gate - see the photograph at p 89 of his report.

182 Parts of the fences at Stations 47 and 48 were in reasonable condition but other parts were in poor condition. I thought that Mr Baguley was probably correct when he said that stock were unlikely to go through the fence at Station 48 because of the nature of the terrain and would be likely to remain on the pasture lands. This applies, but to a much lesser extent, at Station 47.

183 On the whole I do not regard the fences at Stations 47 and 48 as substantial and valuable improvements. They needed a lot of repair.

184 There was a substantial amount of biddy bush and this was a major problem. This regrowth had re-claimed portions of the cleared land and it had thereby lost some of its value as cleared land. The stock would have to graze on the areas on which biddy bush was not growing

185 The value of this pastureland as at July 2004 was reduced. Whether cleared pastured lands constitute a substantial and valuable improvement is dealt with later.

187 This was a very large dam with a lot of water in it. The dam had been formed out of excavations due to a large quarry. About half the dam was located on the land the subject of MLA 290.

188 This was a dam of substance. Access to it was difficult. For safe access a path to it would have to be cleared. With the present access difficulties which would have existed in July 2004 stock would not access this water. There is no evidence as to what it would cost to create safe access but, having seen it, it would probably not be inexpensive to do so.

189 Ulan submitted, correctly, that there was a very large amount of water in this dam. Ulan further submitted that at times of drought or at any time the landholder saw fit it would be a relatively simple task to pump water from this dam into a water tanker and distribute that water to any dams or other areas on the land that needed it. Because of the access difficulties I would not assume that it would be a simple task to pump water from this dam into a water tanker. Either an access way would have to be created or there would need to be long lines of canvas piping (or piping of other suitable material) and adequate power for extended pumping. Perhaps there are other and better courses. There is no expert evidence on these matters and I would be wary of making any estimates as to what could and should be done and its cost effectiveness. Other than that, this appears to be a valuable and substantial resource that could be utilized but probably at considerable expense.

190 Moolarben accepted that this dam was substantial. However, it submitted that it was not valuable because livestock would not access it. This submission is based on the presently existing conditions and presumably those existing in 2004. This does not allow sufficiently for the potential of this large and valuable water resource. Moolarben further submitted that fairly obviously this dam was created because of the void left after quarrying activities and that it was excluded from consideration under s 62(1)(c) since it was an improvement constructed for mining purposes and for no other purposes.

191 Under the dictionary to the Mining Act "mining purpose means any purpose prescribed by the regulations as a mining purpose for the purposes of this definition." Under cl. 3(7) of the Mining Regulation the following purposes were prescribed for the purpose of the definition of mining purpose in the Dictionary : "(a) the construction, maintenance or use (in or in connection with mining operations) of: … (iii) any reservoir, dam, drain or water race … …

(f) the construction, maintenance and use (in or in connection with mining operations) of any drill hole or shaft for … (ii) drainage or conveyance of water or …"` 192 Under the Dictionary "mining operations means operations carried out in the course of mining". Mining is not defined, but "mine" means:

(a) when used as a noun - any place, pit, shaft, drive, level or other excavation … in on or by means of which any mining operation is carried on, and

(b) when used as a verb - to extract material from land for the purpose of recovering minerals from the material so extracted …" 193 The evidence does not disclose what was quarried or how the excavation was created or its purpose. Nor is it clear that any mineral was extracted. The view did not enable me to determine any of these matters. What was clear was that the quarry dam contained a very large amount of water and was a valuable water resource and the largest water resource on the land the subject of MLA 290. On the evidence as it stands I am unable to say whether as at July 2004 the Quarry dam was constructed or used for mining purposes and no other purposes. I add that provisionally I do not regard what was seen as the construction, maintenance and use (in or in connection with mining operations) of any drill hole or shaft for conveyance or drainage of water. I am also doubtful as to the applicability of cl. 3(7)(a)(iii).

194 In both instances further evidence may lead to a variation of my provisional views. The quarrying may have occurred many years ago and evidence may be difficult to obtain.

195 The Quarry dam and its importance did not really emerge as a significant issue until the view.

196 On the present state of evidence the Quarry Dam was both a substantial and valuable improvement as at July 2004.

Additions to Station 49 - Dam located about 100 metres north of Station 15

197 This small dam is shown on p. 94 of Mr McMichael's report. Mr McMichael wrote that it was in a scrub (ungrazed) area and of no use in livestock grazing. It was neither a substantial nor a valuable improvement as at July 2004. It appears to be shallow and to contain a considerable amount of vegetation.

198 Hitherto I have looked at the various claimed improvements and assessed them individually. I have not regarded fences that needed some repairs and which can readily be repaired as not being substantial and valuable improvements. What has mattered has been the particular condition of the particular fence in its particular location.

199 As to dams, I have not regarded it as necessarily a disqualifying factor for being a substantial and valuable improvement that the dam will probably be empty in times of severe drought. If, as at July 2004, it was capable of holding a reasonable volume of water, stock could access it and the water supply would last for some time in drought conditions that suffices. The size,capacity and catchment area of the dam are also important factors.

200 The dam at Station 8 and Quarry dam were unarguably substantial improvements. Both were also valuable but in different ways, as appears from the earlier findings and discussion.

201 The dams at Stations 1, 9, 10, 17 and 42 were probably valuable and substantial but in each instance this was arguable and different minds could reach different conclusions.

202 The fences which constituted a substantial and valuable improvement as at July 2004 were located near Stations 3, 5 (the southern portion), 9, 10, 27, 30 and 32. Different minds could reach different conclusions. 203 I have regarded the Former Public Road, the drainage channel that helps to protect the railway line, inter alia, the contour bank that augments the catchment area of Moolarben dam and the drainage channel that helps to protect the airstrip as substantial and valuable improvements despite the defects of each, which have been briefly summarised. In each instance these matters were arguable. Other minds could reach different conclusions as to some of the items I have classed as not being valuable or substantial.

204 I have so far left unresolved the question whether cleared pasture lands constitute a substantial and valuable improvement within s. 62(1)(c) of the Mining Act. This has to be determined as at July 2004.

205 As a matter of ordinary English usage and valuation law cleared pasture land would be regarded as an improvement. It takes a lot of work to remove the timber from timbered land, especially, where as here as can be seen from the still uncleared land, the lands were not lightly but fairly heavily timbered. There are other more heavily timbered lands.

206 However, the essential question is whether the cleared lands constitute a substantial and valuable improvement within s 62(1)(c). Having regard to the words in brackets or parentheses do the cleared pasture lands fall within the words "or other valuable work"? The words in parentheses are: "being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure". 207 The words other than "or other valuable work" all seem to refer to the erection of buildings or structures or the carrying out of work which is almost always done after the land has been cleared. 208 It is necessary to recall some further statutory provisions. Section 62(8) provides: "In this section valuable work or structure includes anything taken to be a valuable work or structure for the purposes of this section by clause 23A of Schedule 1, but does not include anything declared not to be a valuable work or structure by 23B of that Schedule." 209 Clause 21 of Schedule 1 envisages a private landholder whose lands are the subject of an MLA objecting to the granting of the lease "on the grounds that the land is agricultural land, and making claims with respect to valuable works and structures on the land. As to agricultural land see cls. 22 and 23.

210 Clauses 23A and 23 B provide: " 23A Identification of valuable works and structures

(1) A landholder of land to which an invitation for tenders will relate, or over which a mining lease is sought, may make a claim to the Minister that something on the land is a valuable work or structure.

(2) A claim must be in writing, identifying the nature and location of the work or structure, and must be lodged with the Director-General on or before the date specified in the relevant notice under clause 21. (3) On receipt of a claim made under this clause, the Director-General : (a) in the case of a claim relating to an invitation for tenders, must decide whether to accept the claim or to object to the claim, or

(b) in the case of a claim relating to an application for a mining lease, must cause notice of the claim to be given to the applicant for the lease.

(4) An applicant for a mining lease to whom such a notice is given may object to the claim.

(5) An objection must be made in writing and lodged with the Director-General within 14 days after notice of the claim was given to the applicant.

(6) Anything identified in a claim as being a valuable work or structure is taken to be a valuable work or structure for the purposes of section 62 unless it is declared not to be a valuable work or structure under clause 23B. 23B Consideration of objections to claims concerning valuable works and structures (1) Unless it is earlier withdrawn, the Director-General must refer any objection made under clause 23A to a warden for inquiry and report.

(2) At the conclusion of the inquiry into the objection, the warden must announce in open court the warden's finding and the purport of the warden's report and must transmit the finding and report to the Minister.

(3) Anything in respect of which an objection has been made under clause 23A and which the warden's report declares not to be a valuable work or structure is taken not to be a valuable work or structure for the purposes of section 62." 211 Agricultural land is defined in cl. 1 of Schedule 2. The point of referring to provisions as to agricultural land is that they envisage land with more than the native grasses on the land the subject of the two MLAs. On the view it was not suggested that there was land on which, as at July 2004, shade, shelter or windbreak trees were growing. While I appreciate that "improvements" usually include cleared lands and that clearing is usually an improvement, in that a cleared paddock usually adds value to the land, more is envisaged in the context of s. 62(1)(c) of the Mining Act, that is, the words in parentheses and the words "other valuable work" assume work beyond clearing the land. 212 It would be an odd result if, on areas on which Ulan professed to carry on agricultural (including grazing) activities and those areas did not qualify as agricultural land, nevertheless cleared land simpliciter should amount to an improvement under s. 62(1)(c), especially where the cleared land is used for the purpose of grazing stock. In my opinion it does not.

213 In my opinion a substantial and valuable improvement on the land the subject of the MLAs may still attract the operation of s62(1)(c) even if the structure or work benefits areas not on the MLAs, for example, the airstrip or the railway line or the catchment area of Moolarben Dam. I have noted the general words of s. 62(1)(c). There are probably many instances where substantial and valuable improvements on the MLA land benefit adjoining lands or the lawful activities thereon. There are two good illustrations in the present case.

214 There was debate before the Court as to the meaning of the word "land" in the first line of s. 62(1). Ulan asked the Court not to adopt a restrictive construction in which "land" refers only to that area on which is situated any improvement. It was initially submitted that an expansive construction should be adopted where "land" referred to an entire Deposited Plan on which is situated any improvement. This was recognised by Ulan as putting the position broadly and while adhering to that submission, it advanced as a less preferred alternative a modified position.

215 Ulan was concerned that if a restrictive construction of land was adopted the situation could arise, for example, where a dam was a substantial and valuable improvement but its catchment area was not included. A dam depends on its catchment area. That point has force. On the other hand, s. 62(1)(a) and (b) provide that a mining lease may not be granted over the surface of any land on which, or within a prescribed distance of which, a dwelling house being the principal place of residence of the occupant, or any garden or orchard, respectively, is situated. The prescribed distance is 200 metres for the dwelling house and 50 metres for a garden. There is no prescribed distance in the case of a substantial and valuable improvement.

216 Moolarben relied heavily not only on the terms of s 62(1)(a) and (b) but also on the history of s. 62(1) of the Mining Act and its predecessors. Section 47 of the Mining Act 1906 contained provisions equivalent to s. 62(1)(a) and (b) save that the distances were measured in yards. There were other differences which are also not of importance for present purposes. Section 47(c) referred to "any land whereon is any substantial building, bridge, dam reservoir, well or other valuable improvement" and went on to provide: "The Minister shall determine whether any such improvement is substantial or valuable and may define an area adjoining such improvements within which no mining operations may be carried on."

217 After the 1935 Amendment section 47 contained provisions substantially to the same effect. The 1963 Amendments added after the words "carried on" the words: "Any such area so defined may be wholly within the land in respect of which the … lease is applied for or partly within such land and partly within other land or wholly within other land."

There were some other drafting amendments to s 47 of no great consequence for present purposes. In 1969 and 1970 there were further amending Acts but neither affected changes of present consequence to s. 47. 218 There was a major change with the Coal Mining Act 1973. Section 62, which replaced the former section 47, and although drafted differently, was generally to the same effect as the present s. 62 of the Mining Act but there are differences. The new section deleted the provision enabling the Minister to define an area adjoining such improvement within which no mining operations may be carried on and the consequential provision as to where it may be located (within or outside the land the subject of the lease). The meaning of "any improvement" was extended and was in its current form.

219 In the Second Reading Speech of the Minister for Mines (Hansard p. 1071 - 19 September 1973) this passage appears: "Clause 62 provides that a coal lease shall not be granted, without consent, over the surface of certain lands. These include lands bona fide in use as a garden, orchard or within 50 metres of such land; within 200 metres of a principal residence; or land containing a substantial building, dam reservoir or other valuable improvement other than one constructed for mining purposes."

220 In the Coal Mining (Amendment) Act 1976 s 62 was amended by deleting the reference to an "orchard". This is significant because orchards are usually established on suitable cleared lands. It is not necessary to do other than note the Coal Mining (Dams Safety) Amendment Act 1979 and the Coal Mining (Amendment) Act 1983. These were followed by the Mining Act 1992. A minor amendment was effected by the Statute Law (Miscellaneous Provisions) Act (No 3) 1992. The Mining Legislation Amendment Act 1996 effected amendments of consequence to s. 62(1) by providing that the surface of any land over which a mining lease may not be granted was the land on which a dwelling house that is the principal residence of the person occupying it, any garden or any (substantial and valuable) improvement is situated. The prescribed distances of 200 metres and 50 metres were retained.

221 The Explanatory Note stated that the series of provisions to this effect were intended to clarify what dwelling houses, gardens and improvements were being protected from prospecting and mining operations and whose consent was necessary before that protection can be waived.

222 There were other important amendments to s. 62 including the insertion of s. 62(8) and cls 23A and 23B in Schedule 1 of the Mining Act. In 1999 and 2000 there were further amendments.

223 I have found the history of the legislation of assistance in approaching the construction of the word "land" in the first line of s. 62(1). Both as a matter of ordinary English usage and in the light of the legislative history the land that is the subject of the prohibitions contained in s 62(1) is that on which the (substantial and valuable) improvement is situated and no other land. I would not define the improvement narrowly but it would not extend to an extensive catchment area.

224 I have held that a limited number of the claimed improvements constitute substantial and valuable improvements.

225 Mr Irwin, an experienced valuer, did not place a value on the individual claimed improvements. He adopted a broad approach. In his report of 10 August 2007 he classified Ulan's land into two main categories: · Lands that are uncleared or predominantly uncleared and having some degree of fencing and water supply associated with them. He valued these (including fencing) at $350 per hectare.

· Lands in a cleared or predominantly cleared state that have fencing and artificial water supply associated with them. (He thought that some of these lands were capable of a higher use if subjected to machine improvement). He valued these (including water supply and fencing) at $1150 per hectare. 226 Mr Irwin said that the underlying value of the cleared land in an uncleared state was $400 per hectare. The cleared land was basically a little better land than the uncleared land which was rough, stony and less productive land. Having seen both the cleared and uncleared land I agree. The cleared land even in its uncleared state was more usable.

227 Mr Irwin wrote that the added value of the clearing, fencing and artificial water supply on the Ulan lands suitable for grazing, and potential for higher use as at 20 July 2004 was $750 per hectare. He also wrote that the area of the cleared lands of Ulan wholly or partially affected by the two MLAs was 450 hectares. A sales analysis showed that the value of cleared lands escalated at a greater rate than uncleared lands.

228 Mr Irwin said that he employed an averaging process and that this approach was dictated by the comparable sales material that was available and the lack of directly comparable sales material. He explained how he assessed the quality of the water supply and the quality of the fencing.

229 Mr Irwin was not able to attribute a particular value to any of the improvements he thought had some value (Stations 9, 10, 38, 12, 17, 41, 18, 43, 21 & 22, 30, 37). In combination he thought that the various dams added some value over the 450 hectares.

230 Mr J W Austin was also an experienced valuer. He described the land of Ulan the subject of MLAs 264 and 290 thus: "generally comprises gently sloping to undulating and mostly poor sedimentary grazing country of which approximately 300 hectares is cleared but neglected with evidence of regrowth, wattles, scrub and weeds (Biddy bush, capeweed and Patterson's curse). The remainder is mostly covered with Indigenous trees but there appears to be little or no millable timber." and "There were some steep and hilly areas. The lands were very dry and there did not appear to be a lot of feed on the lands. There was evidence of re-growth. In some parts the timber appeared to have been the subject of bush-fires many years ago."

231 Mr Austin agreed with Mr McMichael's description of the claimed improvements. Mr Austin wrote that the improvements at or near the following Stations have a "nil value" because they were in such a poor and neglected state that they either required demolition or it would be uneconomic to repair them, namely Stations 4, 34, 5, 6, 36, 14, 15, 42, 13, 16, 40, 39, 25, 24, 19, 23, 31, 28, 29, 47, 48, 32, 45 and 44. 232 Mr Austin expressed the further opinion that a prudent purchaser would, having regard to the property as a whole being worth in excess of $1 million, regard the following improvements as insignificant in the overall scheme and that such improvements also have a "nil value" to the property in their condition as at 20 July 2004. These were the improvements situated at or near

Stations 3, 1, 8, 9, 10, 38, 12, 17, 41, 18, 43, 21 (same fence as 43), 22 (same fence as 43), 30, 27, 33, 37.

233 Mr Austin thought that the Ulan property of which MLAs 264 and 290 formed part was in a neglected state at 23 August 2007. He seemed to agree that the soil was of relatively poor quality. He noted that some cattle were on the land "despite the fences not being all stock proof. While the state of the property on the view appeared to be poor it was hard to tell how much was due to drought and whether there was any point in carrying out desilting and other work in drought conditions.

234 Mr Austin reiterated that the claimed improvements (Stations 1-49) on MLAs 264 and 290 have no value on the land in their state at 20 July 2004 and on the basis of its use as a grazing holding. It was his experience that a prudent and well informed purchaser of neglected rural properties with poor fencing and water improvements which need repairs and/or replacement tends to place no value over and above the land value on such improvements.

235 Mr Austin provided a critique of Mr Irwin's report. Mr Austin disagreed with Mr Irwin's analysis of the sales evidence and added that in the present case sales evidence was of no real assistance in determining the value of improvements and that to a large extent reliance must be placed on experience in assessing the added worth of any such improvements.

236 Mr Irwin disagreed that the lands of Ulan were worth $1 million and thought that the value lay between $500,000 and $750,000. I doubt if the lands of Ulan were worth $1 million. That struck me as too high although I recognise the difficulty of the valuation exercise in the present case.

237 In cross-examination Mr Austin agreed that cleared land with a fence capable of keeping stock in, and a dam capable of watering stock enhanced the value of the land and constituted valuable improvements. Cleared land had a greater value than timbered land. Mr Austin was not disputing these general propositions. He concentrated on the particular improvements claimed, their condition and the value of the land which he thought rendered these claimed improvements as of minimal or nil consequence. He thought that the "big value" in assessing the value of the property lay in the cleared portion.

238 Mr Irwin also disagreed with Mr Austin's approach and his assessment that the improvements had a nil value. I thought that Mr Austin tended to undervalue the improvements.

239 On 29 May 2007 Mr J G Lane inspected those parts of Ulan's land covered by MLAs 264 and 290 and furnished a report dated 19 July 2007. His description of the poor quality soils includes: "The sodic nature of the sandstone derived soils predisposed them to erosion when disturbed by clearing, cultivation and overgrazing. They have hard setting surface characteristics, low water holding capacity and low fertility. The native grasses and shrubs that colonise these areas following clearing are generally tolerant of low fertility conditions however, their survival is influenced by the combination of drought and overgrazing." 240 Mr Lane wrote that his inspection confirmed the status of the infrastructure as described by Mr McMichael and continued: "The boundary fences adjacent to the roads that dissect the subject lands are stockproof however, fences adjacent to timbered land where there was no grazing available required repair to make them stockproof. The water sources were adequate for normal seasons and require desilting to store more water for dry periods." 241 Mr Lane further wrote that a cattle enterprise based on agistment which is the current land use is the most appropriate enterprise for land of this nature. 242 Mr Lane thought that there should be intermittent grazing on the various paddocks. This would help avoid land degradation and assist progressive repair of past damage. He also wrote that there were a number of items that met the requirements to conduct a cattle agistment exercise and that these included water supply including dams, boundary fences, internal fences, cattle yards, drainage lines and access roads. To the extent that they facilitated a cattle enterprise based on agistment they were valuable improvements. To better conduct the enterprise he recommended managing the land in five parcels and improvements costing between about $25,000 and $30,000. 243 Moolarben submitted that the Court should adopt the approach taken by Mr Austin namely that many of the claimed improvements are non-functioning and therefore cannot have any value and that even the minority of improvements which were functional or could readily be made so were so insignificant in the overall scheme of things that they were not valuable in the sense of adding measurable value to the land. Moolarben also submitted that the view confirmed the force of Mr Austin's opinion that none of the claimed improvements added any value or any appreciable value to the land as a whole. 244 Mr Austin's opinion depended in part on his agreement with Mr McMichael's assessment of the claimed improvements. 245 I return to Mr Baguley's report of 4 May 2007. At p 7 he wrote: "After inspection of the cleared areas it is my opinion the areas within the determined boundaries of both MLA 264 and 290 have been previously cultivated. Current areas are reasonably clear of debris (sticks and rocks) and indicate that rock and stick picking operations were previously undertaken as part of the cultivation process. Current pastures consist mainly of the native grasses. Sifton bush re-growth is present in small areas and these areas have been excluded from my calculations of cleared land but confirm that land clearing of these areas did take place. …" I regard this assessment as accurate save that I was not able to determine whether the cleared areas had been previously cultivated. 246 I do not accept that Mr Baguley's replacement approach is the correct one but his calculations and costings based on quotes as at 20 July 2004 from local operations did provide some evidence that some of the claimed improvements were valuable.

247 In his affidavit of 12 June 2007 Mr Baguley disagreed with some of the statements made by Mr McMichael in his report and said: (a) there are current drought conditions in the Ulan area; that the area has been drought declared since August 2002

(b) there were indications that the area had been cropped in the near past

(c) he disagreed that there was no evidence of any land use (grazing or cropping) in MLA 290 south of Wollar Road In April 2007 Mr Baguley observed cattle and manure on the ground. There were 25 to 30 cattle grazing within MLA 290 in the general area near Stations 32, 33, 46, 47, 48, 49. See p5, figure 4 of Mr T Irwin's report of 19 April 2007.

(d) he (Baguley) observed evidence of past cultivation through the existence of mounding of soil from cultivation along the fence line referenced at the area in the vicinity of Stations 44, 45. See p 5, figure 4 or Mr Irwin's report

(e) he disagreed with the statement made at para 1.7 of Mr McMichael's report that there were "no cattle grazing in MLA 264". On his inspection (26/27 April 2007) 50-60 cattle were grazing within MLA 264 north of Wollar Road. Mr Baguley referred to the cattle shown in the photographs at pp 24 and 25 of Mr McMichael's report. Both photos were taken of land within MLA 264.

I thought that these points were sound. 248 Mr Baguley was of the opinion that the land within MLAs 264 and 290 owned by Ulan was capable of running livestock as a trading operation or third part agistment of trade cattle to sell in forward store condition, using an open gate operation allowing cattle to graze in all areas of the land. This system is useful in drought conditions. Additions of stock blocks placed around the property would assist cattle to forage and utilise the dry pasture which was available.

249 Mr Baguley stated: "Whilst the internal farm divisional fencing is not in excellent condition the majority of internal fences are capable of limiting stock movement while feed is available. Based on my inspections the boundary fences are adequate to maintain cattle within the land, as is evident by the fact that cattle have grazed on this land for the past number of years."

He relied on the presence of manure. 250 Mr Baguley stated that taking into account the amount of on-farm water storage provided by the dams and taking evaporation into account, the water available was more than adequate for the total amount of cleared land available for grazing. Based on his calculations that there was approximately 300 hectares of cleared and native pasture available on the land, a total of approximately 190 cattle could be sustained. That figure could be increased if the timbered country within MLA 290 were to be used to provide additional feed. The cleared area was calculated on the cleared area showing no regrowth (past cleared land but with small re-growth trees and bush). Other areas of regrowth were evident.

251 Mr Baguley in his affidavit as to the handling facilities and stockyards does not deal with the occupational, health and safety issues and their impact on whether they are a substantial and valuable improvement.

252 Mr Baguley thought that Mr McMichael applied too high a standard to the use of the lands of Ulan as a farm in that he applied a standard which would be appropriate for a show piece property, an operating cattle stud, cattle breeding operation or highly productive pasture improved property with intensive grazing. Mr Baguley thought that it was not always practical or necessary to apply such a high standard to working farm land. I would add especially where the grazing land is of relatively poor quality. It was not pristine farming land. Mr Baguley stated that the land in its current status suits cattle trading or agistment with open gate farm management.

253 There are two schools of thought about the desirability of open gate management. Mr McMichael was strongly against it whilst Mr Baguley thought it was permissible and had its advantages in drought conditions. Mr Lane would rotate the cattle amongst the various paddocks he recommended.

254 I accepted the evidence of Mr Swords that since April 2004 he had used land owned by Ulan for the purposes of sheep and cattle grazing, that he had at various times placed up to 300 sheep and 30 head of cattle on the Ulan lands and that he had used the infrastructure on the Ulan lands in the grazing and agistment tasks. That infrastructure included boundary fencing, gates and stock dams. This is the best evidence of the position in July 2004 although part of Ulan's land used by Mr Swords was not within the land the subject of MLA 290. Those lands of Ulan within MLA 290 and the areas licensed to Mr Swords and the subject of claimed improvements include Lot 242 DP 755442 being lands in the vicinity of Stations 32, 33, 47, 48. By reason of the notices he received in November 2006 Mr Swords was aware of the boundaries of MLA 290.

255 Mr McMichael applied high but not extreme standards to ensure that stock were very well cared for and were neither injured nor went missing. This is not a matter for criticism. The standards Mr McMichael applied were those that would be suitable for good quality grazing country. The grazing land, the subject of MLA 264 and MLA 290 was of relatively poor quality and had been subjected to prolonged drought. In such circumstances lesser standards may be applied; less is likely to be spent on keeping substantial and valuable improvements, be they works or structures fully maintained or repaired. Greater reliance may have to be placed on fences and dams which are not quite so good. However, that does not mean that the improvements that exist are not substantial and valuable. In some instances the fences adjoin terrain which is steep and rocky. Some of those fences which are not stockproof were useful in that they marked the uninviting terrain lying on the other side of them as at July 2004. The fences may also have been useful as at July 2004 in marking off that terrain from the pasture lands. The cattle would have learnt that there was no point in going beyond the fence line.

256 If an overall view were taken of MLA 264 and 290 areas or each of them I do not think that there was such a lack of improvements of sufficient quality to say that on either or both there were no substantial and valuable improvements. Nor do I think it can be said that in either case or together they did not add value to the lands the subject of them.

257 If Kayuga is not upheld in the High Court or is distinguished or not followed in the Court of Appeal I would regard the improvements as sufficient in number and value to be classed as valuable, even on an overall approach.

258 Ulan submitted that as MLA 264 was not correctly advertised and as it was not properly served with the Notices of the MLAs, and both were essential, no mining lease over the lands the subject of MLAs 264 and 290 or parts of such lands could be granted. However, in case the Court should hold that MLA 264 had been sufficiently advertised or that Ulan could not rely on the defects and that Ulan had been properly served or such service as had occurred was sufficient, Ulan submitted that even if the procedure in cls. 23A and 23B of Schedule 1 had not been followed by it, the Minister for Primary Industries, Mineral Resources was nevertheless bound by the prohibition in s. 62(1)(c) not to grant a mining lease over the surface of any land on which is situated any (substantial and valuable) improvement.

259 Section 62(6) envisages that any dispute as to whether or not s. 62(1) applies in any particular case is to be referred to a warden for inquiry and report and is to be decided by the Minister on the basis of the warden's report.

260 Section 62(8) provides that in s.62 valuable work or structure includes anything taken to be a valuable work or structure for the purposes of s. 62 by cl. 23A of Schedule 1 but does not include anything declared not to be a valuable work or structure by cl. 23B of that Schedule.

261 Clause 23A(1) enables a landholder to make a claim in writing to the Minister that something on the land the subject of the MLA is a valuable work or structure. That claim must be lodged with the Director-General within 28 days after the date on which the notice of the MLA is served on the landholder by the applicant for the mining lease. Subject to questions of correct service of the MLAs, no claim was so lodged in respect of either MLA 264 or 290.

262 Clause 23A(4) and (5) enable the applicant for a mining lease to object to the claim within 14 days after notice of the landholder's claim was given to the applicant by the Director-General.

263 Under cl. 23B(1) the Director-General must refer any objection made under cl. 23A to a warden for inquiry and report. The warden's finding and report is transmitted to the Minister (sub cl. 2). If the warden reports that a work or structure is not valuable, that is taken not to be a valuable work or structure for the purposes of s. 62 (sub cl. 3).

264 Ulan submitted that the provisions just mentioned did not advance Moolarben's case and that it was necessary to distinguish between prohibitions and questions of power. Ulan further submitted:

(a) If the words of s 62 are given their ordinary and natural meaning, the Minister is prohibited from granting a mining lease over land upon which there is situated any relevant improvement. The words of the prohibition are express, "A mining lease may not be granted over the surface of any land …".

(b) There is no express qualification of the prohibition on granting a mining lease in s 62 along the lines that a claim as to an improvement must be lodged within a specified time pursuant to cl 23A of Schedule 1 of the Act.

(c) The only qualification of the prohibition on the Minister granting a mining lease is if the landholder grants his written consent.

(d) There is no justification for implying any gloss that the prohibitions under s 62(1) are only enlivened by a claim under Schedule 1. This is not what the section says. The disputes procedure is contended in s 62(6) and Schedule 1 to the Act does not override the prohibitions in s 62(1). 265 I return to the history of the Mining Act. Until the Coal Mining Act 1973 it was for the Minister to determine whether any improvement was substantial or valuable. There was no reference to the warden. By the 1973 Act, s. 62(4) provided that any dispute as to whether s. 62(1) applied was to be determined by the Minister after inquiry and report by the warden. The Minister's decision was final (s. 62(5)).

266 Under the Coal Mining Act 1973, s. 86(2), within 30 days after the date on which a Notice is published in the Gazette pursuant to s. 17 of the Act, that an application for a coal lease had been lodged, any person may in writing object to the granting of the lease applied for.

267 By the Mining Legislation Amendment Act 1996, s 62(8) (set out earlier) was inserted in the Mining Act, 1992.

268 The Explanatory Note read: "This item will invoke the provisions of Schedule 1 (proposed clauses 23A and 23B) for the purpose of determining for mineral leases only, what is and what is not a valuable work or structure."

269 As to cls 23A and 23B the Explanatory Note read: "This item provides for a procedure for the making of claims to the effect that a particular work or structure is a valuable work or structure, for the making of objections to such a claim, and for the determination of a claim (where an objection is made) by a warden." 270 The Mining Amendment Act 1999 effected a minor amendment which is incorporated in s 23A. During the Second Reading Speech of the Minister for Mineral Resources it was stated: "… there are a number of provisions in the legislation which protect the interests of landholders. These are the right to be notified of any mineral claim, … the right to veto mining on land on which there are improvements, such as sheds, contour banks and dams …" 271 By the Mining and Petroleum Legislation Amendment Act 2000 cl 23A(2) was amended so as to require a claim to identify the nature and location of the work or structure. 272 The history of the Mining Legislation shows that over many years the procedure for making objections or claims as to the granting of mining leases has been refined and developed. Time limits have been fixed for the making of claims by the landholder and objections to those claims by the applicant. This also applies to objections in respect of agricultural lands. Further, notification by Gazette of the application for a mining lease has been extended so that now landholders are served with notice of the application. Wardens conduct enquiries and make a report, the finding and purport of which are revealed and the Minister makes a decision on the basis of the Warden's report. 273 Section 62(1) is not directly linked with s 62(6) and (8) and cls 23A and 23B of Sch 1 but they are part of the one statutory scheme for dealing with MLAs and protecting the rights of landholders. Disputes are likely to arise between potential miners and landholders as to whether an item is an improvement and whether it is valuable and/or substantial. There is a procedure for the timely and orderly resolution of disputes. MLAs involve the expenditure of large sums and have wide ranging economic implications. The history of the Mining Act reveals continued protection of the rights of landholders and the development of procedures to facilitate mining of the State's minerals (most of which are owned by the State) and the resolution of disputes between potential miners and landholders. 274 Section 62 should be read as a whole and should not be split into self contained and mutually exclusive compartments. Regard should be had to the scheme which has been propounded. While common law and proprietary rights are important so are the rights of the Crown as the owner of the coal and those of the mining lease applicants who expend large sums to explore and mine the coal and then pay royalties to the Crown. 275 Based on the terms of s 62 and Schedule 1 and having regard to the history of the Mining Act 1992 I am of the opinion that Ulan was required to lodge its claim within the specified time; that disputes as to whether a particular improvement is substantial or valuable must be referred to the warden and that the Minister decides the issue on the basis of the warden's report. Over a considerable period the legislation has tightened the procedures and fixed time limits. It is part of the landholder's entitlement to make a claim that it be lodged within the time specified. 276 Section 62(1)(c) imposes a prohibition and it is not expressly stated that the prohibition ceases to apply if not made within the specified time. However, cls 23A and 23B of Schedule 1 are incorporated by s 62(8) into the scheme of the legislation. They in turn follow on from the provisions of cls 20 and 21 of Schedule 1. It does not change matters that these provisions also apply to objections to granting the lease on the ground that the land is agricultural land. Clauses 22 and 23 deal with agricultural land and objections. Clauses 23A and 23B deal with claims that certain items situated on the land constitute a valuable work or structure. 277 Where no claim is made by the landholder within the time specified that a particular improvement is a valuable work or structure the Minister is not precluded by the terms of s 62(1)(c) from granting a lease over the surface of the land the subject of the lease application.

Non Compliance of Map With Regulations 278 Section 51(2) of the Mining Act provides, amongst other things, that an application for a mining lease must be accompanied by the required particulars. Under s 51(3)(a) the required particulars in the case of an application that specifies a mineral or minerals are "(a) a description, prepared in the manner prescribed by the regulations, of the land over which the mining lease is sought," …

See also 51(5)(a) of the Act. 279 Clause 21(4) of Schedule 1 provides that the notice of the application for a mining lease served on the landholder must contain a description prepared in the manner prescribed by the Regulations. Clause 16(b) of the Mining Regulation provides that for the purpose of s 51(3)(a) and (5)(a) of the Act, the prescribed manner for describing the land over which a mining lease is sought is by means of, in the case of an application for a mining lease for coal, a standard map showing the co-ordinates of all points where there is a change in direction of the boundaries of the land. Under cl 3(1) "standard map means a map that complies with the provisions of cl 9." Clause 9 provides: "A map is a standard map for the purpose of this Regulation if it is

(a) a standard topographic cadastral map at the scale of

(i) 1:25,000, or … published by the Department of Lands, the Department of Mineral Resources or the Australian Surveying and Land Information Group." Such a map was available but not used. 280 As to MLA 264 the complaints were that the map lodged with the Department and accompanying the notices purportedly served on the landholder was not a topographic map and was not one published by one of the nominated official bodies. The map used appears to have been prepared by Co-Resources Pty Ltd. The map illustrated some 44 co-ordinates. While the map lodged and purportedly served was a cadastral map it was not a topographic map.

281 The map lodged with the Department was reviewed and accepted by it without demur and shows the area the subject of the application.

282 As to MLA 290 the same complaints were made as to the map and the same comments should be made. Some 98 co-ordinates were illustrated.

283 Moolarben pointed out that it used relatively up to date cadastral information rather than the 1986 topographical map.

284 Moolarben contended that the map used made no difference in any material respect and accorded with the maps used in the overwhelming majority of mining lease applications made and granted in the last four years including by Ulan. It was agreed that of 46 mining lease applications lodged with the Department since 22 August 2003 thirty-seven were accompanied by a description of the MLA area based solely on cadastral information.

285 The affidavit of M J Furner, a registered mine surveyor, explained that since 2001 he had supervised the preparation of eleven plans in support of MLAs. They were cadastral maps and not based on the topographic cadastral map published by one of the nominated official bodies. The Department has accepted the plans which were prepared. Topographic maps are not used because they are generally not updated and do not reflect any topographic changes. The topographic map in evidence was issued in 1986. The cadastral information on the maps in the present case was obtained electronically from the Department of Lands about 2004.

286 Mr Furner stated that the scale on the map submitted to the Department with MLA 264 was 1:12,500 and that on the map submitted to the Department with MLA 290 was 1:25,000. Mr Surveyor Walsh pointed out that the plan accompanying the notice posted to Ulan in respect of each MLA was a reduced copy from the original plan. Mr Walsh pointed to various matters which he considered to be shortcomings in the plan. Amongst others, neither plan indicated the source of the cadastral data nor did they appear to state co-ordinates for all points where there is a change in direction of the boundaries of the land the subject of the MLA.

287 Mr Furner responded that the maps show the co-ordinates for all points where there is a change in direction of the boundaries of the MLAs but that not every reference to those co-ordinates is shown on the diagrams in the maps. Mr Furner stated that it was standard drafting practice not to show the number references for all co-ordinates because it makes the map easier to understand. It would be less cluttered. 288 As previously stated the Department checked the plans and accepted them in accordance with its usual practice. Ulan was not misled or put at a disadvantage by the reduced copy plans served on it. They did not affect whether Ulan made a claim (described as an objection in Moolarben's letter of 3 August 2005).

289 The object of s 51 of the Mining Act when coupled with the Mining Regulation is to ensure that when the MLA is lodged with the Department it is told of the precise boundaries and area of the MLA and given sufficient information to evaluate the application. A map is required. A map that has not been updated for 18-19 years is generally not as useful as one that has been updated within the previous one or two years. An old map may even be misleading so far as the current position (July 2004) is concerned. The map which was lodged with the Department was useful and based on reasonably up to date information.

290 Similar comments could be made in respect of the reduced copy map which accompanied Moolarben's letters of 3 and 5 August 2005 and 1 November 2005.

291 There was substantial but not complete compliance with the requirements of the Act and Regulations as to the maps lodged with each MLA and the reduced copy map accompanying the notices sent to Ulan in early August 2005 and early November 2006.

292 Ulan relied on the use of the words "must" and "required" in s 51(2)(c) and the use of the phrase "the required particulars in s 51(2)(c), s 51(3) and s 51 (5). Ulan also relied on the words in cl 21(3)(b) that the notice served on the landholder "must contain" a description prepared in the manner prescribed by the regulations of the land over which the lease is sought.

293 Both parties referred to Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], [78] and [91] - [93]. The joint judgment of four Justices stated at [91]. "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition." 294 The joint judgment at [93] formulated this test for determining the issue of validity of an act done in breach of a statutory provision: "… whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." 295 Applying the principles in Project Blue Sky it was not a purpose of the Mining Act 1992 and the Mining Regulation to treat as invalid the failure to use a map with topographical features produced by one of the nominated bodies when that map had not been updated for 18 years and a map was used showing relatively recent cadastral information obtained from the Department of Lands, one of the nominated bodies and the other information necessary to evaluate the application and to alert landholders as to what the applicant proposed. The landholder could readily deduce the effect of the proposal.

296 I hold that the technical breaches identified are not such as to invalidate either MLA or the notification of the landholder, Ulan.

297 In addition Moolarben relied on a 135 of the Mining Act which enables the Minister to grant an MLA even though the applicant has failed to comply with a requirement of that Act or the regulations as to the details to be contained in any notice or the particulars to accompany the application. Section 135(2) would not prevent the exercise of that power. While the decision to exercise the power in s 135(1) is one for the Minister there would seem to be a strong case for the exercise of that power based on the Department's acceptance of the plans submitted, its practice as to the acceptance of plans similar to the ones submitted and the plans submitted and sent to Ulan serving the statutory purpose.

298 If I had been of a different view as to the effect of the breach of the statutory and regulatory provisions, the operation of s 135 would have to be considered in deciding whether to grant relief and the terms of any relief, if granted.

299 Ulan complained that Moolarben had not within 21 days after lodging MLA 264 and MLA 290 respectively caused notice of each application for a mining lease to be served on Ulan as the landholder of land the subject of each MLA at Ulan's registered office.

300 Clause 21(3) and (4) of Schedule 1 of the Mining Act relevantly provide: "(3) An applicant for a mining lease to which this Division (Division 4) applies must (within 21 days after lodging the application …) cause notice of the application to be served on any landholder of the land concerned.

[Division 4 applied] (4) Such a notice: (a) must state that an application for the lease has been lodged, and (b) must contain a description, prepared in the manner prescribed by the regulations, of the land over which the lease is sought, and (c) must state that objections to the granting of the lease on the grounds that the land is agricultural land, and claims with respect to valuable works and structures on the land, may be made to the Minister within 28 days after the date on which the notice is served." 301 Apart from the issue as to the map with which I have dealt the letter of Moolarben of 3 August 2005 addressed to Mr Philip Orr, Ulan Coal Mines Limited Private Mail Bag, Mudgee NSW 2850 complied with cl 21(4)(a) of Schedule 1 in that it stated that Moolarben has lodged a mining lease application for the Moolarben Coal Project with the Department of Primary Industries. As to compliance with cl 21(4)(c) of Schedule 1 the letter, after drawing attention to that provision, continued: "where the landholder may object to the granting of the lease on the grounds that the land is agricultural land or that valuable works and structures on the land are affected." That involves a slight departure from the language of cl 21(4)(c) in that objections are made to the granting of the lease on the ground that the land is agricultural land and claims with respect to valuable works and structures on the land. The departure is of no consequence. For many years the word objections was used to cover both cases. Importantly, the letter (or notice) states that submissions may be made to the Minister within 28 days after receipt of the notice.

302 The records of the Australian Securities & Investments Commission (ASIC) show that as from 27 September 2004 the registered office of Ulan was situated at Level 38, 1 Macquarie Place, Sydney and that a Principal Place of Business was 4505 Ulan Road, Ulan NSW 2850.

303 In correspondence from 1993 onwards Ulan stated its postal address as "Private Mail Bag Mudgee NSW 2850" on its letterhead. This was the address to which the Valuer General sent a Notice of Valuation. From 1998 onwards Ulan's letterhead stated "Corporate Office & Stores: 4505 Ulan Road, Ulan NSW 2850" and "Private Mail Bag, Mudgee NSW 2850." In July 2003 Ulan used this letterhead to write to the NSW Environment Protection Authority (EPA) at Bathurst and in December 2003 the EPAwrote to Ulan, "Private Mail Bag, Mudgee NSW 2850". In May 2005 Ulan wrote to the Department of Environment & Conservation, Bathurst, using a letterhead stating the same Corporate Office & Stores and the same postal address. The Corporate Office at Ulan was substantial.

304 Section 383 of the Mining Act 1992 relevantly provides: "(1) A document that is authorised or required under this Act to be served on any person may be served: (a) personally or by post, or (b) by leaving it with a person apparently of or above the age of 16 years at, or by posting it to, the person's place of business or, in the case of a corporation, the registered office of the corporation. … (4) If a person has more than one place of business, service may be effected under this section at any of those places. (5) Nothing in this section prevents service of a document from being effected by facsimile transmission or other electronic means, or by the use of the facilities of a document exchange, but the burden of establishing that service has been so effected lies on the person asserting that fact. …:" 305 Ulan submitted that the notice had to be served on Ulan at its registered office and that it could not be validly served at one of its places of business.

306 Ulan submitted: (a) As a matter of the correct construction of the Mining Act the MLA 264 and MLA 290 notices were required to be served at Ulan's registered office. Section 383(1) is not directed to corporations but to natural persons. It is not possible to serve a corporation "personally". However, s 383(1)(b) is directed to corporations. There is no choice - a corporation is to be served at its registered office.

(b) To the extent that s 383(4) creates any inconsistency with s 383(1)(b), then s 383(4) should be construed as referring only to natural persons.

(c) If the Court were to find that s 383(1)(a) refers to both natural persons and corporations, then the word "or" in that subsection should be read conjunctively rather than disjunctively because of the importance of the information to be contained in the cl 21(3) notices. The legislature could not have intended that corporate landholders could be served by post at any place of business. This could result in the right people in a company not having their attention drawn to the notice and its important contents.

(d) As a consequence of the cl 21(3) notices in relation to both MLA 264 and 290 not being served in accordance with the Act, the Minister cannot grant a valid mining lease. The reasons are as follows: (i) Important documents are generally required to be served on registered offices of corporations which may have many places of business and operate in diverse localities. (ii) The notices are important documents and must contain important information as to rights and must be served in accordance with the Act. Service other than by posting the notice to or by leaving it at the company's registered office does not comply with the Act. A notice required to be served under cl 21(3) of Schedule 1 to the Act is therefore not served in accordance with the Act when, rather than being mailed to a company's registered office it is posted to a private mailbag, (iii) No question of substantial compliance arises. Strict compliance is required with cl 21(3) and (4) of Schedule 1 and s 383. The service of such notices like the contents of those notices is in the category of an "essential preliminary to the exercise of statutory power": Project Blue Sly at [92]; Sandvik Australia v Commonwealth (1989) 89 ALR 213 at 226. (iv) Provisions like cl 21 and s 383 are, in combined effect, intended to ensure that persons know that they have rights of objection (or to make a claim). Such provisions are obligatory and substantial compliance - like service by mailing to a private mail bag - will not suffice. Improper service of the notices renders nugatory the important and essential purpose of cl 21 of Schedule 1. (v) Even if s 383(1)(b) was a directory provision, mailing such a notice to a coal mine's private bag is not substantial compliance with a requirement that a company's registered office be served. 307 Moolarben submitted: (a) "person" in s 383 includes corporations. (b) s 383(1) is permissive. (c) Natural or corporate persons which have more than one place of business may be served at any of those places (d) Ulan's submission: (i) requires the permissive language of s 383(1) to be construed so that it is mandatory; (ii) requires the disjunctive paragraphs of (a) and (b) of s 383(1) separated by "or" to be read in such a way that in the case of corporate persons (a) is not available; and (iii) is irreconcilable with s 383(4) (e) Both the notice of MLA 264 and MLA 290 were received. The statutory purpose of notifying landowners of their rights was fulfilled. 308 The words "any person" where appearing in line 2 of subs (1) refers to both a natural person and a corporation. This is so because the section proceeds to deal with service both personally and on a corporation. Service by post is permitted. Subsection (1)(b) enlarges the methods of service on a natural person. He or she may be served by leaving the document with a person apparently of or above the age of 16 years at the person's place of business or posting the document to the person's place of business. Service by leaving a document with a person apparently of or above the age of 16 years at the registered office of a corporation or posting a document to the registered office of a corporation are both common and permissible methods of service. A corporation's registered office is fixed and required to be recorded. It can be readily ascertained. A place of business does not necessarily have these attributes.

309 Where the words "a person" first appear in s 383(1)(b) they refer to a natural person. Of greater difficulty is the meaning of the words "the person's" later in subs (b) in the phrase "the person's place of business." I think that this probably refers to a natural person. The provision seems to be used in contradistinction to the words "or in the case of a corporation". Attention then shifts to s 383(4) and the meaning of the words "a person". Are they limited to a natural person or do they include a corporation. On the one hand it can be contended that there is a link in the language between subs (1)(b) and subs (4), both referring to the place of business of a person. On the other hand the words "any person" when first used in line 2 of subs (1) refer to both a natural person and a corporation. Under the Interpretation Act, s 21. "person includes an individual, a corporation and a body corporate or politic except in so far as the context or subject matter otherwise indicates or requires it" (s 6). While the matter is not free from doubt, in my opinion neither the context nor subject matter otherwise indicates or requires a corporation not to be included within the meaning of "a person" in s 383(4). In my opinion, s 383, which is facultative, permits a corporation to be served by post at one of its places of business.

310 While cl 21(3) of Schedule 1 requires an applicant for a mining lease to serve a notice of the application on the landholder and cl 21(4) prescribes what the notice must state, cl 21 does not prescribe the methods of service. That is left to the general law. An applicant may take advantage of the facultative provisions of s 383 of the Mining Act.

311 In my opinion, Ulan's point that it was not served at a place of business because the notices were sent to a private mail bag is incorrect. Section 383 expressly permits service by post. For many years Ulan has held out to all that its postal address for its principal place of business at Ulan is "Private Mail Bag, Mudgee, NSW 2850". As earlier pointed out Ulan has a major operation and corporate office at Ulan. At a later date and for MLA 290 the Private Mail Bag was described as Private Mail Bag 3006, Mudgee NSW 2850".

312 In case I am wrong in my opinion that the MLA 264 and 290 notices were sufficiently served, questions of substantial compliance and the notices otherwise coming to the attention of Ulan arise. Of course they may affect the date from which the period of 28 days is calculated and the accuracy of the declaration of Mr I Callow of 3 August 2005 that he had complied with cl 21, Sch 1, Mining Act as to the service of notice on the landholder, Ulan.

313 So far, the focus has been on MLA 264. Notice of MLA 290 was forwarded to "Mr Phillip Orr, Ulan Coal Mines, Private Mail Bag 3006, Mudgee NSW 2850 by letter dated 1 November 2006 which was in substance in the same terms as that in MLA 264. This was received by Mr Orr on 7 November 2006. Mr Orr later that day forwarded a copy of that letter to Mr Glen Robinson, Xstrata Coal NSW, the officer responsible for handling such matters and Mr David O'Brien of Xstrata Coal, NSW. Mr Orr also summarised the position: "White's have applied for a surface mining lease for their Moolarben project." White's then owned Moolarben. The senior levels of Ulan and Xstrata became aware of MLA 290 and its terms about 7 November 2006. While, on one view, there may have been a technical defect in service it is no more than that. Ulan was effectively served on 7 November 2006. Curiously, Ulan did not lodge its claim or an objection within 28 days despite the terms of the Notice of 1 November 2006 which it had received. Service of that Notice requires no further consideration.

314 Mr Orr stated that when he received the letters of Moolarben of 3 and 5 August 2005 he assumed that he had been sent these letters as a courtesy from Moolarben and that similar notices had been provided to Xstrata. He did not send these letters to the registered office of Ulan nor to Mr Robinson or any of the senior executives of Ulan or Xstrata located at the New South Wales Head Office of Xstrata and Ulan at Bulga near Singleton. Instead, Mr Orr placed the letters of Moolarben of 3 and 5 August 2005 in Ulan's files at Ulan. It is necessary to set out more of the factual background.

315 Mr Orr stated that in February 2005 Mr Robinson, his superior, instructed him that all issues between Ulan and Moolarben except day to day access issues, were to be dealt with by Xstrata and not by mine site employees.

316 On 23 February 2005 Mr Robinson sent Mr Orr an email stating: "Suggest any issue re WML [White Mining Ltd] requirements for Moolarben are matters for Xstrata to resolve. The WML relationship on all levels is a critical and sensitive business issue. Other than management of the access agreement for exploration, please refer WML matters to me." 317 Mr Callow, the Moolarben Project Manager, made a note about 22 February 2005 of a telephone conversation he had with Mr Orr in which he raised the list of matters they had canvassed the previous Thursday (17 February 2005) and that Mr Orr's response was that all matters were to be referred to Xstrata , Bulga.

318 Mr Callow gave evidence of several meetings with Mr Orr, the telephone call and of swapping emails. The first meeting was around 20 November 2004 when they discussed the various activities they would carry out on site with Moolarben's consultant. The second meeting was mid-December 2004 and involved meeting with Mr Orr and Mr Gibb, an environmental officer. Mr Callow had his environmental consultant, Alan Wilson Wells in attendance. The next meeting between Messrs Callow and Orr was about 10 February 2005 at Ulan site office. This had to do with the alignment of the 330 KV transmission line. A list of other matters was discussed.

319 There was a meeting on 17 February 2005 at Transgrid's office in Sydney attended by representatives of Transgrid, Mr Callow and Mr Orr.

320 There was a subsequent site meeting involving representatives of Transgrid, Mr Callow and Mr Orr.

321 On 2 March 2005 Mr Callow met with Mr G Robinson. Mr Callow appears to have raised a series of issues touching the execution of the Moolarben Coal Project.

322 About 6 July 2005 Mr Callow met with Messrs G Robinson and Tony Mason. Mr Callow has listed a number of issues he wished to raise. Mr Callow said that all matters discussed at that meeting related to the airstrip. Mr Callow has noted: "5. Exploration Drilling - cleared sites for drilling along ridge line abs clear 6. Access on site through Phil Orr & Hans (Richter) (illegible) working very well." 323 Mr Callow said that the meeting in July 2005 was a Transgrid meeting involving the transmission line. 324 It was also stated that Dronvisa attended the meeting in July 2005. 325 Mr Callow agreed that there were additional meetings. He said that in November 2004 his managing director Mr Flannery and he met with Mr Buffier, Operations Manager for Xstrata Coal, New South Wales and Mr G Robinson, General Manager of technical services. This explored the potential for Ulan and Moolarben to work together to develop the Moolarben area. Messrs Callow and Flannery were aware that Messrs Buffier and Robinson could make decisions on matters such as sharing facilities between the two operations. There was an issue of sharing water between the two sites, using a dragline, wash plant capacity and use of the rail balloon loop to turn trains around, coal contracts, future contracts a possible joint venture and the validity of the 1985 development consent for what was known as Underground 4 (an underground mine). There were subsequent meetings involving these four men about 5 May 2005. Mr Callow's note of the latter meeting contains this entry: "S 62 improvements in U/G4" 326 It may be that "U/G4" reads "2/64." It is unclear. It does not seem that the question of MLA 264 or any s 62 improvements on that area were discussed. 327 Mr Callow said that at the meeting on 6 July 2005 with Messrs Robinson and Mason the question was asked whether Moolarben had submitted the MLAs. Mr Callow replied "not yet". Mr Callow's notes support this assertion. Mr Callow said that Moolarben had previously told Mr Robinson that it was preparing MLAs. Because Moolarben had obtained exploration licences and carried out drilling, MLAs by Moolarben would have been anticipated by Ulan. Many of the topics discussed at the various meetings related to the coal mining operations, actual or proposed of Ulan and Moolarben. 328 Mr Callow said that on Friday, 22 July 2005 he telephoned Mr Robinson and advised him that White Mining Limited had lodged MLAs (for 264) on Wednesday/Thursday this week His notes support the statement.

329 On Sunday 24 July 2005 at 6.34am it seems that Mr Buffier sent an email to Mr G Robinson and Mr Nasser with a copy to Ms Lucy Roberts advising that he had discussed with PRC (Peter R Coates, the managing director of Xstrata in Australia) that White's (Moolarben) had lodged a lease application and that their (Coates and Buffier) view was that Xstrata must immediately write to "dipnr" (Department of Infrastructure, Planning and Natural Resources) and outline why White's don't have a Development Approval. Mr Buffier stated "We must do this asap mon or tues. View is that to go any other way runs risk that we cannot agree and they are on there (sic) way. Not all is lost as they will have to do a DA like all others and will include open cut. Act quickly."

330 On 25 July 2005 Xstrata wrote to that Department enclosing copy advice received from Minter Ellison to the effect that White Mining ("Felix") cannot rely on the Stage 1 Development Consent to obtain a mining lease for any area of land within the Moolarben Exploration Area. The letter (signed by Ms L Roberts as Group Environment Manager of Xstrata) states "We understand that Felix have recently submitted a Mining Lease Application over the subject area."

331 On 5 August 2005 Ulan became aware of the following notice in the Mudgee Guardian Newspaper of that date: "MINING LEASE APPLICATION NO.264 Notice is hereby given in accordance with Clause 24 (3) of Schedule 1 of the Mining Act, 1992, that Moolarben Coal Mines Pty Limited, (ACN 108 601 67/2) has lodged an application for a mining lease. Reference: 05/106. The area applied for comprises an area of about 1094.4 hectares in the Parish of Lennox, County of Phillip, shown on the plan below. The application is to mine for coal by underground mining methods. Clause 26 of Schedule 1 of the Mining Act 1992 provides for objections to the grant of the lease may be made in writing to the Minister. However, in this case the applicant has obtained development consent before the land may be used for the purpose of obtaining minerals. Therefore, having regard to Clause 28 of Schedule 1 of the Mining Act 1992, no person is entitled to object to the Minister in relation to the grant of a mining lease. For inquiries contact Mr Vince Fallico 02) 9289 3930." 332 Mr Orr said that when he received Moolarben's letter of 3 August 2005 he appreciated Moolarben was applying for a mining lease. On 5 August 2005 he had a discussion in his office about the apparent discrepancy between Moolarben's letter of 3 August 2005 and the newspaper notice with Messrs Richter, Gibb and Morphew, fellow employees at Ulan. Mr Orr said that he had difficulty in reading the plan attached to Moolarben's letter, that is in deciphering some of the co-ordinates. Many of the co-ordinates (2-9 and 20-34) were missing as well. The plan was a reduced one. Mr Orr had no doubt, however, that the surface area of Ulan land was directly affected by MLA 264.

333 Mr Orr could not remember whether the letters he received were signed originals. He took the letter of 3 August 2005 to be a copy because it was addressed to him personally and it did not have an A1 size plan attached to it. (The attached plan was a reduced one on A4 paper and hard to follow). 334 About one week after the receipt of the letters of 3 and 5 August 2005, Mr Orr spoke to Ms Lucy Roberts of Ulan/Xstrata NSW headquarters and told her he had received a copy of an MLA letter and there had been a notice about the MLA in a local newspaper. He did not show them to her. The conversation was primarily about the issue of development consent for the mining lease application. 335 On 18 August 2005 Mr Orr sent an email to Ms L Roberts which relevantly stated: "When last we spoke you were awaiting legal advice regarding the Mining Lease Application submitted by Moolarben Coal. Is the advice available to us at Ulan? My concern is that [Ulan] should make a formal submission with respect to their application. [Ulan] is the land owner and is the owner of the current development consent. … I believe [Ulan] must make two submissions in respect to the mining lease application. … The use of [Ulan] owned (productive agricultural) land that will be used for the construction of the surface facilities" 336 Ms Roberts responded that Mr Robinson was getting John Whitehouse to prepare draft response to DPT [Department of Primary Industries] and would send to site for comment.

337 Attention was being directed to the development issue and not to responding to the notices of 3 and 5 August 2005.

338 There was no evidence called from the senior executives of Ulan/Xstrata as to when they first became aware of Moolarben's notices of 3 and 5 August 2005. Mr Flannery, the managing director of Felix Resources of which Moolarben was a subsidiary, stated that he was not aware of Ulan ever lodging (or purporting to lodge) an objection to MLA 264 with the Department. At the hearing it became clear that Ulan had never lodged a claim (or an objection) as to MLA 264.

339 Ulan and its senior executives were aware in August 2005 that Moolarben had lodged MLA 264 and that it extended over lands owned by Ulan. Ulan's senior executives had not been told that Ulan had 28 days from about 5 August 2005 to lodge its claims and objections. Indeed, the notice in the Mudgee Guardian stated that no person was entitled to object to the Minister in relation to the grant of a mining lease. A document stating that objections to the granting of the lease on the grounds that the land is agricultural land or that valuable works and structures on the land are affected may be made to the Minister for Mineral Resources within 28 days after receipt of the notice had not been received at the corporation's registered office or come to the attention of Ulan's senior executives. Such a document had been sent by post by Moolarben addressed to Mr Orr, Ulan, Private Mail Bag, Mudgee.

340 If, on the correct construction of s 383 of the Mining Act the method of service adopted by Moolarben was not permissible then there has been no effective service of MLA 264 in that Ulan was not told of the limited time within which it must lodge its objections and claims. That was of considerable importance and serious consequences flowed if the objections and claims were not lodged within the time allowed. Moolarben relied on the notice it posted to Mr Orr, Ulan, Private Mail Bag, Mudgee. He was the technical services manager at Ulan Coal Mine and was dealing with access arrangements for the Exploration Licence held by Moolarben as Mr Callow knew. Major matters were being dealt with at the NSW Headquarters of Ulan by Messrs Buffier and Robinson as Mr Callow also knew. Mr Callow's statement that Mr Orr was the principal point of contact for Moolarben and its consultants with respect to Moolarben's development of the Project overstates Mr Orr's role. Mr Orr was the principal point of contact for Exloration Licence Access arrangements.

341 I interpolate that Moolarben contended that the MLA comprised land contained in the Moolarben Exploration Area part of which was subject to a development consent granted by the Minister for Planning on 4 October 1985 for the development of Stage 2 of Ulan Coal Mine for the purposes of underground and open cut mining (Stage 2 Consent).

342 It is convenient at this point to deal with the complaints as to the notice in the Mudgee Guardian. Clause 24(3) of Schedule 1 of the Mining Act provides that before granting a mining lease (otherwise than by way of tender the Minister must cause notice of the proposal to be published in a newspaper circulating in the locality concerned. Clause 24(4) provides that the notice must state that an application for the lease has been lodged, contain a description or plan of the land over which the lease is sought, state that objections to the grant of the lease may be made in writing to the Minister and must explain (having regard to the provisions of cl 28) what persons are entitled to object and state that such objections should be made on or before the date specified in the notice, such date being not less than 28 days after the date of its publication.

343 Clause 26(1) provides that any person (other than a person referred to in cl 28) may object to the granting of a mining lease.

344 Clause 28 provides that an objection may not be made under Division 5 (Pt 2, Schedule 1) by any person or body entitled to object under Division 1 or 3 or any person entitled under the EP&A Act to make submissions in relation to the granting of any development consent that is required before the land may be used for one or more mining purposes. Division 1 and 3 do not apply.

345 Submitted with MLA 264 were the opinion of Mr J Webster SC and the earlier detailed written advice of 3 May 2005 from Sparke Helmore, Solicitors. They were to the effect that the 1985 development consent as modified was a continuing consent covering UG4 (Underground Mine 4) and might be used by Moolarben to start the process of obtaining approval to the grant of a mining lease and, further, that pursuant to s 65(2) of the Mining Act "an appropriate development consent is in force in respect of the land."

346 It was on this material that the Department prepared its advertisement. The views expressed by Mr Webster SC and Sparke Helmore were arguable. Strongly argued and detailed views to the opposite effect were expressed in the letter of Minter Ellison of 3 May 2005, a copy of which was forwarded by Ms Roberts to Mr David Kitto, Mining & Extractive Industries, Major Development Assessment under cover of her letter of 25 July 2005. The draftsman of the advertisement probably did not have a copy of the letter of Minter Ellison.

347 On 9 September 2005 Xstrata (per Mr Buffier) wrote to the Department of Primary Industries on behalf of Ulan referring to the Notice in the Mudgee Guardian and formally objected to the Mining Lease Application lodged by Moolarben. It was stated that the basis of the objection was that it was beyond doubt that the Stage 2 Consent could not be construed to be an appropriate development consent for the purpose of s 65(2) of the Mining Act and hence the Minister could not grant a Mining Lease in reliance on the Stage 2 Consent. The letter continued, "The principal reason is that a subsequent development consent (in 1993) granted by the Minister for Planning deleted the approval for Underground Mine No 4 in the Stage 2 Consent and hence there is no relevant/appropriate development consent to support the MLA".

348 Xstrata's letter analysed the Stage 2 Consent and Modifications, The Ulan No 3 Underground Extension Consent 1993 and The Ulan Underground Extension Consent 1999 and advanced reasons in support of Xstrata's views.

349 The letter insisted that the Minister had no alternative but to refuse the MLA. By letter of 16 September 2005 the Department advised that the processing of MLA 264 had now been placed on hold until the matter concerning development consent had been resolved. The Department obtained legal advice which differed from that given to Ulan. Moolarben had previously obtained legal advice which differed from that given to Ulan. Xstrata's letter of 9 September 2005 made no claim to improvements pursuant to s 62 of the Mining Act and Schedule 1. This is to be expected. The newspaper notice which had precipitated the letter of 9 September 2005 had stated that no person was entitled to object to the Minister in relation to the grant of a mining lease. Ulan did object. There was nothing in the newspaper notice about any landholder or any other person being able to make a claim. The newspaper notice did not suggest that any objection or claims had to be lodged within 28 days. Further, it seems that by 9 September 2005 none of the senior executives of either Ulan or Xstrata had been made aware of the contents of the letters of 3 and 5 August 2005 from Moolarben to Mr Phil Orr of Ulan. Despite its terms the newspaper advertisement did not deter Ulan.

350 While Ulan and Moolarben each strongly contended that the views expressed by their respective advisers were correct that matter was not argued in detail. Ulan was not misled by the advertisement. It protested in powerful terms that the statement in the advertisement as to the obtaining of development consent was wrong. In these circumstances it is difficult to see how Ulan can rely on the advertisement. Further the whole process had been overtaken by the major project application, the extensive processes which followed including the advertising of the application and the public responses, the report of the Director-General of Planning and the approval of the Minister of Planning. I would not hold in the circumstances that the advertisement placed in the Mudgee Guardian had the effect of invalidating the grant of any mining lease.

351 Returning to the narrative, there were further meetings between the senior executives of Ulan/Xstrata and Moolarben but there is no indication of Mr Robinson or other senior executives of Ulan/Xstrata becoming aware of the terms of Moolarben's letters of 3 and 5 August 2005. Hence they concentrated on what they believed was the lack of development consent. However, it can be noted that the negotiations between Ulan/Xstrata and Moolarben and their meetings did not seem to get very far. It was not resolved whether the 1985 development consent could be construed as an appropriate development consent for the purposes of s 65(2) of the Mining Act. Thus on 20 December 2005 the Department of Infrastructure and Planning received a Major Projects application from Moolarben in respect of the Moolarben Coal Project. That covered extensive areas and seemingly the land the subject of MLA 264 and that which later became the subject of MLA 290.

352 It does not appear that Moolarben advised Ulan of this. Moolarben's application was accompanied by a list of landholders and presumably their notification was left to the Department. It subsequently notified them.

353 By letter of 23 October 2006 Ulan (per Mr Buffier, a director) wrote to the Department of Planning. Ulan referred to the currently exhibited Environmental Assessment Report for the Moolarben Coal Project. Ulan pointed out that it owned a considerable part of the lands affected by their proposal and that it was the owner of lands within the Project Application area upon which were situated various dwelling houses, gardens and improvements. It would not be providing its consent to the grant of any mining lease until a commercial agreement was reached for the carrying out of the Project on these lands and would be making submissions to the Minister for Mineral Resources to ensure any sub-surface lease is granted at such depths, and subject to such conditions so as to minimise damage to the surface. The letter pointed to the alleged major shortcomings in the Environmental Assessment Report and raised what were contended to be major deficiencies in the Project. Ulan requested that the alleged shortcomings and deficiencies be examined and resolved by the Department prior to the grant of any approval to the Moolarben Coal Project.

354 About 18 October 2006 Moolarben lodged MLA 290 and supporting documents with the Department of Primary Industries, Mineral Resources. As previously mentioned on 7 November 2006 Mr Philip Orr of Ulan received via Private Mail Bag 3006 Mudgee a letter dated 1 November 2006 from Moolarben advising of the lodgement of MLA 290 and that Ulan as landholder may object to the granting of the lease on the grounds that the land is agricultural land or that valuable works and structures on the land are affected within 28 days after receipt of the Notice to the Minister for Mineral Resources. As earlier stated, that letter was sent by email that day to the senior executives of Ulan and Xstrata.

355 On 9 November 2006 Moolarben wrote to the Department of Planning responding to Ulan's letter of 23 October 2006. Amongst other things Moolarben pointed out that Ulan had made no objection to either of the MLAs lodged in 2005 and that the time for the making of objections in respect of them had expired allowing the Minister to grant each application without restriction. Moolarben complained that Ulan had declined to supply requisite information. The letter deals with various matters raised by Ulan.

356 On 29 January 2007 Ulan wrote to the Department objecting to the grant of MLA 290 for these reasons: 1. a large amount of the land was agricultural land 2. Ulan had a commitment with the Department of Environment and Conservation as a condition of its Environment Protection Licence requiring Ulan to set aside about 5000 hectares of its landholdings as Salinity Offset areas. Ulan objected to the grant of the MLA as this could cause Ulan to breach its existing statutory obligations. 3. the presence of valuable works and structures - namely Moolarben Dam and its associated pipeworks and Ulan's airstrip including the proposed lengthening for which it held a development consent.. 357 Each of these was close to the land the subject of MLAs 264 and 290 but not on such land. 358 The letter contains no reference to what are now claimed to be valuable works and improvements. By letter dated 9 February 2007 to Ulan the Department stated that objections 1 and 3 were not valid as they were received outside the time frame specified.

359 The Department advised that objection 2 should be addressed by the Part 3A process under the EP&A Act or between the involved parties as there was no provision under the Mining Act 1992 to prohibit the grant of a mining lease for this reason.

360 The Department also advised that Moolarben would be required to address the issue of valuable works and structures under s 62 as part of the processing of its application.

361 Ulan drew attention to Moolarben's MLA 264 and in particular to Question and Answer 11. The application reads: 11. Is the area sought within a distance of 200 metres of any dwelling house that is a principal residence or within 50 metres of a garden? Is there any other improvement, as described in section 62(1) of the Mining Act 1992, on the land applied for. Yes No Information Not Yet Available (Please circle) [Mr Callow circled Information Not Yet Available] Details to be provided in a Statutory Declaration. If details are not available at the time of application a statutory declaration will be required before a lease is granted. 362 Moolarben's MLA 290, Question and Answer 11 asks the same question and concludes with the same statement. Mr Callow, the person preparing the application has in the blank space provided, inserted the words: "Information Not Yet Available"

There is a change in the format but no change in substance between the answers given in the two MLAs to Requirement 11. 363 Ulan challenged the correctness of the answers given. Mr Callow agreed that he was aware that there were improvements on the surface of MLA 264 from an agricultural perspective. Those he had seen included the dam near Station 8 and the fence along the Mudgee/Cassilis Road. Mr Callow had seen cattle grazing and drinking on MLA 264 He had not seen cattle wandering on the railway line or on the Mudgee/Cassilis Road. Mr Callow thought that he had been to the site at least 10 to 12 times prior to MLA 264 being prepared.

364 Mr Callow said that the reason he circled that the information was not yet available in MLA 264 was that he was not aware whether Ulan had determined that the improvements were valuable improvements. He was aware of the improvements and that they were used by the lessee in his agistment on those paddocks. Mr Callow said that he had not discussed these improvements with Ulan and he did not know if Ulan were going to respond to his notification letter and claim that they were valuable works and structures. Mr Callow continued, "Its up to them to make that call, not me."

365 When pressed about the Statutory Declaration referred to in paragraph 11 of the Application Form Mr Callow said that he would not disclose that there were improvements on the land. Mr Callow took the view that Ulan had had its opportunity to make a claim as to improvements and had not done so either at all or within the time specified. Ulan, by contrast, adopted the position that Mr Callow (and Moolarben) knew that there were improvements on the land the subject of the MLAs and had not supplied the correct information to the Department and so had misled it.

366 I did not regard the position taken by Moolarben as unreasonable in view of its overall approach that taken together the improvements were neither substantial nor valuable. While I thought that the dam near Station 8 and the quarry dam were substantial, stock would not access that latter dam without considerable access work being carried out and many of the claimed substantial and valuable improvements could not be so classed. As previously indicated it was arguable whether some of the claimed improvements which I classed as substantial and valuable should be so classed. In the circumstances which prevailed it was permissible for Mr Callow to take the approach which he did.

367 Assuming, contrary to my view, that Ulan's submission that the notices of 3 and 5 August 2005 had to be sent to its registered office is correct, Moolarben rejected the suggestion that Ulan was not given adequate notice of MLA 264 when the letters of 3 and 5 August 2005 were sent to Mr Orr at Ulan's Private Mail Bag at Mudgee. On 5 August 2005 on receipt of the Mudgee Guardian Mr Orr discussed the application with other officers of Ulan at Mudgee and also mentioned it to Ms Lucy Roberts. This is quite different from immediately sending the notices to Mr Robinson as he did with MLA 290. Mr Callow stated that he felt Mr Orr was the most competent person to handle the statutory notifications as Mr Orr had impressed him (Callow) with his knowledge of the Mining Act, the Surveyors Act and the Planning Act.

368 Mr Orr was conscious that his role had been restricted by Mr Robinson and that Mr Callow was aware of this. Mr Robinson had taken charge of all major matters and, in conjunction with Mr Buffier, had dealt extensively with Messrs Callow and Flannery. It is surprising that Mr Orr did not transmit copies of the notices of Moolarben of 3 and 5 August 2005 promptly to Mr Robinson as he did with the notices of 1 November 2006 received on 7 November 2006. While I accept that Mr Orr made the assumption which he claims there was nothing in the notice of 3 August 2005 to indicate that it was a courtesy copy or that the original notice had been sent to the registered office of Ulan or to either Messrs Robinson or Buffier.

369 It appears from his email of 18 August 2005 that Mr Orr had previously spoken to Ms Roberts about the receipt of MLA 264 and what should be done. Mr Orr wanted Ulan to make a formal submission with respect to Moolarben's MLA (MLA 264). She replied in her email of 18 August 2005 that she had spoken to Mr Robinson who had asked Mr Whitehouse, a solicitor with experience in planning matters and development consents, to prepare a draft response.

370 Neither Mr Robinson nor Ms Roberts appear to have fully appreciated what was required once an MLA has been received. Perhaps they were not sufficiently seized of the amendments made in 1996 and subsequently to the Mining Act.

371 What is also surprising is that even after Ulan's senior executives were furnished with a copy of Moolarben's notice as to MLA 290 on 7 November 2006 no objections or claims were lodged until 29 January 2007.

372 The correct conclusion is that by not later than 5 August 2005 Mr Orr had received Moolarben's notice of 3 August 2005, that on 5 August he and other officers at Ulan became aware of the notice in the Mudgee Guardian as to MLA 264, that the senior executives of Ulan were told of MLA 264 and that submissions in opposition should be lodged with the Department but concentrated on the issue whether there was a valid relevant development consent in existence and did not take any of the steps required under the Mining Act.

373 The receipt by Mr Orr of Moolarben notices of 3 and 5 August 2005 and the steps taken by him preclude Ulan from contending that it was not aware of those notices and the requirement to lodge objections and claims within 28 days.

374 Moolarben relied on the negotiations which took place between Xstrata and Felix Resources. About 13 June 2006 Mr P R Coates, Chief Executive Officer of Xstrata in Australia told Mr Flannery of Felix Resources that Xstrata may be interested in acquiring Felix. Mr Coates stated that Xstrata wanted to look at the operations of Felix and to conduct some due diligence. There were further high level discussions. On 9 November 2006 Xstrata and Felix Resources entered into a confidential agreement. There were further high level discussions. By early March 2007 the negotiations and discussions had come to nought. About 8am on Wednesday 21 March the Chairman of Felix Resources signed an agreement to sell his 19.2 per cent shareholding in Felix to another company. This disappointed Mr Coates. A little later on 21 March 2007 Mr Coates asked Mr Flannery if Felix was interested in a joint venture for the Moolarben project. Mr Flannery invited Mr Coates to put a reasonable offer. In the course of the ensuing discussions Mr Coates stated that Ulan had rights over the land. Mr Flannery replied that Ulan missed the deadline for filing objections. Mr Coates stated that he was aware of that but Ulan had common law rights. There were further discussions on 22 March 2007 between Messrs Flannery and Coates. They could not agree on a "decent offer". These proceedings were commenced on 27 March 2007.

375 It was Moolarben's case that Ulan did not wish to prejudice the discussions nor to undermine the value of the assets it sought to acquire and that this explained its failure to lodge its objections and claims within the specified time. While a possible explanation I did not regard it as the correct one. Xstrata was primarily interested in obtaining Felix or its Moolarben assets for a price which it did not regard as too high. Xstrata would not have been concerned about taking action which would have had the effect of deflating the value of Felix or those assets and consequently the price it had to pay, especially as it could probably take steps at a later stage to reinstate the value. Commercial negotiations tend to be somewhat robust and I doubt if the prospect of loss of goodwill, hurt feelings and the like would have been important considerations.

376 No satisfactory explanation has been advanced on behalf of Ulan for the failure to lodge timely objections and claims. I do not accept that the failure was due to any defects in the service of the notices of 3 and 5 August 2005 and 1 November 2006.

377 The Mining Act, 1992 distinguishes between those cases where a mining lease may not be granted over the surface of any land where there are substantial and valuable improvements (s 62(1)(c) (or a valuable work or structure) and those cases where compensation is payable. Section 265(1) provides that on the granting of a mining lease a landholder of any land (whether or not subject to the lease) becomes entitled to compensation for any compensable loss suffered or likely to be suffered by the landholder as a result of the exercise of the rights conferred by the lease.

378 By s 262 "compensable loss" means loss caused or likely to be caused by: "(a) damage to the surface of land, to crops, trees, grasses or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damage which has been caused by or which may arise from prospecting or mining operations, or (b) deprivation of the possession or of the use of the surface of land or any part of the surface, or (c) severance of land away from other land of the landholder, or (d) surface rights of way and easements, or (e) destruction or loss of, or injury to, disturbance of or interference with, stock, or (f) damage consequential on any matter referred to in paragraph (a)(-(e), but does not include loss that is compensable under the Mine Subsidence Compensation Act 1961." 379 Compensation is payable for damage to grasses or other vegetation or to buildings, structures or works. The building does not have to be substantial and the works or structures do not have to be valuable. However, if the buildings were substantial or the structures were valuable this does not mean that compensation is not payable. A landholder may prefer to make no claim under s 62 and Schedule 1 of the Act in an endeavour to invoke the prohibitions in s 62(1), but claim compensation. As severance loss and consequential loss are part of compensable loss this reinforces the view expressed earlier that a valuable or substantial improvement under s 62(1)(c) does not include large areas of land around it.

380 If a landholder wants to invoke the prohibitions contained in s 62(1) he or she must follow the procedure in s 62 and Schedule 1. That enables it to be determined whether any of the provisions of s 62(1) apply. If the Minister acting on the report of the Warden determines that the ones claimed do not apply the landholder still has his claim for compensation. Not every improvement is sufficient to invoke the statutory prohibitions in s 62(1).

381 Section 75B(1) provides that Part 3A applies to the carrying out of development that is declared under s 75B to be a Project to which Part 3A applies. It was not in issue that the relevant declaration had been made and that Part 3A applied to the Moolarben Coal Project.

382 Under s 75F(2) and (3) the Director-General of the Department of Infrastructure, Planning and Natural Resources is required to prepare environmental assessment requirements and to notify the proponent of these. Under s 75G(1) the Minister may, as he did in the present case, constitute a panel of independent experts to assess any aspect of a project. He may also constitute a panel of officers representing the Department and other relevant public authorities.

383 There is provision in s 75H for the proponent to submit to the Director-General the environmental assessment required and for the Director-General to require a revised environmental assessment to address the matters notified to the proponent. After the environmental assessment has been accepted by the Director-General, that officer makes it publicly available for 30 days. During that period any person may make a written submission to the Director-General. Section 75H stipulated how these are to be dealt with.

384 Under s 751 the Director-General is to give a report to the Minister and that report must include specified matters.

385 Section 75J provides that if the proponent has duly applied to the Minister for approval under Part 3A and the environmental assessment requirements under Part 3A, Division 1 have been met the Minister may approve or disapprove of the carrying out of the project with such modifications or on such conditions as he may determine.

386 Section 75U provides that specified authorisations in certain other State Acts are not required for an approved project and that the provisions of any such Act that prohibit an activity without such an authority do not apply. The provisions affected include Ministerial concurrence under Part 3 of the Coastal Protection Act 1979, an approval under Pt 4 or an excavation permit under s 139 of the Heritage Act 1977, a permit under s 87 or a consent under s 90 of the National Parks and Wildlife Act 1974 and a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948. Further provisions have been enacted to the effect that certain statutory powers may not be exercised in certain circumstances.

387 Moolarben pointed to s 75U as an illustration of the wide ranging reach and effect of the Minister's approval. Moolarben submitted, correctly, that s 75U replaced the need for authorisations under a variety of important Acts whose purpose was directed to ends not associated with the approved project. (such as protection of the environment). Moolarben submitted that s 75V dealt with authorisations facilitative of an approved project and that such authorisations cannot be refused.

388 Sections 75V(1), (4) and (5) provide: "75V Approvals etc legislation that must be applied consistently (1) An authorisation of the following kind cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under this Part: (a) an aquaculture permit under section 144 of the Fisheries Management Act 1994 . (b) an approval under section 15 of the Mine Subsidence Compensation Act 1961, (c) a mining lease under the Mining Act 1992, (d) a production lease under the Petroleum (Onshore) Act 1991, (e) an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 (for any of the purposes referred to in section 43 of that Act), (f) a consent under section 138 of the Roads Act 1993. … (4) A reference in this section to an authorisation or approval includes a reference to any conditions of the authorisation or approval. (5) This section applies to a person, court or tribunal that deals with an objection, appeal or review conferred on a person in relation to an authorisation in the same way as it applies to the person giving the authorisation." 389 The directly relevant provision is s 75V(1)(c). There is no difficulty in applying this to the various subsections of s 63 of the Mining Act with the possible exception of s 63(3A). Section 62(1) is in a different position as it provides that a mining lease may not be granted over the surface of any land which falls within para (a) or (b) or (c) except with the written consent of the owner. The Minister administering the Mining Act is powerless to grant a mining lease in respect of the surface of the land to which any of the paragraphs mentioned refers, subject to the EP&A Act and the Regulations.

390 One contention is that where s 75V(1) provides that an authorisation of a mining lease cannot be refused this overrides any provision in s 62(1) which would prevent the granting of a mining lease.

391 Moolarben submitted that s 75V of the EP&A Act had impliedly repealed s 62(1) of the Mining Act and relied on this statement of principle in Goodwin v Phillips (1908) 7 CLR 1 at 7 by Griffith CJ: "Where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are penal or both refer to civil rights." 392 Moolarben also relied on the judgment of Gummow and Hayne JJ, with whom Gleeson CJ agreed, in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 230 ALR 370 at [48] where it was said that the doctrine of implied repeal "requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands" 393 Moolarben submitted that s 75V(1)(c) and s 62(1)(c) addressed the same point - the Minister's power pursuant to s 63(1)(b) to refuse to grant a mining lease. If the Minister for Planning grants a Part 3A approval, the Minister for Primary Industries, Mineral Resources cannot invoke s 63(1)(b) to refuse to grant a Mining Lease. Moolarben further submitted that there was actual contrariety. Section 62 of the Mining Act formerly obliged the Minister to refuse certain mining lease applications whereas s 75V(1) provides that the Minister administering the Mining Act cannot refuse a mining lease where there is an approved project.

394 The submission concentrates primarily upon the power in s 63(1)(b) of the Mining Act of the Minister to refuse the application for a mining lease. It does not pay sufficient heed to the fact that where s 62(1) applies the Minister has no power to grant a mining lease over the surface of the land. That subsection does not impact upon the Minister's power to grant a mining lease below the surface of the land. Again, where s 62(1) applies any refusal to grant a mining lease operates not by virtue of an exercise of Ministerial discretion but by virtue of the prohibition in that subsection of the Mining Act.

395 Moolarben submitted that its approach to the construction of s 75V of the EP&A Act and s 62 of the Mining Act was consistent with s 75V(1)(c) and the new legislative policy introduced in the EP&A Act. Reliance was placed on the Second Reading Speech of the Minister for Infrastructure and Planning, as to inserting Part 3A into the EP&A Act in 2005 (Act No 43 of 2005, Sch 1 - Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005. That speech read in part: "A single assessment and approval system for major development and infrastructure projects will replace approval processes currently scattered through several pieces of legislation … … The bill provides up-front certainty for major projects through the introduction of new concept approvals, removes the need for up to 15 different approvals and licences from nine separate pieces of legislation replacing them with one assessment and approval process … " (Hansard 27 May 2005) 396 Moolarben also relied on the Explanatory Memorandum. It adopted this description of the new legislative policy "to provide a separate streamlined and integrated development assessment and approval system for major infrastructure and other projects of significance to the State (and to facilitate the delivery of critical infrastructure projects)" and a "single assessment" process for major project approval.

397 Moolarben submitted that these remarks of Jagot J in Tugun Cobaki Alliance Inc v Minister for Planning and RTA [2006] NSWLEC 396 at [42] correctly summarised the position: "Section 75V provides that any authorisation required under other nominated Acts cannot be refused if necessary for carrying out an approved project and is to be substantially consistent with the approval under Pt 3A. This reflects part of the second reading speech in which the Minister said that '(n)ew Pt 3A provides for integrated approvals that will consolidate 15 approvals given under nine Acts into a single assessment process and approval given under the Environmental Planning and Assessment Act'." (Hansard, 27 May 2005, p 16322). 398 I do not disagree but these remarks do not address the situation under s 62(1) of the Mining Act. 399 Moolarben submitted that because the Minister for Primary Industries, Mineral Resources does not have the power to decline to grant a lease to Moolarben this Court does not have the power which that Minister does not have and cannot enjoin the grant of a mining lease over the whole of the subject lands (cf s 75V(5)).

400 Moolarben relied upon Pt 1A of the Environmental Planning and Assessment Regulation which came into operation on 1 August 2005 - see 75Z of the EP&A Act (the Regulation making power under Pt 3A) and the general Regulation making power under s 157.

401 Section 75Z(b) provides that the regulations may make provisions for or with respect to the approval of projects under Pt 3A and to approved projects including: "(b) requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under this Part. 402 Under s 8B(c) of the Regulation the Director-General's Report under s 75I of the EP&A Act is to include the suitability of the site for the project

403 Under s 8F(1)(c) of the Regulation the consent of the owner of land on which a project is to be carried out is required for a project application unless "the application relates to a mining or petroleum production project." Under s 8F(4) "mining or petroleum production" includes any activity that is related to mining or petroleum production, but does not include a project on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974.

404 Moolarben contended that this had the effect of negativing the consent requirements of s 62(1) of the Mining Act. Section 8F(3) specifies the steps to be taken by way of notification where the consent of the owner of the land is not required.

405 Moolarben pointed out that sections 8K and 8L also refer to mining leases and make detailed provisions.

406 Moolarben submitted that once the Minister granted approval under Pt 3A of the EP&A Act that triggered s 75V. That removed the restriction under s 63 which would otherwise apply as a result of s 62(1). The mining lease would be granted and that would bring s 265 of the Mining Act into operation and the assessment of compensable loss.

407 Moolarben submitted that the Minister could impose a condition that it had to acquire, if Ulan so desired, any land the subject of an approval on which there was a dwelling house, being a principal place of residence, a garden or a substantial and/or valuable improvement.

408 Reference was made to cl 3 on p 7 (excessive noise) and cl 22 on p 11 (excessive dust emissions) of the Minister's Conditions of Approval and the land acquisition procedures in Schedule 4 pp 21-22 of the Conditions. Much would depend on the terms of the conditions as to any acquisition rights. It was not suggested that the conditions in the present case required Moolarben to acquire any of Ulan's land.

409 Two examples were taken. One assumed that there was a very valuable principal residence on the site of the proposed mine project. Would s 62 apply in such a case or could it be overridden under Pt 3A and the Regulation. The other assumed that a valuable principal residence stood in the way of the construction of a major freeway. Part 3A applies to a wide range of infrastructure. These two examples illustrated the difficulties which could arise. The powers of statutory compulsory acquisition should not be overlooked in the latter instance.

410 Ulan submitted that while the effect of s 75V of the EP&A Act was to remove from the Minister for Mineral Resources the discretion which he has under s 63(1) of the Mining Act it did not in any way affect the prohibition or restrictions on the Minister for Mineral Resources under s 62 of the Mining Act. Section 75V cannot overcome a statutory prohibition of the type that appears in s 62(1).

411 Ulan further submitted: (a) There was no express reference in s 75V of the EP&A Act depriving (or relieving) the Minister of Mineral Resources of his obligations under the Mining Act nor to depriving landholders of their private property rights to the extent that they are protected under s 62 of the Mining Act. (b) A specific Act should prevail over a later general Act or provision; a fortiori where, as here, the specific Act and provisions contain important protections of private property rights (not to mention mine safety - s 61 of the Mining Act ) . (c) It could not have been the intention of the legislature to deprive landholders of the protections of s 62 of the Mining Act without an express reference to this in s 75V of the EP&A Act. 412 Counsel for Ulan submitted that the provisions of s 75V of the EP&A Act and s 62 of the Mining Act could be readily read together as an harmonious whole and that they were not in conflict and to the contrary of each other.

413 While Ulan has important rights as the owner of the land and I would not ignore the common law position, the coal is owned by the Crown and the Mining Act provides extensive provisions as to the mining of the coal and the grant of coal mining leases. Two sets of rights have to be considered and reconciled. Part 3A of the EP&A Act was designed to provide a streamlined and single assessment approval.

414 I was initially attracted to Ulan's submission as to the manner in which s 75V and s 62(1) could be read together, particularly because of the statutory and not discretionary prohibitions or restrictions in s 62(1) and the discretionary power in s 63(1). However, three points should be made: (i) Part 3A deals with mining leases specifically and envisages a single assessment and approval process with the Director-General of Planning providing a report encompassing all considerations. (ii) Section 75Z enables regulations to be made requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under Pt 3A (iii) Section 8F(1)(c) of the Regulation provides that the consent of the owner of land on which a project is to be carried out is required unless the application relates to a mining project 415 Section 8F(1)(c) does not specifically state that the owner's consent under s 62(1) is not required. The subject is approached by stating that consent is required unless the application relates to a mining project. In my opinion that indirect provision has the same effect. 416 Accordingly, because of the provisions of Pt 3A of the EP&A Act and the Regulation I have reached the conclusion that, as the Minister for Infrastructure and Planning has approved a project under Pt 3A of the EP&A Act, the prohibitions and restrictions in s 62(1) no longer apply and the Minister for Primary Industries, Natural Resources cannot refuse to grant Moolarben's application. Once the mining lease is granted the provisions in ss 265 and 262 as to compensation operate. Discretion 417 Moolarben submitted that even if I were against it on all the various issues Ulan should be refused any relief on discretionary grounds for the following reasons:

(a) Ulan delayed commencement of these proceedings for 19 months after the deadline for its objections and claims as to MLA 264 and 4 months after the deadline for its objections and claims as to MLA 290.

(b) Moolarben has been substantially prejudiced in that it has spent about $19 million in developing the Moolarben Coal Project and the Project will produce significant benefits to the State and its people.

(c) The real reason for Ulan's delay was its attempts to acquire Felix and Moolarben .

(d) None of the senior executives of Ulan giving evidence explaining why no claim was made within time and that its approach was not driven by its commercial desire to acquire Felix and Moolarben. (e) The evidence of Mr Nasser and Mr Holland was unsatisfactory.

(f) The conduct of the litigation in that Ulan initially claimed that no one with the relevant degree of seniority at Ulan or Xstrata had any idea of what had actually happened. Further, much time during the trial was occupied in extracting from Ulan relevant and non-privileged documents and documents claimed to be privileged were not fairly and accurately described and should have been produced prior to the trial. (g) there had been inconsistent conduct on Ulan's part. 418 The question of delay loses much of its impact if service of the notices was not valid and effective. The substantial complaint of Ulan was that the MLA 264 notice did not come to the attention of the senior executives of Ulan and Xstrata. That notice was not sent to the registered office nor to them. That was the notice that advised of the 28 day time limit. Mr Nasser, Ulan's general counsel said that he first received copies of MLA 264 on 28 March 2007. I do not accept that "the real reason for Ulan's delay" was its attempt to acquire Felix and Moolarben's and access to "in confidence commercial material" so it could carry out due diligence prior to making an offer. I did not think that the failure to call any of the senior executives of Ulan nor the conduct of the trial was sufficient reason to exercise the Court's discretion to refuse relief. While some mistakes were made and there were memory defects the conduct of Ulan, its advisers and the litigation did not warrant the refusal of relief on discretionary grounds if Ulan had otherwise been entitled to relief. This was difficult and complex litigation.

419 I record my appreciation of the industry and skill of all counsel and the solicitors for Ulan and Moolarben. Although hard fought, the case was conducted with good humour and the co-operation and efficiency of the solicitors and the parties in arranging the view and on the view was notable.

420 Having regard to the views I have formed on the construction and operation of the whole of s 62 and Schedule 1 of the Mining Act and the construction and operation of Pt 3A of the EP&A Act and the Regulation, Ulan's summons should be dismissed.

421 Unless Ulan submits to the contrary within 7 days it should pay Moolarben's costs. I am prepared to hear argument on costs and will list the matter for argument if requested by either Ulan or Moolarben.

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