Ulan Coal Mines Pty Limited v Mid-Western Regional Council - [2013] NSWLEC 1167 - NSWLEC 2013 case summary — Zoe

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Ulan Coal Mines Pty Limited v Mid-Western Regional Council

[2013] NSWLEC 1167

Land and Environment Court (NSW)|2013-06-12|Before: Exhibits J

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Land and Environment Court (NSW)

Decision date

2013-06-12

Before

Exhibits J

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Original judgment source is linked above.

Judgment (49 paragraphs)

[1]

Introduction - classification of rateable land 1The Local Government Act 1993 (the Act) requires that all rateable land be classified for the purposes of calculating the rate to be derived from the statutory land value for a parcel of land determined by the Valuer General pursuant to the provisions of the Valuation of Land Act 1916. The dictionary in the Act defines a parcel of land in the following terms: parcel of land, in relation to rateable land, means a portion or parcel of land separately valued under the Valuation of Land Act 1916. 2Before moving on to the statutory framework within which each of these proceedings must be determined, I should note that some of the parcels of land (the Appeal sites) that require consideration and characterisation in various of these proceedings are not single allotments of land or contiguous groups of allotments of land to create a parcel of land in what might ordinarily be understood by that term. This arises because the Valuation of Land Act permits the Valuer General to aggregate noncontiguous allotments or elements of allotments and treat them as a single parcel. 3As will become obvious in the later discussion, particularly from the reproduced air photos for Appeal sites 8 and 9, a parcel created for the purposes of a single valuation can comprise a substantially geographically spread aggregation of what are comparatively small land areas - so that they are treated as a single entity for valuation purposes (whilst not having any logical coherence self-evident from an examination of the component parts). 4This is not said in any way as a reflection on the statutory scheme or any advocacy for policy or statutory change. It is an observation of the difficulty of the task in characterising such a parcel in a fashion requiring consideration of a dominant use to be derived from a consideration of all of the constituent elements that form the unrelated mosaic elements of the parcel. 5The statutory framework created by the Act establishes four classifications for these purposes. 6Those classifications are residential (defined in s 516 of the Act), farmland (defined in s 515 of the Act) and mining (defined in s 517 of the Act). If a parcel of land does not have a dominant use that permits its ready classification into one of these three defined categories, the Act creates a default categorisation so that rateable land that is otherwise unable to be classified is to be classified as business (see s 518 of the Act). 7The provision setting out the test for land to be classified as mining land is contained in s 517 of the Act, a provision that reads: 517 Categorisation as mining (1) Land is to be categorised as mining if it is a parcel of rateable land valued as one assessment and its dominant use is for a coal mine or metalliferous mine. (2) The regulations may prescribe circumstances in which land is or is not to be categorised as mining.

[3]

The decision in Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86 13The three reclassification challenges by Peabody Pastoral Holdings Pty Limited were, as a group, to have been heard by Preston CJ. Before the hearing, these matters were settled and consent orders proposed. However, in addition to the consent orders that settled the substantive contested issues in each matter, Peabody Pastoral Holdings Pty Limited also applied for orders that the Council pay the costs that this company had incurred in challenging the reclassifications. 14The costs application was heard by Preston CJ with judgment delivered on 5 June (Peabody Pastoral Holdings Pty Limited v Mid-Western Regional Council [2013] NSWLEC 86 (Peabody). 15Although the decision in Peabody is a costs decision and does not, perhaps, strictly give rise to matters of comity in my consideration of the issues in these proceedings, the Chief Judge undertook a comprehensive analysis not only of the particular processes undertaken by the Council in reclassifying the land owned by Peabody Holdings Pty Limited but also of the interpretation of and proper approach to the application of the various elements that arise in consideration of s 517 of the Act. Whilst the manner in which the provision is to be applied to the factual circumstances in each of these nine sets of proceedings is different, the framework within which those facts are to be analysed is, self-evidently, the same. 16In my consideration of how I should proceed to assess the classification in each of these nine proceedings, I have, obviously, closely considered the analysis undertaken by the Chief Judge in paras 59 to 91 of his decision in Peabody. In addition to my consideration of the terms of that decision in the Chief Judge's reasoning on and conclusions about the requirements for undertaking the relevant classification process, I also invited the parties to make submissions to me concerning the decision in Peabody and how that should impact, if I were to adopt it, on the classification process I was obliged to undertake. I have had the advantage of written submissions by Ms Duggan SC and Mr Galasso SC, senior counsel for the Council and the applicant respectively and shorter submissions in reply to each other's initial comments. 17In each instance, those submissions dealt with the broad matters of principle arising from the decision in Peabody as well as specific submissions as to how application of the process set out by the Chief Judge would, in the opinion of the applicant or the Council alter (if at all) the position originally advanced with respect to each of the nine parcels of land involved. 18I should now indicate that not only am I grateful to the Chief Judge for his analysis of how a classification process concerning land potentially subject to a mining classification pursuant to s 517 should be undertaken but that the various propositions set out by the Chief Judge are entirely in accord with the conclusions that I have, independently, reached on these matters of interpretation. 19As a consequence, I am grateful to the Chief Judge not only for the clarity of his exposition but also for the fact that his having done so saves me the necessity of an articulation of the relevant matters for myself. It is, therefore, appropriate, in my adoption of and agreement with what his Honour wrote that I should, for understanding the analysis that I subsequently undertake concerning each of the nine parcels of land in these proceedings, reproduce in their entirety the relevant paragraphs of his Honour's judgment: 20The relevant portions of the decision in Peabody are set out in full below: 59 This material reveals that the Council's reasons for categorising Peabody's parcels of land as mining are fivefold: (a)the land is affected by noise from the Wilpinjong Coal Project mine; (b)the noise affected land is owned by Peabody which is a mining company or a subsidiary of a mining company; (c)the purpose for which Peabody acquired the land concerned the noise affectation by the mine; (d)conditions of the project approval for the mine required Peabody to acquire land affected by noise exceeding specified criteria if requested by the noise affected landowner; (e)even if the land was not used for a mining purpose, it was held for a mining purpose. 60 In my view, none of the reasons supported categorisation of Peabody's three properties as mining under s 517 of the LG Act. Mere noise affectation by mine insufficient to constitute use for mine 61 The three properties the subject of the appeals were not physically used by Peabody for a coal mine. The only potential use of the land for a coal mine contended for by the Council was as a sensitive noise receiver located in proximity to a coal mine. The Council contended that noise affectation by a proximate coal mine was a relevant factor in categorising use of the land for a coal mine because it may trigger acquisition of the land under a condition of project approval or because noise attenuation over the land amounted to its use as a buffer from the mine. 62 I do not agree that affectation of land by adverse impacts such as noise from land on which a coal mine is operated causes the affected land to be used for the purpose of a coal mine. 63 Virtually all uses of land have external impacts to varying degrees. Use of land for farmland, residential, mining or business can each cause pollution (air, water, land, noise, light or visual), traffic and parking problems, or biodiversity impacts external to the site of the farmland, residential, mining or business use. Such externalities do not result in the land subject to the externalities being used for the purpose of the activity that causes the externalities. The residence affected by air pollution from an adjoining factory is not thereby used for the purpose of factory. A wetland affected by water pollution from an upstream farm is not thereby used for the purpose of a farm. So too land that is affected adversely, such as from noise impacts, by an open cut coal mine is not thereby used for the purpose of a coal mine. Affectation of land is to be distinguished from use of land. Change in ownership of noise affected land does not change use of land 64 In submissions, the Council accepted the above proposition that mere affectation of land by a coal mine does not cause the affected land to be used for a coal mine. The Council contended, however, that affectation of land by a coal mine can result in the use of the land for coal mine if the affected land is in the same ownership as the affecting land. Hence, the statement in the report to the Council's meeting on 16 May 2012 that the settlement date of purchase or lease of land by a coal mining company is the trigger for a consideration of re-categorisation. 65 For example, the Council accepted that when the land at 3 Barnett Street, Wollar, which was used for residential accommodation, was owned by someone other than Peabody, the land should not be categorised as any category other than residential, notwithstanding that it was noise affected by the nearby coal mine. However, upon transfer of ownership to Peabody, the Council contended that the use transmogrified to be for a coal mine, notwithstanding that there was no change in actual use of the land for residential accommodation. 66 The Council's contention is unsupportable. A change in ownership by itself cannot cause a change in the purpose for which land is used for categorisation under s 517 of the LG Act. Purpose of acquisition does not cause a change in use 67 The Council also contended that the purpose for which the land was acquired was a relevant factor in determining the use to which the land is put. The Council contended that acquisition by Peabody of the parcels of rateable land because they were affected by noise from the coal mine causes those lands to be used for the coal mine. In submissions, the Council relied on the statement in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 515 that use of land (for the purpose of determining whether the land was exempt from rates under the then s 132(1)(d) of the Local Government Act 1919) "will vary with the purpose for which it has been acquired and to which it has been devoted". 68 The Council submitted that the purpose for which land was acquired might be evidenced by the acquisition under a condition of project approval for the mine. In its decisions to re-categorise the properties as mining and to decline to change the category from mining, the Council relied on the existence of conditions of the project approval for the Wilpinjong Coal Project mine that entitled an owner of land affected by noise exceeding certain criteria to request acquisition of the noise affected land by the mine operator. The Council contended that the existence or activation of such conditions caused the noise affected land to be used for the coal mine. 69 As Peabody submitted, however, there was no evidence that any of the three properties the subject of these appeals were acquired by Peabody under the conditions of the project approval on the request of the landowner. 70 In oral submissions, the Council put its argument a different way. The Council submitted that the conditions of the project approval for the Wilpinjong Coal Project dealing with noise apply only to "privately-owned land". "Privately-owned land" is defined to not include land owned by a mining company or its subsidiary. Hence, upon Peabody acquiring land affected by noise from the coal mine, the condition of the project approval requiring the mine operator to ensure that the noise generated by the mine not exceed specified criteria would cease to apply. By this mechanism, the mine operator could be relieved from having to take action at the noise source (the coal mine) to reduce the noise that would be received on other land to a level that complied with the criteria in the condition. 71 The Council submitted that acquisition of noise affected land by Peabody for this purpose caused the acquired land to be used for the coal mine. 72 I do not consider that the purpose for which land has been acquired, by itself, is imprinted on the use of the land upon acquisition. First, a mere intention to use land that is to be acquired for a purpose that is different to the purpose for which the land is currently being used is not sufficient to effect a change of use of the land for that purpose upon acquisition. Only when the acquired land is devoted to use for the different purpose for which it was acquired can there be a change in the purpose of the use. The intended purpose of the use of the land must be manifested by the commencement of some activity on the land: Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 at [22] and Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2010] NSWSC 867; (2010) 79 NSWLR 724 at [59]-[60]. 73 Secondly, the grant of approval for a mine with a condition entitling noise affected landowners to require acquisition of their land if the noise exceeds certain criteria does not effect any change in the purpose of the use of the land subject to the condition. The affected land is not part of the development site the subject of the project approval. The owners of the affected land may be given entitlements under, but they and their land are not bound by, the project approval. 74 Thirdly, any subsequent acquisition of noise affected land pursuant to such a condition also would not, by itself, cause a change in the purpose of the use of the land acquired - it simply causes a change in ownership. The reason why the land is so acquired does not affect the use of the land. The mine operator is required to acquire the land in these circumstances, because that is what the condition of approval for the mine requires the mine operator to do. The mine operator is required by law to carry out the activity of the coal mine in accordance with the conditions of the project approval. One of these conditions is to acquire land affected by noise exceeding specified criteria on request by the owner of the noise affected land. If the mine operator is so required to acquire, and does acquire, noise affected land, the mine operator complies with the law. But such compliance with the law is with respect to carrying out of the activity on the mine site that is the subject of the approval. It does not result in a use of the acquired noise affected land for the coal mine. Acquisition of noise affected land does not expand the boundaries of the mine site on which the coal mine is approved to be carried out. 75 Fourthly, any acquisition of noise affected land in order to secure the benefit of not having to comply with conditions of a project approval requiring that the noise generated by the mine not exceed certain criteria for that land also does not thereby affect the use of the acquired land. As was said by Fullager J in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 506, "[t]he root of the fallacy lies in the assumption that deriving an advantage from the ownership of land is the same thing as using the land." This observation was approved by the High Court in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 at [75] to which they added: That is, while it is probably true to say that a person who uses land derives an advantage from it, the converse proposition, that deriving an advantage from ownership of the land is using the land, is false. 76 In this case, the mine operator may derive an advantage from owning, or having a subsidiary own, land that is noise affected by the mine because such ownership causes the land to no longer be privately-owned land to which the noise conditions of the project approval apply. But the deriving of that advantage from ownership of the land is not using that land. Indeed, on the Council's argument, the only land on which there is a change in the activities by reason of the acquisition of the noise affected land is the mine site. If the noise conditions no longer apply, the mine operator would not have to curtail the nature, extent or other features of the coal mine to reduce the noise generated from the mine to comply with the criteria in the noise conditions and indeed might even be able to increase the noise without breaching the noise conditions. Hence, it is the use of the mine site, not of the acquired land, that could be altered by the change in ownership of the noise affected land. Mere holding of land for mining purposes not a use for a mine 77 The Council contended that the definition of "mine" in the Dictionary of the LG Act extends the concept of the use of land to include the holding of land for a mining purpose. My view is that this is incorrect. 78 I do not consider that the word "mine" where twice occurring in s 517(1) of the LG Act is used with the meaning defined in the Dictionary to the LG Act. There are at least four indicators. 79 First, the word "mine" in the Dictionary and in s 517(1) are directed to different concepts. The defined word "mine" concerns land: it defines what particular types of land will be a mine. Land will be a mine if it is "land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose." The definition incorporates the purpose for which land is used or held. 80 Section 517(1) does not use the word "mine" to refer to a particular type of land. Rather the word "mine" is concerned with the purpose of the use of the land. The purpose is the end to which the use of the land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]. 81 Hence, it is not possible to substitute the definition of "mine" from the Dictionary, which is concerned with a particular type of land, for the word "mine" in s 517(1) which is concerned with a particular purpose for which land is used. 82Secondly, the word "mine" in s 517(1) is qualified by the adjectives "coal" or "metalliferous". The Dictionary definition of "mine" has no such qualification. 83 As a consequence of these two differences, substitution of the defined term for "mine" for the word "mine" where twice occurring in s 517(1) would lead to a nonsensical statutory provision, as the following shows: Land is to be categorised as "mining" if ... its dominant use is for a coal 'land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose' or metalliferous 'land, on or below the surface or partly on or partly below the surface, used or held for any mining purpose'". This cannot have been the legislative intention. 84 Thirdly, s 517(1) is only concerned with whether the dominant "use" is for a coal mine, while the defined word "mine" in the Dictionary is concerned with the use of land for mining purposes as well as the holding of land for mining purposes. The concepts of the use of land and the holding of land are different. The legislature defined "mine" in the Dictionary using both the concepts of use and holding of land but, by contrast, only identified in s 517(1) the criterion of use, not holding, of land for a coal mine or metalliferous mine. This must been seen to be deliberate. This deliberate decision to limit categorisation of land as mining only on the basis of use of land and not holding for a mine would be undermined if the word "mine" in s 517(1) had the meaning defined in the Dictionary of including not only use but also holding for any mining purpose. 85 Fourthly, the adjective "dominant" that qualifies "use" in s 517(1) cannot sensibly be applied to a holding of land. The adjective "dominant" that qualifies "use" in s 517(1) makes sense where land is used for a coal mine or metalliferous mine but not where land is merely held and not used for a coal mine or metalliferous mine. Land cannot have "its dominant use" for a coal mine or metalliferous mine if it is not used, but is only held, for a coal mine or metalliferous mine. This is a further indicator that land held for a coal mine is not within the ambit of the concept of dominant use of land for a coal mine in s 517(1). 86 Hence, in my view, the Council was in error in this case in considering that the mere holding by Peabody of the properties in question was sufficient to enable categorisation of the properties as mining under s 517 of the LG Act. 87 The Council also submitted that mere holding of land for a mining purpose could amount to a use for a mining purpose. It relied on the dicta of Bignold J in Ulan Coal Mines Ltd v Mudgee Shire Council (unreported, 11 January 1988) at p 17, relying on the Newcastle Hospital case (concerning exemption of land from rates), that "the non-use of land to provide an environmental buffer for mining operations may constitute a use of that land for mining purposes". 88 My view is that this statement is too dogmatic. The question of whether land is used for a particular purpose is a question of fact and degree in each case. The approach to categorisation of use also depends on the statutory provision under which categorisation is required. The statutory provisions governing categorisation for the purposes of planning law or for determining whether land is exempt from rates are different to those governing the categorisation of rateable land for rating purposes. Hence, care needs to be taken in applying dicta in cases dealing with what constitutes a use of land under other statutory provisions in determining the use of land for rating categorisation purposes. 89 In any event, however, the dicta in Ulan Coal Mines Limited v Mudgee Shire Council relied on by the Council was followed by the statement that where "there is an actual use of those lands for grazing purposes, it cannot be concluded that there is a concurrent 'mining purpose' use of the buffer lands based upon their non-use. The fact of actual use necessarily excludes the fact of non-use" (at p 17). 90 Applying this statement to the facts of the present appeals would mean that the actual use of Peabody's lands for residential or farming purposes would exclude any "non-use" of the lands as a buffer to attenuate noise from the coal mine. Hence, even if Peabody could be said to hold the lands for a mining purpose (being for attenuation of noise from the coal mine), the actual use of the lands for residential or farming has the consequence of precluding a use of the lands for a coal mine. 91 In summary, I am of the view that the Council was incorrect in its construction of s 517, read with the definition of "mine" in the Dictionary, and in its application of those statutory provisions to the facts of these three properties owned by Peabody.

[10]

Appeal site 1 (Matter 31279 of 2012) 32Appeal site 1 is identified by the Council as Property Number 8541. 33This parcel comprises fourteen (14) contiguous allotments with a number of internal road reserves of which one, toward the north-eastern corner, is a made road and several of which are used, in part, for internal access purposes. The fourteen (14) allotments total 647.7 ha of which approximately 178 ha are vegetated. A variety of improvements are located on the land including a vacant dwelling, various farming activity related sheds, cattle yards, sixteen (16) dams and a grain silo. There is a bore with a stock and domestic purposes licence and there is extensive internal and external fencing. The totality of the parcel is zoned RU1 Primary Production under the Mid-Western Regional Local Environmental Plan 2012. 34The position of the company, from the commencement of the proceedings, is that the totality of this parcel is farmland with no active mining use on it. 35The post Peabody submission for the Council concerning this parcel is in the following terms: Though the noise affectation on part of the parcel would need to be disregarded following Peabody, the influence and hence dominating use of the land is to service the water disposal needs of the mine. For that reason, the land is within the mine site. Farming activity on the land has been rendered subordinate to this activity. The dominant use is mining. 36Colinta Holdings Pty Limited (Colinta) has occupied the parcel since 2005 for the purposes of the grazing of cattle. Colinta is a wholly owned subsidiary of Xstrata Coal, a company that has, within its corporate stable, a number of individual corporations that include not only Colinta but so includes the company. This relationship is not, in itself, a matter that has any impact on how the use of the land should be assessed. As was made clear in Peabody, the mere fact of ownership has no role to play in assessing the nature of a use. However, as discussed later, in addition to the mere element of ownership, it is the Council's position that the control that has come with ownership has been exercised in a fashion that has required Colinta's activities on at least part of the land leased by it to be carried on in a fashion necessary to accommodate the needs of the mining activities of the company and, as a consequence, the grazing activities should be regarded as subordinate to and subsumed by that mining purpose and use. 37Although there are future proposed mining related activities on and under this parcel, no such activities are currently being undertaken on or under it. Although there is a proposed water discharge pipeline to the Talbragar River, some distance generally to the north of the parcel, across this parcel in the future, it is not currently constructed and no preliminary works have been undertaken. 38Although an upcast ventilation shaft had been proposed on this land, it was Mr Stanley's evidence that this had been removed from the current Ulan West Mine Plan. 39Whatever the position might be at some future time when the pipeline and associated works currently contemplated in the current Mining Operation Plan are constructed or when the elements of proposed longwall mining panels that will be, to a small extent, under the southern end of this parcel (although outside the life of the current Mining Operation Plan) no above or underground mining activities were taking place as at 1 July 2012. Although some use may be being made of tracks/roads on this parcel for access purposes, such use is trifling when compared to the grazing activities being undertaken by Colinta. 40As a consequence, the dominant use being made of this parcel of land as at 1 July 2012 is as farmland and it is to be so categorised.

[11]

Appeal site 2 (Matter 31280 of 2012) 41Appeal site 2 is identified by the Council as Property Number 13168. 42This parcel has an area of approximately 1,700 ha and comprises all or part of twenty-eight allotments. The totality of the parcel is zoned Rural 1 in the Midwestern Local Environmental Plan. Virtually the entirety of this parcel is located in the major project area of Stage 2 of Moolarben. 43During the course of the site inspection, we entered this site from the main road adjacent to the railway line through a gate at approximately the midpoint of the length of the railway line traversing this parcel. We travelled, generally, to the south before turning toward the north and eventually exiting the property in the vicinity of where its north-western boundary crosses the main road and the railway line. Part of our travel, in the north-western area, was just outside the boundary of the property but viewing back, toward the east, into the property was available. There were no significant visual indices of mining activities taking place on this property. 44Mr Raymond Mitchell occupies the whole of this parcel pursuant to a lease that commenced on 1 July 2009 and concluded on 30 June 2013. He uses the land for grazing. He has been carrying out these activities since about 1994 when he took over the lease from his father. Various areas on the land have been sown to crops in the past but Mr Mitchell has not undertaken any cropping activity on the land during the past approximately 10 years. 45The lease that Mr Mitchell has permits the company unlimited access to this land for the purposes of mining and ancillary purposes including exploration, surveying and monitoring provided the company gives 24 hours notice of its intention to do so and uses its best endeavours to ensure that livestock are not endangered. It was his evidence that he has always run the farming operation on the land in order to make a profit. 46I do not understand it to be contested that, from time to time, access is exercised to the land for limited mining purposes but that no mining, actually taken place on the land. Mr Mitchell's evidence included his belief that there is no mining infrastructure on this parcel. 47He gave evidence that he noticed dust inside the house where he stays when he is on the land after the Moolarben mine commenced operating and that, from that time, he also heard noise from bulldozers and other heavy machinery associated with the mine. 48The post-Peabody submission by the company is that, although this parcel may be affected by the Moolarben mine it is not actually used for the purposes of a mine and thus cannot be so categorised. 49The post Peabody submission from the Council is that: The land is in the initial stages of being used for extractive activity. In contrast to the decision in Peabody the land is not merely being held. There is in fact a physical manifestation of the use by way of exploration. Any competing farming use has been deliberately made subordinate to this mining activity and, on the evidence, cannot be certain will continue beyond July. The dominant use is mining. 50Although it is clear that Appeal site 2 is held for future mining purposes (whether by the company or by Moolarben is a matter that does not detain me in these proceedings), it is clear that Peabody, when applied to the present circumstances of Appeal site 2, does not support recategorisation of this parcel as having the dominant use of mining. To the extent that there are present exploration activities undertaken on this land, they are clearly, on the factual evidence of Mr Mitchell (which I accept), minor and are clearly outweighed by his grazing activities. 51To the extent that there is affectation by noise and dust of at least some portions of Appeal site 2 (and even assuming such affectation is of the whole of this parcel), such affectation is not a use and the mere fact of ownership by the company of such affected land does not change the use of the land. 52As a consequence, the dominant use being made of this parcel of land as at 1 July 2012 is as farmland and it is to be so categorised.

[12]

Appeal site 3 (Matter 31281 of 2012) 53Appeal site 3 is identified by the Council as Property Number 13913. 54This parcel has an area of 190.2 ha of which approximately 134 ha is vegetated and the remaining approximately 56 ha is cleared and, on Mrs Sandra Highett's evidence, comprises native grass pastures or previously improved pasture. Between 1975 and 1993, the Highetts ran approximately 80 sheep on the land and undertook cropping on portion of the cleared land. From 1975 until Mrs Highett sold the land in 2011, she grazed cattle on the land in small numbers. Mr and Mrs Highett undertook a number of land improvements including fencing and the construction of two dams. 55It is not necessary to deal with Appeal site 3 at any length as the Council concedes that, on the basis of the relevant elements of the decision in Peabody, this land should not be categorised as mining. 56However, there does remain a dispute between the parties as to the correct classification if it is not to be mining. 57The Council's written submissions concerning this parcel are in the following terms: Noise affectation and the purpose of the acquisition to ameliorate this impact following Peabody does not amount to a use for mining. However, the site is not vacant as the mine exercises complete dominion over it. Nevertheless, whether or not the land is found to be vacant, the structures on the land are suitable for its use as a residence. The previous history of Mrs Highett demonstrates that the land is not suitable as farmland. The appropriate category is residential. 58As a consequence of this concession made by the Council, there is no need to undertake any detailed analysis of the earlier contended basis for a mining categorisation. It is, however necessary to consider the relevant evidence to determine whether the categorisation contended for by the company should be preferred over that contended for by the Council. 59The affidavit of Mrs Highett, from whom the company purchased the land on 19 August 2011, set out the activities that she and her late husband had undertaken on this parcel from the time of the purchase in August 1975 to the death of her husband in 2009. She said in her affidavit: "After my husband died I continued to live on the land by myself but decided to sell the land because I was finding it too difficult to look after." 60It was Mrs Highett's evidence that a family with the surname of Marshall owns the land to the south of this parcel and she said that: To the best of my belief the Marshalls once ran an ostrich farm but I believe they now generally farm cattle and goats. 61Although the Council now concedes that this parcel should not be categorised as mining, it does contend that the appropriate categorisation is residential. On the other hand, the position adopted by the company is that the land should be categorised as farmland. 62Appeal site 3 is zoned RU1 Primary Production under the Mid-Western Regional Local Environmental Plan 2012. The land is currently unoccupied. The land, for the purposes of s 515(2) of the Act, is not rural residential land. 63It is not, at present, being used for any farming use of the type set out in s 515(1) of the Act. It is not currently being used for residential purposes as described in s 516(1) of the Act. 64It is clear from the Chief Judge's decision in Peabody that the use is to be that actually being undertaken as at the relevant date, 1 July 2012. 65Section 519 of the Act is entitled How is vacant land to be categorised? The provision is in the following terms: 519 How is vacant land to be categorised? If vacant land is unable to be categorised under section 515, 516 or 517, the land is to be categorised: (a) if the land is zoned or otherwise designated for use under an environmental planning instrument-according to any purpose for which the land may be used after taking into account the nature of any improvements on the land and the nature of surrounding development, or (b) if the land is not so zoned or designated-according to the predominant categorisation of surrounding land. 66The term "vacant land" is not defined in the dictionary to the Act. I have not been able to find any case in this jurisdiction or in any other jurisdiction that would provide assistance to me where the meaning of the term "vacant land" is dealt with as a matter of general principle rather than in the context of a specific statutory definition. 67As a consequence, it is appropriate, in my view, to have regard to the definition of the word "vacant" as set out in the Macquarie dictionary. This definition is in the following terms: vacant

having no contents; empty; void.
devoid or destitute (of).
having no occupant: vacant chairs.
untenanted, as a house, etc.
not in use, as a room.
free from work, business, etc., as time.
characterised by or proceeding from absence of occupation: a vacant life.
unoccupied with thought or reflection, as the mind.
characterised by, showing, or proceeding from lack of thought or intelligence.
not occupied by an incumbent, official, or the like, as a benefice, office, etc.
Law a. idle or unutilised; open to any claimant, as land. b. without an incumbent; abandoned: a vacant estate (one having no heir or claimant). 68It seems to me that, in light of this definition, this parcel of land should be categorised by regarding it as "vacant land" and thus to be dealt with under s 519. 69As earlier observed, the land is zoned RU1 Primary Production under the Mid-Western Regional Local Environmental Plan 2012. The various improvements on the land earlier noted include dams and fencing of a type designed to facilitate grazing activities. Mrs Highett's evidence was that portion of the land is suitable for cropping for the purposes of providing fodder for animals grazed on the land. 70Her uncontradicted evidence concerning the use of the land to the south makes it clear that that land is also used for agricultural purposes. The electricity transmission lines to the south and south-east (as discussed, in part, in consideration of location 11 of Appeal site 8) are also relevant. However, there is no evidence about what might be the nature of other surrounding development (if any) for the purposes of s 519(A). 71This evidence provides, at best, some but modest information of the nature of any surrounding development. As I cannot conclude for the reasons in the above analysis that the use should be residential and the Council does not suggest that the transmission lines require categorisation as business, the only conclusion I should draw with respect to this land in the application of s 519 for the purposes of categorisation is that the land should be categorised as farmland as contended by the company. 72As a consequence, this parcel of land as at 1 July 2012 is to be so categorised.

[14]

Appeal site 5 (Matter 31283 of 2012) 78Appeal site 5 is identified by the Council as Property Number 13953. 79This parcel is a single allotment in the village of Ulan. It is a little over 2,000 m² in area and has a weatherboard cottage and a garage and other outbuildings erected on it. 80Mr Kevin Travers provided evidence concerning the use of this dwelling. In summary, Mr Travers and two other employees of the company use the dwelling. These three employees work varying shifts and so interact with each other in the house on a frequent but somewhat irregular pattern. Mr Travers has been staying at the house since at least early 2008. He and each of his fellow residents have their own dedicated room that is not used by anybody else during any of their periods of absence. 81The house is not the permanent domicile of any of them but is used by them when they are in attendance at Ulan as part of their employment by the company. They do not pay any rent for the premises nor do they carry out maintenance activities although it was Mr Travers' evidence that he carried out cleaning and other domestic activities when in occupation. 82The company's position is that this parcel is a residential use within the village of Ulan and thus should be categorised as residential. 83The Council, on the other hand, contends that the appropriate classification is commercial. Its submission to this effect is in the following terms: Noise/dust affectation and the purpose of the acquisition to ameliorate this impact following Peabody does not amount to a use for mining. While the structures on the land are suitable for residential use, the actual use of those structures is not for residential purposes but as temporary accommodation of workers between shifts. The dominant use is not within a defined category and hence commercial. 84This submission is based on the default proposition contained in s 518 of the Act which reads: Land is to be categorised as business if it cannot be categorised as farmland, residential or mining. 85I have assumed that by the Council's use of the word commercial in its submission it means business. 86Section 516 of the Act sets out the bases for categorisation of land as residential. The relevant provision, in s 516(1)(a) is in the following terms: (a) its dominant use is for residential accommodation (otherwise than as a hotel, motel, guest-house, backpacker hostel or nursing home or any other form of residential accommodation (not being a boarding house or a lodging house) prescribed by the regulations), 87The use that is currently undertaken by Mr Travers and his colleagues is certainly not capable of being described as a hotel, motel, guesthouse, backpacker hostel or nursing home nor is it a boarding house or lodging house as defined in s 516(1A). There are no other forms of residential accommodation prescribed by the regulations to be excluded (per s 516(2)). 88There is no requirement in this definition for the residential accommodation to be permanent rather than temporary (if this, indeed, were to be the appropriate description of Mr Travers' occupancy). Even if temporary, a proposition I do not accept for the reasons that follow, such accommodation is not excluded from being residential by the statute. However, given the continuous part-time occupancy of this house by Mr Travers for some five years; the fact that he has exclusive occupancy of his room within the building and does not share this with others means that I am satisfied that, in broad descriptive terms, although not his domicile in any legal sense, Mr Travers' occupation of this building could best be characterised as a "home away from home". 89On either a definitional basis or on a practical consideration of the manner in which the building on Appeal site 5 is used, it should be categorised as residential as at 1 July 2012.

[15]

Appeal site 6 (Matter 31284 of 2012) 90Appeal site 6 is identified by the Council as Property Number 18934. 91This parcel is 476.73 ha of which approximately 60 ha is cleared and grass covered. The remainder of the land is bushland with a little under 400 ha being reasonably heavily timbered and the balance of the vegetated area being covered with low scrub. Appeal site 6 is partly zoned RU1 Primary Production and partially zoned E3 Environmental Management under the Mid-Western Regional Local Environmental Plan 2012. 92During the course of the site inspection, we traversed this land in a generally north to southwest basis following the track that runs north - south through the property and then turning, to the west, on an adjacent property, to exit in the southwestern corner of the parcel. 93During the course of the site inspection, our traverse of the roads on this property showed that they were presently four-wheel-drive access and were, for that purpose, in a reasonably well-maintained state. Although there is a road reservation that runs west to east through the property, only part of the track system appears to follow in or near that road reservation. 94Mr Christopher Brackenrigg, who lives at Portland, and his wife have leased this parcel from the company since August 1994. The lease expires in August 2014. Mr and Mrs Brackenrigg grazed cattle on the land between 1991 and 2006. The occupation of the land for grazing purposes commenced prior to the lease from the company as Mr and Mrs Brackenrigg were the owners of the land who sold it to the company in 1994. 95It was Mr Brackenrigg's evidence that there was external and internal fencing, four dams, a demountable house and farm infrastructure including cattle yards on the parcel. 96Mr Brackenrigg's written evidence set out the sales of cattle from the grazing activities on the land between 1993 and 2006. Grazing activities on the parcel ceased in about January 2006. 97Between early 1991 and late 1995, pasture improvement activities were carried out to provide feed for the cattle being grazed. This pasture improvement activity stopped toward the end of 1995 because of drought, a drought that Mr Brackenrigg said had continued to affect the parcel for approximately 10 years. 98In 2000, Mr Brackenrigg cleared approximately 40 ha of regrowth in an area he described as being known as the Shooters Paddock. 99It was his evidence that from late 2011, his son and he had started clearing other regrowth around the house and along some of the internal fence lines. This activity was undertaken because it was his intention to reintroduce cattle grazing. He also gave evidence that he and his son used the property for feral pig hunting. 100His affidavit concludes with the following three paragraphs: 51.Around July 2012 I received a rates notice from the Mid-Western Regional Council for the rating year 2012-2013. I was shocked at the size of the rates payable under this rates notice and as a consequence stopped improving the land. 52.If the rates issue is resolved I intend to continue farming the land under the lease. 53.If the rates issue is resolved I intend to renew the lease when it expires on 28 August 2014 to continue farming the land under the lease. 101The fact that Mr Brackenrigg has temporarily suspended his farming activities in response to the Council's rate notice (a notice that is, effectively, subject to challenge in the appeal for this parcel) does not set aside the nature of the activities that he had been undertaking over the time of his occupation up until the receipt of that rate notice. 102The rate notice, which is appended to the Application Class 3 concerning this Appeal site, makes it clear that it was not issued until 17 July 2012, after the date for which the classification determination I am to make is applicable. 103Mr Brackenrigg is liable to pay the rates on the land as a consequence of his lease. Although Mr Brackenrigg describes his cessation of farming activities as being around July 2012, this cessation cannot have occurred until after he had received the rate notice, a rate notice with an issue date of 17 July. 104The Council's submissions concerning the post Peabody consideration of this Appeal site are in the following terms: Noise/dust affectation and the purpose of the acquisition following Peabody does not amount to a use for mining. However, the land is subject to exploration activity for mining part will be used for extraction purposes in the reasonably foreseeable future. The land could be used for that purpose at any time and that requires the mining used to dominate any other activity so that any farming activity of Mr Brackenrigg is made subject to the needs of the mine. The dominant use is mining. 105In the reclassification application made by the company, the company contended that that this parcel should be categorised as farmland, a position to which it adheres in these proceedings.

[16]

Mining activities 106To the extent that the land is currently used for mining activities, those activities are, on the surface, currently confined to use of the various four-wheel-drive access roads that traverse this parcel together with such surface exploration activity as might need to be undertaken for future mining purposes. 107The current Mining Operation Plan shows that there are intended to be underground mining activities in the north and north-eastern portions of this parcel. Mining Operation Plan - plan 4a shows more detail of this proposed underground activity and makes it clear that the North West Mains, the major underground access to the various longwall panels that will run in a north-western direction off these Mains will be constructed in a fashion to pass under the north-eastern and northern portion of this parcel. The final element of those Mains is not proposed in the north-western corner of this parcel until after the expiry of the current Mining Operation Plan at about the end of 2017. All of the elements of these Mains and proposed longwall panels that are located under this parcel did not exist as at July 2012 and are not proposed to be constructed for several years after that date. 108There are also intended to be groundwater monitoring sites located on this parcel. 109Mr Stanley's evidence confirmed that future underground mining was proposed for three of the allotments, those being the allotments falling in the area to the north and northwest earlier described. 110Thus I am satisfied that, with respect to the surface activities described by Mr Brackenrigg that there has been a continuous use of the land in a fashion satisfying the requirements of s 515(1) of the Act as his activities (grazing and support activities and activities in preparation for grazing) have had a significant and substantial commercial character and has been for the purpose of profit on a repetitive basis. 111There is also clearly no sufficient present mining use that could conceivably be regarded as being dominant of these activities. 112Appeal site 6 is thus to be classified as farmland as at 1 July 2012.

[18]

Surface activities 117The land within this parcel forms part of land leased by Mr Robert Kearins, through his company, Ardrob Pty Ltd, for grazing purposes. Mr Kearins has been farming this land since 1984 when it first took ownership of portion of the land. It was Mr Kearins' evidence that he has carried out farming and grazing activities on the land since the time of its initial acquisition in 1984. 118In May 1999, relevantly, the parcel was sold to the company with a coincidental leaseback arrangement over the entire area for farming. Mr Kearins has continued to carry out farming on the parcel since that time. 119During the early years of his occupation, sheep were grazed but this was subsequently replaced by cattle grazing as a consequence of a combination of low prices and feral dog attacks on the sheep. From the time of the initial acquisition of the land in 1984 until 2008, cropping for oats occurred on various portions of the land - such cropping being of from 8 to 40 ha at a time. The total area that has been subject to cropping was approximately 200 ha of the parcel. 120Mr Kearins gave evidence concerning the sales of cattle from the land and that the farming activities that he has carried out since 1984 have been for the purposes of making a profit. Documentary evidence annexed to his affidavit provided proof of the profits made in the 2010/11 and 2011/12 financial years. 121As can be seen from the air photo, the shape of the parcel of land as valued by the Valuer General and transmitted to the Council for rating purposes excludes a number of areas within one of the allotments. These exclusions have the effect of removing much of the dewatering infrastructure associated with previously mined areas under the south-western area of the parcel. 122However, during the course of the site inspection, we observed that a number of pipelines forming part of the dewatering activities were, in fact, within this parcel. There were also a number of other mining infrastructure elements, an underground power supply borehole, an electricity substation and a radio repeater tower located on this parcel.

[19]

Underground activities 123It is clear from the Mining Operation Plan - plan 4a that the north - south running Mains presently in existence extend as far as the southern boundary of this parcel. They are intended to be extended during the life of the current Mining Operation Plan with a number of new longwall panels to be established to the east and west of the Mains under the northern portion of this parcel. 124However, it was Mr Stanley's evidence that the earliest of these had started in March 2013 as part of the Ulan No 3 mine and were not being actively mined as at 1 July 2012. On Mr Stanley's evidence, there was, at that date, no actual underground mining use in this parcel. 125There is, no doubt, that there is intended to be active underground use of at least part of this parcel for mining activities during the life of the current Mining Operation Plan. With respect to this proposition, the post-Peabody company's submissions said: Lands identified for future use as a mine cannot be characterised presently as a mine. There must be an actual present physical use of the lands for mine. To the extent that the Council relies upon some future intended use for mine purposes, including future underground mining, that future use must be disregarded. 126The Council's reply to the company's submissions in response to Peabody, dealt with that proposition in the following terms: In response to (25)(b), it is incorrect to say that Peabody establishes that land identified for future use as a mine cannot be characterised as a mine. The point made at (72) in Peabody is that a mere change in ownership will not affect the character of a land use until something happens to change the physical activity on the land. All that is required is the commencement of some activity on the land. The citation of apartments and subdivision indicates that his Honour accepted that this commencement of physical activity can be in the nature of preliminary works. There has been and will be works of this kind over sites 6-9. Indeed, there are active mining activities over sites 7, 8 and 9 at present. The submission that future intensification of mining activities on these sites should be ignored should be rejected. 127There can be no doubt that there are some current mining activities being undertaken on this parcel at the present time. 128Approximately 120 ha of the land is proposed to be fenced off as part of the Bombadeen Vegetation Offset Domain and, after this fencing has been erected, this portion of the parcel may not be available to be used for grazing purposes However, this is subject to the qualification concerning possible grazing discussed later concerning Appeal site 9). It is not, at the present time, so fenced and, as I understood Mr Kearins' evidence, was currently being used for grazing. 129The land proposed to be fenced off as part of the Bombadeen Vegetation Offset Domain, however, is currently subject to that designation and, although subject to grazing, fulfils (at least to some limited extent in light of the current grazing activities) some ecological offset purposes. However, as discussed in Peabody when dealing with the decision of Bignold J in Ulan, this passive non-use of part of the parcel is, at least at the present time, overtaken by its active use for grazing purposes. In this context, it is unnecessary to consider whether or not the future fencing of this portion of the corridor offset area would constitute a mining use or not (although I have some considerable doubt as to whether it would in light of Bignold J's decision in Ulan Coal Mines Ltd v Mudgee Shire Council (unreported, 11 January 1988)) as there is an active use that has the effect of excluding the passive use of that area. 130The extent of the current physical activities and infrastructure, including mining related access on the surface and access from the surface along the north/south Mains to the old mine workings below (which Mains will be used to access the future mine workings in the Ulan No 3 underground mine) are not, in themselves sufficient to constitute a use that dominates the grazing uses of the land undertaken by Mr Kearins. 131Although there are extensive proposed future underground works, the preparatory works that have been undertaken to support them (even having regard to the fact that the north - south running Mains run to the boundary of the parcel on its southern side toward its western end) are not so substantial as to constitute mining activity being undertaken on and under this parcel so as to displace Mr Kearins' grazing activities as the dominant use of the land. Whilst this may change over time as the Mains extend further to the north and longwall panels commence to be extracted either to the east or west of those Mains, the position as at 1 July 2012 does not support any conclusion that the dominant use of the land should be other than as farmland. 132Appeal site 7 is thus to be classified as farmland as at 1 July 2012.

[23]

Analysis 140In the company's application for reclassification, the company proposed that this parcel should be reclassified as farmland. It was the company's position, as I understood it, that, if I were not to support this classification, the alternative advanced was the classification as business. 141The Council's post-Peabody submissions concerning this parcel were in the following terms: Noise/dust affectation and the purpose of the acquisition to ameliorate this impact following Peabody does not amount to a use for mining. However, substantial parts of this land hold mining infrastructure (mining dam, access roads, broken back heritage conservation domain, irrigation scheme infrastructure) and the substantial proportion of the land is within the mine site. Some portions are immediately adjacent to the proposed extension of the open cut activity. The use of these parts for their mining purposes requires domination over any other activity so that any relatively minor residential activity on any relatively minor portion is nevertheless made subject to the needs of the mine and hence rendered subordinate to the dominant, or influential, use for mining. 142With respect to this submission, I observe that, as best I am able to see from the air photo and that which was shown during the course of the site inspection (together with the fact there is nothing contained in either Mr Grech's analysis of the material for the Council nor Mr Stanley's evidence on behalf of the company) there is nothing that identifies any element of this parcel as having Bombadeen Irrigation Scheme infrastructure located on it. 143As all of this parcel must be analysed collectively in balancing uses in an endeavour to establish what is the dominant use, any of those locations (1, 4, 6, 9 and 10) that are, at present, merely vegetated or have no active use on them, are to be disregarded. I have adopted this position on the basis that provided there is, somewhere (as is undoubtedly the case for various locations within this parcel) some positive use, that will displace any non-use. Although these various elements might be regarded as vacant, they are merely part of the elements forming the whole and do not have some default vacant land use to be ascribed to them as if they were a separate parcel in their own right to be treated as "vacant land" pursuant to s 519 of the Act. 144Location 3, the most north-western portion of this parcel, is to be preserved for ecological and Aboriginal cultural heritage reasons. This is a use (if it be a "use" at all) of the type displaced by active uses elsewhere. 145There is no mining proposed anywhere in the vicinity of this portion of the parcel during the life of the current mine plan although, at some future time, outside the life of the current Mining Operation Plan, longwall panels are proposed under this location.

[28]

The remaining elements of the parcel 157All of the remaining elements within this parcel do not, on my assessment, have any active use being undertaken on or under them. 158As a consequence, I have three uses to be considered, residential, business and mining. Although it would be necessary to consider issues of intensity as well those of mere utilised area, I have scant information about this and am unable to draw any meaningful conclusions that would compel departure from considering these uses on an area basis.. 159I do consider it reasonable to assume that the business uses by the transmission lines and by Ulan Water constitute an active use of the totality of that area. 160On the evidence of the occupation by Mr and Ms Laing of location 15 and the evidence concerning occupation of location 13 by employees of the company (treating this as residential for the same reasons generally arising for consideration in the earlier discussion concerning Appeal site 3 - as I have no evidence one way or the other on this point and it is not suggested by the Council that it is used for any purpose other than the type of residential purpose by employees of the company noted by Mr Stanley in his affidavit) and that the totality of location 15 is used by the Laings for residential purposes, this is to be weighed against the mining uses which, at locations 2 and 5 can be assumed to be active whilst at location 16, although the evidence was that water from the dam had not had to be used for emergency purposes, this use should also be regarded as active. 161I therefore have three competing active uses of which the largest land area is used for residential purposes. The fact that these three uses, between them, in aggregation, comprise only about 12% or so of the total area of the parcel is not relevant as the parcel itself cannot be regarded as vacant as a consequence of the existence of these three actual uses. 162I have, therefore, concluded that this Appeal site should be classified as residential as at 1 July 2012.

[29]

Appeal site 9 (Matter 31287 of 2012) 163Appeal site 9 is identified by the Council as Property Number 20955. 164This parcel is 6,663 ha in area. 165For this Appeal site, a process similar to that for Appeal site 8 was taken by me in identifying a number of locations within the parcel that appeared to me to be relevant to be treated separately for consideration of what uses might be being undertaken on or under those locations. 166As with Appeal site 8, this Appeal site comprises a number of disparate and unrelated locations that are aggregated to form the single parcel for valuation purposes. Whilst not as visually splintered and anarchic as depicted in the air photo for Appeal site 8, nonetheless there are eight locations of groups of allotments or part allotments for consideration in this appeal. As with Appeal sites 6, 7 and 8, it is necessary to consider not only activities on the surface of the land within this parcel but also to what extent are there currently subterranean mining activities (if any) under the various locations in the parcel as they, too, require consideration in assessing the uses and the extent of the uses made of the land that comprises this parcel. 167A copy of the marked air photo depicting Appeal site 9 is reproduced below: 168The company's application for reclassification of the land proposed that it be reclassified from mining to farmland, a position to which the company adhered during the proceedings. 169In the post-Peabody submissions by the Council, the Council submitted: Noise/dust affectation and the purpose of the acquisition to ameliorate this impact following Pastoral does not amount to a use for mining. However, the land is subject to a use for mining which is physically manifested on the land by: actual underground and aboveground mining activities; the setting aside of land for offset and revegetation purposes carrying with it the obligation to undertake land management activities to achieve the objectives of the offset; the substantial disposal of water from the mine for the mine's purposes. Any agricultural activities both qualitatively and qualitatively subordinate to the mining use. The dominant use is mining. 170It is important to note that, in the company's reply submissions post-Peabody, the company makes it clear that it does not accept that the Bombadeen Irrigation Scheme infrastructure is infrastructure used for mining.

[31]

Surface activities 172Three of the locations depicted on the air photo are currently the subject of grazing activities. These are locations 1, 5 and 8 and the grazing activities are discussed below in more detail. 173In its Statement of Facts and Contentions in Reply (Exhibit J), the company acknowledges that there are a number of surface infrastructure elements located on Appeal site 9 that service the Ulan mine. The company says that these comprise a core shed, an industrial shed and a ventilation fan for the subsurface workings together with service power lines for the various facilities. The company concedes that approximately 26 ha is used for such mining related infrastructure (at paragraph 3 of the applicant's reply to the respondent's contentions). In this document (in the applicant's facts at paragraph 3), the company acknowledges a number of improvements that are agriculturally related, including stating that the Bombadeen Irrigation Scheme irrigates 241 ha of land but notes (at paragraph 15.c in the applicant's reply to respondent's contentions) that the irrigation scheme uses 215 ha. 174These figures can potentially be reconciled by observing that, for the south-easterly of the four pivot irrigators, portion of the irrigated area visible on the air photo is outside the area leased to Colinta in this parcel. It is not necessary for me to draw any conclusion as to the basis on which Colinta may access this additional irrigated area (if there is, in fact, a real discrepancy in the land areas) as it is not determinative for the opinion that I have formed concerning this Appeal site. Consequence, I have proceeded on the assumption that the smaller area is the correct area for the purposes of this assessment. 175Although 412 ha of this Appeal site is within the Moolarben Coal Project Approval Area, the applicant does not concede that this area is occupied (and, by extension, is not used by) Moolarben for mining purposes. 176There is also a network of elements both within and outside this Appeal site that are designated as salinity offset areas. The portions within this parcel are discussed below.

[32]

Location 1 (C1A, C1B and C1C) 177By far the largest elements of the land within this parcel are those that are subject to an access licence from the company to Colinta. Colinta licenses 4,878 ha of the land that is within this parcel. Selfevidently, this comprises the largest element of this Appeal site held under some form of surface tenure or forborne occupancy. It represents approximately two-thirds of the land area within this Appeal site. The land occupied by Colinta is at the northern end of the Appeal site and is in three separate elements. Two of these are, in practical effect, separated from the third by the land that comprised the parcel discussed in Appeal site 7. It is convenient to analyse the issues for each of these elements separately, they being the locations noted on the air photo for this Appeal site as C1A, C1B and C1C. 178Mr Johncock, Colinta's Managing Director, gave evidence on behalf Colinta concerning the grazing activities that that company undertook not only on land licensed from the company in Appeal sites 1 and 9 in these proceedings but also across the entire operations of Colinta in New South Wales, the Northern Territory and Queensland. These grazing activities were carried out, on his evidence, for commercial purposes and with the object of making a profit. 179His oral evidence (together with material attached to his affidavit) made it clear that, although that objective might only occasionally be achieved, nonetheless the activities of Colinta on land licensed to it by the company were part of an integrated cattle breeding and/or fattening operation that had an overall corporate objective of seeking to be a commercially viable farming enterprise. 180The land within locations C1A and C1B, the surface of which is occupied by Colinta, includes all or part of the area irrigated by a number of pivot irrigators forming part of the Bombadeen Irrigation Scheme. A pivot irrigator is a structure with two arms that rotates around a central pivot head. The central pivot head is fed with water by an underground pipe. The two arms of the structure rotate using the pressure of the water that is pumped to the pivot head to activate the movement as well as to irrigate the pasture below. 181Each of the pivots within the Bombadeen Irrigation Scheme has a diameter of 100 m or so and there are four of them. The area irrigated by each of the pivots is sown for pasture improvement purposes including lucerne and rye grasses. The air photo shows these circular irrigated areas as a distinctly different shade of green when compared to those surrounding pastures that have not been pasture improved and irrigated. 182It was Mr Johncock's evidence that the irrigation process is carefully managed having regard to the quality of the water available to ensure that there is no inappropriate accumulation of soil harmful waterborne substances such as salts. 183The water that is used for the Bombadeen Irrigation Scheme is pumped from a dam that is located on location C1B. Water is pumped into this dam by pipes that carry water extracted from subsurface mine workings. The pumping stations and the associated pipes include those crossing Appeal site 7 or in proximity to that land (as discussed in my consideration of that Appeal site). The present method of application of water extracted from the subsurface mine workings is intended, as noted in my discussion of Appeal site 1, to be joined, in the future, by a pipeline that will permit riverine discharge of water extracted from the mine workings to the Talbragar River. 184It is the Council's position that the application of the water for pasture improvement purposes, in a fashion that necessitates having regard to matters such as the salt load of the water, demonstrates that this irrigation activity constitutes a use for mining. On the Council's case, not only the application of the water to the ground but the controlled pasture improvement process and the resultant use of the improved pasture for livestock grazing constitutes a mining use rather than a use consistent with the use of the land being as farmland. 185I accept that the dewatering infrastructure and the infrastructure for the transportation of the water to the dam from which it is extracted to supply the Bombadeen Irrigation Scheme should properly be characterised as a mining use. However, I am unable to accept the broader proposition that that water when extracted from the dam for the purposes of the Bombadeen Irrigation Scheme is used for mining. 186The only possible bases for founding such a proposition is the common ownership as part of the overall Xstrata corporate holding group of the company and of Colinta and that the water source is from within mine workings. 187As to the first, it was Mr Johncock's evidence that the controlling of the application of the water was necessary as a result of the quality of the water extracted from the mine. That proposition, as I understood his evidence, was a necessary element of prudent land management for pasture improvement purposes. Although the availability of both land and water to Colinta may only arise as a consequence of Colinta being part of the Xstrata group, the irrigation practices are, on Mr Johncock's evidence, ones that would be necessary to be observed whatever was the source of the water having regard only to the relevant issues of water quality. 188Second, the fallacy of suggesting that the adoption of such practices by Colinta was a mining use can be considered by analogy with a number of other possible circumstances. 189For example, if the pipeline across and beyond Appeal site 1 were to be constructed to permit riverine discharge of mine workings extracted water to the Talbragar River, it is reasonable to assume that any downstream irrigator would need to have regard to the salt load or any other relevant water quality factors impacting on the application of that water if such water from the Talbragar River were to be used for pasture improvement irrigation purposes. 190It would be logically absurd, in my view, to suggest that such an irrigator was carrying out a mining use in that pasture improvement activity as a consequence of the source of that water. 191The only differences between such a circumstance and Colinta's position are the difference in transportation method for the water and ownership of the irrigated land. 192A more fanciful example demonstrating the absurdity of the Council's position follows to reinforce this point. Water storage management and water release through the Snowy Mountains Hydroelectric Scheme is operated for the purposes of the efficient generation of electricity (business use). Water that is discharged into dams such as Lake Eucumbene and extracted for the purposes of town water supplies to Adaminaby, for example, could hardly cause human consumption of that water in that town to be regarded as using that water for the business of the generation of electricity. 193The process of reasoning applied by the Council in proposing that the application of water through the pivots of the Bombadeen Irrigation Scheme for pasture improvement and cattle fodder grazing purposes should be regarded as using that water for mining would, inevitably lead to the fanciful and illogical conclusions proposed for the two examples above. 194However, for the purposes of the aggregated analysis of the various uses being carried out on or under this parcel, the fact that the land is accessed for mining exploration or for broader mining activity access purposes is a factor to be countered as part of the mining use facets of land within this parcel. 195To the extent that Mr Johncock and the employees of Colinta need to manage the grazing activities that are undertaken on the land in C1A and C1B or C1C in order to accommodate short-term mining related activities, it is appropriate for me to acknowledge that and to take that into account in assessing the extent of mining use of the land. The fact that such accommodation may be necessary from time to time does not, however, on my assessment, mean that the potential for such accommodating management and short-term modification to what might be a broader grazing regime means that the totality of the grazing regime should be regarded as being subordinated to and subsumed into a mining use. 196Most of the Bombadeen Vegetation Offset Domain is in C1B and most of the Bombadeen East Vegetation Offset Domain is in C1C. 197The whole of the Bombadeen Vegetation Offset Domain and virtually all (if not completely all) of C1A and C1B are also within the salinity offset areas. 198It is clear that, although there may be restrictions on grazing within parts of the various offset areas, strategic grazing may be utilized as a weed management tool or for reducing bushfire fuel loads (see Exhibit V at page 56). There is no evidence that, at the present time, any form of complete exclusion of grazing operates in these areas. Indeed, controlled rotational grazing is identified as one of the broader strategies as part of the management of the salinity offset area (see Exhibit 41 at page 32). 199Although the Biodiversity Management Plan (Exhibit 41) envisages stock removal from both the Bombadeen Vegetation Offset Domain (pages 35 and 36 of Exhibit 41) and from the Bombadeen East Vegetation Offset Domain (pages 39 and 40 of Exhibit 41), both of those are expressed to be subject to the provisions of 5.6 Grazing Management/Removal of Stock in the Offset Management Program (Exhibit V) which, although not in precise terms as to timing or area, makes it clear that grazing is not necessarily absolutely prohibited in these areas. Indeed, there is no evidence that there is currently complete exclusion of grazing from these areas. 200It is clear that, for location 1, the North East Access Road traverses location C1C to the mine site (Mining Operation Plan - plan 1 - reproduced later). This road's road reserve/maintenance area is the only area of C1C that could be regarded as being used for mining. 201Thus the mining uses for C1A, C1B and C1C, in combination, comprise, at most:

the conceded 26 ha noted earlier;
the dewatering infrastructure and the infrastructure for the transportation of the water to the dam supplying the Bombadeen Irrigation Scheme;
the North East access road; and
the extent to which Colinta must accommodated exploration and more general mining access to location 1.

[39]

Underground activities 213At the outset, I should observe that significant elements of the underground area shown on the Mining Operations Plan under Appeal site 9 either are shown as areas that have previously been mined (shown in black on Mining Operation Plan - plan 1) or areas that are proposed to be mined during the life of this mining operation plan but have not yet been mined (shown in red on the plan). As Preston CJ confirms in Peabody, the relevant test is that relating to current activities rather than past or future ones. 214To assist understand that which follows, Mining Operation Plan - plan 1 and Exhibits O and T are reproduced below. 215Portion of the existing North-South Mains shown on Mining Operation Plan - plan 1 runs under C1B past previously mined areas. These Mains must be used in order to provide a underground access to all future mine workings to the north proposed to be undertaken during this Mining Operation Plan's life until the end of 2017 (Mining Operation Plan - plan 4a). They appear, from the Mining Operation Plan, to be of varying width but, doing as best I can from plan 1, to be some 200 m wide. They provide access, relevant to this location, to longwall panels being mined between the third quarter of 2012 and forecast to be mined between July 2013 and June 2014. The Mains are also to be extended under C1B northward, some hundreds of metres, during this period of time (from a combination of the three above images). 216Elements of the access drives for longwall panels are also proposed under portion of C1B running to the west from the north/south Mains and running to the north from the North West Mains (Exhibit T). 217Given the somewhat imprecise nature of the information given in the documents reproduced above and in Mr. Stanley's oral evidence, I have taken the Council's case at its highest and taken a modestly expansionary view of what might be regarded as current mining activities under the surface of the this Appeal site. However, to the extent that past mined areas are not actively being used (as is the case, as I understood it, with the exception of the north/south running Mains) they are to be ignored too, in my view. Mere ownership or past activity cannot provide any rational basis for identification of these areas as being subject to a current mining use. 218It is difficult to assess the precise area, in a two-dimensional fashion, occupied by these mining activities. It is impossible (as I have no evidence, and all, on this point) to assess what might be the three-dimensional volume occupied by such mining activities under C1B. It is, however, clear to me that they are an insignificant area when compared to the surface area of this Appeal site. 219The consequence of my rejection of the Council's submission concerning Colinta's use of this Appeal site (particularly my rejection of propositions advanced concerning the Bombadeen Irrigation Scheme and the vegetation offset areas) is that the residual mining activities on this parcel do not aggregate to reflect any mining use of significance when compared to the three grazing uses being undertaken. I have, therefore, concluded that this Appeal site should be classified as farmland as at 1 July 2012.