Ulan Coal Mines v Minister for Mineral Resources & Anor

Ulan Coal Mines v Minister for Mineral Resources & Anor - [2008] NSWCA 174 - NSWCA 2008 case summary — Zoe

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Friday 8 August 2008 ULAN COAL MINES v MINISTER FOR MINERAL RESOURCES & Anor Judgment 1 HODGSON JA: I agree with the orders proposed by Bell JA, and with her reasons. 2 On the third issue identified by her as being raised on the appeal, namely the requirements for valid service under s 383 of the Mining Act 1992 (NSW), I have nothing to add. On each of the other two issues, I make the following additional comments. 3 Clause 23A of Schedule 1 to the Mining Act provides only for claims by landholders "that something on the land is a valuable work or structure". The only effectual decision that can be made pursuant to a reference to a warden under cl 23B is whether to declare something "not to be a valuable work or structure" (in which case it is taken not to be a valuable work or structure for the purposes of s 62 of the Mining Act) or not to so declare (in which case it is taken to be a valuable work or structure for the purposes of s 62). 4 Thus the procedures under clauses 23A and 23B have no application to questions that may arise under s 62 of the Mining Act as to whether or not something is a dwelling house or, if so, whether it is a person's principal place of residence; or whether or not something is a garden. 5 I note also that, although s 62(8) provides to the effect that "valuable work or structure" in s 62(1)(c) does not include anything declared not to be a valuable work or structure by cl 23B, it does not explicitly provide that anything so declared not to be a valuable work or structure cannot be "a substantial building, dam, reservoir, contour bank, graded bank, levy, water disposal area [or] soil conservation work", within s 62(1)(c). However, I think the better view is that this is probably implicit, because of the words "or other" in s 62(1)(c). 6 If the primary judge's view on this first issue is correct, there is one class of things referred to in s 62(1) in respect of which s 62(1) ceases to have effect if the cl 23A notice is not given, and another class of things in respect of which s 62(1) is unaffected by failure to give a cl 23A notice. Further, the primary judge's view involves reading the word "includes" in s 62(8) as having the same effect as "means" or "includes only". 7 Having regard to these considerations, I do not think the provision of time limits in cl 23A is sufficient to justify a reading down of the clear words of s 62(1). 8 Turning the second issue identified by Bell JA, what s 75V of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) relevantly provides is that a mining lease under the Mining Act cannot be refused if it is necessary for carrying out an approved project and is to be substantially consistent with the approval under the relevant part of the EPA Act. 9 Dealing first with the provision that a lease "cannot be refused", there must first in my opinion be a circumstance in which a mining lease under the Mining Act might otherwise be refused. This means that there must be an application or tender for a mining lease made pursuant to Div 1 of Pt 5 of the Mining Act, headed "Application and tenders". 10 A question arises as to the effect of s 55 of the Mining Act (which is in this Division), providing that "the Minister may … direct that any part of the land to which an application or tender relates be excluded from the application or tender". For the Minister to do this is not treated by the Mining Act as a refusal of an application; but it does have the effect that part of what has been applied for will not be granted. There is a similar provision in Div 3 of Pt 5 (headed "Granting of mining leases"), namely s 69, that "The land over which a mining lease is granted may differ in size or shape from, but may not include land other than, the land over which the lease was sought." Again, this exclusion of part of the land sought in an application or tender is not treated by the Mining Act as a refusal of an application. 11 Although the Mining Act does not treat such actions as refusals of an application, I am inclined to think that for the Minister to exclude part of the land applied for pursuant to s 55, or pursuant to s 69, as a matter of discretion, would, if it were the case that that part was necessary for the carrying out of an approved project within s 65V, be a refusal of an application and thus prohibited by s 75V. However, if this exclusion was by reason of a prohibition under the Mining Act, the position may be different. 12 As regards the provision to the effect that what cannot be refused is "a mining lease under the Mining Act", it follows, in my opinion, that what cannot be refused must be something provided for by the Mining Act. There is a real question whether a lease that extends to land to which, according to the Mining Act, a lease under the Mining Act cannot extend, can properly be called a lease under the Mining Act. 13 Division 2 of Pt 5 of the Mining Act (headed "Restrictions on grant of mining leases") sets out various categories of land over which a mining lease "may not be granted". A mining lease, if it extended to land in those categories, would not be one authorised by the Mining Act, at least unless the Mining Act is treated as having been amended by the EPA Act so that it did authorise the grant of such leases. If the EPA Act had provided that what could not be refused was "a mining lease under the Mining Act as amended by this Act", that wording would have supported the notion that the Mining Act now did authorise something it previously did not authorise. However, in the absence of words to that effect, in my opinion the words "a mining lease under the Mining Act" are not apt to refer to a lease of land over which, according to the Mining Act, a mining lease may not be granted. 14 Division 4 of Pt 5 of the Mining Act (headed "Granting of mining leases") gives power to the Minister to grant or to refuse applications (s 63) and tenders (s 64). In each case, there is provision that a lease "may not be granted otherwise than in accordance with Pt 2 of Schedule 1". Schedule 1 is headed "Public consultation with respect to the granting of assessment leases and mining leases"; and Pt 2 of Schedule 1 is headed "Mining leases". Provision is made there for notification of various agencies, bodies and persons, for objections and resolution of objections. 15 It is clear that the intention of s 63 and s 64 is to give the Minister a discretion to grant or refuse; and that the intention of Pt 2 of Schedule 1 is to enable public consultation as to factors which could affect the exercise of that discretion. In my opinion, because s 75V precludes the exercise of discretion to refuse a mining lease in certain circumstances, procedures directed to matters relevant to the exercise of that discretion could not be considered mandatory in circumstances to which s 75V applies. Accordingly, although the same words "may not be granted" are used in s 63 and s 64 as in Div 2 of Pt 5 (including s 62), nevertheless in my opinion a lease granted on the basis of s 75V as being necessary for carrying out an approved project could be a lease "under the Mining Act" even though the procedure in Pt 2 of Schedule 1 had not been followed. 16 It was submitted for the Minister and for Moolarben that if the Minister has an application for a mining lease that extends to land over which, according to Div 2 of Pt 5, a lease may not be granted, and if the Minister does then not grant the lease extending to that land, then the Minister has relevantly refused a mining lease; and if a mining lease extending to that land was "necessary for carrying out an approved project" and "substantially consistent with the approval", then that refusal would be in breach of s 75V. 17 However, in my opinion: (1) There is relevantly a refusal within s 75V only if there is an application which otherwise was capable of being granted; (2) A lease not authorised by the Mining Act is not "a mining lease under the Mining Act" within s 75V; and (3) Section 75V does not amend the Mining Act so as to authorise leases contrary to Div 2 of Pt 5 (although it may be considered as amending the Mining Act so as to do away in certain circumstances with the procedural requirements of Schedule 1). 18 As regards the Notice of Contention, it is not clear that a quia timet injunction would be available before there was the threat of the grant of a mining lease. Ulan could have sought to have questions concerning its improvements dealt with under s 62(6); but equally so could Moolarben. In my opinion, it is not unreasonable that an applicant seeking to deprive an owner of land should ascertain what are arguably substantial improvements on that land, and seek to have any question about that matter determined. The first instance proceedings were heard and determined before a mining lease was granted. In my opinion, there was no delay which would justify the refusal of relief. 19 TOBIAS JA: I agree with Bell JA and with the additional remarks of Hodgson JA.

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BELL JA : Introduction 20 This is an appeal from the decision of Smart AJ refusing to grant certain declaratory relief to the appellant, Ulan Coal Mines Ltd (Ulan): Ulan Coal Mines Limited v Minister for Mineral Resources [2007] NSWSC 1299. 21 Ulan is a coal mining company that is principally owned by Xstrata Coal Pty Ltd (Xstrata). It owns and operates the Ulan Coal Mine that adjoins the Moolarben coal resource, which is located about 40 kilometres north of Mudgee. It also owns land adjacent to the Ulan Coal Mine, which forms part of the Moolarben coal resource. The second respondent (Moolarben) is a wholly owned subsidiary of Felix Resources Limited (Felix), a company whose principal focus is the development and operation of coal projects. 22 In March 2004, the Minister for Mineral Resources, now the Minister for Primary Industries (the Minister), invited expressions of interest for an exploration license in respect of the Moolarben coal resource. The exploration licence, EL6288, covered an area of approximately 110 square kilometres. Some of the land covered by EL6288 included land owned by Ulan. Xstrata and White Mining Limited, a predecessor of Moolarben, both submitted expressions of interest in EL6288 to the Minister. White Mining/Moolarben was the successful applicant. Moolarben was granted EL6288 on 23 August 2004 for a term of five years. It commenced exploration of the area in November 2004. 23 On 20 July 2005, Moolarben lodged an application with the Minister for a mining lease covering part of the area encompassed by EL6288 (MLA 264). MLA 264 sought the grant of a mining lease to permit the conduct of coal mining by underground methods in an area about three kilometres east of the village of Ulan. The resource covered by MLA 264 is expected to contain 74 million tonnes of thermal quality coal. MLA 264 included land owned by Ulan. 24 On 16 October 2006, Moolarben lodged an application with the Minister for a mining lease for a further part of the area encompassed by EL6288 (MLA 290). MLA 290 sought the grant of a mining lease to permit the conduct of three open-cut mines in the lease area located south of the proposed underground mine that was the subject of MLA 264. The resource covered by MLA 290 is expected to contain 130 million tonnes of thermal quality coal. MLA 290 also included land owned by Ulan.

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28 On 27 March 2007, Ulan commenced proceedings by summons in the Common Law Division claiming relief including a declaration that by reason of s 62 of the Mining Act and the existence of improvements on the land, the Minister was not entitled to grant or approve MLA 290. Subsequently, Ulan filed an amended summons claiming like relief with respect to MLA 264. Ulan also claimed orders restraining the Minister from granting or approving MLA 264 and MLA 290. 29 On 6 September 2007, Moolarben was given major project approval for the Moolarben Coal Project under Pt 3A of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Minister for Planning in relation to the mining operations that were the subject of MLA 264 and MLA 290. 30 Section 75V(1)(c) of the EPA Act states that an authorisation of a mining lease under the Mining Act cannot be refused if it is necessary for carrying out an approved project, and is to be substantially consistent with the approval under Pt 3A of the EPA Act. 31 Ulan's further amended summons came on for hearing on 20 September 2007. The works and structures that it claimed were substantial and valuable improvements for the purposes of s 62(1)(c) were listed in a schedule that was annexed to the summons (Sch A). The primary judge considered that there was a question as to whether the Supreme Court should determine this issue or whether it was the sole province of the warden under s 62(6). ([19], Red 83.J-L) Moolarben invited his Honour to make findings, since, in the event that Ulan succeeded on its argument as to the construction of s 62(1), the Minister might nonetheless grant mining leases in respect of the two applications excluding from them the surface of any land on which improvements were located. ([26], Red 85.L-P) His Honour determined that in order to obviate a multiplicity of hearings in the Supreme Court he would, "express my views on the improvements". ([24], Red 85.B) 32 On 16 November 2007, his Honour dismissed Ulan's summons. He made findings with respect to the works or structures set out in Sch A. In some instances the findings were expressed in provisional terms: station 31 ([131], Red 108.M); station 38 ([150], Red 112.G-H); station 40 ([157], Red 113.O-S); and the quarry dam ([193], Red 120.M and [194], Red 120.P-R). Ulan filed its notice of appeal from the whole of the judgment on 22 November 2007 asking this Court to set aside his Honour's orders and to make the orders it had claimed in paragraphs 1 - 13 of its further amended summons. 33 On 20 December 2007, the Minister granted Moolarben mining leases the subject of MLA 264 and MLA 290. The grounds of appeal 34 On the hearing of the appeal, Ulan abandoned grounds 4, 5, 6, 7, 11 - 25 in its Notice of Appeal. These included challenges to findings that certain works and structures were not substantial and valuable improvements. The remaining grounds raised three challenges to his Honour's construction of the Mining Act, that are summarised below: (i) Section 62(1)(c) precluded the grant of mining leases over the surface of land on which was situated a substantial and valuable improvement notwithstanding that Ulan did not make a claim under cl 23A of the Schedule in respect of the same. (ii) Section 75V(1)(c) of the EPA Act does not impliedly repeal s 62(1) of the Mining Act in relation to the grant of mining leases over land that forms part of an approved project within Pt 3A of the EPA Act . (iii) Moolarben's cl 21 notices of MLA 264 and 290 were not validly served on Ulan as required by s 383 of the Mining Act . 35 Moolarben filed a notice of contention seeking to uphold the dismissal of Ulan's claims for relief on the discretionary grounds summarised by the primary judge at [417] of his reasons. 36 At the hearing before the primary judge, the Minister entered a submitting appearance. On the hearing of the appeal, senior counsel sought leave to appear on the Minister's behalf in order to make submissions concerning the construction of Pt 3A of the EPA Act and its relationship with the Mining Act. The Court heard counsel's submissions over Ulan's objection.

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(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: (a) in the case of a mining lease the subject of a tender under section 53, the date on which notice of the invitation for tenders for the mining lease was published in the Gazette under section 136, or (b) in the case of a mining lease the subject of an application made by the holder of an exploration licence granted as a result of a tender under section 15 in respect of the same land, or of an assessment lease granted over the same land to the holder of such an exploration licence, the date on which notice of the invitation for tenders for the exploration licence was published in the Gazette under section 136, or (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, or (d) in the case of a mining lease the subject of an application made by the holder of an assessment lease or mineral claim over the same land, the date on which the lease or claim was granted, or (e) in the case of a mining lease the subject of an application made otherwise than by a person referred to in paragraph (a), (b), (c) or (d), the date on which the application for the mining lease 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. 63 Power of Minister in relation to applications

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The primary judge's reasons 39 The primary judge analysed the provisions of s 62 of the Mining Act and the claim mechanism in the Schedule at [259]-[277]. (Red 137.G-141.L) His Honour considered that the history of the mining legislation showed that the procedure for making objections or claims to the granting of mining leases had been refined over many years. Aspects of this process were the requirement that the applicant notify the landholder of the application and the fixing of time limits for the making of claims by the landholder and objections by the applicant. (Red 139.V-140.E) His Honour continued: "[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.

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40 The legislative history to which his Honour referred in dealing with the construction of the prohibition in s 62(1)(c) is set out below. 41 Section 47 of the Mining Act 1906 made provision as follows: "No authority to enter and no lease under this Part shall, except with the consent of the owner, extend to - (a) within fifty yards on the surface of any land bona fide in use as a garden or orchard; or (b) within two hundred yards on the surface of the principal residence of the owner or occupier; or (c) any land whereon is any substantial building, bridge, dam, reservoir, well, or other valuable improvement other than an improvement effected for mining purposes and not bona fide used for any other purpose. The Minister shall determine whether any such improvement is substantial or valuable, and may define an area adjoining such improvement within which no mining operations shall be carried on." 42 It will be noted that the determination of whether a work or structure was a substantial and valuable improvement was a matter for the Minister's absolute determination. 43 The Coal Mining Act of 1973, which effected the repeal of the Mining Act, contained provision for any dispute concerning matters including the existence of substantial and valuable improvements on land to be referred to the warden for inquiry and report. 44 Section 62 of the Coal Mining Act was, relevantly, in these terms: "62(1) Subject to this section, a coal lease shall not be granted over the surface of any land - (a) that is bona fide in use as a garden or an orchard or situated within fifty metres of any such land, without the consent of the occupier of the land so in use and, in the case of private lands, of the owner of the lands; (b) that is situated within two hundred metres of a dwelling-house that is the principal residence of its occupier, without the consent of that occupier and, in the case of a dwelling-house on private lands, of the owner of the land; or (c) on which there is any improvement (being a substantial building, dam, reservoir, contour bank or graded bank or water disposal area, for soil conservation purposes, or other valuable improvement) other than an improvement constructed or effected for mining purposes and not bona fide used for other purposes, without the consent of the occupier of the land on which there is such an improvement and, in the case of an improvement on private lands, of the owner of the lands. … (3) An exploration permit shall not extend to the surface of any land referred to in subsection (1) (a), (b) or (c) without the consent referred to in subsection (1) (a), (b) or (c). (4) Any dispute as to whether or not subsection (1) or (3) applies in any particular case shall be decided by the Minister after inquiry and report by the warden. (5) A decision of the Minister under subsection (4) shall be final. … " 45 The Mining Act commenced on 21 August 1992. The Mining Legislation Amendment Act 1996 introduced the claim mechanism in cll 23A and 23B into Sch 1 and inserted subs (8) into s 62.

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(c) The statutory context includes that a mining lease may be granted over land of any title or tenure: s 68(1). Amendments introduced into the Mining Act 1906 in 1918 effected quite radical interference with the common law rights of landowners. The history is discussed by Windeyer J in Wade at 195. It is inconsistent with the characterisation of s 62(1) as conferring a free-standing right. The dispute resolution mechanism for determining whether works or structures on land are substantial and valuable improvements has evolved over time in a way which affords protection to landholders and to mining lease applicants. Whereas in earlier times the Minister's determination was absolute, there is now the mechanism of an inquiry and report by the warden. The landholder's right under subs (1) is subject to the requirement that a claim be made within the time fixed in the Schedule. This is a familiar feature of statutory schemes, which often "impose…a condition which is the essence of… [the] right": Australian Iron and Steel Limited v Hoogland [19620 HCA 13; (1962-1963) 108 CLR 471 per Windeyer J at 488; WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 79 ALJR 94 at 100 [31]-[32]; Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500 at 507-508 [10]-[12]. (d) The question of whether the restriction on the power to grant a lease contained in s 62(1)(c) applies in a given case cannot be completely answered without recourse to cls 23A and 23B of the Schedule because of subs (8). The use of the inclusive definition merely recognises that some works or structures on land may be conceded by the applicant to be substantial and valuable improvements within subs (1)(c) and therefore subject to the restriction. (e) It is the qualification on the power to grant a mining lease contained in subs 62(1)(c) that is susceptible of giving rise to disputes. This is why the legislature has made particular provision for the determination of disputes concerning improvements. Subsection (6) is to be understood in this light. (f) An important feature of the statutory scheme is the provision for compensation to be paid to a landholder for any loss suffered, or likely to be suffered, as a result of the exercise of rights conferred by the mining lease. Under s 265(3) a landholder may apply to a warden to assess the amount of compensation payable. The holder of a mining lease is not authorised to exercise any rights under the lease on the surface of any part of the mining area, unless the amount of any compensation payable to the landholder under s 265(1) in respect of that part of the mining area is the subject of a valid agreement or an assessment made by the warden.

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48 The principles to be applied in construing s 62 are those explained in the joint reasons in Project Blue Sky, upon which each of the parties relied. The meaning of a provision is to be determined by reference to the language of the Act viewed as a whole and upon the basis that its provisions are intended to give effect to harmonious goals. Conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions so as to give effect to their purpose and meaning, while maintaining the unity of the statutory scheme. This may require the court to determine which is the leading and which is the subordinate provision (at 381-382 [70]). 49 The prohibition stated in s 62(1)(c) is not expressed to be subject to the landholder making a claim under cl 23A of the Schedule. The primary judge appears to have approached the matter on the basis that the claim mechanism in the Schedule is in conflict with s 62(1)(c) if the latter is read according to its terms. In an endeavour to give harmonious operation to the two provisions his Honour held that where no claim is made by the landholder within the time specified in cl 23A, the Minister is not precluded by the terms of s 62(1)(c) from granting a lease over the surface of the land. (Judgment [277], Ref 141.J-L) In my opinion it was an error to interpret the provision in this way. My reasons for coming to this conclusion involve substantial acceptance of the submissions made by Ulan. In particular, I have regard to the following. 50 Section 62(1) prohibits the grant of a mining lease in the stated circumstances. It is recognised in the body of the section that disputes may arise with respect to the application of each of subpars (a), (b) and (c). This is addressed in subs (6). His Honour did not in terms deal with the question of why the legislature is to be taken to have intended to make the right under (c) conditional upon a claim being made under cl 23A, while not making other disputes subject to a like condition. It is apparent that his Honour considered that any tension between subs (6) and the claim mechanism in the Schedule is explained by the fact that, as a matter of practical reality, the likely area for dispute will be the existence of improvements. (Red 140.I-J) By contrast, it may be thought that the question of whether there is a dwelling house or garden on land is unlikely to be controversial and, furthermore, s 62(2) prescribes the distances within which leases are not to be granted over land on which either is situated. 51 It remains, as subs (6) contemplates, that disputes may arise concerning the application of subs (1)(a) and (b). One area for dispute as to the application of subs (1)(a) is whether a dwelling house is the occupant's principal place of residence. As Ulan submitted, there may be cases in which the question of whether a given area of land constitutes a "garden" within subs (1)(b) is more contestable than whether a reservoir is a substantial and valuable improvement within subs (1)(c). 52 Subsection (6) is significant both because it deals with any dispute as to the application of subs (1) and because it does not refer to the claim mechanism in the Schedule nor impose time limits as a condition of the continued application of the protection in subs (1). 53 It is not correct to say that the applicant for a mining lease is at the mercy of a landholder who chooses not to make a claim under cl 23A of the Schedule. It is reasonable to expect that the applicant for a mining lease will ascertain what is on the land and disclose the existence of any works or structures in the lease application. In a case in which the applicant does not have the landholder's written consent to the grant of a lease over the surface of land on which are works or structures which the applicant contends are not substantial and valuable improvements (and the landholder has not made a claim under cl 23A), it is open to the applicant to invite the Minister to refer the question to the warden under s 62(6).

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54 Section 62(1)(c) confers a right on a landholder not to have a mining lease granted over the surface of any land on which is situated an improvement as defined, except with his or her written consent. It is a considerable step to draw from the provision in the Schedule of a mechanism for the landholder to initiate a process to resolve any issue as to whether something amounts to an improvement, the conclusion that the legislature intended to abrogate the right in the event the landholder omitted to do so. In this respect the permissive language of cl 23A(1) is significant. 55 In Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 at 328 [19] Gleeson CJ observed that the assistance that is to be gained from the presumption that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested, will vary with the context in which it is applied. His Honour noted in this respect the observations of McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 at 284, [36]. The presumption is discussed in Harrison v Melham [2008] NSWCA 67 per Spigelman CJ (with whom Beazley JA agreed on this point) at [2] - [10]; Mason P (with whom Giles JA agreed) at [106]; and Basten JA at [209] - [221]. The context in that case was the alteration to the common law principles explained in Griffiths v Kerkemeyer that were made by s 15 of the Civil Liability Act 2002 (NSW) with respect to the award of damages for gratuitous attendant care services. The majority considered the assistance afforded by the presumption in this context to be negligible. 56 The context in the present case involves the curtailment of the common law rights of landholders to the exclusive use and enjoyment of their land. This was the context in Wade. The issue there concerned the construction of s 70A of the Mining Act 1906, which restricted the power to grant a mining lease to mine for unreserved minerals in respect of any land on which mining operations were being carried out by or with the concurrence of the owner of the land. Barwick CJ said (at 181): "But perhaps even more importantly, the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in the respect plain is pertinent to the question whether any such implication should be sought to be made. The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose Parliament to have intended to implement." 57 Each of the judgments in Wade drew on the presumption: Menzies J at 182; Windeyer J at 185; Owen J at 204. Windeyer J said this (at 185): "His common law rights are now impaired by the provisions of the Act. But it is, I think, a mistake to read the Act as if his rights to mine the minerals on his land were created by it, derived from it, or depended on it. Rather it should be read to see only how far and in what way it curtails or modifies his common law rights as owner of all the minerals on his land which do not belong to the Crown." 58 Moolarben's submissions at [47(c)] above are to be assessed in light of the judgments in Wade. 59 The Mining Act recognises the right of the owner of land to withhold consent to the grant of a mining lease over the surface of land on which there are situated substantial and valuable improvements. Given this recognition, the fact that the Mining Act provides compensation for loss suffered or likely to be suffered as the result of the grant of a mining lease seems to me to be neutral on the question of whether a condition of the right conferred under s 62(1)(c) is the making of a claim within time under cl 23A(1).

[35]

60 The matters that led the primary judge to hold that the making of a claim under the Schedule was a condition of the right are considerations of moment. The legislative history is that separate provision has been made with respect to disputes over the application of the restriction in subs(1)(c). The provision of a dispute resolution mechanism that is subject to strict time limits and that can only only be initiated by the landholder may be thought somewhat anomalous if it is optional. However, it does not follow that the mechanism has no utility if its employment is not a condition of the prohibition in subs (1)(c). This is because landholders may consider the procedure, particularly the deeming provision of cl 23A(6), to be an advantageous mechanism for the prompt resolution of any doubt as to the existence of improvements on their land. There is in this sense no conflict between the provisions of the Schedule and reading s 62 according to its terms. 61 The Court may, of course, interpret a provision in a way that departs from a literal reading of it in a case in which such an interpretation does not conform to the legislative intent ascertained from the provisions of the statute as a whole: Cooper Brookes (Wollongong) v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 per Mason and Wilson JJ at 321. Their Honours observed that questions of degree arise and that where two interpretations are open the answer may lie with the one that produces the fairer and more convenient operation provided that it conforms to the legislative intention (at 321). However, in my opinion the restriction placed on the words of subs (1) by the primary judge is not one that was open. It is not readily apparent that the legislature is to be taken to have intended to require landholders to make a claim in respect of every work or structure on their land, including those which are undoubtedly and indisputably substantial and valuable improvements, in order to preserve the valuable right conferred by s 62(1). 62 In my judgment, Ulan's first ground succeeds. GROUND (ii) - THE EFFECT OF s 75V OF THE EPA ACT ON s 62(1) OF THE MINING ACT 63 I turn now to the challenge to the primary judge's finding that the prohibition in s 62(1)(c) is overridden by the operation of s 75V of the EPA Act.

[37]

(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: … (c) a mining lease under the Mining Act 1992, … (2) If: (a) the Minister determines when giving approval for a concept plan under section 75P that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, and (b) development consent to carry out the project or that stage of the project is given under Part 4, an authorisation of the kind referred to in subsection (1) or section 75U (1) cannot be refused if it is necessary for carrying out the project or that stage of the project and is to be substantially consistent with the development consent. (3) This section does not apply to or in respect of: (a) an application for the renewal of an authorisation or a renewed authorisation, or (b) an application for a further authorisation or a further authorisation following the expiry or lapsing of an authorisation, or (c) in the case of an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 - any period after the first review of the licence under section 78 of that Act. (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." 65 Moolarben's contention before the primary judge and on appeal is that s 75V(1)(c) of the EPA Act impliedly repeals s 62(1)(c) of the Mining Act with respect to applications for mining leases that are or form part of an "approved project" under Pt 3A of the former. This is because s 62(1)(c) of the Mining Act addresses an aspect of the Minister's power under s 63 of the Mining Act to grant or refuse a mining lease. The primary judge initially remarked that this submission paid insufficient regard to the fact that in a case to which s 62(1) applies the Minister has no power to grant a mining lease (Red 175.J-O) but ultimately in substance he accepted it. His Honour went on to consider the relationship between the two Acts in light of s 75Z(b) of the EPA Act and Pt 1A of the Environmental Planning & Assessment Regulation 2005 (the EPA Regulation), both of which came into operation on 1 August 2005.

[42]

70 Moolarben submitted that his Honour's recourse to the provisions of cl 8F(1)(c) of the EPA Regulation was appropriate. This was because the Regulation concerned the detail of the written consent of landowners, the very same subject matter to which s 62(1) of the Mining Act was directed. It was noted that cl 14 was inserted into the Schedule of the Mining Act, together with the heading, "Landowner consent not required where development consent required for mining" to Pt 2 of Div 2 of the Schedule by amendments that were associated with those which inserted Pt 3A into the EP&A Act. 71 Clause 14 of the Schedule has since been amended by the Statute Law (Miscellaneous Provisions) Act 2005. The explanatory note to the Bill stated: "Item [6] of the proposed amendments amends clause 14 of Schedule 1 so as to provide that not only are the requirements of the [ EPA Act] for a landowner's consent to a development application for mining excluded in relation to a development application for mining ( as is currently the case ) but so also are the requirements of the regulations under that Act for a landowner's consent to the modification of a development consent for mining". [Emphasis added] 72 Moolarben submitted that s 75Z(b) of the EPA Act and cl 8F(1) of the EPA Regulation make clear that landowner consent is inconsistent with "a continuing requirement of landowner consent in s 62(1)". (Orange 51.X) 73 Clause 8F of the EPA Regulation is addressed to an application for, and determination of, an approval under Pt 3A of the EPA Act. Section 62(1) prohibits the grant of mining leases in the stated circumstances without the written consent of the landholder. Clause 8F does not relevantly deal with landowner consent for the purposes of s 62(1)(c) of the Mining Act. To the extent that his Honour's conclusion at [416] depended upon a view that cl 8F(1)(c) of the EPA Regulation addressed the requirement of landholder consent to the grant of a mining lease I consider that he was in error. Senior counsel for the Minister did not submit to the contrary. He contended that his Honour's ultimate conclusion that, once approval for a project under Pt 3A of the EPA Act has been granted the prohibitions in s 62(1) of the Mining Act no longer apply, was nonetheless correct. 74 In written submissions counsel for the Minister outlined the history of the EPA Act. It is not necessary to refer to it in detail. The point that counsel sought to make is that the amendments effected by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (the 2005 amendments), which inserted Pt 3A into the EPA Act, reflected a shift in the balance between the EPA Act and the Mining Act in the resolution of conflict between the conditions of a development consent and the requirements of a mining lease. Formerly this was addressed in s 65 of the Mining Act and by the provisions of Div 2 of Sch 1. Counsel noted that the special procedures for integrated development contained in Div 5 of Pt 4 of the EPA Act, which were introduced by the Environmental Planning and Assessment Amendment Act 1997, did not include the grant of mining leases under ss 63 and 64 of the Mining Act. However, these were made subject to the EPA Act by the 2005 amendments (in the Table to s 91(1)). Consequential amendments made to the Mining Act at the time of the 2005 amendments included s 65(3) which, in relation to mining leases granted over land for which a development consent had been given prior to the 2005 amendments, rendered any special purpose condition imposed under the Mining Act on the development consent void. 75 Next, counsel for the Minister outlined the scheme of Pt 3A of the EPA Act. The Director-General may prescribe what matter is required to be contained in the application for Pt 3A approval: s75E. The Director- General is to prepare environmental assessment requirements and in doing this he or she is to consult with relevant public authorities: s 75F. The proponent is required to submit an environmental assessment which is to be made publicly available, and in respect of which any person may make written submissions to the Director-General: s 75H. This occurred in this case. Ulan made submissions concerning why the approval for the Moolarben Coal Project should not be given. (Blue 7/1485). Its objection included that there were improvements on its land. (Blue 1485.U-1486.V) 76 Neither the Minister nor Moolarben contended that there is contrariety between s 75V(1)(c) of the EPA Act and the provisions of Div 1 of Pt 5 of the Mining Act governing applications and tenders. Each accepted that an application for a mining lease is required to comply with the requirements set out in Div 1. However, Div 2 of Pt 5, which deals with the restrictions on the grant of mining leases, uses the words, "a mining lease may not be granted" in ss 57, 58, 60 and 62. Each is said to be in conflict with s 75V(1)(c) of the EPA Act, and impliedly repealed by it, in so far as applications that are the subject of Pt 3A are concerned.

[44]

80 Counsel for the Minister submitted that, once an application for a mining lease is made (being one that conforms to the requirements for an application under the Mining Act), the Minister is required to grant or refuse it (or grant a lease differing in size or shape from the land over which it was sought under s 69). A condition of the exercise of the power is the requirement that the Minister not grant a mining lease contrary to s 62(1). Necessarily, so the argument goes, there is direct conflict with s 75V(1)(c) of the EPA Act, because the legislative command "may not grant" requires the Minister to refuse the application under s 63(1). Nothing was submitted to turn on the different wording of s 75V, s 91A(5)(b)(i) and s 93(1): "if you cannot refuse, then you can only do the other thing, which is to grant" (T'cpt 29/4/08, 43.13-14). 81 Moolarben joined in this submission, noting that landholders with improvements on their land are not without a remedy. The Minister for Planning can (and in this case did) impose conditions pursuant to s 75J(4) of the EPA Act, including requiring that the applicant purchase the land if the owner so requires. (Blue 8/1604 - Minister for Planning's project approval) 82 The conditions of implied repeal require that actual contrariety be clearly apparent, such that the later of the two provisions is not capable of sensible operation if the earlier stands: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 per Gummow and Hayne JJ at 585 [48]. 83 The question does not turn on whether the words "may not grant" are another way of saying "must be refused". Section 75V(1) of the EPA Act provides that "an authorisation" of a certain kind "cannot be refused" in the circumstances stated. A mining lease under the Mining Act is an "authorisation". Sections 63 and 64 of the Mining Act confer power on the Minister to grant a mining lease. Each conditions the exercise of the power such that a mining lease "may not be granted" otherwise than in accordance with Pt 2 of Schedule 1: s 63(4) and s 64(5). As noted, Ulan did not submit that the restriction on the exercise of the power was not overridden in each case. 84 Section 62(1) provides that in the circumstances stated there is no power to grant a mining lease. This is not an aspect of the exercise of the Minister's discretionary power to grant or to refuse an application for a lease that is conferred by ss 63 and 64. There is no conflict between the provision in s 75V(1)(c) of the EPA Act that a mining lease cannot be refused in the stated circumstances and the provisions of s 62(1) because, where there is no power to give an "authorisation", no question of refusing the authorisation arises. Sections 62(1) of the Mining Act and s 75V of the EPA Act can operate sensibly together. 85 In my judgment, Ulan's second ground of challenge succeeds.

[48]

[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." (Red 150.U-152.H) 93 In its written submissions Ulan put that despite the 'slightly loose drafting' of s 383 the legislature must have intended that a corporation can only be served at its registered office. (Orange 29.P-Q) This is because of the important information about the landholder's rights contained in the notice. 94 Ulan submitted that s 383(1)(a) is to be understood as being confined to the modes of service on natural persons, since it refers to personal service and service by post and it is not possible to serve a corporation "personally". In its submission, the reference to "person" in subsection (4) is to be understood as confined to natural persons since it would otherwise be inconsistent with subsection 1(b), which, accepting the primary judge's construction, provides for service, in the case of a corporation, at its registered office.

[53]

102 At trial, Moolarben submitted that Ulan should be refused relief on discretionary grounds. In light of the primary judge's determination of the construction and service issues it was not necessary for him to finally determine Moolarben's submissions in this respect. Nevertheless his Honour summarised the matters on which Moolarben relied at [417] and recorded his view that they would not have justified the refusal of relief at [418]. By its notice of contention Moolarben seeks to uphold the primary judge's decision on the basis of the matters that his Honour recorded at [417]. 103 The relevant paragraphs of his Honour's reasons are set out below: "[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 (sic) 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." (Red 180.T-182.G) 104 Moolarben submitted that his Honour did not address the gravamen of its case on discretionary refusal. In particular, it contended that he did not deal with the question of the prejudice that it claimed to have suffered. Save for considerations (e) and (f), which it was acknowledged were matters that his Honour was better placed to assess, Moolarben submitted that the evidence on which it relied was uncontroversial and that this Court was as well placed as the primary judge to draw inferences from it. 105 In light of the conclusions that the primary judge reached concerning the construction of s 62 and its relationship with s 75V of the EPA Act, it is understandable that his consideration of Moolarben's submissions concerning discretion was brief. It is right to say that his Honour did not, in terms, deal with the case based on prejudice caused by delay. This was prominent in the submissions that Moolarben made. In these circumstances, it is appropriate for this Court to consider for itself the question of whether relief should be withheld on discretionary grounds.

[55]

At that meeting Mr Eames presented an Xstrata analysis of the saleable products that Xstrata believed it could obtain from the Moolarben Coal Project. 110 On 28 November Mr Flannery met with Mr Coates at Xstrata's Sydney office. In the course of this meeting, Mr Coates said words to the effect: "The data we've seen so far is good and we're making progress. We need to do more analysis on the Moolarben export yield. The legal due diligence is 99 % complete. We are very interested in synergies with Moolarben but we need more time to do our valuation." (Blue 869.N-R) 111 At a further meeting between Mr Flannery and Mr Coates, on 11 December 2006, Mr Coates stated that Xstrata would come back to Felix in January with a formal offer. 112 On 15 January 2007, Mr Coates telephoned Mr Flannery and informed him that he had not been able to obtain approval from the Xstrata board to make an offer over $5 per share. There were no further discussions concerning Xstrata's possible acquisition of Felix. 113 In March 2007, the Chairman of Felix, Mr McCauley, commenced negotiations with outside investors to sell his 19.2 percent share in Felix. On 19 March 2007, Mr Flannery informed Mr Coates of the proposed sale, informing him that if Xstrata was interested in acquiring the shares, contact should be made with Mr McCauley. By 8 am on Wednesday 21 March Mr McCauley had negotiated a sale of his shares in Felix to another entity. At around 9 am on that day, Mr Flannery had a telephone discussion with Mr Coates to the following effect: "Coates: I've spoken to McCauley and told him not to sell his shares. I can get him a higher price but I need more time. I asked him to hold off until Friday. Flannery: It's too late, he sold them this morning and we will be advising the market. Coates: That's not good news. I'll call you later." (Blue 872.M-R) 114 In a further telephone discussion on 21 March 2007 between Mr Coates and Mr Flannery it was said: "Coates: Are you interested in a joint venture for the Moolarben project? Flannery: We are interested in any reasonable offer. What do you have in mind? Coates: We bring to the table existing infrastructure; we have a dragline and washery, as well as the land. We can start at 50-50. Flannery: The project is worth a billion dollars. We can't offer you a 50% stake. Give us an offer we can consider and I will put it to the directors. Coates: We have rights over the land. Flannery: You missed the deadline for the filing of objections. Coates: I am aware of that, but we have common law rights. I will be meeting this week with the Xstrata board in Zug. I will call you later." (Blue 872.T-873.M) 115 On 27 March 2007 Ulan commenced the present proceedings. 116 Moolarben submitted that, given Mr Flannery's account concerning the negotiations between it and Ulan/Xstrata was unchallenged, the primary judge was in error in refusing to accept its submission that Ulan had delayed lodging objections and claims within the specified time because it did not wish to prejudice the negotiations. Moolarben pointed to the chronology, including the fact that on 7 November 2006 it received notification of MLA 290. Two days later, Xstrata and Felix entered into the confidentiality agreement. The negotiations had been at a very sensitive stage in the 28 day period for MLA 290. So much was demonstrated by the fact that the confidentiality agreement had been executed. In Moolarben's submission, the compelling inference was that Ulan had chosen not to make objections because of the status of the negotiations. The primary judge acknowledged this was one inference, but it was not one that he drew. He considered that Ulan/Xstrata was interested in acquiring Felix at the best price and that it would not have been concerned to avoid taking an action that may have deflated the value of the Moolarben asset. ([375], Red.169.S-170.E) I do not accept that Mr Flannery's evidence compels the inference that his Honour declined to draw.

[57]

119 Moolarben's case is that over a period of 18 months Ulan was unquestionably aware that a mining lease had been applied for over its land, and of its rights to object to the grant of it over such parts of its land on which were situated improvements. It characterised Ulan as a sophisticated industry player, which must be taken to have been aware that Moolarben was devoting considerable resources to the development of the Project in the belief that it, Ulan, did not object. These facts were said to warrant discretionary refusal of relief: Victims Compensation Fund Corporation v District Court of New South Wales [2001] NSWCA 241 per Heydon JA (with whom Handley JA and Stein JA agreed) at [9]. The Court there declined to entertain an application in the nature of certiorari to quash orders made in the District Court upholding appeals against the decision of the Chairperson of the Victims Compensation Tribunal. There had been delay of seven months in bringing the proceedings. 120 Moolarben's submissions on prejudice substantially depend on the asserted delay associated with MLA 264. The period of "delay" is taken from 2 September 2005, being the final date for lodging a claim under cl 23A(1). In my view, Ulan was not required to lodge a claim within the period. It remains that Ulan was aware that Moolarben had lodged the mining lease application over land that it owned and is to be taken to have known that Moolarben would be outlaying monies in association with its application. In these circumstances, notwithstanding that Ulan may not have been required to lodge any objection or claim within the time limit under the Schedule, its conduct in standing by while Moolarben expended monies without seeking the relief now claimed, is, I accept, capable of providing a basis for discretionary refusal of relief. Senior counsel for Moolarben acknowledged that there was much less prejudice associated with MLA 290 because the period of "delay" was of the order of two or three months. (T'cpt 30/04/08 26.3) In my opinion, any asserted delay with respect to MLA 290 would not justify discretionary refusal of relief on the grounds that Moolarben advanced. 121 Senior counsel for Moolarben informed the Court, without objection, that the coal preparation plant and a rail loop associated with MLA 264 involve land owned by Ulan, which is the subject of s 62(1) considerations. It will be recalled that MLA 290 relates to the three open-cut coal mines and may be thought to raise in a more acute way the significance of Ulan's improvements on the land.

[58]

122 Mr Flannery's evidence does not disclose what amount of the $19 million was expended by Moolarben after September 2005 in connection with MLA 264, as distinct from expenditure on that part of the Moolarben Coal Project relating to the proposed open cut mines the subject of MLA 290. 123 At trial, Moolarben contemplated that, in the event Ulan succeeded, the Minister might grant mining leases in respect of MLA 264 and MLA 290, excising from each the surface of Ulan's land on which the primary judge held that there were substantial and valuable improvements. It is not clear what impact this would have had on the overall Moolarben Coal Project. It may be that the impact on the lease for the underground mine, which was the subject of MLA 264, would have been less than the impact on proposed open cut mines. At the date of trial the evidence seems to me to have fallen short of establishing that Moolarben had expended any substantial sum that it would not have expended in connection with the Moolarben Coal Project had it known that Ulan proposed exercising its rights to claim that the Minister was not entitled to grant a mining lease over the surface of its land that was affected by MLA 264 and on which there were improvements. 124 In my opinion, the primary judge was correct in indicating (see [102] infra) that if Ulan's submissions on the operation of s 62(1) were accepted, relief should not be refused on discretionary grounds. 125 The declaration claimed in prayer 3 assumes that by reason of the prohibition in s 62(1), and the absence of Ulan's written consent, any lease granted in respect of MLA 264 or MLA 290 would be void, whereas a mining lease resulting from each MLA might lawfully have been granted, provided it did not include the surface of land owned by Ulan on which was situated any improvement within the meaning of s 62(1)(c). The parties accepted that the determination of the existence of improvements for the purposes of s 62(1) would be that made by the primary judge. This was not challenged on appeal.

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