Wilson v Department of Customer Service [2021] NSWLEC 1780

Land and Environment Court New South Wales

Medium Neutral Citation: Wilson v Department of Customer Service [2021] NSWLEC 1780 Hearing dates: Conciliation conference on 5 November, 1 and 14 December 2021. Date of orders: 21 December 2021 Decision date: 21 December 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: See orders at [38] below. Catchwords: COMPENSATION APPEAL ARISING FROM MINE SUBSIDENCE – conciliation conference – agreement between the parties – orders Legislation Cited: Land and Environment Court Act 1979, ss 34, 39 Mine Subsidence Compensation Act 1961, ss 12, 12A, 12B, 15 Coal Mine Subsidence Compensation Act 2017, ss 4, 7, 19, Sch 1, s 7 Category: Principal judgment Parties: Christopher Wilson (First Applicant) Glenda Wilson (Second Applicant) Department of Customer Service (Respondent) Representation: Counsel: L Chapman (Applicant) A Hemmings (Respondent)

Solicitors: Russell McLelland Brown Lawyers(Applicant) Department of Customer Service (Respondent) File Number(s): 2021/194060 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by the Applicants against a determination of compensation for damage to their property known as 7 Remembrance Drive, Tahmoor, NSW (the Property) arising from mining operations in the vicinity of the Property pursuant to s 12B of the Mine Subsidence Compensation Act 1961 (1961 Mine Act): 1. The proceedings fall within Class 3 of the Court jurisdiction pursuant to s 19 (f1): (f1) appeals under s 16 of the Coal Mine Subsidence Compensation Act 2017 (2017 Mine Act). 2. the statutory power or function to be exercised in determining the proceedings are ss 34(3) and 39(2) of the Land and Environment Court Act 1979 (LEC Act) and 12B of the 1961 Mine Act. 1. Although the 1961 Mine Act was repealed on 31 December 2017, the Act continues to apply to claims made under that Act, but not finally determined, before its repeal: s 7 of Sch 1 to the 2017 Mine Act. 2. All references to the Mine Subsidence Board (MSB) in the 1961 Mine Act are taken to be references to the Chief Executive: s 7 of Sch 1 to the 2017 Mine Act. The "Chief Executive" means the person employed in the Public Service as the Chief Executive of Subsidence Advisory NSW (SA NSW): s 4(1) of the 2017 Mine Act. 3. SA NSW is part of the Department of Customer Service, the Respondent, and is responsible for coal mine subsidence claims that were previously dealt with and determined by the MSB under the 1961 Mine Act. 4. Pursuant to s 12(1) of the 1961 Mine Act, claims were able to be made for payment from the Mine Subsidence Compensation Fund (Fund) for: 1. compensation for any damage to improvements that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the improvements; 2. an amount to meet the proper and necessary expense incurred or to be incurred as a result of such damage in: 1. building retaining walls or bolting together or underpinning or otherwise supporting, raising or repairing buildings and walls, 2. altering the approaches to or the levels of lands or buildings, 3. raising, lowering, diverting or making good roads, tramways, railways, pipelines, bridges, fences, sewers, drains or other improvements; 1. an amount equivalent to the rent which would have been payable for such period as may be prescribed in respect of any buildings or works which by reason of such damage are untenantable, under repair or in course of construction, or where such buildings or works or any part thereof are or is occupied by the owner thereof such sum in lieu of rent as the Board deems just; or 2. compensation for any damage to household or other effects that arises from subsidence, except where the subsidence is due to operations carried on by the owner of the household or other effects. 1. Pursuant to s 12B of the 1961 Mine Act, a person claiming compensation under s 12 may appeal to this Court against the decision of the Chief Executive (formerly the MSB): 1. as to whether damage has arisen from subsidence, or 2. as to the amount of the payment from the Fund, or 3. to reject a claim because of a matter specified in section 12A (1A) or (1B). 1. Christopher Wilson and Glenda Wilson, the Applicants, are the registered proprietors of land known as 7 Remembrance Drive, Tahmoor and identified as Lot 192 in Deposited Plan 793109. (the Property). 2. The Property is located within an area proclaimed to be a mine subsidence district under s 15 of the 1961 Mine Act. 3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 5 November, 1 and 14 December 2021. I presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved a consideration of the matters set out below