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 Although the 1961 Mine Act was repealed on 31 December 2017, the Act continues to apply to claims made under that Act, but not finally determined, before its repeal: s 7 of Sch 1 to the 2017 Mine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 Background 1. On or about 24 January 2014, the Applicants lodged a claim application with the MSB in respect of the Property under s 12 of the 1961 Mine Act (Claim). 2. The parties agree that the Claim was made in accordance with the requirements of s 12 of the 1961 Mine Act. 3. SA NSW has assessed and determined the Claim in two stages – namely: 1. Stage 1 damage or works relating to relevelling and pool repairs (Stage 1 damage or works), and 2. Stage 2 damage or works relating to internal repairs following relevelling works (Stage 2 damage or works). 1. On 14 November 2017, SA NSW made a determination and offer of compensation for the Claim in the amount of $103,468 for Stage 1 comprising deep grout injection and pool repair (Stage 1 Determination). 2. On 1 February 2018, the Applicants returned the signed deed of release and indemnity (First Deed) and the EFT form relating to the Stage 1 Determination. 3. On 8 February 2018, the MSB signed the First Deed and dated the document. 4. On 22 February 2018, SA NSW made a payment to the Applicants for compensation from the Fund in the amount of $103,468 for the Stage 1 works (First Stage 1 Payment). 5. In July 2019, approximately 18 months after the First Stage 1 Payment, the Applicants requested that SA NSW review the compensation paid for the Stage 1 works on the basis of the Applicant's quotations for polyurethane resin injection (PUR) supplied by Resinject and Mainmark for the Stage 1 works. 6. On 26 September 2019, SA NSW made a revised determination and offer of compensation for the Claim in the amount of $109,780 for the Stage 1 works (comprising the adjusted PUR scope of work) (Revised Stage 1 Determination). 7. On 31 October 2019, the Applicants signed the deed of release and indemnity (Second Deed). 8. On 14 November 2019, SA NSW made the additional payment under the Second Deed to the Applicants for the Stage 1 relevelling works in the amount of $109,780. 9. On 26 June 2020, SA NSW issued a determination and offer of compensation for the Property for Stage 2 or the Part 2 Damage in the amount of $93,002.80 (Stage 2 Determination). 10. On 8 July 2020, the Applicants sent a letter to SA NSW indicating that the Applicants will not accept the compensation in the Stage 2 Determination and requested a review of the Stage 2 Determination. 11. On 14 September 2020, SA NSW issued a revised determination of compensation for the Property for Stage 2 or the Part 2 Damage in the amount of $139,730.80 (Revised Stage 2 Determination). 12. On 16 October 2020, SA NSW paid the Applicants reimbursement for out of pocket expenses in the amount of $6,366.80. 13. On 21 November 2020, the Applicants sent an email to SA NSW requesting an independent review of the Revised Stage 2 Determination. The relevant decision 1. The decision that is the subject of this appeal is the determination of compensation by SA NSW on 12 May 2021, being the Revised Stage 2 Determination (also referred to as Part 2 Damage) of the Applicants' claim which was issued in the following terms: "Following your request for independent review of the stage two determination by Subsidence Advisory NSW (SA NSW), John Matheson and Associates was engaged to conduct an independent structural engineer assessment of your property. Rider Levett Bucknall (RLB) was also engaged to quantity survey the required stage 2 repairs in accordance with the scope of works identified in the independent structural engineer report. Copies of both reports prepared as part of the independent review process are attached to this letter for your records. "The estimate determined by RLB to carry out repairs to your property to settle stage 2 of your claim totalled $118,032. SA NSW will maintain the original offer made in September 2021 of $139,830.80 in lieu of the lesser amount determined by the independent review. "As $6,366.80 was already reimbursed to you in December 2020 to cover expenses you incurred for repairs that would ordinarily have been compensated under SA NSW's determination, the amount of monetary compensation remaining and owing on the offer is $133,464.00." 1. The detail of the offer of $133,464.00 is set out below: Item Descreption Amount ($) Demolition and site preparation $10,520.00 Masonry $2,080.00 Doors $1,800.00 Windows $1,000.00 Plastering/dry wall $1,890.00 Painting $8,930.00 Tiling $6,860.00 Joinery $1,800.00 Resilient finishes $12,350.00 FF&E $4,300.00 Hydraulic services $4,950.00 Electrical services $960.00 Roofing $1,900.00 External services $17,200.00 Sub-total $76,540.00 Preliminaries $22,280.00 Overheads and margins $9,940.00 Construction contingency $10,940.00 Sub-total $120,240.00 Legal fee allowance (inc GST) $1,100 GST $12,124.00 Reimbursement of costs $6,366.80 Total inc GST $139,830.80 Less reimbursement of out of pocket expenses (paid on 16/10/2020) -$6,366.80 Final total inc GST $133,464.00 1. On 7 July 2021, the Applicants commenced this appeal by filing a Class 3 Application. 2. This appeal has been brought under s 12B of the 1961 Mine Act and, more specifically, relates to the amount of compensation that the Applicants are entitled to from the Fund. 12B Appeals A person claiming compensation under section 12 or 12A may appeal to the Land and Environment Court against the decision of the Board: (a) as to whether damage has arisen from subsidence, or (b) as to the amount of the payment from the Fund, or (c) to reject a claim because of a matter specified in section 12A (1A) or (1B). 1. The parties noted that the Applicants do not press any claim in this appeal with respect to compensation relating to the Stage 1 Determination, the Revised Stage 1 Determination, the Stage 1 works and the swimming pool. 2. The parties agree that the Applicants are entitled to compensation in the amount of $180,000 in relation to the Stage 2 component of the Claim, as set out in Annexure A. 3. The parties consider that the making of the proposed orders does not result in any contravention of the 1961 Mine Act. As such, the Court may exercise its function under s 12B of the 1961 Mine Act and determine the amount of compensation to which the Applicants are entitled. 4. Having regard to all of the above matters, the parties consider that the jurisdictional prerequisites to the proper exercise of the power to determine compensation in respect of Stage 2 have been met. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 12B of the 1961 Mine Act and ss 34(3) and 39(2) of the LEC Act, to grant compensation for the impact of mine subsidence on the Applicant's Property. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have correctly identified the jurisdictional prerequisites of relevance in these proceedings to be met pursuant to s 12 and 12B of the 1961 Mine Act, and the parties explained how the jurisdictional prerequisites have been satisfied as set out above. I find: 1. The damage to the Property has arisen as a result of mine subsidence in accordance with s 12B(a); 2. The compensation to be awarded for the damage so caused is $180,000.00 in accordance with s 12B(b). 1. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The parties have agreed that mine subsidence has caused damage to the Applicants' Property, and that the sum of $180,000 is appropriate compensation to reimburse the Applicants for the damage so caused. 2. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 3. The Court orders that: 1. The appeal is upheld. 2. Compensation is determined in the sum of $180,000 pursuant to s 12B of the Mine Subsidence Compensation Act 1961 (NSW) for damage to the property known as 7 Remembrance Drive, Tahmoor (Lot 192 in DP 793109) arising from subsidence which was previously the subject of the decision of Subsidence Advisory NSW on 12 May 2021 for Stage 2 as specified in Annexure A. 3. Costs reserved. 1. The Court notes that: 1. The agreement of the parties that the compensation payable in accordance with par [2] above does not include compensation for damage to the Property arising from subsidence which was previously the subject of the decisions of Subsidence Advisory NSW on 14 November 2017 and 26 September 2019 for the Stage 1 works, including relevelling works and the swimming pool. ………………………… M Peatman Acting Commissioner of the Court (Annexure A) (150818, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2021