Vervoorn Maria v Mine Subsidence Board [2007] NSWLEC 538

Land and Environment Court of New South Wales

CITATION : Vervoorn Maria v Mine Subsidence Board [2007] NSWLEC 538

APPLICANT Maria Vervoorn PARTIES : RESPONDENT Mine Subsidence Board

FILE NUMBER(S) : 30558 of 2006

CORAM: Talbot J

KEY ISSUES: Mine subsidence :- Proof of cause of damage - extent of attributable damage - appoinment.

LEGISLATION CITED: Mine Subsidence Compensation Act 1961 s 12, s 12A, s12B

DATES OF HEARING: 25/06/07, 26/06/07, 28/06/07, 29/06/07, 19/07/07, 20/07/07, 25/07/07, 30/07/07, 2/08/07, 6/08/07

DATE OF JUDGMENT: 29 August 2007

APPLICANT Mr D G T Nock SC SOLICITORS Barry F Cosier & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P McEwen SC SOLICITORS Trisley Kilmurray Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

29 August 2007

30558 of 2006 Vervoorn, Maria v The Mine Subsidence Board

JUDGMENT

1 Talbot J: The applicant Mrs Vervoorn is the owner of a property in the town of Lithgow, known as 19 Birdwood Street. The house is in a dilapidated state and has become inhabitable as a consequence of severe damage throughout the structure of the building. Mrs Vervoorn has lodged a number of claims with the respondent Board over the years alleging that the damage or at least a major part of it is caused by mine subsidence. The latest claim lodged with the Board in December 2005 is the subject of an appeal to this Court. The claim for damages contains particulars of the nature of damage alleged by Mrs Vervoorn in her own words as follows:- Significant cracking to the walls and floors of main portion of the double brick home and the bed-sitting room adjoining, both internally and externally with substantial movement allowing a free flowing of flies, spiders and warm air (cold air in winter). Severe cracking and movement of the front verandah and patio area including the floor tiles (the original concreted steps collapsed and the replaced wooden stairs to the front door have also moved away from the home.) Severe cracking to the concrete paths surrounding the home. The AGL representatives have instructed the Applicant not to use the Natural Gas service owing to the severe movement of the ground where the gas metre is located and the lines past into the home. This has existed for the past two winters. The Applicant believes that the home is well beyond economic repair. 2 Mrs Vervoorn says in the Claim Application form that the damage was first noticed "in about 1998." 3 However earlier claims were made in early 1991 and March 1998. All claims have been rejected by the Board. 4 At the time Mrs Vervoorn bought the house it had a wooden floor in the front of the house. At the rear on the southern side there was a concrete slab. The slab had been installed after the house was built. 5 In 1991 Mrs Vervoorn complained about some cracking. However her main complaints commenced in 1998 when the house started to show major cracks. 6 The house is built partially over a mine roadway and partially over what is referred to as a T-junction at the barrier pillar. The barrier pillar adjacent to the mine roadway is the finish of the working. Originally there were railway lines branching off and a set of points at this location. 7 There is between 9.2 and 10.3 metres of overburden above the workings. There is a rock strata of between 7.9 up to 8.8 metres. 8 The applicant's case arises under s 12 of the Mine Subsidence Compensation Act 1961. The appeal is made under s 12B. Section 12 relevantly provides: - 12 Claims for damage arising out of subsidence