Reported Decision: 161 LGERA 391 New South Wales Court of Appeal CITATION: Ulan Coal Mines v Minister for Mineral Resources & Anor [2008] NSWCA 174 HEARING DATE(S): 29/4/08, 30/4/08 JUDGMENT DATE: 8 August 2008 JUDGMENT OF: Hodgson JA at 1; Tobias JA at 19; Bell JA at 20 DECISION: See par [128] of judgment CATCHWORDS: MINING – mining leases – prohibition on grant over surface of land on which there are improvements – s 62 of the Mining Act 1992 – relationship of dispute mechanism under the Schedule to the prohibition. Service of notices under s 383 of the Mining Act. - STATUTORY INTERPRETION – whether s 75V of the Environmental Planning and Assessment Act 1979 impliedly repeals s 62 of the Mining Act Civil Liability Act 2002 (NSW) Coal Mining Act of 1973 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 1997 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 LEGISLATION CITED: Environmental Planning & Assessment Regulation 2005 Interpretation Act 1987 (NSW) Mining Act 1906 Mining Act 1992 (NSW) Mining Legislation Amendment Act 1996 Statute Law (Miscellaneous Provisions) Act 2005 CATEGORY: Principal judgment Australian Iron and Steel Limited v Hoogland [1962] HCA 13; (1962-1963) 108 CLR 471 Cooper Brookes (Wollongong) v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Electrolux Home Products Pty Limited v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; (2003) 214 CLR 269 Harrison v Melham [2008] NSWCA 67 Kayuga Coal v Ducey [2000] NSWCA 54 CASES CITED: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Kearney; ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500 Victims Compensation Fund Corporation v District Court of New South Wales [2001] NSWCA 241 WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 79 ALJR 94 Wade v New South Wales Rutile Mining Co Pty Ltd and Others [1969] HCA 28; (1969) 121 CLR 177 Ulan Coal Mines ACN 000 189 248 (Appellant) PARTIES: Minister for Mineral Resources (First Respondent) Moolarben Coal Mines Pty Limited ACN 108 601 672 (Second Respondent) FILE NUMBER(S): CA 40811/07 B Walker SC / R Beasley (Appellant) COUNSEL: T Hale SC / H Younan (First Respondent) M Leeming SC / C H Withers (Second Respondent) Minter Ellison (Appellant) SOLICITORS: I V Knight (First Respondent) John Harold Davis (Second Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 30025/07 LOWER COURT JUDICIAL OFFICER: Smart AJ LOWER COURT DATE OF DECISION: 16/11/07 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40811/07 SC 30025/07 HODGSON JA TOBIAS JA BELL JA 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. 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. 25 Section 62(1) of the Mining Act 1992 (NSW) provides that a mining lease may not be granted over the surface of any land on which any improvement is situated (other than an improvement constructed or used for mining purposes and for no other purposes) except with the written consent of the owner. An improvement is a substantial and valuable work or structure on the land: see Kayuga Coal v Ducey [2000] NSWCA 54. It was accepted on the appeal that there are improvements within s 62(1)(c) on the land owned by Ulan that is the subject of MLA 264 and MLA 290. Ulan has not given its written consent to the grant of mining leases over the surface of its land on which the improvements are situated. 26 Division 4 of Sch 1 (the Schedule) of the Mining Act provides a mechanism for a landholder whose land is the subject of an application for a mining lease to make a claim to the Minister that something on the land is a valuable work or structure: cl 23A. The mechanism is triggered by the service on the landholder of a notice by the mining lease applicant: cl 21. The notice is required to state that claims with respect to valuable works or structures on the land must be made to the Minister within 28 days after service of the notice. In the event a claim is made and the applicant for the mining lease objects to the claim, the Director-General of the Department is to refer the objection to a warden for inquiry and report: cl 23B. Anything identified in the claim is taken to be a valuable work or structure unless, as the result of the warden's inquiry, it is declared not to be. 27 Moolarben purported to serve notices on Ulan of MLA 264 and MLA 290 in accordance with cl 21 of the Schedule. There is an issue about whether the notices were validly served. The notices came to Ulan's attention. Ulan has not made a claim to the Minister with respect to any improvements on the land that is the subject of MLA 264. It did not make a claim with respect to any improvements on the land that is the subject of MLA 290 within the time specified in the Schedule. 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. The Mining Act 37 The provisions of the Mining Act relevant to ground (i) are set out below: 62 Dwelling-houses, gardens and improvements (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 (1) After considering an application for a mining lease, the Minister: (a) may grant a mining lease to the applicant, or (b) may refuse the application. (2) Without limiting the generality of subsection (1), an application may be refused on the ground that the applicant has been convicted of an offence against this Act or the regulations or any other offence relating to mining or minerals. (3) The Minister may grant a single mining lease in respect of more than one application. (3A) A mining lease may not be granted until the appropriate mining lease fee (as determined under section 382A) has been paid for the grant of the lease. (4) A mining lease may not be granted under this section otherwise than in accordance with Part 2 of Schedule 1. (5) A mining lease may not be granted, in respect of a mining purpose or mining purposes only, unless the Minister is satisfied that the mining purpose or mining purposes is or are to be carried out in connection with and in the immediate vicinity of: (a) a mining lease in respect of a mineral or minerals, or (b) a mineral claim, being a mining lease or mineral claim that has been or is proposed to be granted. 69 Shape and dimensions of land over which mining lease may be granted 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. 38 The claims mechanism in Sch 1 requires consideration of cll 21, 23A and 23B. 21 Notification of landholders (1) Before inviting tenders for a mining lease to which this Division applies, the Minister must cause notice of the proposal to be served on any landholder of the land concerned. (2) Such a notice: (a) must state that the Minister intends to invite tenders, and (b) must describe the land to which the invitation will relate, and (c) must state that objections to the granting of the lease on the grounds that the land is agricultural land, and claims with respect to valuable works and structures on the land, may be made to the Minister within 28 days after the date on which the notice is served. (3) An applicant for a mining lease to which this Division applies must (within 21 days after lodging the application or, in a case to which section 383A (2) (b) applies, within 21 days after the expiration of the period referred to in that paragraph) cause notice of the application to be served on any landholder of the land concerned. (4) Such a notice: (a) must state that an application for the lease has been lodged, and (b) must contain a description, prepared in the manner prescribed by the regulations, of the land over which the lease is sought, and (c) must state that objections to the granting of the lease on the grounds that the land is agricultural land, and claims with respect to valuable works and structures on the land, may be made to the Minister within 28 days after the date on which the notice is served. (5) A copy of every notice served in accordance with subclause (3) must be lodged with the Director-General within 21 days after the date on which the notice was served, together with a statutory declaration to the effect that each such notice was served and setting out the name and address of each landholder on whom it was served. … 23A Identification of valuable works and structures (1) A landholder of land to which an invitation for tenders will relate, or over which a mining lease is sought, may make a claim to the Minister that something on the land is a valuable work or structure. (2) A claim must be in writing, identifying the nature and location of the work or structure, and must be lodged with the Director-General on or before the date specified in the relevant notice under clause 21. (3) On receipt of a claim made under this clause, the Director-General: (a) in the case of a claim relating to an invitation for tenders, must decide whether to accept the claim or to object to the claim, or (b) in the case of a claim relating to an application for a mining lease, must cause notice of the claim to be given to the applicant for the lease. (4) An applicant for a mining lease to whom such a notice is given may object to the claim. (5) An objection must be made in writing and lodged with the Director-General within 14 days after notice of the claim was given to the applicant. (6) Anything identified in a claim as being a valuable work or structure is taken to be a valuable work or structure for the purposes of section 62 unless it is declared not to be a valuable work or structure under clause 23B. 23B Consideration of objections to claims concerning valuable works and structures (1) Unless it is earlier withdrawn, the Director-General must refer any objection made under clause 23A to a warden for inquiry and report. (2) At the conclusion of the inquiry into the objection, the warden must announce in open court the warden's finding and the purport of the warden's report and must transmit the finding and report to the Minister. (3) Anything in respect of which an objection has been made under clause 23A and which the warden's report declares not to be a valuable work or structure is taken not to be a valuable work or structure for the purposes of section 62. GROUND (i) – THE EFFECT OF s 62(1) OF THE MINING ACT 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. [276] Section 62(1)(c) imposes a prohibition and it is not expressly stated that the prohibition ceases to apply if not made within the specified time. However, cls 23A and 23B of Schedule 1 are incorporated by s 62(8) into the scheme of the legislation. They in turn follow on from the provisions of cls 20 and 21 of Schedule 1. It does not change matters that these provisions also apply to objections to granting the lease on the ground that the land is agricultural land. Clauses 22 and 23 deal with agricultural land and objections. Clauses 23A and 23B deal with claims that certain items situated on the land constitute a valuable work or structure. [277] Where no claim is made by the landholder within the time specified that a particular improvement is a valuable work or structure the Minister is not precluded by the terms of s 62(1)(c) from granting a lease over the surface of the land the subject of the lease application." (Red 140.G-141.L) The legislative history 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. The submissions 46 Ulan contended that the primary judge erred in holding that a condition of the prohibition in s 62(1)(c) is the making of a claim by the landholder under cl 23A of the Schedule. Its submissions in this respect are summarised below: (a) The plain words of s 62(1)(c) are that the Minister may not grant a mining lease over the surface of any land on which there is situated an improvement being a substantial and valuable work or structure (other than one constructed and used for mining purposes and no other purposes) absent the owner's written consent. This is the only construction that is open if the words of the provision are given their literal or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 384 [78]. (b) There is nothing in s 62 which, when read in the context of the Act as a whole, justifies the gloss which the primary judge placed on the prohibition in subs (1)(c): Wade v New South Wales Rutile Mining Co Pty Ltd and Others [1969] HCA 28; (1969) 121 CLR 177 per Barwick CJ at 181. (c) Subsection (6) deals with the resolution of disputes as to whether any of the stated circumstances in subsection (1) applies. It is not linked to the claim mechanism in the Schedule. (d) Section 63 addresses the Minister's power to grant or refuse an application for a mining lease. Subsection (4) provides that a mining lease may not be granted under the section otherwise than in accordance with Pt 2 of Schedule 1. There is no equivalent "incorporation" of the claim mechanism in the Schedule in s 62. His Honour erred in concluding that cll 23A and 23B are incorporated by subs(8). The inclusive definition of "valuable work or structure" in subs (8) recognises that the prohibition in subs (1) (c) may extend to valuable works or structures situated on land which have not been determined by the claim mechanism in the Schedule. (e) The Minister's power to grant a mining lease application is conditioned, inter alia, on the service on the landholder by the mining lease applicant of a notice conforming to cl 21(4). The landholder may make a claim under cl 23A. The permissive language of cl 23A(1) is against the primary judge's construction of the scheme. (f) The construction adopted by the primary judge has the potential to do manifest injustice. It will not be every landholder who is aware of the provisions of the Act, nor who is able to make a determination within the time period as to whether their land contains "improvements" within s 62(1)(c). (g) The public interest in the encouragement of mining enterprises is balanced in s 62 by the protection afforded to rights of private property. In the event of ambiguity, s 62 should be construed so as to effectuate the beneficial purpose which it is intended to serve: R v Kearney; ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433. (h) Reading s 62 according to its terms does not produce an unworkable result. An applicant for a mining lease is not without recourse in a case in which a landholder does not make a claim under the Schedule in relation to works or structures on the land which the applicant considers do not constitute substantial and valuable improvements. The applicant may inform the Minister of any potential dispute and the Minister may be expected to refer it to the warden for inquiry and report under subs (6). 47 Moolarben's submissions, supporting the primary judge's construction of s 62, are summarised as follows: (a) The primary judge's construction gives effect to s 62 in its statutory context and promotes the object and purpose of the Act. The claim mechanism in the Schedule is an essential aspect of the operation of the restriction on the power to grant mining leases contained in s 62. This is because the Mining Act is intended to encourage mining. Consistent with this purpose is the imposition of the time limits in the claim mechanism in the Schedule, which serve to ensure that landholders do not unduly delay the grant of mining leases. (b) The wording of the Schedule indicates that it is intended that the making of a claim under cl 23A is a condition of the restriction in s 62(1)(c). The mandatory language of cl 21 (the notice to the landholder) and cl 23A(2), (3), (4) and (5) (the making of the claim) is such an indicator. The requirement that the cl 21(3) notice state that claims must be made to the Minister within 28 days is another: if the making of a claim within time is not a condition of the landholder's protection under s 62(1)(c), the notice is an incomplete statement of the landholder's rights. (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. Resolution 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). 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). 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. 64 Section 75V of the EPA Act, relevantly, provides: " 75V Approvals etc legislation that must be applied consistently (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. 66 Section 75Z(b) of the EPA Act provides that the regulations may make provisions for, or with respect to, the approval of projects under Pt 3A and to approved projects, including: "(d) requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under this Part". 67 Clause 8F of the EPA Regulation relevantly provides: " 8F Owner's consent or notification (1) The consent of the owner of land on which a project is to be carried out is required for an application for approval under Part 3A of the Act unless: … (c) the application relates to a mining or petroleum production project, … (3) If the consent of the owner of the land is not required under this clause, then the proponent is required to give notice of the application: … (4) In this section: ... mining or petroleum production includes any activity that is related to mining or petroleum production, but does not include a project on land that is a State conservation area reserved under the National Parks and Wildlife Act 1974 ." 68 Clause 14 of Schedule I of the Mining Act provides: " 14 Consent of landowner not necessary in application required by this Division Any requirement of the Environmental Planning and Assessment Act 1979 that an application for development consent be accompanied by the consent of the owner of the land concerned, and any requirement of the regulations under that Act that an application for the modification of a development consent be accompanied by such a consent, does not apply to an application under this Division." 69 His Honour's conclusion as to the operation of s 75V of the EPA Act on s 62(1) of the Mining Act is set out below : "[414] I was initially attracted to Ulan's submission as to the manner in which s 75V and s 62(1) could be read together, particularly because of the statutory and not discretionary prohibitions or restrictions in s 62(1) and the discretionary power in s 63(1). However, three points should be made: (i) Part 3A deals with mining leases specifically and envisages a single assessment and approval process with the Director-General of Planning providing a report encompassing all considerations. (ii) Section 75Z enables regulations to be made requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under Pt 3A. (iii) Section 8F(1)(c) of the Regulation provides that the consent of the owner of land on which a project is to be carried out is required unless the application relates to a mining project. [415] Section 8F(1)(c) does not specifically state that the owner's consent under s 62(1) is not required. The subject is approached by stating that consent is required unless the application relates to a mining project. In my opinion that indirect provision has the same effect. [416] Accordingly, because of the provisions of Pt 3A of the EPA Act and the regulation I have reached the conclusion that, as the Minister for Infrastructure and Planning has approved a project under Pt 3A of the EP & A Act, the prohibitions and restrictions in s 62(1) no longer apply and the Minister for Primary Industries, Natural Resources cannot refuse to grant Moolarben's application. Once the mining lease is granted the provisions in ss 265 and 262 as to compensation operate." (Red 179.T-180.Q) 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. 77 The area of claimed contrariety between s 62(1) of the Mining Act and the EPA Act extends beyond projects having approval under Pt 3A and includes integrated development under Div 5 of Pt 4 of the EPA Act. Integrated development is development that requires development consent and one or more of the approvals set out in s 91(1) which, as noted, includes the grant of a mining lease under ss 63 and 64 of the Mining Act. Section 91A(5)(b) provides, in a case in which the approval body fails to inform the consent authority whether or not it will grant the approval, or of the general terms of its approval, that the approval body "cannot refuse to grant approval". Section 93(1) of the EPA Act provides that, despite any other Act or law, an approval body must in respect of integrated development for which development consent has been granted, "grant approval". 78 In the Minister's submission, the policy of the 2005 amendments is that the Minister for Planning has an overriding discretion to approve major projects for which there is to be one assessment process. The "one stop" assessment procedure under Pt 3A of the EPA Act is said to override s 63(4) of the Mining Act with the effect that an application for a mining lease cannot be refused, notwithstanding the absence of compliance with Pt 2 of Sch 1 of the latter. The primary judge appears to have accepted so much. ([397] – [398], Red.176.K-R). In its written submissions, and on the hearing of the appeal, Ulan accepted that s 75V(1)(c) of the EPA Act operates to take away the Minister's discretion to refuse to grant a mining lease under s 63 of the Mining Act. (Orange 32.P-S, T'cpt 29/04/08 26.10) 79 At issue is the point that his Honour made at [394]: "[W]here s 62(1) applies any refusal to grant a mining lease operates not by virtue of an exercise of Ministerial discretion but by virtue of the prohibition in that subsection of the Mining Act". (Red 175.N-O) 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. GROUND (iii) – THE SERVICE OF THE NOTICES 86 In light of the conclusion that I have reached concerning the continued operation of s 62(1)(c) notwithstanding the omission to make a claim under cl 23A(1), Ulan's third ground assumes less prominence. 87 Ulan has as a place of business premises at 4505 Ulan Road, Ulan, NSW, 2850. Its address on its letterhead at the time of these events was given as Private Mail Bag 3006, Mudgee, NSW 2850. Its registered office is located in Macquarie Place, Sydney. 88 Each of the cl 21(3) notices that Moolarben was required to serve on Ulan were sent by post to the private mail bag address. 89 Ulan contends that Moolarben did not serve notice of its applications for MLA 264 and MLA 290 as required by cl 21(3) of Sch 1, in accordance with s 383(1) of the Mining Act. 90 Section 383 provides: " 383 Service of documents (1) A document that is authorised or required under this Act to be served on any person may be served: (a) personally or by post, or (b) by leaving it with a person apparently of or above the age of 16 years at, or by posting it to, the person's place of business or, in the case of a corporation, the registered office of the corporation. (2) If a landholder on whom a document is authorised or required under this Act to be served is absent from the State or cannot, after diligent inquiry, be found or identified, and that person's place of residence or business cannot, after diligent inquiry, be ascertained, the document may be served by affixing it on some conspicuous part of the land. (3) If under this Act a document is authorised or required to be served on the holder of an authority or a mineral claim and there is more than one such holder, service on any one such holder of the document, together with copies of the document addressed to the other holders, is taken to be service on all of the holders. (4) If a person has more than one place of business, service may be effected under this section at any of those places. (5) Nothing in this section prevents service of a document from being effected by facsimile transmission or other electronic means, or by the use of the facilities of a document exchange, but the burden of establishing that service has been so effected lies on the person asserting that fact. (6) A requirement of this Act to serve a document on a landholder is, if the landholder is the Crown, a requirement to serve it in the manner prescribed by the regulations. (7) The regulations may, in a particular case or class of cases, dispense with service on the Crown pursuant to a requirement referred to in subsection (6)." 91 Ulan's contention is that service by post of a cl 21(3) notice on a corporation can only be effected by posting it to the corporation's registered office. 92 His Honour found that each notice had been served on Ulan within s 383 of the Mining Act. He said this: "[308] The words 'any person' where appearing in line 2 of subs (1) refers to both a natural person and a corporation. This is so because the section proceeds to deal with service both personally and on a corporation. Service by post is permitted. Subsection (1)(b) enlarges the methods of service on a natural person. He or she may be served by leaving the document with a person apparently of or above the age of 16 years at the person's place of business or posting the document to the person's place of business. Service by leaving a document with a person apparently of or above the age of 16 years at the registered office of a corporation or posting a document to the registered office of a corporation are both common and permissible methods of service. A corporation's registered office is fixed and required to be recorded. It can be readily ascertained. A place of business does not necessarily have these attributes. [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. 95 In my opinion, the primary judge was correct to hold that service could be effected by post at any of Ulan's places of business. Section 383 is facultative. The reference to "person", when first appearing in subs (1), includes corporations: s 21 of the Interpretation Act 1987 (NSW). There is no warrant for reading subs (1)(a) down to exclude corporations from the provision for service by post. The reference to "person", when first appearing in subpar (1)(b), is, as the context makes clear, to a natural person. It is less clear that the reference to "person", when second appearing in subpar (1)(b), is confined to a natural persons. His Honour commented on the difficulty of the language of subpar (1)(b). He concluded that the reference to "the person's place of business" was probably confined to natural persons because it seemed to be used in contradistinction to the words "or in the case of a corporation". Subsection (4) contains no indication that the word "person" is to be read down so as to exclude a corporation. In my opinion, the provision, read as a whole, favours the interpretation that the balance of subs (1)(b) is not intended to be read in contradistinction, but rather as an additional mode of service on a corporation. There is no inconsistency between subs (1)(b) and subs (4), reading each according to the ordinary meaning of "person". Notice of Contention 96 Before turning to the Notice of Contention, it is convenient to deal with a submission as to discretionary refusal of relief which is not raised by the Notice. On the appeal, Moolarben tendered a copy of the notice in the Government Gazette, No 4 of 11 January 2008, of the grant of Mining Lease No. 1605 (previously No. 264) and Mining Lease No. 1606 (previously No. 290), each dated 20 December 2007 for a term until 20 December 2028 (Exhibit 1, Orange 63). There was no objection to the Court receiving this fresh evidence. The grant of the leases serves to explain why Ulan confined its claims for relief on the appeal to the declarations sought in prayers 3 and 6 of its Further Amended Summons. 97 The declaration claimed in prayer 3 is in these terms: "A declaration that in the event that the First Defendant grants MLA 290 and/or MLA 264, the said approval and any mining lease resulting therefrom is void and of no effect by reason of section 62 of the Mining Act 1992." Prayer 6 claimed a like declaration arising out of the asserted failure to serve the cl 21(3) notices. It is not necessary to refer to it further. 98 Moolarben relied on Ulan's failure to seek interlocutory relief to restrain the Minister from granting the mining leases as a reason for refusing to grant the declaration sought. 99 It will be recalled that Ulan claimed orders restraining the Minister from granting or approving both MLAs in its Further Amended Summons. 100 Ulan pointed to the fact that it had moved to obtain appropriate relief before the Minister granted the mining leases resulting from MLA 264 and MLA 290. It relied on the observations in the joint reasons in Project Blue Sky at 393, [100]: "[A] person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action." 101 The mining leases were granted after Ulan lost its claim for relief at first instance. The fact that it did not seek injunctive relief pending the determination of the appeal does not impress me as a proper basis for this Court to refuse the declaratory relief that it claims. 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. 106 MLA 264 was lodged in July 2005. Prior to that date, Ulan was aware that Moolarben proposed to lodge a mining lease application. The matter had been discussed at meetings between executives of Moolarben and Ulan/Xstrata. Notice of MLA 264 was received by Ulan on 5 August 2005. The last date for the filing of a claim under cl 23A(1) was 2 September 2005. There was a period of some 18 months between that date and the commencement of the proceedings. 107 On 7 November 2006 Ulan received the cl 21(3) notice of MLA 290. The last date for the making of a cl 23A(1) claim in respect of MLA 290 was 5 December 2006. Ulan first notified its objection to the grant of MLA 290 by letter addressed to the Deputy Director General of the Department of Primary Industries and Mineral Resources on 29 January 2007. (Exhibit K, Tab 60, Blue 8/1560-1561) 108 At the end of May 2006, Felix commenced negotiations with Xstrata, with the aim of purchasing those parts of Ulan's land that were affected by the Moolarben Coal Project. 109 On 13 July 2006, Mr Coates, the Chief Executive Officer of Xstrata, met with Mr Flannery, the Managing Director of Felix. At the meeting Mr Coates conveyed that Xstrata may be interested in acquiring Felix. On 9 November 2006, following further discussions, Xstrata and Felix entered into a confidentiality agreement for the provision by Felix of its commercial information to Xstrata to permit due diligence inquiries to proceed. On 13 November 2006, Xstrata informed Felix that it had retained solicitors to prepare a merger implementation agreement. At a meeting between Mr Eames, General Manager Business Development for Xstrata, and Mr Flannery, Mr Eames said: "The timing is tight for us to get approval from the Xstrata Board to make an offer. The Xstrata Board is meeting in December. The key to us is the export yield on Moolarben. We are continuing to look at that and other aspects of Moolarben." (Blue 868.S-W) 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. 117 Mr Flannery's evidence was that, following receipt of EL6288, Moolarben had done the following: "(a) conducted exploration of the EL 6288 area; (b) undertaken environmental monitoring of the area; (c) conducted engineering studies; (d) commissioned an environmental assessment report, utilizing the services of numerous consultants to assess the regional impact of the Project on air quality, noise, ground and surface waters, subsidence, soils, geo-chemical balances, flora and fauna, Aboriginal and European heritage, transportation as well as the mine's visual impact; (e) prepared and submitted a 'Major Project' application under Part 3A of the Environmental Planning & Assessment Act 1979 ; (f) prepared and submitted the two mine lease applications under the Mining Act 1992 ; (g) acquired 14 landholdings consisting of approximately 2700 hectares of rural land for a cost of $7.28 million; and (h) acquired 7 residential properties for a cost of 1.3 million." (Blue 863.R – 864.K) 118 Mr Flannery stated that total direct costs of the above efforts amounted to "approximately $19 million". (Blue 864.L-M) 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. 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. 126 At trial, it seems to me that Ulan established its entitlement to a declaration that in the event the Minister were to grant MLA 290 and/or MLA 264 any lease resulting therefrom may not extend over the surface of any land on which is situated a work or structure found by the primary judge to be a substantial and valuable improvement for the purposes of s 62(1)(c) of the Mining Act. Since on the hearing of the appeal the parties did not address the form of the declaration claimed, they should be given an opportunity to do so in light of these reasons. 127 Ulan claims an order that "the respondents" pay its costs of the appeal and the proceedings below. The Minister made a submitting appearance below. Ulan did not succeed on the hearing before the primary judge on a number of matters that were not the subject of appeal. It will be necessary to hear from the parties on the order for costs. 128 For these reasons I propose that the appeal should be allowed, but that formal orders should not be made until after the parties have had an opportunity to address the form of the declaration and any consequential orders, including whether the proceedings are to be remitted to the primary judge for further submissions in respect of the findings referred to at [32] above, and the order for costs. Written submissions on these issues are to be filed within 21 days of today's date. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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