Lester v Ashton Coal Mining Operations Pty Ltd and Anor (No. 2) [2011] NSWLEC 177

Land and Environment Court New South Wales

Medium Neutral Citation: Lester v Ashton Coal Mining Operations Pty Ltd and Anor (No. 2) [2011] NSWLEC 177 Hearing dates: 18 August 2011, 27 September 2011 Decision date: 13 October 2011 Jurisdiction: Class 4 Before: Sheahan J Decision: 1. Access is granted to the Applicant, Mr Scott Franks, and experts appointed by the Applicant for the purpose of inspection and preparation of reports in accordance with the UCPR and expert witness practice direction, regarding the extent of work and consequential impact on Aboriginal sites within the area of ML 1533 by the activities of the First Respondent. 2. The persons to be granted access in accordance with Order 1 are the following: i) Robert Lester (Applicant) and Native Title claimant and traditional owner ii) An expert archaeologist iii) An expert in mine engineering, and/or a geologist/geomorphologist/subsidence specialist iv) Scott Franks, Aboriginal Heritage specialist and Native Title claimant and traditional owner 3. The areas of ML 1533 to be inspected are the Aboriginal sites known as, and referred to in these proceedings, as: i) The Oxbow site ii) The Grinding Groove site (also referred to as the Waterhole Site) iii) The Pleistocene site iv) The Fishtrap site. 4. It is envisaged in the making of these orders that the inspection will take at least one full day, with provision for a second day if required, and the Office of Environment and Heritage is to be notified by the First Respondent of the date and time of the inspection. 5. Officers of the Office of Environment and Heritage and any experts retained by the Office of Environment and Heritage are granted access to attend any such inspection, and have permission to record discussions during any such inspection. 6. The names and curricula vitae of the experts attending the inspection are to be provided to all parties. 7. Within 7 to 21 days of the completion of the inspection any of the parties may approach the Registrar to include the matter in the List Judge's list at the earliest opportunity, with a view to the making of further directions, including as to the disposition of any outstanding or further interlocutory applications. 8. Costs of 5 August, 18 August, and 27 September 2011 are reserved. 9. The exhibits are to remain in the court file for the present. Catchwords: PRACTICE AND PROCEDURE: Application for access to the subject site. Legislation Cited: Evidence Act 1995 National Parks and Wildlife Act 1974 Uniform Civil Procedure Rules 2005 Cases Cited: Ashton Coal Operations Pty Ltd v Director General, Department of Environment Climate Change and Water [2011] NSWLEC 1162 Ashton Coal Operations Pty Ltd v Director General, Department of Environment, Climate Change and Water (No 2) [2011] NSWLEC 116 Ashton Coal Operations Pty Limited v Director-General, Department of Environment, Climate Change and Water (No 3) [2011] NSWLEC 1249 Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145 Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1 Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155 Williams v Homestake Australia Limited and Ors [2002] NSWLEC 155; (2002) 122 LGERA 319 Category: Procedural and other rulings Parties: Robert Lester (Applicant) Ashton Coal Mining (sic) Operations Pty Ltd (First Respondent) Chief Executive of the Office of Environment and Heritage (Second Respondent) Representation: Mr A Oshlack (Applicant) Mr S Lloyd SC (18.8.11) /Mr A Galasso SC (27.9.11) with Ms V Brigden, Barrister (First Respondent) Dr S Pritchard, Barrister (Second Respondent) Mr A Oshlack C/o Indigenous Justice Advocacy Network (Applicant) McCullough Robertson Lawyers (First Respondent) Office of Environment and Heritage (Second Respondent) File Number(s): 40628 of 2011