Land and Environment Court New South Wales Medium Neutral Citation: Hume Coal Pty Limited v Alexander (No 3) [2013] NSWLEC 58 Hearing dates: 18 February 2013 Decision date: 03 May 2013 Before: Sheahan J Decision: 1. The Court declares that the Plaintiff has a right to use the Carriageway to access the Land to carry out prospecting pursuant to the access arrangement between it and Robert Koltai, Exploration Licence 349, and the Mining Act 1992. 2. The Court grants an injunction, pursuant to section 295 of the Mining Act 1992, restraining the Defendants from: (a) preventing the Plaintiff using the Carriageway to access the Land to carry out prospecting from the date of the order; and (b) restraining the Defendants from inviting or allowing third parties on to the Carriageway for the purposes of preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting from the date of the order. 3. The Court orders that the Defendants prevent, or take reasonable steps to prevent, third parties on the Defendants' land from preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting for a period of two months from the date of the order. 4. Costs are reserved. 5. All exhibits may be returned. Catchwords: INJUNCTIONS AND DECLARATIONS: statutory injunction under the Mining Act 1992 - access to sites selected for prospecting activity blocked by objectors - use of right of carriageway on land owned by objectors - impact of restrictive covenants affecting relevant lands - primacy of legislation Legislation Cited: Environmental Planning and Assessment Act 1979 Mining Act 1992 Mining Regulation 2010 Cases Cited: Hume Coal Pty Ltd v Alexander [2012] NSWLEC 267 Hume Coal Pty Ltd v Alexander (No 2) [2012] NSWLEC 278 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R & R Fazzolari Pty Ltd v Parramatta City Council [2009] HCA 12; 237 CLR 603 Toll v Alphapharm [2004] HCA 52; 219 CLR 165 Category: Principal judgment Parties: Hume Coal Pty Limited (Plaintiff) Ross Alexander (First Defendant) Margaret Anne Alexander (Second Defendant) Representation: Mr R C Beasley SC (Plaintiff) Ms J Needham SC, and Mr S Chapple (Defendants) Minter Ellison (Plaintiff) Environmental Defender's Office (Defendants) File Number(s): 81128 of 2012 Judgment Introduction 1The plaintiff company ("Hume") seeks an injunction and other relief against the Alexanders, who are joint tenant landowners who have been hosting a blockade of a right-of-carriageway across their land (known as "Carter's Lane" and clearly shown on "the Alexander land" on DP 1004339 - see Exhibit H1, tab 7). 2The relief is sought pursuant to s 295 of the Mining Act 1992 ("the Act"), which provides (emphasis mine): (1) If an application is made to the Land and Environment Court by a person claiming to hold a legal or equitable interest in any land subject to an authority or mineral claim, or in any property, the Court may, on such terms as to costs or otherwise as it may consider just, grant an injunction restraining any specified person: (a) from encroaching on, occupying, using or working the land or property, or (b) from seeking, washing out, extracting or removing any earth or minerals from the land, or (c) from selling or disposing of or otherwise interfering with the property, or (d) from doing any act that may affect the interest concerned in the whole, or any part, of the land or property. (2) An injunction remains in force for the period specified in the injunction, unless it is sooner discharged. Background 3Carter's Lane across the Alexander land permits access to land owned by one Robert Koltai ("the Koltai land"), and to other lands. It runs off Golden Vale Road, in the Sutton Forest area of the Southern Highlands of New South Wales. Golden Vale Road directly links the Hume and Illawarra Highways. 4Maps before the Court (in Exhibit H2) show all relevant land holdings, and their relationship(s) to one another, and to Carter's Lane and Golden Vale Road. Precise lot numbers have changed over time, but, for simplicity, I identify, in these reasons, the Koltai land as Lot 12, and the Alexander land as Lot 10. 5Both the Koltai and Alexander lands lie within an area of 115 square kilometres of the region (Exhibit H1, tab1, fol 3), covered by exploration licence/authorisation No 349, which dates from 23 September 1985 (Exhibit H3). 6The aim of the blockade of Carter's Lane is to prevent Hume from accessing the Koltai land ("Lane's End") for the purpose of "prospecting" for coal, as distinct from "mining" coal, pursuant to (1) an exploration licence granted to Hume's predecessors, by the Minister, and (2) an access agreement, which it concluded with Koltai. 7Hume suggests that the blockade may involve the commission of an offence against s 378B of the Act, which provides: A person must not, without reasonable excuse, obstruct or hinder the holder of an authorisation from doing any act that the holder is authorised by this Act to do. Maximum penalty: 100 penalty units. 8However, Hume relies on its entitlement to statutory relief (s 295, at [2] above, rather than the Court's power to restrain any breach of s 378B (T18.2.13, p28, LL11-33)). 9In any event, the blockade has effectively prevented Hume from accessing the Koltai land via Carter's Lane on three occasions - 23 October 2012, 5 November 2012, and 9 January 2013. 10Hume has proposed the digging of three boreholes (numbered HP 240, 250, and 265), the nominated sites for which are shown on the map annexed to the access agreement (Exhibit H1, tab 5, fol 12), but more clearly shown on an aerial photograph before the Court (at p24 of Simon Ball's affidavit of 15 November 2012, at p7 of his affidavit of 27 November 2012, and in Annexure "A" to Tim Rheinberger's affidavit of 13 February 2013). 11On 7 December 2012, I refused Hume's application for an interlocutory injunction ([2012] NSWLEC 267), and, on 14 December 2012, Craig J ordered that the final hearing of the proceedings be expedited ([2012] NSWLEC 278). 12The costs of both those earlier proceedings were reserved, and the substantive matter came before me for final hearing on 18 February 2013. The final relief sought 13Hume now presses only the following prayers of its class 8 summons, dated 8 November 2012: ... 2 An injunction pursuant to section 295 of the Mining Act 1992 restraining the Defendants from: (c) preventing the Plaintiff using the Carriageway to access the Land to carry out prospecting from the date of the order; and (d) restraining the Defendants from inviting or allowing third parties on to the Carriageway for the purposes of preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting from the date of the order. 3 A declaration that the Plaintiff has a right to use the Carriageway to access the Land to carry out prospecting pursuant its access arrangement in relation to the Land, Exploration Licence 349 and the Mining Act 1992. 4 An order that the Defendants prevent, or take reasonable steps to prevent, third parties on the Defendants' land from preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting for a period of two months from the date of the order. ... 6 An order that the Defendant (sic) pay the Plaintiff's costs. 7 Such further orders as the Court sees fit. Introduction to the argument 14The defendants did not press at the final hearing all the arguments they had advanced against the grant of interlocutory relief. 15Fundamentally, they still contend that Hume cannot rely on its access agreement with Koltai to found an injunction under s 295 against the blockade, because: (1)a restrictive covenant (to which I will refer as "the Keighley covenant"), dating from 1999 (tab 10) and binding on Koltai, precludes his making such an agreement, and (2)the use of Carter's Lane involves "prospecting operations", which require the Alexanders to also have an access agreement in place. 16The defendants also argue, (3), that, in all the circumstances, the Court should, in its discretion, decline to grant any injunction. 17The instrument establishing the right-of-carriageway in DP 883697 (Carter's Lane) is before the Court (Exhibit H1, tab 8). Its terms are (cl 5): Full and free right for each of the persons who from time to time is the owner of one of the Lots comprising the dominant tenement, and every other person authorised by him, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the dominant tenement of any part thereof PROVIDED THAT each of the persons who from time to time is the owner of one of the Lots comprising the dominant tenement shall upon demand contribute one-fifth of the cost of such maintenance of the right of way as is necessary to keep it in a trafficable condition and state of repair. 18Clause 7 of that instrument empowers only "William Geoffrey Keighley or after his death, his widow" (Mrs Karin Spiegel-Keighley) to "release vary or modify" the covenant. 19The background to the relevant covenants upon which the defendants rely was the subject of much evidence at the interlocutory hearing, and is dealt with in my earlier judgment (at [43]-[46]). 20They affect both the Koltai and the Alexander lands, and also the right-of-carriageway, and are noted on the certificates of title (in Exhibit H1, at tabs 6 and 12). The relevant restrictions are imposed (in cls 8 and 9 of the covenants - see e.g. Annexure "A" to the transfer document in Exhibit H1, at tab 10) in the following terms (emphasis mine): 8. the property or any part thereof shall not be used as a quarry and no soil or earth removed therefrom except in the normal course of building preparation, swimming pool installation, landscaping or construction of dams; 9. the property shall not be used for any industrial or commercial purpose except for the production of agricultural produce or livestock nor shall it be used wholly or mainly for the purpose of storage; 21Hume contends that the words "industrial" and "commercial" do not embrace "prospecting", in the form of short-term drilling and testing. Hume relies on the following relevant entries from the Macquarie Dictionary: Commerce, noun 1. interchange of goods or commodities, ... Commercial, adjective 1. of, or of the nature of, commerce. 2. engaged in commerce. 3. capable of returning a profit. ... Industry, noun ... 1. a particular branch of trade or manufacture: ... 2. any large-scale business activity: ... 3. manufacture or trade as a whole ... Industrial, adjective 1. of or relating to, of the nature of, or resulting from industry or productive labour: ... 2. having highly developed industries: ... 3. engaged in an industry or industries: ... 4. relating to the workers in industries:... 22The intent of each covenant, Hume submits, is to maintain the historic (agricultural) character of the land, and Hume contends that its exploratory testing will have no long-running or permanent impact on it. 23While Carter's Lane provides the most convenient way for Hume to access the relevant drilling sites on the Koltai land, it is not the only available way to do so. Hume, however, rejects two suggested alternative means of access (see [66] below). 24In terms of evidence, there is a large degree of agreement between the parties on relevant factual matters. Technical objections to affidavit material were speedily resolved, and many of the affidavits read at the interlocutory hearing, and discussed in my earlier judgment, were read again at the final hearing. No deponents were required for cross-examination, and the exhibits which the Court retained following the earlier hearing were again relied upon, including Simon Ball's bundle of key relevant documents (Exhibit H1), upon which all parties relied, and to which I have already referred above. 25I turn now to describe the relevant regulatory regime. I will then (from [46]) deal with Hume's exploration programme, and (from [71]) the background to the blockade. The regulation of mining and related activities 26Apart from the sections of the Act already quoted, the statutory regime regulating mining matters embraces both other provisions of the Act, and the provisions of the Mining Regulation 2010 ("the Regulation"). 27Section 3A sets for the Act the following objects: The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular: (a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and (b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and (c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and (d) to ensure an appropriate return to the State from mineral resources, and (e) to require the payment of security to provide for the rehabilitation of mine sites, and (f) to ensure effective rehabilitation of disturbed land and water, and (g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment. 28Mr Beasley SC, who appears for Hume, submits (par 48) that the Act "is titled the 'Mining Act' for a reason", and that it is: ...clear enough from s.3A that the central object of the Act is to encourage and promote the exploitation of the State's mineral resources, subject to appropriate environmental controls. To achieve the Act's objects, the right of prospect by the holder of an exploration licence (see s.29) overrides the rights that an individual landholder would otherwise have. No provision of the Act should be interpreted such that the objects of the Act could be defeated by private covenants. Even if 'prospecting operations' fell within the definition of clause 9 of the Covenant (which they do not), this cannot affect Hume's rights under ss.29 and 142 of the Act, or its right to injunctive relief under s.295. If such a Covenant was held to have the effect that the defendants assert, then landholders in areas where there are coal deposits could enter into similar such covenants and render mineral exploration in the State impossible. 29Section 5 of the Act provides (emphasis mine) that a person must not "prospect for or mine", any mineral, "except in accordance with an authorisation that is in force in respect of that mineral and the land where the prospecting or mining is carried on". 30Section 11A provides that the regulations may declare, or provide for the declaration by the Minister, that a specific activity is, or a specified class or classes of activities are, "not prospecting or mining" (emphasis mine) for the purposes of the Act. 31Part 3 (commencing with s 13) provides for exploration licences. An application for such a licence is, under s 22, considered by the "decision-maker" (defined as the Minister), who may grant or refuse it. If granted, the licence may be granted, (a) under s 26, subject to conditions, and (b) under s 27, for a specified term not exceeding five years. Under s 28, the licence will describe the land, list the subject minerals, set out the conditions, and specify the term. 32Division 4 of Part 3 (commencing with s 29) sets out the rights (and duties) arising under such a licence. Section 29(1) provides: The holder of an exploration licence may, in accordance with the conditions of the licence, prospect on the land specified in the licence for the group or groups of minerals so specified. 33Section 31 provides as follows: 31 Dwelling-houses, gardens and significant improvements (1) The holder of an exploration licence may not exercise any of the rights conferred by the licence over the surface of 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 significant improvement other than an improvement constructed or used for mining purposes only, 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) This section does not apply with respect to a dwelling-house, garden or significant improvement owned by the holder of the exploration licence or, if the holder is a corporation, by a related corporation. (5) If a dispute arises as to whether or not subsection (1) applies in a particular case, any party to the dispute may apply to the Land and Environment Court for a determination of the matter. 34Division 2 of Part 8 (commencing with s 138) provides for "Access arrangements for prospecting titles" (defined, in s 138(1), as "exploration licences and assessment leases"). 35The right to prospect grants to the licensee neither a presumptive nor an unfettered right of access to the subject land, and "prospecting operations" must not be undertaken except in accordance with an access arrangement. Section 140 provides (emphasis added): (1) The holder of a prospecting title must not carry out prospecting operations on any particular area of land except in accordance with an access arrangement or arrangements applying to that area of land: (a) agreed (in writing) between the holder of the prospecting title and each landholder of that area of land, or (b) determined by an arbitrator in accordance with this Division. (2) Separate access arrangements may (but need not) be agreed or determined with different landholders of the same area of land, for different areas of the same landholding or with respect to the different matters to which access arrangements relate. (3) Separate access arrangements may be made to preserve the confidentiality of provisions of the arrangements, to deal with persons becoming landholders at different times or for any other reason. 36According to Hume, landowners have very little choice regarding the grant or refusal of access when a licence has been issued, but the defendants do not accept that submission. 37Section 142 provides for the holder of the prospecting title to give notice of its intention to obtain an access arrangement. An access arrangement must be either agreed in writing between the holder of the prospecting title and the registered proprietor of that land, or determined by an arbitrator, possibly after conciliation (s 147), and/or an interim determination (s 149). Section 151(2) says that an arbitrator "must make a final determination as to whether or not" the prospector should obtain a right of access (emphasis added). 38Section 141 is headed "Matters for which access arrangement to provide", and provides: (1) An access arrangement may make provision for or with respect to the following matters: (a) the periods during which the holder of the prospecting title is to be permitted access to the land, (b) the parts of the land in or on which the holder of the prospecting title may prospect and the means by which the holder may gain access to those parts of the land, (c) the kinds of prospecting operations that may be carried out in or on the land, (d) the conditions to be observed by the holder of the prospecting title when prospecting in or on the land, (e) (Repealed) (f) the compensation to be paid to any landholder of the land as a consequence of the holder of the prospecting title carrying out prospecting operations in or on the land, (g) the manner of resolving any dispute arising in connection with the arrangement, (h) the manner of varying the arrangement, (i) the notification to the holder of the prospecting title of particulars of any person who becomes an additional landholder. .... (3) In the event of an inconsistency between: (a) a provision of an access arrangement, and (b) a provision of this Act, of the regulations or of a condition of a prospecting title, the provision referred to in paragraph (b) prevails. ... 39Section 155 provides for any determination (other than one upon which the parties have agreed) to be reviewed by this Court, by way of rehearing. 40Section 164 (in Division 4 of Part 8) provides that the holder of an "authority" (including an exploration licence - s 4) is entitled to a "right of way" (governed and amplified by cl 37 of the Regulation), between the land the subject of the authority and the public road. Regulation 37 makes detailed provisions in respect of the marking out of the right of way, installation of posts, etc, and the principles to be applied. Generally, the "right of way" would follow existing roads or tracks, and there is an obligation to make good any damage to fences etc. 41Proceedings in this Court are governed by the provisions in Part 15, which includes s 295 ([2] above). Section 293 gives this Court jurisdiction to hear and determine proceedings in relation to any or all of a large number of listed matters, but nothing in that section limits or restricts any jurisdiction conferred on any other Court by any other Act or law. The Court is given (by s 298) a specific power to order payment of money or delivery of mineral. 42Section 378B ([7] above) is found in Part 17A, which creates a range of offences. 43Section 381 provides that "nothing in, or done under an environmental planning instrument" prevents prospecting operations. 44It is not suggested in this matter that any approval under the Environmental Planning and Assessment Act 1979 is required for the exploration activities planned for the subject site. 45The dictionary to the (Mining) Act includes the following definitions (in addition to those to which I have already referred, and with some emphasis now added): landholder means, in relation to reserved land [defined separately], the controlling body of that land, or, in relation to any other land: (a) the owner of an estate in fee simple in the land, or (b) a native title holder of the land, or (c) the holder of a lease or licence granted under the Crown Lands Act 1989 over the land, or (d) the holder of a tenure referred to in Part 1 or 2 of Schedule 1 to the Crown Lands (Continued Tenures) Act 1989 in the land, or (e) the holder of a permissive occupancy granted over the land, or (f) the holder of a lease granted under the Western Lands Act 1901 over the land, or (g) a person identified in any register or record kept by the Registrar-General as a person having an interest in the land, being: (i) a mortgagee in possession of the land, or (ii) a lessee of the land or other person entitled to an exclusive right of occupation of the land, or (iii) a Minister or public authority having the benefit of a covenant affecting the land that is imposed by a Minister on behalf of the Crown under the Crown Lands Act 1989, or (iv) a Minister or public authority having an interest in the land under a conservation, natural heritage or biobanking agreement, or (v) a person prescribed by the regulations for the purposes of this paragraph, or (g1) a person identified in any register or record kept by the Registrar-General as a person having an interest in the land, other than a person to whom paragraph (g) applies, but only in a provision of this Act in which a reference to a landholder is expressed to include a secondary landholder, or Note. See s 255A, Part 13, s 383C. (h) a person of a class prescribed by or determined in accordance with the regulations to be landholders for the purposes of this definition, but does not include a person of a class prescribed as outside the scope of this definition. party means: (a) in relation to a hearing before an arbitrator-a person who is entitled to appear and be heard at the hearing pursuant to section 146, or (b) in relation to an access arrangement-the holder of a prospecting title to whom, or a landholder of land to which, the arrangement relates. prospect means to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A or by a declaration made under such a regulation. prospecting operations means operations carried out in the course of prospecting. reserved land means an area constituted by land: (a) reserved, dedicated, appropriated, resumed or acquired for public purposes (except land reserved for a temporary common or a commonage), whether vested in the Crown or in any person as trustee for public purposes, or (b) held under a lease for water supply by virtue of a special lease or otherwise, or (c) transferred, granted or vested in trust by the Crown for the purpose of a race-course, cricket-ground, recreation reserve, park or permanent common or for any other public purpose, or (d) prescribed by the regulations for the purposes of this definition. Hume's Exploration Programme 46Both Hume's project manager, Tim Rheinberger (affidavit 13 February 2013, par 11), and its solicitor, Simon Ball (affidavit 27 November 2012, par 6), testify that Hume's exploration programme is based on the following: a. Significant data is required to define a resource and assess economic viability. b. The Plaintiff has where possible nominated strategic drilling locations in an effort to minimise the extent of ground activities. This is particularly relevant where exploratory drilling would otherwise occur across adjoining properties. c. Where historical data is available and is sufficiently concentrated, the Plaintiff has not at this stage planned further exploration activities. This is intended to maximise the use of existing data and minimise drilling activities. d. The exploratory drilling program design is largely driven by data requirements and the objective of a minimal impact, single-sweep approach to drilling. This means that the Plaintiff is focussed on obtaining the maximum volume of necessary data by accessing the minimum number of private landholdings. e. In relation to Lot 12, access to exploration data is vital to ensure the viability of the coal deposit and in order to assess the coal quality, geotechnical characteristics of the roof rock, as well as identify whether there are any faults or igneous intrusions. f. Access to Lot 12 will allow the Plaintiff to gather essential exploration and environmental data in the eastern and northern areas of Authority 349. 47In order to pursue these objectives, Hume requires not only its statutory licence/authorisation, but also land access agreement(s), as contemplated by the Act. 48The Alexanders have refused to enter into a land access agreement with Hume, and Hume has not pursued the arbitration option in respect of gaining access to the Alexander land. 49Between the two hearings before me, Hume and Koltai entered a second land access agreement to allow the drilling on the Koltai land at a fourth borehole (see photograph at p22 of Alexander's affidavit of 29 January 2013, and the map at p24 of Ball's affidavit of 15 November 2012). 50Carter's Lane was not needed to access that fourth drilling site, and drilling took place there on 23-31 January 2013. Rehabilitation was in progress as at 13 February 2013 (see Rheinberger affidavit, pars 24 to 28). The statutory licence 51Authorisation 349 (the 2009 renewal of which is found in Exhibit H1 behind tab 1) is subject to a number of conditions, including the following: 52Three categories of prospecting operations are defined (in definition 1, at p3 of 17) as follows (emphasis added to 1(h)): Category 1: Reconnaissance and low intensity activities, including: (a) Geological mapping (b) Airborne surveys (c) Sampling and coring using hand held equipment (d) Geophysical surveys and downhole logging, but not seismic surveys (e) Shallow reconnaissance drilling involving no more than minimal site preparation (f) Minor clearing or cutting of native vegetation (g) Minor excavations excluding costeaning or bulk sampling (h) Vehicle access that does not require construction of new tracks Category 2: Operations which have potential for moderate disturbance to the land surface, native vegetation or other environmental value, including: (a) Operations under Category 1 (c) to (h) within or adjacent to Sensitive Areas [as defined in definition 2, at p4] (b) Operations under Category 1 (c) to (h) of a concentrated or cumulative nature (c) Seismic surveys (d) Excavating or bulk sampling not exceeding 60 cubic metres (e) Non-intensive drilling involving no more than moderate site preparation, excluding drilling holes exceeding 400 millimetre diameter (f) Camp construction (g) Access tracks, drill pads or line clearing involving no more than moderate native vegetation disturbance Category 3: Operations which have potential to cause significant environmental impact involving, for example, considerable land surface disturbance or native vegetation clearing, including: (a) Operations under Category 2 (c) to (g) within or adjacent to Sensitive Areas [as defined in definition 2; p4] (b) Operations under Category 2 (c) to (g) of a concentrated or cumulative nature (c) Excavations or bulk sampling in excess of 60 cubic metres (d) Shaft sinking or tunnelling (e) Drilling holes in excess of 400 millimetre diameter (f) Intensive drilling, such as for resource definition purposes (g) Access tracks involving formed construction 53Section A of the Licence Conditions follows that definition section, and deals with approval of prospecting operations, on the basis of those elements of the various categories which may or may not require additional approval, including, in appropriate cases, assessment and determination under the Environmental Planning and Assessment Act 1979. Clause 1 of s A (p5 of 17) requires that there be no or minimal harm to the environment, threatened species, ecological communities, aboriginal objects, etc, as the result of the conduct of Category 1 operations. 54Section B (pp6-7 of 17) deals with conditions relevant to "special areas". 55Section C (commencing at p7 of 17) sets out detailed conditions in respect of the "environmental management of prospecting operations". Some of those specific conditions in Section C should be now noted: 56It contains special provisions in respect of the felling, etc of trees and vegetation (cl 15), non-interference with the public's normal use of roads and tracks, and the prevention of damage during wet weather (cl 16), non-interference with the flow of water in any stream or watercourse (cl 17), control of erosion and sediment (cl 18), prevention and monitoring of pollution (cl 19), collection, segregation and disposal of refuse and waste materials (cl 20), and non-interference with transmission lines, etc (cl 21). 57Clauses 23 and 24 make detailed provisions in respect of drilling, and cl 26 deals with the maintenance of drillholes in an open condition for monitoring purposes. 58Clause 27 (pp12-13 of 17) imposes strict requirements regarding the rehabilitation of any land disturbed, to a stable and permanent form suitable for a subsequent land use acceptable to the Department, and cl 28 (p13) provides for the preparation of environmental and rehabilitation reports, and so on. Clause 32 (the last clause in Section C) deals with any failure to fulfil those obligations. 59Section D (cls 33-38, pp14-15) contains a series of general conditions, including in regard to safety of operations, management of core samples, etc. 60Section E (cls 41-48, pp15-17) provides for detailed reports to be provided to the department, and for regulation of their confidentiality. 61On 4 September 2012 (Exhibit H1, tab 4), the NSW Department of Trade and Investment granted an approval in accordance with condition 2 of authorisation 349 for Hume to conduct "phase 2 exploration activities, subject to conditions" specified in the letter. The Land Access Agreement 62Having identified that it was appropriate to investigate more closely the potential of the Koltai land, Hume negotiated with Mr Koltai a land access agreement (Exhibit H1, tab 5), stated to commence on 4 June 2012, permitting Hume to carry out "prospecting" on the land on detailed conditions. One condition required Hume to "fully and promptly repair all damage to the surface of the prospecting area and or compensate the landholder (Koltai) in accordance with Part 13" of the Act. 63"Prospecting" is defined in the agreement (tab 5, p4) as: to carry out works on, or to remove samples from, land for the purpose of testing the mineral-bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A of the Mining Act and includes any works that are ancillary and incidental to those works described in this clause 1.1, including such matters as the carrying out of environment assessment. 64Clause 2 of the agreement (tab 5, p 5) provides for "consent to carry out prospecting", and subclause 2.1 says: The Landholder agrees to grant access to the Explorer, their agents, contractors and employees by way of the Paths of Entry and consents to the carrying out of the Prospecting Method in the Prospecting Area in accordance with the terms and conditions of this Agreement. 65Clause 3 of the agreement (tab 5, pp 5-6) provides for access, and subclause 3.5 says (emphasis mine): The Explorer will access the Prospecting Area via [Carter's Lane]. The Landholder will use all reasonable endeavours to facilitate access to the Prospecting Area via this route. If for any reason access to the Prospecting Area via [Carter's Lane] is not possible the Landholder will use all reasonable endeavours (including but not limited to permitting the installation of gates and providing consent to the Explorer to obtain any necessary approvals to permit such access) to facilitate access to the Prospecting Area via Golden Vale Road. Alternative Access? 66Apart from expressing a preference for the use of Carter's Lane ([23] above), and apart from the mandatory terms of cl 3.5, Hume rejects the two suggested alternative accesses, namely: (1) Rights of Carriageway located on the boundary of the Koltai land and Lot 4 in DP 826337; and (2) an opening directly from the Koltai land on to Golden Vale Road. 67On behalf of Hume, Rheinberger has identified and asserted, in his affidavit, various difficulties with both these alternatives. 68Use of Option (1) has been refused, in writing, by the registered owners of Lot 4 (Ball affidavit 15 November 2012, p27). Hume also complains that it would require tree removal, and the crossing of a creek, that it would be susceptible to poor weather, and that it poses significant difficulties in accessing the three identified borehole sites. Rheinberger deposes (pars 19-20): ... In particular: a. Two olive groves prevent access down the southern boundary of Lot 12; b. Access to the borehole sites on the western boundary of Lot 12 is restricted by watercourses and potentially boggy areas surrounding the watercourses; and c. Access to the borehole site on the north eastern boundary of Lot 12 is limited by a dam, a watercourse and potentially boggy surrounding areas. It is my opinion that: a. Significant lengths of track for heavy vehicles would need to be constructed over boggy ground to access the borehole sites on the western and northern boundary. b. Based on Hume's experience from drilling in similar areas at Wongonbra, vehicle traffic following periods of rain could destroy the constructed tracks. c. The construction of tracks will result in further costs for Hume Coal, damage to Lot 12 and the need for significant remediation following the drilling activities. 69Option (2) is said to also require some capital works and tree removal, and to have similar limitations to those which Rheinberger stated in par 20, quoted immediately above. 70Access option (2) was adopted for the drilling of the fourth borehole ([49]-[50] above) which was located very close to Golden Vale Road, and not obstructed by the olive groves, watercourses, etc. (See Rheinberger affidavit, map at p7). Background to the Blockade 71Ross Alexander deposes (29 January 2013) to having received from Hume, a letter, dated 28 October 2011 (Annexure "D"), advising that exploration work would commence "in the coming weeks", and that drilling works would commence in mid-November (2011), and be ongoing for approximately four months. Affected land would be rehabilitated once drilling activities were complete. 72He further deposes that, on 16 April 2012, Hume wrote to him and his wife (Annexure "E") seeking to negotiate "a land access arrangement to conduct exploration activities on your property...to ensure that we meet our obligation to explore for coal deposits, while recognising the rights of the landholder". The letter continued that such a "land access arrangement needs to be negotiated prior to work commencing", but it was not followed up. However, in June 2012, Koltai informed Alexander that he (Koltai) had entered an access agreement with Hume. 73On 28 September 2012, Hume wrote to residents in the area (Exhibit H1, tab 15), indicating that "drilling for exploration and environmental monitoring purposes" would commence during October (2012) and would take approximately four weeks. Rehabilitation following the drilling, in accordance with appropriate guidelines, was again foreshadowed. 74Also on 28 September, Alexander wrote to Hume (tab 56), confirming telephone advice of that day that, as owner of Carters Lane, "access is denied to Hume Coal for the purposes of exploration or associated activities" (my emphasis). 75The "blockade" was constructed on Carters Lane at 5 pm on 1 October 2012, and has since been staffed by volunteers. According to Hume, the chicane blockade obstructs only Hume, and not the nearby residents who rely on the lane for access and egress. It has attracted extensive media coverage - print, electronic and social. 76A principal promoter of the blockade has been Southern Highlands Coal Action Group ("SHCAG" - incorporated as SHCAG Pty Ltd in October 2010. Peter Martin, of Mosman, is its only director. He owns a property at 371 Golden Vale Road, near Koltai's and Alexanders'). Exeter Village Association appears (from media exhibits) also to have been involved, while the plaintiff company has regularly attempted to put its point of view via the media. (See tabs 16-43 and 46-55). 77Martin deposes (affidavit 29 January 2013) as follows (pars 3b, 3c, and 3d): b. At any one time the number of SHCAG supporters near the entrance to Carters Lane and near the chicane varies between an average of approximately two to eight. c. People are rostered on in two hour shifts. At times up to 20 or 30 people have attended but that is unusual. At night small BBQs and dinner parties have been held with up to 20 people. On the second day after the chicane was set up being on or around 2 October 2012, 60 people attended during the morning. d. SHCAG supporters that have been present at Carters Lane are typically Southern Highland residents in their 50s to 80s. Most are over 60 and retired. Some younger local people have attended from time to time. I have witnessed strict instructions being issued regarding respectful and non-violent behaviour. I have witnessed a very strict protocol being observed at all times. 78There are photographs before the Court showing the attendance and behaviour of the people staffing and visiting the blockade (see Exhibit A1, and Annexure "B" to Martin's affidavit). 79In the media reports (at tab 20), Alexander is quoted as saying (around 3 October) that "coal mining in the agricultural area was not in the country's best interests". Koltai is quoted (at tab 24) as saying (around 4 or 5 October) that, like his neighbours, he did not wish to see the coal mine proceed, but the feasibility activities were in their very early stages, and the exploration would facilitate some early certainty about the future. However, Koltai said that he shared the "great degree of fear and uncertainty" generated in the local community. 80Koltai deposes (23 November 2012) to "a number of incidents ... that have had an adverse impact on [his] day-to-day life and activities", including by blocking access by him, his wife, and suppliers to Lot 12. He deposes that this series of events has been described by the protestors as "a problem of your own making", but that he and his wife have experienced considerable stress, causing some health issues. They now minimise their need to leave their property, and are disturbed by protest signs which they see as directed at them. Ball's third affidavit (27 November 2012) discusses those signs and appends photographs of them. 81The uncontested affidavit evidence of activists and/or neighbours involved (Martin, Phillip Pollicina of Lot 9, and Matthew Burrows of Lot 8) asserts the peacefulness of blockaders' involvement, despite Mr Koltai's stated concerns. 82Hume engaged costly professional security services, on a 24 hour basis, for the Koltai lands. 83On 12 October 2012, Sarah Hafez of Hume told Alexander and Koltai that Hume was aware of the covenants on their properties. Mrs Spiegel-Keighley had written to both Alexander and Koltai on 8 October 2012 (tabs 57 and 58), to "remind" them that signing an access agreement would contravene cl 9 of those covenants, as she regards "drilling as industrial activity". 84On 15 October 2012, Koltai wrote to Hafez (tab 59) to confirm the discussions of 12 October. He said that, when he entered into the land access agreement with Hume, he had overlooked the covenants, and that, in the event that the covenants had the effect of preventing him from honouring the land access agreement, he would make arrangements to repay the compensation he had received (said from the bar table to be $20,000). 85On 16 October 2012, Ball wrote to Alexander and Koltai (tabs 60 & 61), on behalf of Hume, to confirm its "entitlement to access the [Koltai] property via Carters Lane as an invitee of the property owner and to refute any suggestion that there are any covenants in place on [his] land that would prevent this", and asked Alexander to ensure that the blockade was dismantled, as he (Alexander) was personally responsible for the actions of his own invitees. Ball contended that, even if Hume's activities could be characterised as industrial or commercial, the covenants would not operate to prevent the arrangement put in place between Koltai and Hume. 86Koltai forwarded to Hafez on 23 October (tab 64) a copy of Potts's letter to him of 19 October, noting that it had been signed by Mrs Spiegel-Keighley. He expressed his wish to terminate the access agreement with Hume, and he sought an indemnity in respect of all reasonable costs and expenses associated with defending any legal proceedings in relation to the covenant issue. 87Alexander wrote to Hafez on 25 October (tab 65), in reply to the Minter Ellison letter of 16 October, saying: "it would appear that this matter is a very complex issue and that the covenant placed on my property title by Mrs W G Keighley may well prevent me from allowing access to Hume Coal for the activities they (sic) intend". (He restated that position on 1 November - tab 69). 88Ball responded to Potts on 29 October (tab 66), putting Hume's contentions that the covenant did not capture its "prospecting" activities. Ball also wrote in similar vein, on that date, to Koltai (tab 67), and, on 31 October, to the Alexanders (tab 68). 89On 30 October 2012 (tab 44), Hume wrote a further "dear resident" letter, confirming that drilling was proposed through November and December 2012, over a period of approximately four weeks. Again rehabilitation in accordance with appropriate government guidelines was foreshadowed. 90Notices putting the company's position on the blockade were placed in the local newspaper at around this time (tabs 39 and 45, dated 24 October and 2 November respectively). Hume also explained its position to police (on 16 October - tab 62). 91In his "letter to residents", published on 24 October 2012 (Exhibit H1, tab 39), Rheinberger said, inter alia: We recognise the Project has a responsibility to address community concerns about perceived impacts on the region's groundwater from any future mining. It is therefore inconsistent that anybody opposing our activities on this basis would blockade a private property and impede our attempts to gain valuable information that is needed to address those concerns. The NSW Office of Water requires of detailed data collection and monitoring from purpose built water bores in order to assess any impacts that may occur from future mining. Hume Coal has developed a detailed water monitoring program to meet this requirement and once completed, we will have a comprehensive model of groundwater in the local area that will guide any future impact assessment. To assist in this process we have established a Water Advisory Group comprising members of the local community, including representatives of the Southern Highlands Coal Action Group. The Hume Coal Project is now in the second year of exploration activities and moving towards the prefeasibility stage. The second Review of Environmental Factors gives approval for the drilling of a further 90 holes across the Authorisation Area, building on the work already completed through negotiated land access. and in the follow-up "letter", published on 2 November 2012 (Exhibit H1, tab 45), he said: Hume coal is committed to undertaking a detailed assessment of the region's groundwater and has engaged one of the country's foremost water consultancies, Parsons Brinckerhoff, to gain a better understanding on this important issue. Our original program of 10 purpose-built water monitoring stations (piezometers) has now been doubled on advice from both the NSW Office of Water and the Hume Coal Water Advisory Group. Despite repeated claims to the contrary, we cannot rely on existing water and coal bore data. In fact the NSW Government, under current legislation and regulations, would not allow us to submit a water study using such data. The property being blockaded has been identified as a priority area for the installation of a piezometer and for coal quality and geological assessments and it is therefore important that we gain access to the property. 92Action by the company against the protestors blockading the road was announced in the press on or about 5 November 2012 (tab 50), following three incidents, concerning access, involving Hume personnel and citizens staffing the blockade (see photos in Exhibit A1), on 22 October, 23 October and 5 November (tabs 70-2). During the discussions at the blockade on 23 October (tab 71), Alexander indicated to Hafez that the impasse would need to be resolved by a Court. 93There is evidence now before the Court of the protestors' refusal to allow Hume access to the Koltai lands also on 9 January 2013 ([9] above), but it appears that the status quo as at the time of the December 2012 decisions has otherwise continued, since the Court's two December decisions, pending this "final" judgment. 94I turn now to detail the issues to be decided. The Issues before the Court 95The main issues anticipated and addressed by Mr Beasley at the final hearing were (T18.2.13, pp11-12): (a)the so-called "covenant issue" - does the Keighley covenant prohibit prospecting on the Koltai land, and/or prohibit Koltai from allowing prospecting on his land, and/or from making what purports to be a legal and valid access agreement with Hume? (b)the so-called "access agreement issue" - does Hume need to have in place an access agreement with the Alexanders, because driving relevant personnel, materials, and equipment to and from any borehole site is a "prospecting operation" under the Act? (c)questions of discretion, arising largely from the availability to Hume of alternative access routes to the Koltai sites, and the defendants' contention that Hume has no standing to bring proceedings against the Alexanders. 96In specific response to each of those three issues, Hume says, in summary: (a)private covenants, such as that entered between Koltai and Keighley, are irrelevant to grants of exploration licences, and this covenant does not catch prospecting anyway. Private citizens play no part in granting or refusing exploration licences under the Act - those powers rest with Minister and officials, and s 381 of the Act specifically provides that environmental planning instruments and decisions by Councils cannot ban prospecting and so sterilise coal reserves. (b)"prospecting operations" are not defined as widely as the defendants argue, and such an expansion of the definition is not consistent with the objects and purposes of the Act. "Prospect" means to "carry out works on or to remove samples from land for the purpose of testing the mineral bearing qualities of the land" (T18.2.13, p24, LL1-2), and "prospecting operations" means "operations carried out in the course of prospecting" (LL3-4). Hume says that both definitions must be read together, so that "prospecting operations" are "operations carried out in the course of ... works on or removing samples" from "land that you are going to drill the holes on" (LL9-10, and 16). The purpose of the Act is to "facilitate and encourage" any mining, and not to "protect the rights of land holders" (LL24-5, and 33), even though some provisions are protective of land. "...[T]here's just no sensible nexus between driving equipment and testing the mineral bearing qualities of the land" (Tp26, LL8-9). (c)while it is acknowledged by the opponents of Hume's exploration programme that the access alternatives proposed are "less convenient than Carters' Lane" (Tp12, LL34-5), there are "real substantial hurdles" (LL37-38) facing Hume in employing any of them. Beyond questions of "convenience", there are issues involving refusal to grant access, the vulnerability of the lands under some options to poor weather, and the financial and environmental costs of using them, as against the fact that Carters Lane has none of those restrictions. 97Ms Needham SC, appearing for the defendants, submits that "there is no magic" in the fact that Hume asserts a right to a statutory injunction. The relief for which s 295 provides is discretionary, and there is no presumption in favour of granting it. The Court must be satisfied, in all the circumstances, that relief should be granted (T18.2.13, p28, L43-p29, L3). 98While one object of the Act is "to encourage and facilitate", s 3A ([27] above) is not focussed only on that. The right to prospect is not absolute. Section 3A(b) and (c) refer to the regulation of, and compensation for, "prospecting and mining operations", which Ms Needham says means that the "operations" in this case involve "much more ... than the drilling of three holes over six weeks" (p29, LL24-25). Section 3A(f) mandates "effective rehabilitation of disturbed land and water". 99The Alexanders' case relies on an expansive definition of "prospecting operations", beyond "actual" prospecting. The separate term must have work to do (Tpp33-34). 100Ms Needham submits that the requirement for, and the terms of, an access agreement (s 140 - [35] above - and s 141 - [38] above) must be viewed in the context of the objects of the Act, and in light of s 140's use of the term "carry out prospecting operations", rather than simply the word "prospect". 101Section 141 requires a balancing of the interests of all players in the access/prospecting activity, and she argues that the Koltai access agreement contemplates the use of the Alexander land, "in a way which should be construed as requiring an access agreement with them as well ..." (Tp30, LL35-37). 102Removal of samples requires their transportation to a laboratory for testing. Carter's Lane falls clearly within the exploration area, and use of the Alexander land for access to the Koltai land, without any need for a new track, must be part of "prospecting operations" (as defined in the exploration licence), and so must require an access agreement with the Alexanders, as landholders affected by such operations (Tpp32-33). 103In arguing for her distinction between definitions of "prospecting" and "prospecting operations", further to her reliance on s 3A, Ms Needham submits that the application of the principles of construction laid down in Project Blue Sky Inc v Australian Broadcasting Authority ("Project Blue Sky") [1998] HCA 28; 194 CLR 355 must be viewed in light of comments made in the later decision of the High Court in R & R Fazzolari Pty Ltd v Parramatta City Council ("Fazzolari") [2009] HCA 12; 237 CLR 603. Ms Needham argues (subs par 18) that the context in which the word "operations" is used suggest that it be given its "ordinary and natural meaning"; a narrower or more technical construction "would have the effect of further encroaching upon the private property rights of landholders", contrary to the presumption that the legislature does not interfere with vested proprietary interests (French CJ in Fazzolari at [43]). 104In reply, Mr Beasley denied trying to restrict "prospecting operations" to actual drilling, but drew attention to ss 5 and 31 ([29] and [33] above) as "a fairly strong indication" that the legislature did not intend that "prospecting" should embrace driving to and from a site, or any consequent laboratory operations. 105He also correctly submitted that the terms of neither the exploration licence, nor the access agreement, could be employed in the interpretation of the provisions of the Act. Consideration 106It would be difficult to assert that "prospecting" fits clearly within the ordinary meaning of the terms "industry" and/or "commerce". While it is an exploratory activity involving some work, and it may lead to further activity involving "heavier" work, and designed to generate a profit, the prospecting stage, albeit an early step towards a commercial, profit-motivated, mining undertaking, is neither industrial nor commercial in character. See Toll v Alphapharm [2004] HCA 52; 219 CLR 165 at [40]. 107The prohibitions in the Keighley covenants appear to the Court to be aimed at maintaining the agricultural character and appearance of the land Keighley subdivided. Agriculture has industrial and/or commercial features but its impacts are largely temporary. While encouraging it, Keighley saw fit to proscribe quarry activity specifically. That proscription should not be construed so widely as to embrace any dislocation or removal of soil. Keighley could easily have specifically proscribed prospecting activity if such was his intention, the exploration licence having been granted long before his subdivision occurred. 108The Act must prevail over any private contract/covenant. As Mr Beasley notes (pars 44-46), Koltai is bound by the covenant not to undertake or permit certain activities, but does not breach it by agreeing to the performance by Hume of an act he has no power to prevent: See Bradbrook and MacCullum, "Bradbrook and Neave's Easements and Restrictive Covenants", 3rd edition, pp423-4, par 15.33. If landholders could thwart the legislative scheme by such covenants, the exploration activities promoted and facilitated by the Act would become impossible, and the State's mineral resources would be sterilised. 109When it comes to the task of construing, on the other hand, terms used in the Act, the principles in Project Blue Sky are clear - the Court must look at the text, its statutory context, and the purpose of the legislation. 110I accept Mr Beasley's submission (par 21) that, to be caught by either "prospecting" or "prospecting operations", an activity or operation must have a close and/or sensible nexus to testing the mineral bearing qualities of land, and that mere use of an access route clearly "attached" to the title to the Koltai land, to move people, equipment, samples, waste, etc, lacks such a nexus. I reject the proposition that to use that access for such purposes requires a separate access agreement with the Alexanders. Any damage to Carter's Lane must be repaired by Hume, under the Koltai access agreement (cl 9.2(d)). 111It follows from this analysis that I have concluded that Hume is prima facie entitled to the relief it seeks. However, the defendants submit that, in its discretion, the Court should refuse any relief. 112In her written submissions Ms Needham said (pars 29 and 33): 29. ...The following factors weigh heavily against the granting of an injunction: a) Aside from s. 295 of the Mining Act, Hume Coal does not have standing at common law to restrain any present or future interference with the Right of Carriageway. b) The granting of an injunction would allow Hume Coal to avoid the statutory preconditions that must be satisfied prior to an exploration licence holder being entitled to use a right of way. c) The availability of alternative access arrangements. ... 33. ...Although Hume Coal may have standing in a technical sense pursuant to s. 295 of the Mining Act, Hume Coal is not seeking to enforce a statutory right derived from the Mining Act. Rather, Hume Coal is seeking to enforce a common law right of access (ie. as a person authorised by Koltai to use the Right of Carriageway). The Court should be slow to allow Hume Coal to enforce that right in circumstances where ordinarily Hume Coal would not have standing to bring proceedings against the Alexanders. 113The submissions in 29(a), 29(b) and 33 were not strongly pressed, and I find no merit in them. 114On the more important question, that of alternative access arrangements, the position is simply that Hume is under no obligation to look beyond the arrangements comprised in its access agreement. Use of Carter's Lane is feasible and appropriate, and poses none of the challenges that come with the nominated alternatives. Requiring use of alternatives will pose practical challenges and cause some environmental harm. 115Refusal of relief would effectively prevents Hume from exercising the rights granted to it by the exploration licence and by the access agreement, whereas the exercise of those rights cause no harm, injustice or hardship to the defendants. 116There are no grounds made out for the discretionary refusal of relief. 117The Court should make the declaration sought in prayer 3 of the summons, grant the injunction sought in prayer 2, and also make the order sought in prayer 4. As Mr Beasley submits (par 78), Order 4, while mandatory in terms, is restorative in nature. 118While Hume has been entirely successful at this final stage of these proceedings, and is, therefore, entitled to expect an order that its costs be paid, the question of costs has not yet been argued. As the costs of the two earlier stages of the matter were reserved, I will again reserve the question for later argument. Orders 119The orders of the Court will be: 1. The Court declares that the Plaintiff has a right to use the Carriageway to access the Land to carry out prospecting pursuant to the access arrangement between it and Robert Koltai, Exploration Licence 349, and the Mining Act 1992. 2. The Court grants an injunction, pursuant to section 295 of the Mining Act 1992, restraining the Defendants from: (a) preventing the Plaintiff using the Carriageway to access the Land to carry out prospecting from the date of the order; and (b) restraining the Defendants from inviting or allowing third parties on to the Carriageway for the purposes of preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting from the date of the order. 3. The Court orders that the Defendants prevent, or take reasonable steps to prevent, third parties on the Defendants' land from preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting for a period of two months from the date of the order. 4. Costs are reserved. 5. All exhibits may be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2013