Land and Environment Court New South Wales Medium Neutral Citation: O'Brien v Slack-Smith & Anor; O'Brien v Hall & Anor; O'Brien v Hall [2015] NSWLEC 1179 Hearing dates: 16, 17 December 2014 and written submissions on 11 February 2015, 2 and 6 March 2015 Decision date: 25 May 2015 Jurisdiction: Class 8 Before: Dixon C Decision: (1) The parties are directed to prepare settled copies of the AMPs for each property in accordance with these reasons in the form of the Schedule attached to this judgment and to file the documents within 1 month; (2) in addition to filing printed copies of each AMP, the text of each AMP is to be sent , for my attention, to the Court's email address as a Word 1979-2003 (doc) file and each map forming attachment 2 to an AMP is to be sent, for my attention, to the Court's e -mail address as a .pdf file; (3) the matter is set down for telephone mention before me at 9am on 29 June 2015. (4) if the parties comply with (1) and (2), I will make orders in chambers to give effect to each settled AMP so filed and will vacate the mention of the matter or matters for which such settled AMP has been filed, and (5) reserve liberty to apply by telephone on 3 days notice. Catchwords: APPEAL – MINING - jurisdiction and powers of the Court to determine provisions of an access management plan for small- scale titles pursuant to Part 10A of the Mining Act 1992 for land in Lightning Ridge Legislation Cited: Land and Environment Court 1979 Mining Act 1992 Mining Amendment (Small Scale Title Compensation) Act 2014 Mining Regulation 2012 Western Lands Act 1901 Cases Cited: Rosane Pty Limited v T & P Clarke ;N Perry& R Armstrong v T&P Clarke [2009] NSWLEC 1282; Parkins v LRMA 75 NSWLR 427; Category: Principal judgment Parties: Maxine Anne O'Brien (Plaintiff of 14/80651) Ross Slack-Smith (First Defendant of 14/80651) Genise Janet Slack-Smith (Second Defendant of 14/80651) Maxine Anne O'Brien (Plaintiff of 14/80652) Roderick Allan Hall (First Defendant of 14/80652) Helen Anne Hall (Second Defendant of 14/80652) Maxine Anne O'Brien (Plaintiff of 14/80664) Roderick Allan Hall (First Defendant of 14/80664) Helen Anne Hall (Second Defendant of 14/80664) Representation: Counsel: Mr Lindsay John Moore, Solicitor (Plaintiffs) Mr James Johnson, Barrister (Defendants) Solicitors: Moore & Co Solicitors (Plaintiffs) Holding Redlich (Defendants) File Number(s): 80651 of 2014, 80652 of 2014, 80664 of 2014 Judgment Introduction 1. This judgment deals with three applications made under s236G (1) (a) of the Mining Act 1992 (Mining Act) for the Court's determination of an Access Management Plan (AMP) for three properties in Lightning Ridge. 2. The plaintiff, Ms Maxine O'Brien, is the miners' representative of the Lightning Ridge Miners Association (LRMA). 3. The defendants are farmers and graziers (landholders). They occupy the land the subject of these applications under leases granted by the Crown for pastoral occupation within the Western Division of NSW. They are: * Roderick and Helen Hall for the land known as 'Allawah' comprising Western Lands Lease No: 2928 and 4637 (Land and Environment Court Proceedings No: 14/80664); * Roderick Hall for the land known as 'Sorrento' comprising Western Land Lease No: 8074 (Land and Environment Court Proceedings No 14/80652) and; * Ross and Glenise Slack - Smith for the land known as 'Muttabun' comprising Western Land Lease Nos: 384, 722, and 5346 (Land and Environment Court Proceedings No: 14/80651). 1. Apart from being leased for pastoral purposes the land is within a designated 'access management area' over which a number of mineral claims have been granted and a proclaimed 'opal prospecting area' (OPA) where a number of opal prospecting licences (OPL) have been granted for designated opal prospecting blocks (OPB): s236B of the Mining Act. 2. Mineral claims and OPL's are collectively referred to as 'small-scale titles' (SSTs) under s236A (1) of the Mining Act 3. The right of a SST holder to go to and from a mineral claim or opal prospecting block derives from the grant of the small scale title itself. Similarly, the rights of the landholder derive from the terms of the lease granted by the State of NSW under the Western Lands Act 1901. Despite the presumption under the relevant legislation for mining, it is not unsurprising that their competing entitlements to use the land need to be managed. Part 10A of the Mining Act deals with this through an AMP. Jurisdiction 1. It is clear from the plaintiff's affidavit filed in support of each application dated 21 August 2014 that she has been unable to negotiate the terms of the AMPs with the landholders and the Secretary of the Department of Trade and Investment, Regional infrastructure and Services of the Department (Secretary) has declined to make any determination under s236F of the Mining Act or submitted any written submission in relation to the proposed determinations. 2. Therefore, I am satisfied that the Court has jurisdiction to determine these applications under s236G (2) (b) the Mining Act and the Land and Environment Court 1979 (LEC ACT). Conduct of the proceedings /site inspection 1. The defendant's properties are in close proximity. 1. As the applications contain a number of common issues, the parties agreed (and I so ordered) that the proceedings be heard together and that evidence in one application be evidence for all applications to the extent relevant (Transcript D2 16/12/14 at p4 line 31). 2. The parties also agreed that the Court should inspect the land. This happened on the morning of the first day. During that inspection I invited the defendants to explain their use of the land and identify their preferred access routes. The plaintiff was also given an opportunity to identify her preferred access routes. This oral evidence was given in the presence of the parties' legal representatives and no objection was recorded. I have relied on that evidence in my consideration of these applications. 3. Following the site inspection, the hearing resumed in the Lightning Ridge Court house and continued the next day. 4. I have read the transcript of the Court proceedings and it was made available to the parties. Plaintiff's evidence 1. The plaintiff relies on her affidavits dated 16 May and 16 July 2014 filed in support of the application. The affidavits are in essentially the same terms but in respect of the different properties. They were read subject to relevance. 2. The plaintiff also gave some short oral evidence at the Courthouse. Her evidence is summarised in the plaintiff's written submissions (PWS). Landholders' evidence 1. The defendants rely upon the affidavit evidence of Mr Slack –Smith the owner of 'Muttabun'. His affidavit is dated 16 December 2014 and marked exhibit 4. It deals with Mr Slack- Smith's particular concerns about his land and the general concerns about access shared by the Halls who own 'Sorrento' and 'Allawah'. 2. When the affidavit was read the plaintiff raised objection to its form and content. In particular, his evidence about fence cutting, illegal mining and trespass of the land. In order to avoid lengthy cross examination about these matters, it was agreed for the evidence to be admitted subject to relevance. 3. The defendants also rely on various maps, plans and photographs of the land. The parties' written submissions / final draft AMPS 1. The plaintiff's written submissions (PWS) were received by the Court on 11 February 2015. The defendants' written submissions (DWS) were received on 2 March 2015. 2. They follow a similar format. They deal firstly with the legislative frame work against which the applications should be assessed then the common issues between the applications under general topic headings before focussing on the particular issues raised by the competing draft AMPs. 3. Exhibits A, B and C are plans prepared by the parties which detail the agreed and disputed access roads/tracks on each property. They are to be read with the parties' respective final draft AMPs. 4. The plaintiff's final draft AMPs are Exhibits, D E, and F. They are further amended by the plaintiff's written submissions. The defendants' draft AMPs are Exhibits 1, 2 and 3. They were also amended by the defendants' written submissions and, revised copies are attached to their submissions. A summary of the plaintiff's position 1. The plaintiff's principal contention is that Part 10A of the Mining Act conveys a right to any existing or future SST holder to access any part of the land the subject of an AMP. An AMP is not limited to facilitating access to the particular SST but also entitles the SST holder to use the AMP to access another work site, or a designated mullock dump or a puddling site (at [143] Parkins v LRMA 75 NSWLR 427), or other roads/ access paths if the most direct and convenient route to their title is unavailable for some reason or other, or it otherwise becomes inaccessible. 2. The AMP does not merely provide access from a particular point 'A' being the entry point marked on a map along a particular access route also marked on the map to a particular point 'B' being a SST as though it were a right of way under s211 and 235C of the Mining Act to a particular SST holder (PWS p6). In fact, the plaintiff submits that Part 10A replaces multiple rights of way for SST holders wherever possible subject to the Act by an overriding AMP. It does not to seek to duplicate those processes unnecessarily. 3. The plaintiff contends that this is supported by the fact that under, Part 10A of the Mining Act, the miners' representative is not required to identify any particular SST holder within the area or locate particular routes of access when notifying a landholder of her intention to negotiate an AMP in respect of the land. It is sufficient to simply identify by "a plan and description the area of land over which access is sought, sufficient to enable the ready identification of that area , and (b) a description of the mining or prospecting methods intended to be used in that area : 236E(2)." 4. Hence, the plaintiff submits that the AMP is a "blanket" document providing access across 'Allawah', 'Sorrento' and 'Muttabun' except for those areas that are statutorily exempt from access to all existing and future SST holders. Under s236C of the Mining Act the Court may determine an AMP for land within an access management area either before or after small titles are granted in relation to the land. Therefore, it is expected that any AMP determined by the Court in these proceedings shall include a general provision for future access to be provided for future SSTs wherever their title on the land (clause 5 and 9 of the plaintiff's draft AMP). A summary of the defendants' position 1. The defendants contend for an entirely different meaning of the legislation and the jurisdiction of the Court. They say that an AMP manages access granted under the Mining Act and does not empower the Court to create universal access rights to use the whole of a track network across the properties the subject of the AMPS. Access is only from an access point via an access route to a SST holder for that SST (DWS p3 at [6] Sorrento). 2. They do not accept the plaintiff's assertion that any SST holder should be able to travel along any road marked on Exhibits A, B and C effectively making this road networks a public road system (DWS p3). 3. The defendants contend that s236D can regulate access points, routes of access and, the manner and times during which access may be granted. The AMPs' relied upon by the defendants are said to do just that. They delineate the routes of access for each collection of mineral claims or each OPB depending on their location. The Mining Act does not confer a right on the SST holder to go anywhere on a network of tracks described in the AMP. If confers a right on a SST holder to use one specified access route from one specified access point; the one which is relevant for the particular SST (DWS p13-16). The Mining Act and regulations define the right of access. That right can be managed for example by restricting or varying a particular route to suit the particular circumstances of the case but it cannot expand in the way contemplated by the plaintiffs. 4. In summary, the defendants contend that the Court has no power to make an AMP which grants greater rights of access than are conferred by the Act in s211 and s235C respectively. The AMP does not grant a right of access but only manages it. The legislation specifically refers to conditions imposed pursuant to an AMP on a person's exercise of a right of way conferred by the Act. Nothing could be clearer than that the rights managed by an AMP are those conferred by a right of way: s293 Mining Act. Issue 1 1. This stark conflict between the parties with respect to the meaning of the relevant legislation and the jurisdiction of the Court is a central issue which I must resolve. Issues modified during the hearing 1. Some of the other issues identified by the parties during the hearing were modified. 2. The first relates to the defendants' claim for compensation. At the commencement of the hearing the defendants' counsel advised me that the defendants were not pursuing a claim for compensation in these proceedings. They accept that any such claim must be a separate application under the Mining Act. 3. However, they draw a distinction between compensation and maintenance and the defendants' claim for the ongoing cost of the maintenance of certain roads particularly on Muttabun are pressed (cl 6 of the Defendants final AMP). 4. It is based on a submission that roads are valuable improvements. They cost money to maintain. They are the property of the landowner. The landowner has the right to control repairs and maintenance. 5. In light of the uncontested evidence before the Court of the ongoing cost of maintenance of just the main road from the highway west, the defendants' submit it is reasonable to seek a contribution to this particular maintenance, regardless of the capacity to apply for some funds from the Secretary. 6. The defendants submit that the plaintiff is trying to secure control over repairs and maintenance and funding from the levy established by the Minister of Energy and Resources (the Minister) for repairs to the Lightning Ridge Miners Association pre-empting the exercise of discretion which is reserved to the Secretary s292D(2) of the Mining Act. They contend this is impermissible. 7. The defendants no longer seek to have the routes of new access tracks pegged. Rather, they seek to have the new routes identified by survey on a plan, much as a title holder is currently required to do when making an application and this new access track to become part of the AMP. This they submit has the benefit of making the AMP a "living document" and, providing an automatic means of new access routes being made public so that future applicants can know of and use these routes, thereby avoiding a multiplicity of roads. 8. The defendants no longer seek to have the right to negotiate on the location of routes. Provided the proposed route is notified to them when notice is required to be given under s177 of the Mining Act, the defendants will be able to make representation to the Department about the route. Further, if the restricted zones are adhered to in choosing the access routes, then the defendants' contend that most of their concerns are likely to be addressed. This will avoid disputes and facilitate prompt access to the SST. 9. The defendants accept Ms O'Brien's oral summary of the Plaintiff's scheme that a SST holder would: "…use the primary access route which would be marked on the plan and from that particular point he would use the shortest practical (route) to his title, avoiding sensitive areas and if there are other titles in the same vicinity as his title they should try and use the same track…." (Transcript D2 p41 Lines 42-48) 1. "…one of the points I believe of an access management plan is to keep (the) number of tracks to a minimum so if …there was a hot area …It would be preferable to have …the route to that hot area marked on a map so that everyone's using the same route…." (Transcript D2 p43 Lines 23-27) 2. The defendants require any change of route to be formally amended on the AMP and a replacement plan to be lodged with the Department for registration (transcript D2 p46 line 49). 3. The defendants reject the plaintiff's assertion that the basic minimum controls on access found in the legislative scheme such as hours of access, preventing access over significant improvements and preventing access after wet weather should be abandoned: the Mining Regulation 2012 (the Regulation), s236K(3) and 292SD (2) of the Mining Act . The defendants submit that there is no evidence to justify removing the controls imposed by the legislature. Furthermore, they submit that the controls cannot be removed for existing SSTs (s236K (3) of the Mining Act) and to remove them from future SST creates two tiers of regulation within the one AMP. The issues the Court must resolve 1. In each case I have been asked to determine the terms of the AMP for the land. 2. In order to do this I must determine the legal framework against which each application must be assessed. This requires a resolution of the first issue identified at [31] namely the competing interpretations of the meaning of the relevant legislation and the jurisdiction of the Court. 3. Once the legal framework is identified then I need to determine the general matters or topics that can be covered in any AMP before deciding the particular matters relevant to each application. Precedent 1. In determining these applications, the plaintiff submits that I am settling a basic template for any future AMP in the Lightning Ridge area (Plaintiff's Written Submissions (PWS) at [2]). While that may prove to be the case and my judgment so interpreted to settle the general matters to be covered by an AMP there will always be a need to address the individual peculiarities of each application. 2. This will always require a dialogue between landholders and the Miners' representative and if no agreement can be reached a determination by either the Secretary of the Department or the Court. Legislative framework 1. The primary piece of legislation regulating the access of SST holders for land in New South Wales is the Mining Act. In January 2015 that Act was amended by the Mining Amendment (Small Scale Title Compensation) Act 2014 No 53. 2. The amendments adopt the key legislative measures set out in the New South Wales Governments' document entitled Final NSW Government Response to the Wilcox Report into Lightning Ridge released in 2013. They are intended to "…establish a framework to streamline and clarify interactions between landholders and opal miners, particularly in Lightning Ridge." (Second reading speech p58, 6 August 2014 per Mr the Hon Anthony Roberts MP (Minister for Resources and Energy and Special Minister for State). 3. The amendments to the Mining Act apply to the applications before the Court. Therefore, they need to be understood. They are summarised below. The Mining Amendment (Small Scale Title Compensation) Act 2014 No 53 (the Amending Act) 1. The Amending Act introduces amendments to Mining Act and the Land and Environment Court Act 1979 (the LEC Act). 2. The amendments to the Mining Act include new provisions in respect of compensation and levies payable to landholders for the use of their land by SST holders. 3. The amendments to the LEC Act introduce new dispute resolution mechanisms for mining matters filed in class 8 of the Court's jurisdiction after January 2015. Although these amendments are not relevant to the current applications - which were filed and heard before the new processes were commenced - they need to be explained because they affect all future mining applications to the Court unless otherwise directed. * Amendments to the LEC Act 1. Senior Commissioner Moore explained the operation of the new dispute processes found in s41A of the LEC Act to members of the mining community of Lightning Ridge earlier this year. An extract from his presentation is set out below. What disputes that are brought to the Court do the provisions concerning mandatory conciliation and arbitration for small-scale titles apply to? The provisions in section 41A of the Land and Environment Court Act 1979 for mandatory conciliation/arbitration in small-scale title disputes came into effect from 1 January 2015 for all small-scale title proceedings commenced in the Land and Environment Court after that date. The Court has eight Classes of jurisdiction. Class 8 is the Class for mining disputes including small-scale title disputes). Small-scale title is defined in the Mining Act 1992 as being: Small-scale title means a mineral claim or an opal prospecting license. All other small-scale title disputes that are brought to the Court are to be dealt with through the mandatory conciliation and arbitration process set out in section 41A of the Land and Environment Court Act 1979. The section is in the following terms: 41A Mandatory conciliation and arbitration (1) This section applies to proceedings relating to small-scale titles that are pending in Class 8 of the Court's jurisdiction to hear and dispose of proceedings arising under the Mining Act 1992 other than proceedings relating to a matter referred to in section 293 (1) (q) of that Act. (2) Section 34 applies to the proceedings (in the same way as it applies to proceedings in Class 1, 2 or 3 of the Court's jurisdiction) but with the following modifications: (a) the Court must arrange a conciliation conference between the parties and their representatives with or without their consent at such place as the Court determines, (b) if no agreement of a kind referred to in section 34 (3) is reached, the Commissioner who presides over the conciliation conference must terminate the conciliation conference and, subject to this section, dispose of the proceedings: (i) following a hearing held forthwith, or (ii) if the parties consent, on the basis of what has occurred at the conciliation conference. (3) The Court or the Commissioner may at any time, if the Court or Commissioner thinks it appropriate in the circumstances of the case, determine that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2). A determination may be made on the motion of the Court or Commissioner or on application by the parties. (4) If the Court or Commissioner determines that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2), the proceedings are to be dealt with as a hearing in court and sections 38 and 39 apply as far as is relevant as if the proceedings were proceedings in Class 1, 2 or 3 of the Court's jurisdiction. The streamlined conciliation/ arbitration process will apply to all disputes relating to small-scale titles except those that are expressly excluded from this process. Those disputes that are excluded are those set out in section 293(1)(q) of the Mining Act 1992. The excluded matters are: (q) any question or dispute as to: (i) the validity of an authority, mineral claim or opal prospecting licence, or (ii) the decision of a decision-maker in relation to an application for the granting, renewal or transfer of an authority, a mineral claim or opal prospecting licence, or (iii) the decision of a decision-maker to cancel an authority, a mineral claim or opal prospecting licence, or (iv) the determination of the Secretary in relation to an objection to the granting of a mining lease, 1. In summary, the amendments to the LEC Act require Class 8 applications that relate to an SST (other than proceedings in the nature of a judicial review of a decision by the Secretary) to be dealt with by a mandatory conciliation conference, which may be conducted on site or at any other place determined by the Commissioner who presides over the conference. If an agreement cannot be reached between the landholder and the Miners' representative, then the Commissioner is to terminate the conciliation conference and dispose of the proceedings following an immediate hearing or, if the parties agree, on the basis of what occurred at the conciliation conference. 2. In certain circumstances the Court will allow a short adjournment between the conciliation and the arbitration hearing if for example it is required to deal with new evidence airing from the conciliation. However, generally the parties will be required to attend the conciliation ready to proceed to an immediate arbitration if no agreement is reached. 3. In certain circumstances the Court or the Commissioner may determine at the first directions hearing that the application is better dealt by a traditional hearing. * Amendments to the Mining Act 1. Although the amendments to the Mining Act preserve the existing and future access of prospectors and miners to land, they also make clear that permit holders are responsible for their actions to landholders. However, what might previously have been thought to be included in an AMP is now clearly dealt with separately under the Mining Act for example; compensation and compensational losses under s266 and Part 14AA. 2. The Mining Act now clearly states that upon the granting of an SST a landholder is entitled to compensation under s266 and this compensation is in lieu of compensation for any compensational loss suffered, or likely to be suffered by the landholder as a result of the exercise of the rights conferred by the SST: s266 (1). 3. The Minister under s266 (2) may determine the compensation payable for the purposes of s266 (1). 4. The Minister in determining the amount of standard compensation payable cannot vary or substitute an amount previously determined unless 5 years have passed since that determination and the Minister has caused an independent review into the appropriate levels and considered the findings of the review. 5. Under the amendments the Secretary is not permitted to grant a SST unless satisfied the applicant has paid to the collection agency standard compensation for the term of the SST (unless the applicant and the landholder have entered into an agreement as an alternative to standard compensation (a compensation agreement). 6. The amendments empower the Secretary to regulate the compensation paid by the holders of small scale titles over land to landholders and to impose levies on small scale titles for purposes associated with those titles and the establishment of the Small–Scale Levy Fund in the Special Deposits Account. These purposes include the provision and maintenance of roads servicing small scale titles and rehabilitation or environmental maintenance work on stockpiles of mullock on other land affected by work related to SST: s292SA(1) (a)-(e). 7. Any dispute in connection with compensation payments and compensation agreements can now be dealt with by the Court: 266(6). For example, if there is no standard compensation applicable to a SST, the applicant for the title or the landholder can apply to the Court to determine the amount of compensation payable. In making that determination, the Court is to take into account any determinations for compensation made by the Minister but ultimately the amount of compensation determined by the Court is taken to be the standard compensation in respect of the granting of the particular SST and, if there is no subsequent determination of standard compensation by the Minister for the renewal of the title: s266. 8. Furthermore, the Court may - in exceptional circumstances in accord with s266 (8), award a landholder compensation for the compensational loss suffered, or likely to be suffered, by the landholder as a result of the exercise of the rights conferred by the SST. 9. Compensational loss is defined in s262 of the Act. It provides: "… "compensable loss" means loss caused, or likely to be caused, by: (a) damage to the surface of land, to crops, trees, grasses or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damage which has been caused by or which may arise from prospecting or mining operations, or (b) deprivation of the possession or of the use of the surface of land or any part of the surface, or (c) severance of land from other land of the landholder, or (d) surface rights of way and easements, or (e) destruction or loss of, or injury to, disturbance of or interference with, stock, or (f) damage consequential on any matter referred to in paragraph (a)-(e), but does not include loss that is compensable under the Mine Subsidence Compensation Act 1961 . What impact do the amendments to the Mining Act have on these applications? 1. The amendments to the Mining Act clarify the general topics which can be dealt with by the AMPs in these proceedings. 2. An AMP cannot deal with matters of compensation or compensational loss which are covered by ss266 and 267 and the provisions in Part 14AA of the Mining Act. It is now clear that compensation and compensable losses suffered, or likely to be suffered, by the landholder as a result of the exercise of the rights conferred by the small scale title are to be the subject of a separate application or compensation agreement. 3. To do so would be contrary to s236D (2) (b). 4. Similarly, the new provisions for small –scale title levies in s292SA (1) of the Mining Act now deal specifically with compensation for maintenance of roads and road related infrastructure matters. The section provides: (1) The Minister may, by order published in the Gazette, impose a levy on Small –scale titles for any one or more of the following purposes: (a) The provision of and maintenance of roads servicing small scale titles and road related infrastructure (gates, grids and signs), (b) Rehabilitation or environmental maintenance work on stockpiles of mullock, (c ) Any purpose prescribed by the regulations, any purpose ancillary to a purpose set out I paragraphs (a) – (d). (2) The amount of the levy is the amount specified in the order. 1. Under the new provisions, the levy can be payable once or on a recurrent basis: s292SB and can apply to one or all SST of a specified class: s292SB (4). It will be collected into a fund which is divided into separate accounts for different purposes as referred to in s292SA. 2. The SST is paid to the Secretary and recovered as a debt by the Secretary if payment by the SST is in default. 3. In accordance with s292SD, an applicant (landholder) must apply to the Secretary to be awarded a grant from the money collected by way of levy and if the Secretary is satisfied that the grant is consistent with the purposes for which the levy was imposed and is appropriate and reasonable for achieving those purposes it will be awarded. 4. As the plaintiff submits, the Ministerial Order made pursuant to s292SA (1) of the Mining Act published in the NSW Government Gazette No 129 on 24 December 2014 which commenced in 1 January 2015 styled the Lightning Ridge Small Scale Title Levies Order 2014 addresses the defendants' claims for providing and maintaining roads servicing SSTs and related infrastructure (gate, grids sigs). 5. As there is no agreement about compensation between the defendants and the existing SST holders in respect of compensation in force immediately before the substitution of s266 by the Amending Act it is open to the defendants to make application under the Act for compensation and or a grant from the levy to cover any claim for road maintenance, rehabilitation or environmental maintenance work on stockpiles of mullock gates, grids signs and related road structure. 6. For the reasons outlined I reject the defendants draft provisions which purport to deal with such matters (in particular clauses 6 of the draft AMPs attached to their written submissions). Those matters, if they are to be pursued ought to properly be the subject of a separate application under the Mining Act. What is an AMP? 1. An AMP is a registered document which manages and controls the exercise of a right of access for land between the relevant landholder and the Miner's representative on behalf of all existing and future SST holders: s236C. 2. An AMP does not create an entitlement for an SST holder to access their claim for mining purposes that right derives from the rights under the claim. Section 195 of the Act deals with rights under a mineral claim to carry out a mining purpose and s232 deals with rights under an OPLs to prospect on the land. 3. Nor can an AMP grant any greater access to a SST holder than they already have under their title. This would be a breach of s236D (2). 4. Similarly, an AMP cannot affect any 'right of way' to which the holder of a small scale title was entitled under a right of access granted under ss211 and 235C immediately before the registration of the AMP or any conditions imposed under s211 or 235C on any such right of access. Although, ultimately s236K (4) ensures that the provisions of the AMP will prevail over the right of way when the particular SST ceases to exist. 5. The Mining Act distinguishes between the provisions of the registered AMP and a right of way granted to an individual SST holder under ss211 and 235C. In short they are not the same. This is apparent, for example, in s192 of the Mining Act. The section differentiates between conditions imposed under a right of way and those imposed under an access management plan. It provides : 192 Conditions of mineral claim (1) A mineral claim is subject to: (a) any special conditions that apply to the land, and (b) the conditions imposed on the holder of the claim under section 211 as to his or her exercise of any right of way under that section in respect of the claim area, and (c) the conditions to which the holder of the claim is subject pursuant to any registered access management plan in force in respect of that land, and (d) any other conditions (not inconsistent with any other condition referred to in this subsection) that the Secretary imposes when the claim is granted, or at any other time under a power conferred by this Act. (2) Without limiting the generality of subsection (1), a condition may be imposed on a mineral claim requiring the holder of the claim to pay royalty to the Crown on any minerals recovered under the claim. (3) Part 14 applies: (a) to royalty payable under such a condition in the same way as it applies to royalty payable on a mineral recovered under a mining lease, and (b) to the person by whom royalty is payable as if the person were the holder of a mining lease. 1. To be clear, a 'right of way' granted under s211 and 235C of the Mining Act only relates to access along a designated route from a public road to one ultimate mining title. In circumstances where there is no registered AMP in place, access cannot be exercised unless the small scale title holder obtains the consent of the landholder or a 'right of way' between the claim area and a public road. 2. However, upon publication of the registration of an AMP and, subject to s236K (3), all existing and future SSTs are bound by its terms until it is replaced under s236L or terminated under s236M. 3. I agree with the plaintiff that an AMP provides access for the land to all existing and future SSTs within an access management area except for those areas that are agreed or statutorily exempt from access. Section 236C of Part 10A of the Mining Act clearly provides that an AMP for land within an access management area may be agreed between the miners' representative and the landholder, or determined by the Secretary or the Court in accord with that Part either before or after SSTs are granted in relation to the land. 4. The Supreme Court in Parkins determined the meaning of access under Part 10A to be access for all SSTs on a particular property. It is access for the land not access to a designated access route. Having regard to the reasoning in Parkins, I must accept the plaintiff's submission that an AMP determined under Part 10A ultimately has the effect of replacing multiple rights of way for access to land for all SSTs holders (PWS p10). Any existing or future SST holder should be able to travel along any road marked on the approved map referred to in the AMP as far as possible and from their travel to their title by the shortest and most practical route via a new track or a secondary access route (PWS p3). 5. Given that these AMPs under Part 10 A will provide access for all future SSTs wherever they are on the land I do not accept that it should be necessary for the plaintiff to be required to obtain owner's consent to any new access or approach the Court for a variation of the AMP to provide this as new tracks are required. 6. As the defendants do not seek to negotiate the location of new routes for SST holders because they will be given notice by the Department of any proposed new route under s177 of the Mining Act and will be able to make representations to the Department at that time (DWS p2 3.b) it is not necessary that every new route be marked on the registered AMP. 7. It is impractical to require the plaintiff to update the AMP to record new access routes for existing and future SSTs for the land. A later registered access management plan can always be determined if required. It prevails over an earlier registered access management plan to the extent to which they relate to the same land: s236K (5). 8. It is important to appreciate that the Mining Act only authorises the appointed miners' representative to negotiate the terms of an AMP with the landholder. The functions are not extended to overseeing, enforcing or implementing the AMP. These functions belong to the Minister, the Director General and the provisions of an AMP must be enforceable by the Department or the landholder under s293. 9. With that in mind I must agree with the plaintiff that an AMP cannot be used as an instrument to control prospecting and mining purposes on the land where other provisions of the Mining Act or other legislation deals with such matters. Accordingly, matters such as unregistered vehicles on the land, public liability insurance (see: s383C general indemnity against liability for claims brought against the landholder), the licensing of drivers, environmental protection, and firearms etc which are dealt with under other conditions of the SSTs or provisions of the Mining Act and/or under separate legislation are not matters to be covered in an AMP. 10. It needs to be appreciated that an AMP determined under Part 10A of the Mining Act is different to an access agreement for a mining lease or an exploration licence determined under the Part 8 Division 2 of the Mining Act. The SST holder is not a party to the AMP determined under Part 10A. The person or entity with the relevant mining interest must be a party to the access agreement with the landholder under Part 8. Therefore, the decisions of Rosane Pty Limited v T&P Clarke;N Perry& R Armstrong v T&P Clarke [2009] NSWLEC 1282 have no relevance to these applications . 11. While there is nothing to stop a SST holder from reaching an agreement with the landholder on a new road or track, any amendment to the AMP must proceed through the Miners' representative. What general matters can an AMP cover? 1. An AMP determined by the Court may make provision for or with respect to any of the matters set out in s 236D of the Mining Act. It provides : 236D Matters for which access management plan to provide (1) An access management plan may make provision for or with respect to the following matters: (a) the rights of access that the holder of a small-scale title has in relation to the land to which the plan applies, including rights in relation to: (i) access points to the land, and (ii) routes of access across the land, and (iii) the manner in which, and the times at which, rights of access may be exercised, (b) the conditions to which the holder of a small-scale title is subject in relation to his or her exercise of any such right of access, including conditions in relation to: (i) maintaining routes of access, and (ii) preserving the safety of persons and stock, and (iii) avoiding interference with the land management practices being adopted in relation to the land affected by the right of way, and (iv) environmental protection, (c) the manner of resolving any dispute arising in connection with the plan, (d) the manner of varying or replacing the plan, (e) such other matters as the parties to the plan may agree to include in the plan. (2) In the event of an inconsistency between: (a) a provision of an access management plan, and (b) a provision of this Act, the regulations or a condition of a small-scale title, the provision referred to in paragraph (b) prevails. 1. However, as s236D (2) makes plain, a provision of an AMP cannot be inconsistent with the Mining Act, the Regulations or a condition of a SST. The section must be read subject to the whole Act including the recent amendments discussed above. Restrictions as to use of Land 1. The defendants would like the Court to impose restrictions on the minimum standard hours of access and restrict access after wet weather for all future SSTs. They contend that these restrictions already apply to existing SST holders who access the land under a right of way granted under s211 by operation of Regulation 45(8) (c) and, that the Court only has power to vary the provisions of cl 45 (8) for future SST holders. Although, they submit to provide for a two tiered system of access should be avoided. 2. I do not accept that submission. Section 236D (1) (iii) certainly provides that an AMP can make provision for "…the manner in which, and the times at which, rights of access may be exercised" and in my opinion each case must be assessed on its individual circumstances. 3. Regulation 48(8) (c) relates only to a right of way granted under s211 (6) (a). It provides for the imposition of conditions to limit the use of "…a right of way granted under s211 (6) (a) to between the hours of 7am and 6pm or use of the right of way during or less that 24 hours after wet weather". 4. While I concede that any pre-existing right of way will be protected for a time under s236K (3) ultimately, s 236D (a) (1) (iii) prevails over Regulation 48(8) (c). Compensation 1. The amendments to the Mining Act now provide for a standard compensation scheme for landholders affected by opal mining. They set a standard compensation rate for the Lightning Ridge area for mineral claims and opal prospecting licences which are indexed to keep up with inflation and to be varied every 5 years. Standard compensation will be collected by the government and distributed to landholders. If landholders receive standard compensation and believe it is too low they will be allowed to seek an assessment by the Court. The Court cannot award an amount less than the standard compensation rate. Importantly, the standard compensation scheme does not prevent parties from making their own arrangement for compensation by a private compensation agreement with the landholders. However, if there is no standard compensation rate in place for a particular area or compensation agreement a party can apply to the Court for the determination of compensation. 2. Section 292SA of the Mining Act as amended now imposes a levy on SSTs for several purposes including road maintenance. The levies outlined in Part 14 AA provide funds upon application for "…the provision and maintenance of roads, servicing small scale titles and road related infrastructure including gates, grids and signs)". In my opinion it would be a breach of s236D (2) of the Mining Act to include provisions in respect of these matters in an AMP because they would be inconsistent with ss266, and Part 14AA Small –scale title levies. 3. The Court has a central role in resolving conflicts between landholders and opal miners including in relation to compensation and compensable loss and even compensation agreements. Section 293(1)(t) provides the Court with jurisdiction to resolve "any question or dispute in connection with a compensation agreement under s266 " in addition to the other matters listed in s293 of the Mining Act. Conclusion 1. Whilst access pursuant to an access management plan is not unconstrained, it is clear that an access management plan is not to be confined to direct access solely to small-scale titles on the property that is the subject of the access management plan. For it to be an effective and properly structured document, an access management plan must also provide, if appropriate: 1. access across the land to reach access routes (whether agreed rights-of-way or access pursuant to an access management plan on the other property) to a small-scale title on another property; and 2. access to locations for activities that are for mining purposes necessarily ancillary to mining related activities on a small-scale title (such as a puddling location or a mullock dump) with such access for such purposes also encompassing access pursuant to (i). 1. As a consequence, it seems to me that, within the restrictions I have set out in this section of the judgement, the access management plan for the three properties involved in these proceedings should be in the form set out in the Schedule to this judgement. 2. It may well be that the Schedule will also provide an appropriate template for future access management plans for other properties but that, at least initially, will be a matter for negotiation between the parties to such future access management plans. As I have already explained an AMP is a condition of the SST and its terms cannot be inconsistent with other conditions in the SSTs: 236D (2). 3. Therefore, it is unnecessary to repeat definitions and restrictions which are otherwise covered by the Act and/or referred to in the conditions of the particular SST (see Exhibit G). For that reason I prefer the plaintiff's version of the AMPs to those proposed by the defendants. 4. Applying the Schedule to the AMPS for 'Sorrento', 'Allawah' and 'Muttabun' I have determined the following. Attachment 1 – the common conditions applicable to all Access Management Plans 1. Attachment 1 of each AMP is to include a modified version of the common conditions proposed by the plaintiff in their draft AMPS (Exhibits D, E and F) which are based on the format approved by the Court in Parkins. (I have followed the numbering in Exhibit F but appreciate that clause 3 has inadvertently been omitted and this should be corrected in the final AMPs which the parties are directed to provide to the Court within 1 month of this judgment). 2. The common conditions for each AMP are to include the following clauses from Exhibit F : * RECITALS - unchanged apart from the deletion of the reference to holders of a permit to enter. * Clause 1 – DEFINITIONS- unchanged. * Clause 2 - EXERCISE OF ACCESS -unchanged * Clause 4 - REVIEW OF THE ACCESS MANAGEMENT PLAN - delete the last two paragraphs of cl 4. (As Section 236M of the Mining Act deals with the duration of an AMP. It does not run with the land and terminates if the landholder of the land to which it relates ceases to be a landlord or if the AMP is superseded by another registered plan (s236K (5) or terminated. It is not necessary that the AMP be reviewed every 5 years rather meetings between the landholder and the miner's representative should be on a needs basis as the plaintiff submits (PWS p3)). * Clause 5 - ACCESS- cl5 (1) and (3) are to be included and 5 (2) is modified to read: "Subject to clause 9 hereof access for roads and tracks not shown on the map to the small scale title shall be by the shortest and most practical route taking into consideration sensitive features of the area and wherever possible should be used by adjacent claim holders on a shared basis" – (Clause 5 (3) restricts driving within 10m of a fence where there is a cleared 50m fire break except on those roads and tracks shown on the map/plan (attachment 2). In my opinion this clause imposes an important restriction of access for the reasons outlined in the evidence of Mr Slack – Smith. I have considered the plaintiff's concern that such fire breaks are not always easy to see but have formed the view that in the circumstances of this case that it is appropriate to impose cl 5(3) as it assists in avoiding trucks running off the road particularly during wet weather and causing significant damage to fences :( exhibit 10 and Mr Slack-Smith evidence and Transcript D2 p91 line 36 p92 line17). I accept Mr Slack-Smith's evidence that roads can end up impinging on fences and compromise the stability of the fence. However, his evidence that a 50m distance is necessary is in my opinion excessive and excludes land that should be available for mining. (Transcript d2 p93 at 1-15). A distance is of 10m is reasonable of the facts. * Clause 6- REPAIRS TO ACCESS ROADS AND TRACKS - unchanged * Clause 7 - REPAIRS TO ACCESS ROADS AND TRACKS – LIMITATIONS is modified to read : "Titleholders shall not drag tyres or any other levelling device on access roads and tracks except with the consent of the landholder". * Clauses 9, 11, 12, 13 and 14 – unchanged. * Clause 10 – modified to include the following additional subclauses: 1. "Existing and proposed access roads and tracks are to be through existing gates and grids unless otherwise agreed with the landholder". 2. "Small scale title holders when exercising access shall not discharge any firearms without the landowner's consent". Attachment 2 – will be a marked plan showing routes that have been designated as access routes for the purposes of this Access Management Plan 1. The parties have essentially agreed the designated access routes for the purposes of each AMP and this need to be marked on a map as Attachment 2 for each AMP. 2. There are two access points in issue between the parties on Muttabun. The first is that the plaintiff seeks access across Rexeen to get to Muttabun (transcript D2 p69 lines 31-36). It would seem however, that unless the landholder of Rexeen were a party to an AMP then the SST holder could not access that land without the permission of the owner of that property or under a right of way granted under the Act. However, if there were to become a right of access across Rexeen pursuant to an AMP I consider it appropriate that such access should continue into Muttabun. Therefore, the Muttabun AMP and its incorporated map are to provide for this by including a provision (and marking the map to reflect this) that reads as follows: 1. For the purposes of the Access Management Plan , access to and from the boundary of Rexeen is not authorised until there is an Access Management Plan for Rexeen that authorises access across that property to and from the boundary of Muttabun. 1. The second area of dispute concerns the black soil agriculture land on Muttabun. At the view I travelled along that access path and given its location appreciate that after a certain amount of rain access along that path is potentially dangerous and likely to cause significant damage to the road. For that reason I have determined that it is appropriate to restrict access along that road after rain unless agreed to by the landowner. However, the precise terms of the restriction need to be determined by the parties. Therefore, I direct them to attempt to agree upon the terms of such a condition including a level of rain (i.e. 2mm) set to trigger the restriction of access and the duration of such a restriction. This condition is to be included I the AMP Attachment 3 and shown on the map as a (notation). 2. With respect to AlIawah I have determined that there should be no access on the road under the transmission line because I accept the defendants' submission following my inspection of the site that there is already access for the land from the Castlereagh Highway and the Goodooga Road, both sealed public roads. As these sealed public roads are reasonably proximate they should be utilised by the SSTs with little travel time inconvenience. This avoids unnecessary private costs for the landholder for the maintenance of this private road and accords with the scheme of the Act which encourages the using public roads where possible. 3. In respect of the road on Allawah which has a fence running across it and which Mr and Mrs Hall wish to rehabilitate I have determined that it should be an access road under the AMP. Having inspected the area, and after a consideration of the evidence and submissions in my assessment there is little work needed to reinstate access along this old road. The area appears to have been fenced off relatively recently and provided that the LRMA pay for the cost of the gate and associated road infrastructure (grid etc) I am of the opinion that this existing access road should be used to provide access. This is consistent with the objectives and provisions of the Mining Act. Attachment 3 - specification of any restrictions that apply generally to the exercise of access pursuant to this Access Management Plan; and 1. Each AMP needs to record in Schedule 3 specific agreed restrictions that apply to the exercise of access pursuant to the relevant AMP: 2. A restriction of access around the cup and saucer on 'Sorrento' as agreed should be recorded in Attachment 3 on the AMP for 'Sorrento'. 3. A restriction of access under the transmission line needs to be recorded on the AMP for 'Allawah' in Attachment 3. 4. The restriction in cl 5(3) in respect of driving within 10m of a fence etc should be specified on Attachment 3. Attachment 4 - specific restrictions that may apply to any nominated element shown on Attachment 2. 1. The cup and saucer on 'Sorrento' is a nominated element to be avoided and this needs to be specified in attachment 4. 2. Fences as dealt with in cl 5(3) of the AMP should also be recorded as nominated elements in Attachment 4. Directions 1. (1) The parties are directed to prepare settled copies of the AMPs for each property in accordance with these reasons in the form of the Schedule attached to this judgment and to file the documents within 1 month; (2) in addition to filing printed copies of each AMP, the text of each AMP is to be sent , for my attention, to the Court's email address as a Word 1979-2003 (doc) file and each map forming attachment 2 to an AMP is to be sent , for my attention, to the Court's e -mail address as a .pdf file; (3) the matter is set down for telephone mention before me at 9am on 29 June 2015. (4) if the parties comply with (1) and (2), I will make orders in chambers to give effect to each settled AMP so filed and will vacate the mention of the matter or matters for which such settled AMP has been filed , and (5) reserve liberty to apply by telephone on 3 days notice. Schedule Access Management Plan for ………… This Access Management Plan made pursuant to s ……….. of the Mining Act 1992 provides the basis for access to or across the property known as …… (the property) for small-scale title holders. Access pursuant to this plan is for: Access by the shortest direct route to a small-scale title located on the property; or Access to a location where activities that are necessarily ancillary to mining activities on a small-scale title are conducted (whether the small-scale title is on the property or not); or Access across the property for the purposes of exercising a right of access on another property provide that access for this purpose is access by the shortest direct route to that small-scale title. The details of the access management arrangements are set out in the following attachments to this plan: 1. Attachment 1 – the common conditions applicable to all Access Management Plans 2. Attachment 2 - the marked plan showing routes that have been designated as access routes for the purposes of this Access Management Plan; 3. Attachment 3 - specification of any restrictions that apply generally to the exercise of access pursuant to this Access Management Plan; and 4. Attachment 4 - specific restrictions that may apply to any nominated element shown on Attachment 2. Commissioner Dixon ********** Amendments 26 May 2015 - Typographical error 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: 29 June 2015