Land and Environment Court New South Wales Medium Neutral Citation: Aus Gold Mining Group Pty Limited v Mount Poole Pastoral Company Pty Limited [2017] NSWLEC 131 Hearing dates: 28 September 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Class 8 Before: Preston CJ Decision: (1) Grant leave to the applicant to amend its summons in accordance with the rulings of the Court. (2) Direct the applicant to file and serve an amended summons by 5 October 2017. (3) List the matter for directions hearing at 10am on 6 October 2017. Catchwords: PRACTICE AND PROCEDURE – amendment of summons – mining lease – dispute as to right of way and right of access to water – leave granted to amend summons Legislation Cited: Mining Act 1992 s 164 Category: Principal judgment Parties: Aus Gold Mining Group Pty Limited (Applicant) Mount Poole Pastoral Company Pty Limited (First Respondent) Minister administering the Mining Act 1992 (Second Respondent) Representation: Counsel: Mr D Wilson (Applicant) Mr P Long (solicitor) (First Respondent) Mr J Edwards (Second Respondent) Solicitors: Ren Zhou Lawyers (Applicant) Rural Law with Peter Long (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2017/221487 Publication restriction: Nil Judgment 1. Aus Gold Mining Group Pty Limited (the "miner") has a mining lease, Mining Lease 1322, over land that includes Crown land leased by Mt Poole Pastoral Company Pty Limited (the "pastoral company"). That land is known as Mt Poole Station and is located near Tibooburra in the far west of New South Wales. The nearest public road to the land is the Silver City Highway. 2. A dispute has arisen between the miner and the pastoral company about access from that public road to the land subject to the mining lease. The miner commenced proceedings on 20 July 2017 by summons seeking declaratory and injunctive relief for a right of way over the pastoral company's land from the Silver City Highway. 3. The miner sought firstly a declaration that it had a right of way but alternatively an order that the Minister administering the Mining Act 1992 (the "Mining Minister") grant a right of way. The miner sought an order restraining the pastoral company from preventing the miner using the right of way. 4. The miner now seeks to refine its claims concerning access over the pastoral company's land. The miner still claims it has a right of way or alternatively is entitled to be granted a right of way. In relation to the latter, the miner initially sought to add another Minister as a party, the Minister administering the Western Lands Act 1901 (the "Western Lands Minister"), in case that Minister, rather than the Mining Minister, had the authority to grant the right of way. 5. The miner now no longer seeks to add the Western Lands Minister and has consented to the Court dismissing that part of its application for leave to amend the summons and I have done so. The miner also now no longer seeks an order that the Mining Minister grant a right of way. The miner has consented to the removal of the Mining Minister as a party to the proceedings. I have so ordered. In these circumstances, the miner now no longer seeks the order that it had originally sought for the Mining Minister to grant a right of way. The miner would seek to amend the summons to delete that prayer for relief. 6. The miner, however, does seek to raise a new claim that, in addition to it having a right of way under s 164 of the Mining Act 1992, it has an implied right of access over the pastoral company's land arising from the mining lease and the provisions of the Mining Act concerning the grant of and exercise of rights under the mining lease. The miner seeks a declaration that it has such an implied right of access. 7. The miner also says that a further dispute has arisen with the pastoral company regarding access to water bores on the pastoral company's land and the use of water from the water bores for the purpose of the mining lease. The miner says that it has been denied access to water from the water bores on the pastoral company's land. One of the water bores is within the area of the mining lease, Bore no. 2, while the other is outside the area of the mining lease, Bore no. 1. 8. The miner seeks to overcome this problem by the pastoral company surrendering the existing water supply allocation authority for the bores and facilitating the grant of a new authority which would allow both the miner and the pastoral company to use water from those bores. 9. The miner also says that the pastoral company has prevented the miner having land and water access and has thereby caused the miner economic loss. The miner wishes to claim damages for that loss. 10. The miner therefore seeks, by notice of motion filed on 26 July 2017, to amend its summons to deal with these matters. First, the miner seeks to add a prayer for relief for a declaration that it has an implied right of access over the pastoral company's land. 11. Secondly, the miner seeks to add prayers for relief for orders that the pastoral company surrender the existing water supply allocation authority and facilitate the grant of a new authority for the two bores. 12. Thirdly, the miner seeks orders restraining the pastoral company from preventing the miner from accessing and using water from the water bores in accordance with any new water supply work approval in respect of the bores that might be granted by the Department of Primary Industries. The miner also seeks an order restraining the pastoral company from preventing the miner access over its land to the mining lease. 13. Finally, the miner seeks an order that the pastoral company pay damages for preventing access to the mining lease. 14. I have determined that the miner should be granted leave to amend the summons to make these claims. The miner filed a form of amended summons on 20 September 2017. However, the terms of that amended summons will need to be varied to address the rulings I will now make. I grant leave: 1. To add a prayer for relief for a declaration concerning the implied right of access in terms similar to para 1 of the form of amended summons filed on 20 September 2017. There may need to be a refinement of the description of the land over which it is said that there is an implied right of access. 2. To retain the existing prayer for relief for a declaration that the miner has a right of way as described in para 2 of the amended summons, but to refine the description of the land. 3. To delete para 3 of the amended summons, which sought an order that certain Ministers grant a right of way, as that claim is no longer made. 4. To seek orders along the lines sought in para 4 and 5 of the amended summons that the pastoral company surrender the existing water supply allocation authority and facilitate the grant of a new water supply work approval. 5. I note that the miner no longer pursues para 6 and 7 of the amended summons. Accordingly, leave is not granted to amend the summons to make those claims. 6. To add a prayer for relief for an order restraining the pastoral company from preventing the miner having access to the water bores and using the water from the water bores. However, para 8 of the amended summons in which this order was sought needs to be amended to make clear that the water to be used would be in accordance with any new water supply work approval that might be granted by the Department of Primary Industries. 7. To add a prayer for relief for an order restraining the pastoral company from preventing the miner having access over the land. This would be in terms similar to para 9 of the amended summons, although again the description of the land will need to be refined. 8. To seek an order that the pastoral company pay damages along the lines of para 11 of the amended summons. 1. The Court makes the following orders: 1. Grant leave to the applicant to amend its summons in accordance with the rulings of the Court. 2. Direct the applicant to file and serve an amended summons by 5 October 2017. 3. List the matter for directions hearing at 10am on 6 October 2017. ********** 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: 04 October 2017