A review of Hume Coal Pty Ltd v Alexander [2013] NSWLEC 58

Most will be aware of the growing discord in recent years between landholders and miners over access to land.

The Facts

The mining company, Hume Coal (Hume) held an exploration licence over land in the southern highlands of NSW. Part of the exploration licence covered land owned by Mr Koltai. The mining company and Mr Koltai entered into a series of access agreements allowing the mining company access to his land for the purposes of undertaking mining activities.

The most convenient access to that land was via an adjoining parcel of land owned by another family, the Alexanders. Mr Koltai enjoyed a private right of way over the land owned by the Alexanders and both pieces of land were subject to a private covenant which restricted any part of the lands from being used for a quarry or removing soil or earth from them. They also prohibited them from being used for an industrial or commercial purpose.

The Alexanders disputed the right of Hume to use the right of way and they allowed protestors to blockade access over their land.

The Decision

In the Land and Environment Court Justice Sheahan granted a permanent injunction against the Alexanders and the protestors from stopping the mining company using the right of way. In reaching this decision the Court found that once Hume held the exploration licence and had entered into an access arrangement with Mr Koltai, the Mining Act prevailed over the terms of the private restrictive covenant.

The relevant mining legislation provided for the holder of the exploration licence to be entitled to a right of way between land the subject of the licence and any public road.

Importantly, too, the mining legislation contained a provision empowering the court to grant an injunction restraining any person from doing any act which restricts a person from exercising a legal or equitable interest in land the subject of an authority, such as the exploration licence.

This produced a favourable outcome for the particular mining company concerned and can of course be used as a precedent for other mining companies. Petroleum companies, however, should not feel comforted by this decision. This is because the New South Wales petroleum legislation does not contain the relevant provisions as to the granting of injunctions or access from public roads. Perhaps this is something which the NSW State Government’s review of its petroleum legislation would do well to consider.