Summary

Hume Coal Pty Limited (Hume) holds an Exploration Licence (EL) under the Mining Act 1992 (NSW) over land in the New South Wales Southern Highlands. The EL covers land owned by two neighbouring landowners—Alexander and Koltai.

Hume proposes to carry out prospecting on the Koltai land and to access this land via a carriageway running across the Alexander land. Hume has entered into an access arrangement with Koltai but not with Alexander. Alexander has blockaded the carriageway and refuses to allow it to be used by Hume to access the Koltai land.

Hume has commenced proceedings in the NSW Land and Environment Court seeking orders restraining Alexander from blockading the carriageway. The court refused an application by Hume for an interlocutory injunction to this effect and ordered the hearing of the substantive proceedings be expedited.

The substantive proceedings were heard on 18 and 19 February 2013 and judgment is reserved. This case has the potential to shed light on the scope of the land access rights conferred under an EL and the Mining Act 1992 (NSW) (Mining Act).

Application for interlocutory injunction: proceedings [2012] NSWLEC 267

On 7 December 2012, Hume applied for interlocutory orders including an injunction restraining Alexander from blockading the carriageway.

The court refused to grant the injunction on the basis that the interlocutory relief sought was essentially final relief. The court held that removing the blockade would allow all planned exploration work to take place thereby bringing the substantive proceedings to an end without the court having had the opportunity to properly consider the full range of issues involved.

Application for expedition: proceedings [2012] NSWLEC 278

On 14 December 2012, Hume made a successful application for an expedited hearing of the substantive proceedings. The substantive proceedings were listed to be heard on 18 and 19 February 2013.

Issues to be determined at final hearing

In determining Hume’s application for an interlocutory injunction, the court noted that there were a number of important questions to be determined in the substantive proceedings, including:

  1. does Hume need an access arrangement over the Alexander land in order to ‘supply’ its approved prospecting operations on the Koltai land; and
  2. is the blockade of the carriageway an illegal act under the Mining Act?

An updated Case Note summarising the court’s findings on these issues will be prepared as soon as the judgment on the substantive proceedings is available.