Australia, Jan. 17 -- New South Wales Land and Environment Court issued text of the following judgement Dec. 18:

1. WARD P: In December 2022, the Court of Appeal (constituted by myself, Mitchelmore and Kirk JJA) made an order remitting to Duggan J in the Land and Environment Court (LEC) the matter then before the Court of Appeal and did so "on the question of quantification of the compensation payable by the appellants [the Cobalt entities] for the compensable losses identified at [43] and [44]-[46] of the primary judgment" (see Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271) (Remitter Judgment).

2. The remittal has now spawned further litigation in this Court. By a notice of appeal filed on 20 August 2024, Mr Lord (in his personal capacity and as representative of the estate of his late father) challenges the decision of Duggan J given on 20 May 2024 in Lord v Broken Hill Cobalt Project Pty Ltd (2022) 254 LGERA 274; [2024] NSWLEC 52 (the primary judgment). (I refer to the appellants jointly as Mr Lord.) Mr Lord maintains that he has an appeal as of right from the decision of Duggan J on the remittal, pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. By notice of motion filed on 17 September 2024, the Cobalt entities (the appellants on the first appeal and the respondents to the current appeal) seek an order pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the appeal be dismissed as incompetent.

4. Both the appeal and the notice of motion were heard on 5 December 2024. Background

5. The background to the current dispute is set out in the Remitter Judgment and these reasons assume familiarity with that judgment.

6. In summary, the proceedings in the LEC concern an application brought by Mr Lord pursuant to s 155 of the Mining Act 1992 (NSW) (Mining Act) for review of the final arbitral determination in relation to a land access arrangement arbitration concerning three Exploration Licences (ELs) held over rural land near Broken Hill, New South Wales. The ELs were issued under Part 3 of the Mining Act, covering about 7,000 hectares of land forming part of Thackaringa Station on which the Lord family carries on sheep farming. Thackaringa Station is a property occupying some 64,610 hectares in total, comprising both freehold and leasehold title (the latter being Crown leases under the Western Lands Act 1901 (NSW)).

7. It is not necessary here to set out the statutory scheme relating to access arrangements for prospecting titles, about which there was no dispute.

8. Mr Lord's application was heard and determined by the primary judge on an expedited basis (it was filed on 8 September 2021, heard over three days on 20-22 October 2021 and, with commendable expedition, judgment was handed down on 12 November 2021 (David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126) (Lord No 1)). The parties had adduced a substantial body of evidence for that hearing: the applicants adduced lay evidence from Mr Lord and expert evidence from Mr Hopcraft, a property valuer; the Cobalt entities adduced expert evidence from Mr Ivey, an agricultural consultant and forensic accountant, and Dr Russell Bush, a specialist in the field of agriculture and livestock production. The Cobalt entities also tendered lay evidence from officers of those companies and expert evidence in the fields of dust and biodiversity/ecology.

9. The primary judge determined that the Cobalt entities could have access to Thackaringa Station in relation to the three ELs on the terms of the Access Arrangement annexed to her Honour's reasons. The primary judge also fixed compensation for the specific activities of drilling, costeaning, bulk sampling and track making, and awarded a lump sum payment of $20,000 per annum for each EL as compensation for non-financial losses. (The parties had proposed the adoption of a lump sum figure as compensation for non-financial losses but were not agreed on the appropriate amount.)

10. After an unsuccessful application by the Cobalt entities before her Honour to vary Lord No 1, the Cobalt entities appealed to this Court, challenging the decision on various grounds including, relevantly, the adequacy of reasons of the primary judge. In the Remitter Judgment, the appeal was upheld only on that ground. The Court held that the reasons were inadequate insofar as there was no identification of the lump sum amount that was attributable to the two categories of compensable loss in question (namely, what were referred to as impacts on management and inherent damage to the surface of the land). The Court held that it was not sufficient to nominate a global figure without explaining how it was reached (see my reasons at [114], [116], Mitchelmore and Kirk JJA agreeing at [173] and [174], respectively).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193d2ceaab7eb2408dc6d9fe)

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