Hume Coal Pty Ltd v Alexander

May 2013

EDO NSW represented Southern Highlands landholders (Mr and Mrs Alexander) in defending proceedings brought by Hume Coal Pty Ltd, a Korean owned mining company.

An access arrangement had been entered into by Hume Coal Pty Ltd with a landowner (neighbouring the Alexanders' property) who owns the property where prospecting is taking place (Mr Koltai). To access Mr Koltai's property for prospecting, Hume Coal Pty seeks to use a carriageway located on the Alexanders' land. However Hume Coal has not entered into an access arrangement with the Alexanders. Further, restrictive covenants have been placed on both of the relevant properties that restricts the land from being used for commercial or industrial purposes.

On 7 December 2012 Hume Coal's application for an interlocutory (interim) injunction was refused. Hume sought to restrain the Alexanders from allowing invitees onto their private land (the invitees had formed a blockade on the carriageway) preventing Hume Coal from accessing Mr Koltai's property via the carriageway in order to conduct prospecting operations. The judgment refusing the interim injunction can be found by clicking the Judgment - interlocutory injunction below.

In proceedings before the Court on 14 December 2012 Hume Coal Pty Ltd was successful in seeking an order that the matter be expedited. Read the judgment by clicking the Judgment  - proceedings expedited link below.

The final hearing of Hume Coal's application for a final injunction against the Alexanders was heard by the Land and Environment Court on 18 February 2013. On 3 May 2013 the Court granted a final injunction to Hume Coal to use a carriageway in the Southern Highlands to undertake exploration activities, and ordered the owners of the carriageway, the Alexanders to take steps to prevent third parties blockading it. Hume Coal had originally sought an interim injunction that was refused in December 2012. In granting the final injunction, the Court has allowed Hume Coal to use the carriageway on the basis that the Mining Act 1992 essentially overrides the rights of landowners and provides for terms of access for exploration.

The Court rejected the argument of the Alexanders that the mining company required an access agreement with them prior to use of the carriageway. The Court also rejected arguments that a restrictive covenant on the property which sought to prevent industrial uses prevented mining exploration. The decision to grant Hume a final injunction can be found by clicking the Judgment below.

Hume sought its costs of the case from the Alexanders. The Alexanders requested that the Court not make a costs order against them on the basis that the case was defended by them in the public interest at a local, community, and State level. However, the Court found that these proceedings were not ‘public interest' proceedings, and ordered the Alexanders to pay Hume Coal's legal costs. See the Judgment regarding costs below.

EDO NSW is grateful to barristers Ms Jane Needham SC and Mr Simon Chapple for their assistance in these proceedings.

Judgment  - Interlocutory injunction refused

Judgment - Hearing of the proceedings expedited

Judgment - Regarding costs

 

Judgment