Court invalidates determination of 'agricultural land' in relation to a mining lease application

On 8 November 2011, Moore AJ handed down his judgment in the Land and Environment Court in Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division); Moolarben Coal Mines Pty Ltd v Director-General of the Department of Trade and Investment, Regional Infrastructure and Services [2011] NSWLEC 191.

The Court examined whether a Determination of 'agricultural land' under the Mining Act 1992 (NSW) (Mining Act) by the Director-General of the Department of Industry and Investment NSW (Agricultural Division) (Director-General) in relation to the granting of a mining lease, was valid.

The decision makes it clear that where any procedure is set out in legislation, a decision-maker must, before making a Determination, apply the principles of procedural fairness, unless expressly or impliedly displaced. Should procedural fairness not be afforded, there is a risk that the Determination will be invalidated.

Background

On 20 July 2004, Moolarben Coal Mines Pty Ltd (Moolarben) lodged an exploration licence application and was subsequently granted a licence which operated for five years. On 21 April 2009, Moolarben lodged a mining lease application over part of the land that was subject to the exploration licence.

Part of the land that was the subject of the mining lease application was owned by Ulan Coal Mines Pty Ltd (Ulan). Ulan objected to the grant of a mining lease on the basis that their land was "agricultural land" (Land) for the purpose of the Mining Act.

The Mining Act provides that a mining lease cannot be granted over the surface of land determined to be "agricultural land" without the consent...