Land and Environment Court New South Wales

• Medium Neutral Citation: Hume Coal Pty Limited v Alexander [2012] NSWLEC 267
• Hearing dates: 16, 29 November 2012; written submissions (applicant) 30 November 2012
• Decision date: 07 December 2012
• Jurisdiction: Class 8
• Before: Sheahan J

Decision

1. The plaintiff's Notice of Motion for an interlocutory injunction is dismissed.

2. The costs of the interlocutory proceedings are reserved.

3. The exhibits are retained.

4. The matter is referred to the List Judge's list on Friday 14 December 2012.

• Catchwords: INTERLOCUTORY RELIEF: Interlocutory injunction sought - would effectively bring the substantive proceedings to an end - principles to apply in serious question(s) to be tried - balance of convenience
• Legislation Cited: Conveyancing Act 1919; Environmental Planning and Assessment Act 1979; Mining Act 1992; Roads Act 1993; Wingecarribee Local Environmental Plan 2010; Mining Regulation 2010
• Cases Cited: American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618; Brown v Coal Mines Australia Pty Ltd [2010] NSWSC 143; 76 NSWLR 473; Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148; Elliston v Reacher [1908] 2 Ch 374; European Bank Ltd v Evans [2010] HCA 6; 264 ALR 1; Ferella v Otvosi [2004] NSWSC 230; Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207; Hobson v Middleton (1827) 6 B & C 295; Hosking v Haas (No. 2) [2009] NSWSC 1328; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883; 221 ALR 179; Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186; Kerridge v Foley [1964-5] NSWR 1948; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533; Plaintiffs M168/10 v Commonwealth [2011] HCA 25; 85 ALJR 790; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Reid v Bickerstaff [1909] 2 Ch 305; Re Louis and the Conveyancing Act [1971] 1 NSWLR 164; Re Mack and the Conveyancing Act [1975] 2 NSWLR 623; Rossmar Park Pastoral Co Pty Ltd v Coal Mines Australia Pty Ltd [2008] NSWSC 1385; Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; 186 LGERA 127; Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1; Toleman v Portbury (1872) LR7QB 344 (Ex Ch); Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Valuer General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306
• Category: Principal judgment
• Parties: Hume Coal Pty Limited (Plaintiff); Ross Alexander (First Defendant); Margaret Anne Alexander (Second Defendant)
• Representation: Mr R C Beasley SC (Plaintiff); Ms J Needham SC, and Mr S Chapple (Defendants); Minter Ellison (Plaintiff); Environmental Defender's Office (Defendants)
• File Number(s): 81128 of 2012

Judgment

Introduction

1 The plaintiff company ("Hume") seeks an interlocutory injunction. It filed its class 8 summons on 8 November 2012, together with a Notice of Motion seeking, on an urgent basis, all the same relief, namely a declaration, the injunction, a mandatory order, damages, and costs.

2 The defendants (the Alexanders) own land, a carriageway over which has been "blockaded", with a chicane, allegedly by them, with the support of others, to obstruct Hume's access to neighbouring lands (owned by Robert Koltai) in the Sutton Forest area of the Southern Highlands for coal exploration purposes. The carriageway is known as "Carter's Lane", and runs off Golden Vale Road.

3 Hume holds an Exploration Licence (Authorisation 349) under the Mining Act 1992, over an area of at least 89 sq km in that area of the Highlands (see tab 3 of Exhibit H1), and wishes to prospect for coal as soon as possible on the Koltai land. It is the proposed prospecting on the Koltai land which is being prevented by the blockade on the Alexander land. While Carter's Lane is the most convenient way for Hume to access the Koltai land, it is not the only available way to do so.

4 The relief Hume seeks is designed to remove the blockade, and so facilitate the intended prospecting. Hume has chosen to pursue civil proceedings under s 295(1)(d) of the Mining Act, but has also suggested to the Court that the blockade may involve the commission of an offence against that Act.

5 Success at this interlocutory stage would effectively bring the proceedings to an end, given the limited scope of, and the limited time required to complete, the exploration task. So far as this Court knows, no proceedings have been commenced to uphold the objections of the blockaders or other opponents of the Hume project.

The Proceedings

6 Section 295 provides (emphasis mine):

(1) If an application is made to the Land and Environment Court by a person claiming to hold a legal or equitable interest in any land subject to an authority or mineral claim, or in any property, the Court may, on such terms as to costs or otherwise as it may consider just, grant an injunction restraining any specified person:

(a) from encroaching on, occupying, using or working the land or property, or

(b) from seeking, washing out, extracting or removing any earth or minerals from the land, or

(c) from selling or disposing of or otherwise interfering with the property, or

(d) from doing any act that may affect the interest concerned in the whole, or any part, of the land or property.

(2) An injunction remains in force for the period specified in the injunction, unless it is sooner discharged.

7 Section 378B provides:

A person must not, without reasonable excuse, obstruct or hinder the holder of an authorisation from doing any act that the holder is authorised by this Act to do.

Maximum penalty: 100 penalty units.

8 The summons and notice of motion sought the following relief:

1 (Not pressed).

2. An injunction pursuant to section 295 of the Mining Act 1992 restraining the Defendants from:

(c) preventing the Plaintiff using the Carriageway to access the Land to carry out prospecting from the date of the order; and

(d) restraining the Defendants from inviting or allowing third parties on to the Carriageway for the purposes of preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting from the date of the order.

3. A declaration that the Plaintiff has a right to use the Carriageway to access the Land to carry out prospecting pursuant its access arrangement in relation to the Land, Exploration Licence 349 and the Mining Act 1992.

4. An order that the Defendants prevent, or take reasonable steps to prevent, third parties on the Defendants' land from preventing the Plaintiff from using the Carriageway to access the Land to carry out prospecting for a period of two months from the date of the order.

5. An order that the Defendants pay the Plaintiff's damages suffered as a result of the blockade.

6. An order that the Defendants pay the Plaintiff's costs in this motion.

7. Such further orders as the Court sees fit.

9 The notice of motion came before the Court for hearing on 16 November, and the Alexanders were represented by counsel (Ms J Needham SC, and Mr S Chapple), instructed by the Environmental Defender's Office.

10 The Alexanders sought an adjournment of the interlocutory proceedings, in order to research the impact of the proposed prospecting on various lands in the immediate area, which are burdened by a covenant in favour of a legally represented non-party, namely Karin Spiegel-Keighley, and/or the National Trust. Ms Needham read affidavits from Ross Alexander, Phillip Pollicina, Matthew Burrows, and Peter Martin.

11 Counsel for Hume (Mr R Beasley SC) contended that the covenant is irrelevant, and the adjournment should be refused. He filed in Court Short Minutes of the Orders that he would seek on an interlocutory basis, namely only the injunction (par 2, quoted in [8] above), the mandatory order (par 4), and costs (par 6). He read two affidavits from Hume's solicitor, Simon Ball, and tendered a bundle of relevant documents, verified by Ball (Exhibit H1).

12 I granted the adjournment, gave directions about further evidence, and set the interlocutory hearing down to continue on 29 November.

13 On that date, the parties agreed to a statement of "matters not in dispute", and I admitted, subject to relevance, affidavits from Mrs Spiegel-Keighley and the CEO of the National Trust of Australia (New South Wales - "The National Trust"), Brian Scarsbrick. Mr Beasley read, without objection, an affidavit from Robert Koltai, and a third affidavit from Ball.

14 Maps tendered (as Exhibit H2) show the relevant land holdings, and their relationship to one another, and to Carter's Lane and Golden Vale Road. Precise lot numbers have changed over time, but, for simplicity, I will refer in these reasons to the Koltai land as Lot 12, the Alexander land as Lot 10, and the Keighley/National Trust land as Lot 1, regardless of the varying references that appear in the tendered title documents (included in Exhibit H1), or in some quotations. Lots 1, 10 and 12 have frontages to Golden Vale Road, and Carter's Lane (DP883697) forms part of Lot 10.

15 After hearing submissions, I stood the matter over for judgment on 7 December, and Hume undertook not to do any prospecting work on the Koltai land in the meantime. Pursuant to leave, Hume made a supplementary written submission, but the Alexanders chose not to respond to it.

The Statutory Regime for Mining

16 The Mining Act, and the Mining Regulation 2010, are very comprehensive.

17 Mr Beasley submits for Hume (reply sub 16) that their "central object" is "to encourage and promote the exploration of the State's mineral resources, subject to appropriate environmental controls", and that an exploration licence "overrides" the rights of an individual landholder.

18 The statutory regime relevantly includes, apart from s 295 and s 378B quoted above, the following provisions:

19 Section 3A sets out the following objects for the Act:

The objects of this Act are to encourage and facilitate the discovery and development of mineral resources in New South Wales, having regard to the need to encourage ecologically sustainable development, and in particular:

(a) to recognise and foster the significant social and economic benefits to New South Wales that result from the efficient development of mineral resources, and

(b) to provide an integrated framework for the effective regulation of authorisations for prospecting and mining operations, and

(c) to provide a framework for compensation to landholders for loss or damage resulting from such operations, and

(d) to ensure an appropriate return to the State from mineral resources, and

(e) to require the payment of security to provide for the rehabilitation of mine sites, and

(f) to ensure effective rehabilitation of disturbed land and water, and

(g) to ensure mineral resources are identified and developed in ways that minimise impacts on the environment.

20 Section 5 provides that a person must not prospect for, or mine, any mineral, except in accordance with an authorisation in force in respect of that mineral in the land where the prospecting or mining is carried on.

21 Section 11A provides that the regulations may declare, or provide for the declaration by the Minister, that a specific activity is, or a specified class or classes of activities are, "not prospecting or mining" for the purposes of the Act.

22 Part 3 (commencing with s 13) provides for exploration licences. A licence can, under s 26, be subject to conditions imposed by the decision-maker, and will be, under s 27, for a specified term not exceeding five years.

23 Division 4 of Part 3 (commencing with s 29) sets out the rights (and duties) under such a licence. Section 29(1) provides:

The holder of an exploration licence may, in accordance with the conditions of the licence, prospect on the land specified in the licence for the group or groups of minerals so specified.

24 Division 2 of Part 8 (commencing with s 138) provides for access arrangements for prospecting titles (defined as "exploration licences and assessment leases").

25 The right to prospect grants to the licensee neither a presumptive nor an unfettered right of access to the subject land, and "prospecting operations" must not be undertaken except in accordance with an access arrangement. Section 140 provides (emphasis added):

(1) The holder of a prospecting title must not carry out prospecting operations on any particular area of land except in accordance with an access arrangement or arrangements applying to that area of land:

(a) agreed (in writing) between the holder of the prospecting title and each landholder of that area of land, or

(b) determined by an arbitrator in accordance with this Division.

(2) Separate access arrangements may (but need not) be agreed or determined with different landholders of the same area of land, for different areas of the same landholding or with respect to the different matters to which access arrangements relate.

(3) Separate access arrangements may be made to preserve the confidentiality of provisions of the arrangements, to deal with persons becoming landholders at different times or for any other reason.

26 According to Hume, land owners have very little choice regarding the grant or refusal of access when a licence has been issued, but the respondents do not accept that submission. Section 142 provides for the holder of the prospecting title to give notice of its intention to obtain an access arrangement. An access arrangement must be either agreed in writing between the holder of the prospecting title and the registered proprietor of that land, or determined by an arbitrator, possibly after conciliation (s 147), and/or an interim determination (s 149). Section 141 sets out the matters for which any access arrangement is to provide, including areas, time periods, types of prospecting operations, conditions to be observed, compensation to be paid, etc. Section 151(2) says that an arbitrator "must make a final determination whether or not" the prospector should obtain a right of access (emphasis added).

27 Section 155 provides for any determination (other than one upon which the parties have agreed) to be reviewed by this Court, by way of rehearing.

28 Section 164 (in Division 4 of Part 8) provides that the holder of an "authority" (including an exploration licence - s 4) is entitled to a "right of way" (governed by the regulations), between the land the subject of the authority and the public road. Regulation 37 amplifies s 164, and makes detailed provisions in respect of the marking out of the right of way, installation of gates, etc, and principles to be applied. Generally the "right of way" would follow existing roads or tracks, and there is an obligation to make good any damage to fences etc.

29 Proceedings in this Court are governed by the provisions in Part 15, which includes s 295. Section 293 gives this Court jurisdiction to hear and determine proceedings in relation to any or all of a large number of listed matters, but nothing in that section limits or restricts any jurisdiction conferred on any other Court by any other Act or law. The Court is given (s 298) a specific power to order payment of money or delivery of mineral.

30 Section 378B is in Part 17A, which creates a range of offences.

31 Section 381 provides that "nothing in, or done under an environmental planning instrument" prevents prospecting operations. It is not suggested that any approval under the Environmental Planning and Assessment Act 1979 is required for the exploration activities planned for the subject site.

32 The dictionary to the Act includes the following definitions (some emphasis added):

landholder means, in relation to reserved land [defined separately], the controlling body of that land, or, in relation to any other land:

(a) the owner of an estate in fee simple in the land, or

(b) a native title holder of the land, or

(c) the holder of a lease or licence granted under the Crown Lands Act 1989 over the land, or

(d) the holder of a tenure referred to in Part 1 or 2 of Schedule 1 to the Crown Lands (Continued Tenures) Act 1989 in the land, or

(e) the holder of a permissive occupancy granted over the land, or

(f) the holder of a lease granted under the Western Lands Act 1901 over the land, or

(g) a person identified in any register or record kept by the Registrar-General as a person having an interest in the land, being:

(i) a mortgagee in possession of the land, or

(ii) a lessee of the land or other person entitled to an exclusive right of occupation of the land, or

(iii) a Minister or public authority having the benefit of a covenant affecting the land that is imposed by a Minister on behalf of the Crown under the Crown Lands Act 1989, or

(iv) a Minister or public authority having an interest in the land under a conservation, natural heritage or biobanking agreement, or

(v) a person prescribed by the regulations for the purposes of this paragraph, or

(g1) a person identified in any register or record kept by the Registrar-General as a person having an interest in the land, other than a person to whom paragraph (g) applies, but only in a provision of this Act in which a reference to a landholder is expressed to include a secondary landholder, or

Note. See s 255A, Part 13, s 383C.

(h) a person of a class prescribed by or determined in accordance with the regulations to be landholders for the purposes of this definition,

but does not include a person of a class prescribed as outside the scope of this definition.

party means:

(a) in relation to a hearing before an arbitrator-a person who is entitled to appear and be heard at the hearing pursuant to section 146, or

(b) in relation to an access arrangement-the holder of a prospecting title to whom, or a landholder of land to which, the arrangement relates.

prospect means to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A or by a declaration made under such a regulation.

prospecting operations means operations carried out in the course of prospecting.

reserved land means an area constituted by land:

(a) reserved, dedicated, appropriated, resumed or acquired for public purposes (except land reserved for a temporary common or a commonage), whether vested in the Crown or in any person as trustee for public purposes, or

(b) held under a lease for water supply by virtue of a special lease or otherwise, or

(c) transferred, granted or vested in trust by the Crown for the purpose of a race-course, cricket-ground, recreation reserve, park or permanent common or for any other public purpose, or

(d) prescribed by the regulations for the purposes of this definition.

The relevant documents

Statutory approvals

33 Authorisation 349 is subject to a number of conditions (set out in the renewal document at tab 1 of Exhibit H1), which relevantly include the following:

• Specifications of the categories of prospecting operations (p 3)
• Requirements that there be no or minimal harm to the environment, threatened species, ecological communities, aboriginal objects etc ("A1", at p 5)
• Detailed environmental management conditions ("C", commencing at p 7)
• Requirements for the rehabilitation for any land disturbed, to a stable and permanent form suitable for a subsequent land use acceptable to the Department (cl 27, at pp 12-13)
• Preparation of environmental and rehabilitation reports, and so on (cl 28, at p 13).

34 The NSW Department of Trade & Investment granted an approval, on 4 September 2012 (tab 4), in accordance with condition 2 of Authorisation 349, for the title holder (ie Hume) to conduct "Phase 2 Exploration Activities, subject to conditions" specified in the letter of approval.

35 In his recent (third) affidavit, Ball explains the basis of Hume's exploration programme (in par 6) in the following terms:

a. Significant data is required to define a resource and assess economic viability.

b. The Plaintiff has where possible nominated strategic drilling locations in an effort to minimise the extent of ground activities. This is particularly relevant where exploratory drilling would otherwise occur across adjoining properties.

c. Where historical data is available and is sufficiently concentrated, the Plaintiff has not at this stage planned further exploration activities. This is intended to maximise the use of existing data and minimise drilling activities.

d. The exploratory drilling program design is largely driven by data requirements and the objective of a minimal impact, single-sweep approach to drilling. This means that the Plaintiff is focussed on obtaining the maximum volume of necessary data by accessing the minimum number of private landholdings.

e. In relation to Lot 12, access to exploration data is vital to ensure the viability of the coal deposit and in order to assess the coal quality, geotechnical characteristics of the roof rock, as well as identify whether there are any faults or igneous intrusions.

f. Access to Lot 12 will allow the Plaintiff to gather essential exploration and environmental data in the eastern and northern areas of Authority 349.

Access arrangements

36 By a land access agreement commencing 4 June 2012 (tab 5), Robert Koltai of "Lane's End", Golden Vale Road, granted to Hume Coal "an access arrangement" under the Mining Act, for Hume to carry out "prospecting" on the accessed (Koltai) land (Lot 12), on detailed conditions, which included one requiring Hume to "fully and promptly repair all damage to the surface of the Prospecting Area and/or compensate the Landholder (Koltai) in accordance with Part 13" of the Act. (Koltai deposes that he has a law degree from University of Sydney, and so has always understood the procedures under the Mining Act).

37 "Prospecting" is defined in the agreement (tab 5, p4) as:

to carry out works on, or to remove samples from, land for the purpose of testing the mineral-bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A of the Mining Act and includes any works that are ancillary and incidental to those works described in this clause 1.1, including such matters as the carrying out of environment assessment.

38 Clause 2 of the agreement (tab 5, p 5) provides for "consent to carry out prospecting", and subclause 2.1 says:

The Landholder agrees to grant access to the Explorer, their agents, contractors and employees by way of the Paths of Entry and consents to the carrying out of the Prospecting Method in the Prospecting Area in accordance with the terms and conditions of this Agreement.

39 Clause 3 of the agreement (tab 5, pp 5-6) provides for access, and subclause 3.5 says:

The Explorer will access the Prospecting Area via [Carter's Lane]. The Landholder will use all reasonable endeavours to facilitate access to the Prospecting Area via this route. If for any reason access to the Prospecting Area via [Carter's Lane] is not possible the Landholder will use all reasonable endeavours (including but not limited to permitting the installation of gates and providing consent to the Explorer to obtain any necessary approvals to permit such access) to facilitate access to the Prospecting Area via Golden Vale Road.

40 Ball has deposed (third affidavit, par 7) that the alternatives to Carter's Lane are:

(b) rights of carriageway in DP 826337 which are located on the boundary of Lot 12 and Lot 4 DP 826337; and

(c) an opening directly from Lot 12 onto Golden Vale Road, Sutton Forest.

41 He further deposes (ibid, pars 8 to 17) to the difficulties Hume sees with these alternatives. Option (i) has been refused by the registered owner involved, it would require road and culvert works, and tree removal, and it poses other (cost and weather) difficulties. Option (ii) would also involve some capital works and tree removal, and access to the borehole sites would be, he says, rather constrained.

42 The grant of the relevant right of carriageway (Carter's Lane), and paragraph 12 of Mr Ball's affidavit (8 November), record the following "rights" in clause 5:

Full and free right for each of the persons who from time to time is the owner of one of the Lots comprising the dominant tenement, and every other person authorised by him, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the dominant tenement of any part thereof PROVIDED THAT each of the persons who from time to time is the owner of one of the Lots comprising the dominant tenement shall upon demand contribute one-fifth of the cost of such maintenance of the right of way as is necessary to keep it in a trafficable condition and state of repair.

The Keighley Covenant(s)

43 The covenant relied upon by the Alexanders (no 6117001) arises from the transfer of Lot 12 from (the late Honourable) William Geoffrey Keighley to Koltai, on or about 16 August 1999 (tab 10). On the attached plan, the area of the restrictive covenant burdening Lot 12 is marked "A", and comprises 7.073 ha. Its relevance to these proceedings is contested by Hume.

44 Omitting the clauses which restrict buildings, advertising hoardings, and fences, the covenant provides (emphasis mine):

...

8. the property or any part thereof shall not be used as a quarry and no soil or earth removed therefrom except in the normal course of building preparation, swimming pool installation, landscaping or construction of dams;

9. the property shall not be used for any industrial or commercial purpose except for the production of agricultural produce or livestock nor shall it be used wholly or mainly for the purpose of storage;

...

12. improvements in the nature of a main building, worker's cottage or manager's residence may be erected on the property provided they are wholly within the areas marked "A" on the Plan annexed and marked "B";

13. the person empowered to release, vary or modify the restrictive covenant referred to above is the Transferor, or after the death of the Transferor of the incapacity of the Transferor for any reason, the Transferor's widow, or failing the Transferor or his widow for want of capacity for any reason including death, all of the registered proprietors from time to time of Lot 4 in DP82637 and Lot 2 in DP406434 and Lot 7 in DP874965;

14. where used in the covenant above, the word "property" means the land hereby transferred;

15. it is intended that the benefit of the covenant referred to above runs with the property.

45 The transfer of land by Keighley to Ross Alexander (tab 14 - which is undated, but upon which duty was paid on 4 August 1999) also lists a covenant over it (6225574) in very similar terms - relevantly cll 8 and 9 are in exactly the same terms, and cll 13-15 are replicated as cll 14-16.

46 Keighley died in 2005. His widow, Karin, deposes that he had owned and augmented holdings on Golden Vale Road from the 1950s, and had carried out a number of subdivisions during the 1990s, attaching covenants to each of the 9 new lots so created (the Alexander, Koltai, Seay, Burrows, Davis-Scourfield, Johnson , Martin, Newby, Pollicina, and Burrows lands - all shown on Exhibit H2, sheet 1).

47 Keighley kept Lot 1, and, on 2 April 2005, he and Karin entered into a Deed of Gift transferring it to the National Trust. The Trust agreed to lease back to them the residence, and did so for 25 years, on the understanding that after Keighley's death his widow could live in it during her own lifetime. Karin Spiegel-Keighley continues to live there, and has deposed to her wish that the covenants be adhered to. With this in mind she wrote to Koltai and Alexander (tabs 57 and 58), threatening legal action should they allow Hume to access the Koltai land for "drilling" purposes. A solicitor acting on her behalf (Potts) has also written, threatening legal action against Koltai (tab 64).

48 Scarsbrick deposes that it is also the view of the National Trust that the covenants be adhered to, especially cll 8 and 9.

49 Hume contends that, where the covenants speak of industrial and commercial activity, they do not embrace "prospecting", in the form of short-term drilling and testing. The intent of each covenant, Hume submits, is to maintain the historic (agricultural) character of the land, presumably for posterity, via the National Trust, and Hume contends that its exploratory testing will have no long-running impact on it.

Background to the Blockade

50 Ross Alexander deposes (16 November 2012) to having received from Hume, a letter, dated 28 October 2011 (Annexure "A"), advising that exploration work would commence "in the coming weeks", and that drilling works would commence in mid-November (2011), and be ongoing for approximately four months. Affected land would be rehabilitated once drilling activities were complete.

51 He further deposes that, on 16 April 2012, Hume wrote to him and his wife (Annexure "B") seeking to negotiate "a land access arrangement to conduct exploration activities on your property...to ensure that we meet our obligation to explore for coal deposits, while recognising the rights of the landholder". The letter continued that such a "land access arrangement needs to be negotiated prior to work commencing", but it was not followed up.

52 However, in June 2012, Koltai informed Alexander that he (Koltai) had entered an access agreement with Hume. Koltai and Alexander met Hume's Sarah Hafez in July 2012, and Alexander says that he told her he was not interested in signing an access agreement.

53 On 28 September 2012, Hume wrote to residents in the area (tab 15), indicating that "drilling for exploration and environmental monitoring purposes" would commence during October (2012) and would take approximately four weeks. Rehabilitation following the drilling, in accordance with appropriate guidelines, was again foreshadowed.

54 Also on 28 September, Alexander wrote to Hume (tab 56), confirming telephone advice of that day that, as owner of Carters Lane, "access is denied to Hume Coal for the purposes of exploration or associated activities" (my emphasis).

55 The "blockade" was constructed on Carters Lane at 5 pm on 1 October 2012, and has since been staffed by volunteers. According to Hume, it obstructs only Hume, and not the nearby residents who rely on the lane for access and egress (see now, however, Koltai's evidence, at [57] below). It has attracted extensive media coverage - print, electronic and social. A principal promoter has been Southern Highlands Coal Action Group ("SHCAG" - incorporated as SHCAG Pty Ltd in October 2010. Peter Martin, of Mosman, is its only director. He owns a property at 371 Golden Vale Road, near Koltai's and Alexanders'). Exeter Village Association appears (from media exhibits) also to have been involved, while the plaintiff company has regularly attempted to put its point of view via the media. (See tabs 16-43 and 46-55).

56 In the media reports (at tab 20), Alexander is quoted as saying (around 3 October) that "coal mining in the agricultural area was not in the country's best interests". Koltai (at tab 24) is quoted as saying (around 4 or 5 October) that, like his neighbours, he did not wish to see the coal mine proceed, but the feasibility activities were in their very early stages, and the exploration would facilitate some early certainty about the future. However, Koltai said that he shared the "great degree of fear and uncertainty" generated in the local community.

57 Koltai has lately deposed (23 November 2012) to "a number of incidents ... that have had an adverse impact on [his] day-to-day life and activities", including by blocking access by him, his wife, and suppliers to Lot 12. He deposes that this series of events has been described by the protestors as "a problem of your own making", but that he and his wife have experienced considerable stress, causing some health issues. They now minimise their need to leave their property, and are disturbed by protest signs which they see as directed at them. Ball's third affidavit discusses those signs and appends photographs of them.

58 On 12 October 2012, Hafez told Alexander and Koltai that Hume was aware of the covenants on their properties. Mrs Spiegel-Keighley had written to both Alexander and Koltai on 8 October 2012 (tabs 57 and 58) to "remind" them that signing an access agreement would contravene cl 9 of those covenants, as she regards "drilling as industrial activity".

59 On 15 October 2012, Koltai wrote to Hafez (tab 59) to confirm the discussions of 12 October. He said that, when he entered into the land access agreement with Hume, he had overlooked the covenants, and that, in the event that the covenants had the effect of preventing him from honouring the land access agreement, he would make arrangements to repay the compensation he had received (said from the bar table to be $20,000).

60 On 16 October 2012, Ball wrote to Alexander and Koltai (tabs 60 & 61), on behalf of Hume, to confirm its "entitlement to access the [Koltai] property via Carters Lane as an invitee of the property owner and to refute any suggestion that there are any covenants in place on [his] land that would prevent this", and asked Alexander to ensure that the blockade was dismantled, as he (Alexander) was personally responsible of the actions of his own invitees. Ball contended that, even if Hume's activities could be characterised as industrial or commercial, the covenants would not operate to prevent the arrangement put in place between Koltai and Hume.

61 Koltai forwarded to Hafez on 23 October (tab 64) a copy of Potts's letter to him of 19 October, noting that it had been signed by Mrs Spiegel-Keighley. He expressed his wish to terminate the access agreement with Hume, and he sought an indemnity in respect of all reasonable costs and expenses associated with defending any legal proceedings in relation to the covenant issue.

62 Alexander wrote to Hafez on 25 October (tab 65), in reply to the Minter Ellison letter of 16 October, saying: "it would appear that this matter is a very complex issue and that the covenant placed on my property title by Mrs W G Keighley may well prevent me from allowing access to Hume Coal for the activities they (sic) intend". (He restated that position on 1 November - tab 69).

63 Ball responded to Potts on 29 October (tab 66), putting Hume's contentions that the covenant did not capture its "prospecting" activities. Ball also wrote in similar vein, on that date, to Koltai (tab 67), and, on 31 October, to the Alexanders (tab 68).

64 On 30 October 2012 (tab 44), Hume wrote a further "dear resident" letter, confirming that drilling was proposed through November and December 2012, over a period of approximately four weeks. Again rehabilitation in accordance with appropriate government guidelines was foreshadowed.

65 Notices putting the company's position on the blockade also appeared in the local newspaper at around this time (tabs 39 and 45, dated 24 October and 2 November respectively). Hume also explained its position to police (on 16 October - tab 62).

66 Action by the company against the protestors blockading the road was announced in the press on or about 5 November (tab 50), following three incidents, concerning access, involving Hume personnel and citizens staffing the blockade (see photos in Exhibit A1), on 22 October, 23 October and 5 November (tabs 70-2). During the discussions at the blockade on 23 October, Alexander indicated to Hafez that the impasse would need to be resolved by a court.

67 Hume has engaged costly, professional security services, on a 24 hour basis, at Lot 12.

The principles guiding the granting or refusal of interlocutory relief

68 Although these particular proceedings are brought under the mining legislation, counsel are agreed that they are governed by the normal principles which guide the granting of interlocutory relief. As earlier noted ([5]), interlocutory relief in this case is essentially final relief as, if the blockade is removed, all planned exploration work will take place.

69 The general principles may be briefly summarised:

70 The primary purpose of an interlocutory injunction is to preserve the "status quo" until the hearing of the main action. The Court must, therefore, deal provisionally with both facts and law, on the basis of scant materials, and usually under great time pressure. Quite often the evidence is unsatisfactory in form, and may even be offensive, eg hearsay. The decision on the interlocutory application may not be reflected by the final decision. A consideration of the harm caused by an erroneous interim decision is the key to the analysis of the interlocutory relief question.

71 There is often a possibility that, in the absence of an interlocutory injunction being granted, the right which the plaintiff seeks to vindicate might be destroyed or substantially impaired between the initiation of the matter and its final determination. In this context the term "status quo" means the state of affairs in the period immediately prior to the issue of the process seeking the permanent injunction, or, if there is some unreasonable delay between the issue of that writ and the making of the application for interlocutory injunction it will mean the period immediately prior to the making of the application.

72 Sometimes the courts are not prepared to preserve the status quo if doing so creates some countervailing disadvantage more than equal to the desirability of stability in the situation. The test of the "irreparable injury" seems to mean no more than an injury which cannot be properly compensated in damages or by some other court order or remedy.

73 Essentially the plaintiff must prove "a prima facie case" for relief, but there is a great diversity among the authorities as to precisely what that term means. It could mean the probability, or a "sufficient likelihood" of success (per Kitto J in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 (Beecham) at 620), but it certainly requires the existence of a substantial question to be decided, or a seriously arguable, not merely speculative, case in favour of the plaintiff, whose property or other interests might be jeopardised if interlocutory relief is not obtained. See also American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504 (American Cyanamid), per Lord Diplock. Once that gateway is passed, the discretion to decline the issue of the injunction comes to the fore.

74 Where damages appear to be an inadequate remedy, the balance of convenience must be considered, in terms of all the effects on both parties of the granting of the injunction, ie whether granting one would cause hardship to the defendant, or, refusing one, hardship to the plaintiff.

75 In Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; 161 CLR 148, Mason ACJ (at 153-156) put these principles in terms of requiring that the plaintiff must show (1) that there is a serious question to be tried or that he has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial he would be held entitled to relief; (2) that the plaintiff will suffer irreparable injury to which damages would not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of the injunction.

76 It is to be noted that Mason J seemed to prefer the formulation "serious question to be tried" (American Cyanamid) to "prima facie case" (Beecham). Where the public interest would be adversely affected by the grant of the injunction the plaintiff may need to show a probability, or a distinct probability, of success, in order to apply an injunction. The degree of likelihood of success is a factor related to the "balance of convenience". His Honour went on to note that the protection of the environment is a recognisable public interest.

77 In Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 (Silktone - at 320-325, per Kirby P), the Court of Appeal specifically applied Mason J's principles. Kirby P referred to the basic dilemma of interlocutory injunctions, namely that much may flow from a failure to grant prompt relief, and the loss of the lawful rights may not be restored by any later remedy. Yet, if the Court does grant immediate relief, the defendant may sustain precisely the same loss or rights.

78 Preston ChJ took advantage of the opportunity provided by Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; 160 LGERA 1 to summarise the principles this Court would apply. His Honour discussed the following factors as relevant on the question of balance of convenience:

• whether irreparable injury will be caused to the applicant on the environment;
• whether damages are an adequate remedy;
• whether an undertaking as to damages is offered;
• where the status quo lies;
• the nature of the interlocutory relief sought, including whether it is prohibitory or mandatory;
• relative strength of each party's case;
• equitable considerations;
• prejudice to innocent third parties;
• the public interest;
• the time period before the final hearing.

79 To exercise the discretion, specific harm might not need to be demonstrated, but the Court will take cognisance of any general harm resulting from the behaviour sought to be restrained (see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335).

80 In Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103, Biscoe J summarised the principles this way (at [4]-[5]):

4 An applicant for an interlocutory injunction must establish that there is at least a serious question to be tried and that the balance of convenience favours the grant of the interlocutory injunction: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58, 161 CLR 148 at 153-4; Inetstore Corporation Pty Ltd (in liq) v Southern Matrix International Pty Ltd [2005] NSWSC 883 at [13] (Campbell J); Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806, 160 LGERA 1 at [6] (Preston CJ). The Court must consider whether the harm which the applicant (or, in environmental cases, the environment) would be likely to suffer if an interlocutory injunction were refused outweighs or is outweighed by the harm or inconvenience which the respondent or a third party would be likely to suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Tegra at [18]-[19]. Thus, the balance of convenience is more weighty than mere convenience and involves balancing the risk of doing an injustice: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536 (McLelland J). Although normally the Court does not undertake an interlocutory trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case (Beecham at 622), in some cases the strength of the applicant's case, above the threshold of a serious question, may be relevant to the risk of doing an injustice: Castlemaine at 154; Kolback at 536.

5 Usually, an applicant for an interlocutory injunction is required to give the Court an undertaking as to damages. This undertaking underwrites the risk, and responds to the court's anxiety, that the grant of the interlocutory injunction might later prove to be the wrong course of action and cause the respondent or a third party damage for which there is no redress except by an order for costs: European Bank Ltd v Evans [2010] HCA 6, 264 ALR 1 at [15]; Inetstore at [28]; Tegra at [28]-[31]. The "usual undertaking as to damages" is defined in r 25.8 of the Uniform Civil Procedure Rules 2005 as follows:

25.8 Meaning of "usual undertaking as to damages

The 'usual undertaking as to damages', if given to the court in connection with any interlocutory order or undertaking, is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking.

81 His Honour went on (at [6]) to adapt those principles for cases where relief is sought ex parte.

82 Biscoe J restated the principles in the following terms in Save Our Figs Inc v General Manager Newcastle City Council [2011] NSWLEC 207; 186 LGERA 127 (at [37]-[38]):

37 In order to obtain an interlocutory injunction, it is necessary for the applicant to establish that there is a serious question to be tried and that the balance of convenience - perhaps better described as the balance of the risk of doing an injustice - favours the grant of the injunction. Normally, the Court does not undertake a preliminary trial and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 - 623; Australian Broadcasting Corporation v O'Neill [2006] HCA 46, 227 CLR 57; Plaintiffs M168/10 v Commonwealth [2011] HCA 25, 85 ALJR 790 at [14] - [19]. The general approach to interlocutory injunctions was stated as follows by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535 (omitting citations):

"Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question. If the Court does decide the question of law the uncertainty is to that extent removed.

Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused."

38 In the present case there are contested questions of law which, in the circumstances, are inappropriate to decide on this interlocutory application.

Hume's submissions

83 Hume asserts a "legal or equitable interest" in the land covered by the exploration licence, which it says includes both Lot 12, and the carriageway on Lot 10, and gives it the right to seek an injunction under s 295, to ensure access for the purposes allowed by the licence.

84 The Alexanders have denied Hume access, but have allowed other persons on to their land to join in preventing such access. These actions may involve a breach of s 378B of the Act.

85 Hume's inability to act upon the licence for which it paid the State cannot be compensated by damages; the balance of convenience favours the granting of an injunction; and there are no discretionary reasons for refusing one. It causes no injustice, hardship or damage to the defendants for the carriageway to be used by the vehicles necessary to supply a short period of prospecting (six weeks).

86 Those prospecting activities, which the Act defines as involving "works on, or to remove samples from, land for the purpose of testing the mineral-bearing qualities of the land", and which include "drilling", are not "industrial activity". Nor are they for an "industrial purpose", or a "commercial purpose", so no breach of the Keighley covenant is involved. That covenant binds Koltai, not Hume, and does not give the Court a reason for refusing the relief sought by Hume. The exploration licence specifies the allowed operations, and contains conditions regarding environmental protection, and rehabilitation. Those provisions are called up by the access agreement, which contemplates the drilling of only three "thin" holes.

87 The proper construction of the covenant is that its purpose is to preclude any development or use which might alter, or adversely impact upon, the character of the subject or surrounding lands. Hume submits (par 28) that no reasonable person would understand the covenant to be directed in any way to prospecting operations, which the covenant could easily have specified if that were its author's intention.

88 Granting access does not breach the covenant. Koltai could not prevent Hume obtaining its exploration licence, and was obliged by the Act to negotiate access, or submit to an arbitrated access arrangement. A Court would not, in its discretion, grant any injunction against him for alleged breach of the covenant.

Alexanders' submissions

89 The Alexanders did not press an early submission that Hume had "insufficient interest" to bring these proceedings: see Rossmar Park Pastoral Co Pty Ltd v Coal Mines Australia Pty Ltd [2008] NSWSC 1385; Brown v Coal Mines Australia Pty Ltd [2010] NSWSC 143; 76 NSWLR 473 (Brown). However, Ms Needham identified (in par 11) the following issues as arising for decision in them:

(a) Whether the plaintiff may use the Right of Carriageway pursuant to the Access Agreement.

(b) Whether the plaintiff is prevented from using the Right of Carriageway by reason of its failure to comply with the obligations imposed by the Mining Act in relation to the acquisition of a right of way.

(c) Whether in all the circumstances an injunction is the appropriate remedy.

90 As they are not party to any access agreement which embraces the carriageway on their land, and Hume contemplates that it may cause damage to it, Hume must have an access arrangement with the Alexanders, as owners in fee simple, in order to use that carriageway to transport material, equipment and personnel to and from each drilling site on Lot 12 (see definition of "landholder" in [32] above). They have refused to agree to any access arrangement with Hume, and they say also (par 15) that the Keighley covenant precludes Koltai from agreeing to one.

91 They further submit (par 18) that using land for access is an operation "carried out in the course of prospecting", in accordance with the statutory definition (in [32] above), as it is "incidental or necessary" to carrying out "prospecting". Ms Needham suggested in oral argument that the definition of "prospecting" in Koltai's agreement ([37] above) is wider than the statutory one, further indicating the need for Alexanders to have their own access agreement. Also, as the clear purpose of s 140 is to strike a balance between authorised mining and any personal property rights affected, the word "operations" should not be defined in an "unduly narrow or technical" way as it would further limit such rights. Section 140 refers to "each" landholder, and Brown refers (at [21]) to "every" landholder.

92 Using Lot 12 for prospecting is to use it for a "commercial or industrial purpose", agricultural use being the only exception recognised by the covenant, with the use of the word "purpose" widening the coverage beyond "commerce" and/or "industry", as such. An "industrial" activity can be temporary or short-term. Hume's purpose in prospecting is not "altruistic or philanthropic", so it is "self-evidently a commercial purpose" (sub 23). Koltai has, therefore, purported to grant to Hume a right which he himself does not enjoy, because of the covenant and the access agreement could well be found to be void or voidable (subs 24 and 25). He has purported now to terminate it (tab 64).

93 Hume may also be in breach of its "right of way" obligations under s 164 (subs 29-30), such that it presently has no entitlement to use the carriageway, Carter's Lane not being a public road (as defined in the Roads Act 1993).

94 The Alexanders also raise (in pars 31-43) some discretionary considerations against the grant of an injunction, which I would summarize as follows:

(a) Aside from s. 295 of the Mining Act, Hume does not have standing to restrain any present or future interference with the Right of Carriageway, presumably by bringing a common law nuisance claim. The present proceedings seek to enforce a common law right of access (as a person authorised by Koltai to take advantage of his right), rather than any statutory right under the Mining Act (subs 32-35).

(b) The granting of an injunction would allow Hume to avoid the statutory preconditions that must be satisfied prior to an exploration licence holder being entitled to obtain and use a right of way (sub 36).

(c) The availability of (possibly less convenient) alternative access arrangements, as specifically contemplated by cl 3.5 of the access agreement, means that an injunction is not an appropriate remedy (sub 37).

(d) The granting of an injunction will interfere with the rights of third parties, such as Karin Spiegel-Keighley and the National Trust. Any breach of the relevant covenant(s) offends their interests in Lot 12. Pending any arbitration of access arrangements binding Koltai and/or the Alexanders, neither he nor they is/are compelled to allow access in breach of that covenant (subs 38-43).

Hume's Further Submissions

95 Mr Beasley made written submissions in reply, dated 29 November, directed mainly at Ms Needham's revised submissions summarised above.

96 He argued against the wide meanings of "prospect" and "prospecting operations" which she advanced. He submitted that such wide meanings were clearly not intended by the legislature - Project Blue Sky v Australian Broadcasting Authority [1998] HCA28; 194 CLR 355 - because the focus of the definition was taking and testing soil samples, and (par 6) "driving people or equipment has neither a close nor sensible nexus" to that. As there will be no "prospecting" on the Alexanders' land, Hume needs no access agreement with them.

97 He reiterated and amplified Hume's contention that prospecting on the Koltai land was not a purpose offensive to the Keighley covenant, which is directed to "matters that would have some permanent impact" (par 11). It does not offend cl 8, as that is directed to removal of soil in quarry-type quantities, nor cl 9, which is directed to "commercial" or 'industrial" activities. The right to prospect is not granted by Koltai, but by the relevant Minister; all Koltai has done is enter into the access agreement (s 142), so that Hume could act on the Minister's approval. The covenant is not relevant to the application for an injunction.

98 In any event, he submits, the provisions of the Mining Act prevail over the covenant. To achieve the objects of the Act (s 3A, quoted above at [19]), the granted right to prospect (s 29) overrides the rights of individual landholders. The mineral exploration facilitated by the legislative scheme must not be rendered nugatory, nor the coal sterilized, by private covenants being entered by the owners of land where there is thought to be coal.

99 Mr Beasley further argues that neither Mrs Spiegel-Keighley nor the National Trust has any standing to enforce the covenant in any event. Lot 1 is not mentioned in the covenant; nor is the Alexanders' land. Enforcement action would be directed against Koltai, who does not appear to be in breach; neither Mrs Spiegel-Keighley nor the National Trust owns a property benefited by the covenant; and no damage could be shown to be caused to them by short-term exploratory drilling on Lot 12. There is no evidence of a "scheme of development", although Ms Needham argued the relevance of the covenant, and of the evidence Mrs Spiegel-Keighley, and Scarsbrick, on that basis.

100 The Alexanders' reliance on s 164, concerning rights of way between land subject of an authority and the public road, is said to be "misconceived" (par 29), as Carter's Lane is part of the land covered by EL349. However, if it were relevant, Hume would not need both a right of way and an access agreement.

101 If the question of relief were ultimately to turn on discretion, Mr Beasley argues that such considerations support the granting of relief - Hume has all necessary approvals, it is entitled to access the exploration site, the alternative accesses are not practical, the blockaded activity is short-term and low-impact, the blockade itself may constitute an offence and the defendants are, unlike Hume, not at risk of damage.

The Covenant Argument

102 During the course of argument on the admissibility and relevance of the Spiegel-Keighley and Scarsbrick affidavits, Mr Beasley referred the Court to Bradbrook & Neave's text, "Easements and Restrictive Covenants" (3rd edition by A J Bradbrook and S V MacCallum). The learned authors say (in par 15.33, at pp423-4):

It was held in Toleman v Portbury (1872) LR QB 344 (Ex Ch) that where the person bound by the covenant grants permission to do an act, which cannot be performed lawfully without the grant of that permission, he or she will be held to have permitted the act in question. However, if the person bound by the covenant not to permit specified activities agrees to the performance of an act which he or she has no power to prevent, this does not amount to permission within the covenant. As pointed out in Hobson v Middleton (1827) 6 B & C 295 at 303 (KB); 108 ER 461 at 464 (KB) by Bayley J:

... the words 'permitting and suffering' do not bear the same meaning as 'knowing of and being privy to'; the meaning of them is, that the defendant should not concur in any act over which he had a controul (sic).

103 At the very end of the second day of hearing, Mr Beasley returned to this text in more detail, and sought leave to send me a further note, which he duly did next day. He and Ms Needham also took the Court to Gzell J's decision in Ferella v Otvosi [2004] NSWSC 230, 12 BPR 22,191, the headnote of which records that his Honour held:

i) At common law the benefit of a restrictive covenant could only be made appurtenant to land owned by the covenantee: Kerridge v Foley [1964-5] NSWR 1948; (1964) 82 WN (Pt 1) (NSW) 293. However, the equitable doctrine of the common building scheme overcame this problem. Where such a scheme existed, earlier purchasers could take the benefit of subsequent restrictions, the vendor having annexed the benefit of restrictive covenants to previously transferred land: Re Louis and the Conveyancing Act [1971] 1 NSWLR 164 at 179; Re Mack and the Conveyancing Act [1975] 2 NSWLR 623 at 630. The requirements of a common building scheme were laid out in Elliston v Reacher [1908] 2 Ch 374 at 384.

(ii) It was unnecessary that there be exactly similar levels of reciprocity in terms of the distribution of benefit and burden throughout a common building scheme. A sufficient similarlity was enough to constitute a local law of the area.

104 His Honour noted (at [3]):

It was provided that the covenant might not be released, varied or modified except with the consents of the then registered proprietors of lots 1, 3 and 4. The lands to which the benefit of the covenant was appurtenant were lots 1, 3 and 4 and lot 2 was the land that was subject to the burden of the covenant.

105 His Honour quoted (at [13]), from Elliston v Reacher [1908] 2 Ch 374 (at 384), the following:

... it must be proved (1) that both the plaintiffs and defendants derived title under a common vendor; (2) that previously to selling the lands to which the plaintiffs and defendants are respectively entitled the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively), for sale in lots subject to restrictions intended to be imposed on all the lots, and which, though varying in detail as to particular lots, are consistent and consistent only with some general scheme of development; (3) that these restrictions were intended by the common vendor to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and (4) that both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the other lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors ...

106 Gzell J continued ([14]):

Mutuality is the element that underlies the common building scheme. The intention is that each lot takes both the benefit and the burden of the restrictions. Commonality lies in the obligation between purchasers inter se and between purchasers and their vendor to obey a local law by observing whatever restrictions the scheme has imposed on their respective lots or on the estate generally: Reid v Bickerstaff [1909] 2 Ch 305 at 319.

107 Mr Beasley submitted (pars 6ff) that the Keighley subdivision does not create a "scheme of development", or "a local law", because:

(a) Keighley failed to set out the extent of the benefit under the covenant;

(b) there is a lack of reciprocity between the lots;

(c) the subdivisions occurred over a significant period of time (1992 - 2007); and

(d) there are limits as to when a scheme can occur in relation to Torrens title land: Hosking v Haas (No. 2) [2009] NSWSC 1328 (Hosking).

108 Mr Beasley says that there is no evidence before the Court that the legally qualified Koltai "had knowledge" that the transfer to him of Lot 12 was part of a scheme. The Torrens register is intended to accurately reflect land titles.

109 This question comes into focus only if Mr Beasley's primary submission that, on its own restricted language, and by virtue of the primacy of the Mining Act, the covenant is irrelevant to the question of relief.

110 The defendants, having raised the matter, declined the opportunity to develop their submission, by responding to Mr Beasley's note and the extensive material he attached (not only from Bradbrook and Neave, but also chapter 17 of Butt on "Land Law" - 6th edition, 2010, and the 2009 decision in Hosking, which referred to the 5th edition, 2006).

111 As noted earlier, this Court knows of no proceedings having yet been commenced by any party to uphold the local residents' objections (or anyone else's) to Hume's planned activities.

Consideration

112 I must now turn to apply, to the evidence and submissions I have just summarised, the principles I earlier set out (at [68] -[82]).

113 The responsibility on the Court in deciding whether or not to grant an interlocutory injunction in this case is very heavy indeed, given that it would bring the substantive proceedings to an end, without the normal, fulsome procedural steps which would expose, and have developed, for the Court, all the issues, arguments, and nuances of the matter.

114 These proceedings are the reverse of the normal situation, namely where those opposed to a development seek an injunction to prevent it: see, for a recent example, Fullerton Cove Residents Action Group Inc v Dart Energy Ltd [2012] NSWLEC 207.

115 Here the objectors have staged a largely peaceful protest/blockade, on private land the owner of which is a prime mover against the project: Contrast the position which arose during one of the challenges to the Sandon Point project - see Kennedy v Stockland Developments Pty Ltd (No 2) [2011] NSWLEC 186, at [5], [8], and [17].

116 Also, the only parties before the Court in this case are the company having the benefit of the statutory approvals and the relevant access agreement (Hume), and the owners of the land over which access has been agreed (Alexanders). Not before the Court are the owner of the land upon which the approved exploration is to occur, and who agreed to the use of the preferred means of access (Koltai), nor either the owner of the land said to have the benefit of a covenant offended by the exploration and, possibly, the access to it (the National Trust), or the lessee of the residence on that land (Spiegel-Keighley).

117 The "status quo" ([70] - [72] above) in this case is best described as "rural residential" use and occupation of non-urban land, with associated agriculture. The injunction will disturb that "status quo", not preserve it, and may disturb also the essential values of the local environment.

118 On the other hand, the party seeking the injunction asserts its rights, achieved by statutory approval and landowner agreement, and denies that any "irreparable injury" will result from granting it.

119 There is no shortage of serious issues to be tried:

Does Hume need to obtain an access arrangement over the Alexanders' land (presumably by arbitration, given that the Alexanders are opposed to the exploration and to agreeing upon an access arrangement), in order to "supply" its approved exploration operation of the Koltai land?

Is the blockade an illegal act?

The issues surrounding the Keighley covenant (commerce? industry?, scheme of development?, etc).

I am far from satisfied that the covenant is not relevant, and/or that the Spiegel-Keighley/Scarsbrick affidavit evidence on the question would be excluded at trial, and I affirm my decision to receive that evidence at the interlocutory stage.

120 True it is that there is "public interest" involved in assessing the State's coal reserves, and in then exploiting them, but there is also a "public interest" involved in applying the precautionary approach where environmental harm may result.

121 Here the balance of convenience turns on the consequences for Hume of the Court's delaying until a full hearing, if not excluding completely, the granting of constructive approval to its accessing the Koltai land via the Alexander land, as against the possible harm to the environment and to third party rights of allowing access now, by denying the Alexanders the right to block it.

122 I have concluded that in the present case there is a quite serious risk of "doing an injustice" by the granting of the interlocutory injunction (see Kolback, Castlemaine, and Shoalhaven in [80] and [82] above).

123 I also find that, contrary to Mr Beasley's submission, the discretionary considerations propel me towards refusing to grant relief in all those circumstances.

Conclusion

124 The application for interlocutory relief must therefore, be refused, and the applicant's Notice of Motion dismissed.

125 The question of costs ought be reserved, and the exhibits should remain in the Court file for the present.

126 The substantive matter will be placed in the List Judge's list on Friday 14 December for the giving of further directions. If the plaintiff company intends to seek expedition of the proceedings, an early motion will be required: See Valuer General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306.

Orders

127 The formal orders of the Court are:-

(1) The plaintiff's Notice of Motion for an interlocutory injunction is dismissed.

(2) The costs of the interlocutory proceedings are reserved.

(3) The exhibits are retained.

(4) The matter is referred to the List Judge's list on Friday 14 December 2012.

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Decision last updated: 07 December 2012