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Jemena Gas Networks (NSW) Limited v Mine Subsidence Board.

Country/Territory
Australia
Type of court
National - higher court
Date
Jun 28, 2010
Source
UNEP, InforMEA
Court name
Supreme Court of New South Wales - Court of Appeal
Judge
Spigelman, Allsop, Giles, Basten, Macfarlan.
Language
English
Subject
Energy, Mineral resources, Legal questions
Keyword
Mining Natural gas Liability/compensation
Abstract
Jemena Gas Networks (NSW) Limited (“Jemena”) owned and operated a gas pipeline that traversed an area the subject of an underground coal mining lease. The lease encompassed a block of parallel, adjacent panels of coal that had been approved for longwall mining. Jemena anticipated that the extraction of coal from Longwall 32 would cause subsidence that would endanger the pipeline. They did not anticipate damaging subsidence from the mining of the other panels. Prior to the mining of Longwall 32, Jemena carried out works to prevent and mitigate damage from the anticipated subsidence. Sheahan J, applying the decision in Mine Subsidence Board v Wambo Coal Pty Ltd, held that the works for which compensation was sought were not incurred with respect to a subsidence that had taken place, but were incurred in anticipation of a future subsidence. Accordingly, no compensation was payable. The issues were: (1) whether a particular “incident” of subsidence had to be linked to damage, real or anticipated, both in temporal and casual terms; (2) whether Wambo was decided wrongly and if so could it be departed from by the Court of Appeal; and (3) whether Jemena was entitled to make a claim to the Board for expenses which it had incurred in order to prevent damage to its gas pipeline, which was threatened by subsidence caused by underground longwall coal mining in its vicinity. The Court of appeal held: dismissing the appeal: (1) an appellate court may depart from its earlier authority when that authority is “plainly” or “clearly” wrong: at [46], [56], [168] and [189]; (2) Wambo was not “plainly” or “clearly” wrong. The Court was bound to follow the decision in Wambo: at [95], [172] and [189]; (3) the mining of each longwall was a separate event. The subsidence occasioned from the mining of Longwall 32 was not “further subsidence” following “initial subsidence” as a result of the mining of other longwalls: at [38] and [40]; (4) Wambo correctly held that the Act did not authorise expenditure made in anticipation of a subsidence that had not yet occurred: at [81]-[95]; (5) the phrase “a subsidence that has taken place” in s 12A(1)(b) of the Act to was to be assessed at the time the Board formed an opinion as opposed to when the owner anticipates damage: at [144] and [189]; (6) the causal link required that the subsidence not precede the commencement of the extraction: at [130]; and (7) whether or not a subsidence, which is exacerbated as mining continues, was part of a relevant subsidence for the purposes of s 12A which allows compensation for subsidence that has occurred, involved a question of fact that was not relevant to the proceedings in light of the agreed facts: at [184]-[186].
Full text
COU-156797.pdf