Berry v BHP Coal Pty Ltd and Other Members of the Central Queensland Coal Associates

[1998] QLC 148

LAND COURT,

BRISBANE
27 NOVEMBER 1998

In the matter of an appeal by R & LT Berry and KJ and RB Parkinson and a cross-appeal by BHP Coal Pty Ltd and Other Members of the Central Queensland Coal Associates against the determination of the Mining Warden’s Court, Emerald, of compensation payable in terms of section 282 of the Mineral Resources Act 1989 in respect of Special Coal Mining Lease No 1782. (A98-01 and A98-02).

R & LT Berry and KJ & RB Parkinson

Appellant

v.
BHP Coal Pty Ltd and Other Members of the Central Queensland Coal
Associates

Respondent

BHP Coal Pty Ltd and Other Members of the Central Queensland Coal
Associates

Cross Appellant

v.
R & LT Berry and KJ & RB Parkinson

Respondent

J U D G M E N T

This appeal and cross-appeal comprise two of four appeals heard together before me. One of these appeals, Wills v. Minerva Coal Pty Ltd involved a wider range of issues of fact and law than the others and, given that, I elected to include in my judgment on that matter a discussion of the law relevant to each of the four appeals. I do not repeat in these present reasons the detail of the discussion presented in Wills v. Minerva Coal Pty Ltd which was also handed down today, but draw attention to the need for reference to be made to that judgment, together with the present for a fuller understanding of my consideration of the relevant law.

BHP Australia Coal Pty Ltd (the applicant miner) manages the joint venture known as the Central Queensland Coal Associates and is the holder of Special Coal Mining Lease No 1872 granted under the Central Queensland Coal Associates Agreement Act 1968 (the Agreement Act). Pursuant to Clause 6 of Part 3 of the Agreement Act dealing with Special Coal Mining Leases, an application was lodged with the honourable Minister for a further surface area of 842 hectares over land owned by the Berry and Parkinson families (the land owners). The applicant miner presently operates a mine known as the Saraji Mine located on Special Coal Mining Lease No 1872 and the additional surface area (referred to as such or simply "the surface area") is required to extend the existing mine operation. The Agreement Act provides that the provisions relating to compensation contained in the Mining on Private Lands Act 1909-1965 apply, the relevant law being now found in the Mineral Resources Act 1989 (the MRA) and in particular s.281.

The parties initially failed to reach agreement on compensation to be paid with respect to the additional surface area and the matter was referred to the Wardens Court for consideration. The Warden's determination of compensation is based on the parties having reached a partial settlement with certain matters only being left for that Court's consideration. The partial settlement was treated before me as a determination by consent. In addition to the agreed figure, the Warden determined that a premium in the amount of $100,000 and an additional amount of $50,000 be included as compensation pursuant to sub-sections 4(c) and 4(e), respectively, of section 281 MRA.

It is from that determination that the land owners appealed to this Court on the

following grounds:

1 The Warden erred in not holding that Capital Gains Tax ("CGT"), or an indemnity for CGT, was not too remote, and was provided for in section 281 of the Act.

2 The Warden erred in not holding that the assessment, or assessability, of the appellants to CGT on the compensation under the Act was relevant to the determination of compensation under section 281 of the Act.

3 The Warden erred in holding that, as the grant of a mining lease does not create an estate or interest in land, there is no change to the underlying title of the appellants.

4 The Warden erred in not holding that the grant of a mining lease effects a
disposal of an asset, within the meaning of the CGT legislation.

5 The Warden erred in holding that the tax affairs of individuals involved are not, or cannot be, a consideration in compensation matters, or in the determination of compensation under Section 281 of the Act.

6 The Warden erred in holding that any award for CGT or the award of an indemnity against any assessment of CGT must be refused until any assessment is issued attributable to any award of compensation, and/or until the issue of proceedings under Section 363 of the Act.

7 The Warden erred in not awarding an indemnity against an assessment of
CGT.

8 The Warden erred in not holding that the allowance of some injurious affection in 1986 did not count against the way the subject land was being used at the time of this application.

9 The Warden erred in not accepting the evidence of the appellants valuer Mr Todd and not allowing a premium under Section 281(4)(e) in the range between 50% and 100%.

10 The Warden erred in holding that the terms ‘status and use’ and ‘special
value’ to the owner may be interchangeable.

11 The Warden erred in holding (if he so held) that any part of the appellants claim for compensation, if awarded, would effect any windfall profit to the appellants.

12 The Warden erred in holding that the following matters mitigated against

an award of compensation for status and use:

(a) that the mining lease was in existence at the time Lake Vermont was

purchased;

(b) that compensation was received in 1986;

(c) that in 1986 it was known that the miner would require further land,

further to the east;

(d) that, in all probability, there will be a lease back arrangement between the

parties;

(e) that any 'status and use' or 'special value' is already reflected in the agreed

settlement;

(f) that any loss of profit from reduced turn off is taken into account by the
settlement under section 281(3).

13 The Warden erred in holding that section 281(4)(c) implied a higher than normal use, and/or a higher standard than normal good management, and/or must be a special feature or a unique circumstance that rises above the ordinary.

14 The Warden erred in holding that the 'hub' did not add anything to 'status
and use'.
15 The Warden erred in not holding that the owners would be prepared to
pay in a range between 50% and 100% more than market value to acquire the
property.
16 The Warden erred in adopting the sum of $350,000 as the sale price of

the land, and/or a market value, for the purpose of determining a 'premium'.

17 Abandoned during hearing.

18 The Warden erred in holding that he should not place any weight on 'mining sales', and in not accepting the evidence of the appellants' valuer Mr Todd on 'mining sales'.

19 The Warden erred in holding that mining sales are not a reliable guide to 'market value', and that the assessment of a property as a property containing mineral is the suggestion behind 'mining industry sales'.

20 The Warden erred in holding that section 281(4)(e) provided for the grant

of compensation for 'solatium'.

21 The Warden erred in ordering that the parties give consideration to
entering into the agistment licence offered by the miner.

22 The Warden erred in failing to give reasons, or adequate reasons, and, in breach of Section 360(1) of the Act, failed to set out fully the facts found by the Warden, and failed to set out decisions on relevant questions of law raised during the hearing of the matter.

23 The Warden erred in not accepting, in its entirety, the evidence of the appellants' valuer, Mr Todd, and, in its entirety, the evidence of the appellant Mr Parkinson. "

The applicant miner has cross-appealed the grounds of appeal being:

"The learned Mining Warden erred in holding that:-

(a) the land owners had established that there was attached to the land a status and use deserving of a premium of $100,000 or any amount not otherwise reflected in the agreement;

(b) the status and use currently being made of the land could be assessed by

considering the position of the land owners as adjoining land owners;

(c) the additional amount of the compulsory nature of the acquisition should

be $50,000.

The learned Mining Warden ought to have held that:-

(a) there was no status and use deserving of a premium in any amount;
(b) alternatively that if a premium was demonstrated to be warranted it had
been sufficiently accommodated within the sum of $615,500.00 as agreed
between the parties;
(c) the additional amount for the compulsory nature of the acquisition should
be no more than 10% of about $665,500.00."

The appeal and cross-appeal were conducted on the record supplemented only by evidence in the form of two statements on the subject of CGT which I refer to below. In the conduct of the appeal the land owners made passing reference to the record, however, largely left me to read the record and to identify the matters relevant to the grounds of appeal. References to the record by the applicant miner were of assistance in dealing with both the appeal and the cross-appeal.

The partial settlement of compensation was arrived at following the commencement of the hearing before the Wardens Court but before evidence was given. Mr Ambrose for the applicant miner informed the learned Warden that there had been a commercial settlement with respect to the amount of compensation which ought to be awarded under s.281 MRA save for the quantum of the additional amount to be awarded under sub-section 4(e) and for any premium which the land owners might successfully argue ought to be determined under sub-section 4(c). The partial settlement sum was in the amount of $615,500 to which was added an agreed amount of $50,000 for disturbance items including the costs of the hearing before the Wardens Court. A document was tendered representing, on my understanding, the land owners' view of the appropriate break-up of the overall partial settlement figure, however, the transcript records that counsel for the applicant miner made it clear that his client did not agree "that all of those sums are properly attributable to the headings that they’re given. So far as the mining company is concerned it’s simply a commercial settlement and the breakup is irrelevant. Safe (sic) in so far as the land is concerned." (the underlining is mine)

The tendered document contains the following:

"	Land	$ 350,000
Severance	$ 111,000
New yards	$ 32,000
Redundant fencing	$ 2,000
Re-arrange - new fencing	$ 32,000
Extra travelling costs	$ 2,500
Management time	$ 4,000
New dam	$ 15,000
Removal dam equipment	$ 2,000
Costs replacement property	$ 15,000
Injurious affection	$ 50,000
$ 615,500
Disturbance	$ 50,000 "

Mr Ambrose also mentioned before the Warden that the land owners would

seek an order that the applicant miner provide an indemnity with respect to CGT which might be assessed. Mr Jones QC, counsel for the land owners, did not dissent from any of what Mr Ambrose had to say to the Court concerning the partial settlement nor regarding the issues left to be decided by the Warden. I take it therefore that he agreed with what opposing counsel had said and I understand this also to be the case from the manner in which the case was conducted before the Court at first instance.

Russell Geoffrey Brown, registered valuer, was called before the Warden by the applicant miner in support of certain aspects of a written valuation report provided by him and which was tendered in evidence. In making reference to the partial settlement, Mr Brown said that the assessment of the figure of $350,000 for land was based upon sales evidence produced by himself and by Alan George Todd, a registered valuer, who gave evidence on behalf of the landowners. Mr Brown also said that, in his professional opinion, compensation should not be provided for extra management time (whereas the partial settlement included a figure of $4,000); nor for the costs of replacement property ($15,000 in the partial settlement); nor for injurious affection which he described as that which might theoretically apply to the balance land following the granting of the additional surface area to the applicant miner ($50,000 is listed in the partial settlement figures). Now I take this evidence and Mr Ambrose's comments concerning the nature of the partial settlement together with Mr Jones' lack of dissent from that to indicate that there was agreement between the parties concerning the value of the land for the purpose of settlement. The figure is neither of the figures put forward by either valuer in their respective valuations, however, it does, I conclude, represent a commercial agreement as to the value of the land. This conclusion is not the understanding of Mr Batch SC who submitted to me that "part of the agreement is that it’s agreed that the two parties regard its contents as different". He was concerned to put the view that the partial settlement represented a total figure of $615,500 for compensation as described in section 281(3)(a)(i) to (v) MRA inclusive and that such an aggregated sum represented the price that the land owners as notional vendors of the additional surface area would have been willing to accept notwithstanding that the price does have a number of elements which are aggregated to produce the overall figure.

Inspection

I was requested by the land owners to inspect their property as part of my consideration of their appeal. Counsel for the applicant miner did not support the request to inspect, submitting that there is no ground of appeal directed towards this issue. As I found in Wills v. Minerva Coal Pty Ltd, there is no need for an express ground of appeal on such a matter as an inspection is evidential not substantive in nature, and a request to inspect may arise out of any ground of appeal which raises an issue concerning the attributes of the land in question.

My decision on the application comes down to the question of whether I consider that an inspection of the subject property would assist in my consideration of the matter before me. During the hearing I reserved my decision on the application on the basis that I would decide the issue based on my study of the relevant evidence in the record. In the instant case it will be apparent from what I present later in these reasons that evidence of a nature which might be enhanced by a visual inspection of the property is not essential to the conclusions that I have drawn, given that my conclusions on such matters are based on legal rather than evidential grounds. Nevertheless, I formed the view during my initial consideration of the record that an inspection of "Lake Vermont" and, in particular, the area referred to by both parties as the "hub", would assist in my understanding of that aspect of the evidence and may help in the crystallisation of the questions of law which arose. For this reason I carried out an inspection of "Lake Vermont" in company with solicitors representing both parties. The parties' respective valuers did not accompany me during the inspection but were available to the parties during the inspection.

History

Ross Bernard Parkinson, one of the land owners, gave evidence in the matter and related how his family had in 1978 purchased "Lake Vermont", the property which is subject to the additional surface area application. Special Coal Mining Lease No 1872 was in existence at the time of purchase and this was a matter thought to be of significance by counsel for the applicant miner. "Lake Vermont" has an area of 14,181 hectares and it is a matter of simple calculation to show that the loss of 842 hectares to the applicant miner will mean a reduction in overall area of about 6%. At the time of purchase of "Lake Vermont" the family owned "Tiny Downs" (6,541 ha) and they added "Wynette" (5,852 ha) to their land assets in 1991. Mr Parkinson's parents sold their share in the three properties to Mr and Mrs Berry, that is the witness's sister and brother-in-law, though I am not sure when after 1991 that transaction took place; then in about 1996 the witness's brother, Gary, sold his quarter interest to the remaining parties who are the appellants in this matter. Let me introduce now that in 1986 the applicant miner was granted an additional surface area from "Lake Vermont", that area abutting the western side of the surface area which is the subject of these proceedings. Compensation in respect of that earlier grant was settled and the nature of this settlement was the subject of debate before me.

Working of Aggregation

Mr Parkinson described in the transcript how "Lake Vermont", "Tiny Downs" and "Wynette" operate together as an aggregated enterprise. Whilst "Lake Vermont" is a property used to fatten beef cattle, the other two properties are described as breeding properties and they produce weaners which are transported to "Lake Vermont" three times a year for de-horning, classification and fattening. On receipt at "Lake Vermont" the stock come into the additional surface area land and are managed there. The facilities there include the original homestead, a set of yards, a well- subdivided collection of paddocks and an area of cultivation land. This area was described in evidence as the "hub" whose loss was recognised by valuers for both sides as being a matter of some significance in the context of the enterprise conducted by the landowners. I understand the most significant aspect of the "hub" to be the co- location of the house and the yards: a situation which assists greatly in the management of weaners brought onto the property. In Mr Brown's opinion it is this feature, together with the fact that the "hub" is more heavily improved than other parts of "Lake Vermont" that makes the area particularly valuable. Mr Todd saw the loss of the "hub" as being of greater significance than did Mr Brown. When I read the evidence of Mr Parkinson and the comment by the learned Warden in his reasons that Mr Parkinson "gave a fair account of the property and its operations and did not attempt to put any gloss on any point". I am led to the view that the landowners had a greater appreciation of the impact of the loss of the "hub" than did the applicant miner. I view the relevant evidence of the respective valuers similarly.

As an enterprise the aggregation has the advantage of being able to turn off stock fattened over a period of 18 months which sell into the local trade and attract, according to Mr Parkinson, a premium of about $100 per head over and above the price that would be paid for store cattle. "Lake Vermont" appears to be well managed in that it navigated the recent long drought without special assistance and part of that management appears to be the adoption of a conservative and prudent carrying capacity policy. The property is well-developed and whilst Mr Parkinson agreed that other areas outside the "hub" could be developed to cultivation, he thought that would be an expensive exercise and said that there would be other ramifications such as the difficulty in locating culled heifers away from bulls and in the important fact that the re-allocation of land to such a use would have a downstream effect on overall production. Mr Todd described this as a "domino effect" and expressed the view that at the end of the day there would be a loss of 200 bullocks per annum produced from the enterprise. This was a figure that Mr Brown did not accept, however, for the purpose of presenting my reasons I will adopt Mr Todd's opinion as a suitable basis. Mr Parkinson's evidence does not reveal a particular location for the replacement cultivation land. Mr Brown identified an area of "Lake Vermont" which had previously been cultivated, however Mr Parkinson said that given the heavy soil type the area was susceptible to invasion by the noxious weed, parthenium, and he would not cultivate it again. I viewed this area during my inspection of "Lake Vermont" and with the benefit of this, I am comfortable in accepting Mr Parkinson's evidence on the matter. Nevertheless, Mr Parkinson did, as I say above, concede in cross-examination that relocation of the "hub" was possible, albeit an exercise attended by consequential difficulties. I gather that his preference would be the purchase of replacement land.

Mr Parkinson is concerned to maintain the overall balance of the operation and the volume of through-put. By "balance" I understand him to mean that the number of weaners produced by “Tiny Downs” and "Wynette" is presently suitable to the capacity for "Lake Vermont" to carry that stock and to turn off fat cattle. Consequently, any reduction in the capacity of "Lake Vermont" to receive the product of the other two properties would impact upon the way in which the three properties work together. With a view to maintaining the integrity of the enterprise, Mr Parkinson looked at other properties to purchase but even though he placed an offer on one such property, he said that he had found none that would suitably replace the additional surface area. He feels that he and his co-owners will buy replacement land at some stage but he is not clear where the land will be as there is presently none available in the marketplace which suits their requirements. In any event he anticipates having to develop and improve any property that is purchased to replace the lost land.

The 1986 Agreement

Land abutting the west of the additional surface area was subject to the grant of an additional surface area to the applicant miner in 1986 and the deed of settlement with respect to compensation agreed on at that time was tendered at first instance in the present matter. The deed records that compensation is under "all headings" and employs language which appears to have been derived in part from the then compensation provision (section 43HA and section 43IA) of the Mining Act 1968 to 1983. The deed records that certain works will be carried out by the mining company and provides compensation, amongst other things, for what is described as "injurious affection". Under this heading costs associated with the relocation or reinstatement of the No 1 house and laundry block, the No 2 house, fences, water tanks, No 1 steel frame shed, No 2 old wooden shed, foul house, hay shed, old engine shed, landscaping, services and access road are included. Relocation is to the "new homestead" site. Importantly, Clause 10(c) provides:-

"The Graziers acknowledge that the total of the amount included in the compensation and the costs to be incurred by the Companies as hereinbefore provided in this clause is in full settlement and satisfaction of all claims for Injurious Affection arising out of the re-location of the Buildings and Improvements, and the provision of access thereto, in connection with the acquisition by the Companies of the mining land or in connection with the acquisition by the Companies of any additional land within the Holding."

I mentioned earlier that the "hub" contained a set of yards and I note that the items referred to in the 1986 agreement do not include the yards. However, the construction of new yards is included in the list of items tendered in this present matter relating to the partial settlement and it would appear that both parties agree that new yards ought to be constructed to replace those located in the "hub". I note also that "injurious affection" is included in the present partial settlement as well as being referred to in the 1986 agreement. Given the partial settlement in the matter before me, the topic of "injurious affection" is not relevant, however, the applicant miner suggests that if the 1986 agreement had been followed through and the improvements relocated, there would have been two consequences. First, the house and yards would not have been co-located, thus the key to the value of the "hub" would not have been in place. Second, the "hub" would not have been further developed as indeed it was subsequent to 1986.

The term "injurious affection" used in the 1986 agreement is not used in s.281 MRA nor in its predecessor which was applicable in 1986. The term "injurious affection" is described in the context of section 20 Acquisition of Land Act 1967 by the Land Appeal Court in Gold Coast City Council v. Suntown Pty Ltd (1979) 6 QLCR 196 at 207-208 in the following terms:-

"Injurious affection, in the terminology of the Act, is the type of damage to the retained land which flows from the exercise of any statutory powers by the constructing authority otherwise (i.e. than by severance) injuriously affecting the retained land. This type of damage is related to uses of, or activities on, the resumed land by the constructing authority as a result of the resumption and the consequent depreciation in the value of the retained land."

Mr Brown’s understanding of this phrase appears to be similar to that described in the above quotation given his reference to "balance land" in his oral evidence to which I have referred above. The parties to the 1986 agreement appear to have characterised "injurious affection" as relating to the relocation of buildings and other structural improvements and provision of access and service thereto and in his oral evidence Mr Parkinson gave some understanding as to what the parties had in mind when he said that it was the owners' intention to move the buildings if the noise, dust and suchlike emanating from mining activities proved too uncomfortable to bear. This is not recorded in the deed which says, however, that "the parties acknowledge that the graziers propose to re-locate the existing homestead and other improvements." This cannot be taken as a firm obligation, though Mr Parkinson did say that a new homestead was constructed. Certainly it is my understanding of the deed of agreement entered into at that time that the landowners could not again be provided with costs of removal and reinstatement of the list of structures and improvements referred to there. In addition, it would be my understanding of the agreement that it extends to all structural improvements on the area subject to additional surface area grants either in 1986 or thereafter and would therefore encompass the yards not included in the 1986 agreement; however, the parties have seen fit to settle a figure for the construction of new yards. Either their understanding of the agreement differs from mine or the partial settlement in the present matter simply reflects the commercial realities of the situation. More importantly, however, is the question of my response to the submission from counsel for the applicant miner. I do not understand the 1986 deed of agreement as saying or implying that the landowners will not continue to improve or manage the "hub" area or any part of their property in a particular way. The fact that the landowners elected to not relocate and re-instate the improvements is a matter for them. They were under no obligation to do so. The deed simply refers to their "proposal".

Another concern in a matter such as this is that there not be duplication of compensation. In the appeal before me I am asked to rule on compensation with respect to an expected CGT assessment, a premium (s.281(4)(c)) and the additional amount (s.281(4)(e)). Neither s.281(4)(c) nor (4)(e) is to be found expressly in the statutory compensation formulation in place in 1986 and there is nothing in the 1986 agreement which I construe as being a reference to any similar concept. It was concerned with "injurious affection" a matter not of relevance in the present proceedings. A letter dated 20 May 1986 from "Utah International" to "Property Appraisal Services" supports the proposition that the agreement was confined to injurious affection. The loss of the "hub", which is a matter of importance in the present appeal, is concerned with loss of land, not injurious affection. In conclusion, I find that the contents of the 1986 deed of settlement are not relevant to the present proceedings. This finding disposes of ground No 8 in the landowners' appeal.

Status and Use

Section 281(4)(c) MRA provides -

"(4) In assessing the amount of compensation payable under subsection
(3) -

(c) if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied - an appropriate amount of compensation may be determined; "

Appeal ground No. 10 raised by the landowners relates to the above provision. I have discussed the question of the construction of s.282(4)(c) MRA and the concept of special value as is explained in Pastoral Finance Association Limited v. The Minister [1914] AC 1083 in my consideration of this issue in Wills v. Minerva Coal Pty Ltd. The result is that I agree that the terms "status and use" and "special value" are not interchangeable. Having decided this, however, it is not clear to me how this ground of appeal takes the land owners' appeal forward.

I have earlier set out the land owners' appeal ground No 12 and will now deal with each of the matters raised in that ground. As to item (a) mentioned in ground No 12: I agree that the fact that the Mining Lease No 1872 was in existence at the time "Lake Vermont" was purchased is not a relevant consideration in the assessment of compensation under s.281 MRA. Useful reference may be made to the judgment of the Privy Council in Melwood Units Pty Ltd v. The Commissioner of Main Roads (1978) 5 QLCR 145 where at 151 and 152, their Lordships said:

"The Land Appeal Court purport (e.g. page 63 of the Record) to premise their assessment on the fact that the appellant when it bought was aware that because of the respondent's road project there was no prospect of a drive-in shopping centre other than for the North land 25 acres. Insofar as this indicates a view that, as a consequence, the value of the resumed land and the loss by severance of the South land is to be based on the hypothesis that they never had a potential as part of a 37 acre drive-in shopping centre, it discloses in their Lordships' opinion an error in law. … Further, as to the premise of the Land Appeal Court abovementioned, if it is meant thereby that because the appellant bought the land with knowledge he should not, on some principle, be allowed compensation except on the basis of what he knew, this would be doubly wrong: a person buying land buys with it the right to compensation for resumption and severance."

Similarly, the land owners purchased "Lake Vermont" with any rights to compensation that arose in the future out of Special Coal Mining Lease 1872.

Items (b) and (c) in appeal ground No 12 were dealt with earlier when I considered the 1986 agreement. In so far as item (d) is concerned, I agree with the proposition that such an arrangement is generally not relevant if not settled; however, it may be a relevant consideration in circumstances where there is a clear and unambiguous offer on the part of the applicant miner which, if accepted, would offset particular aspects which would otherwise be fully compensable. In the instant case, it seems to me that the so-called "lease back arrangement" comprises a licence revokable at will and the consideration to flow from the landowner has not yet been established. In the circumstances, the proposal cannot be properly considered in the context of the assessment of compensation. Notwithstanding this conclusion I should add that I cannot see how the Warden at first instance took his finding in this regard into account in settling on an amount of $100,000 under s.281(4)(c) MRA; and that my conclusion does not affect the manner in which I approach the question of "status and use" in these reasons.

Ground of appeal No 12, item (f), complains that "the Warden erred in finding that any loss of profit from reduced turn-off is taken into account by the settlement" arrived at between the parties. I have already mentioned that it is my understanding of the partial settlement that the parties agreed on the allowance that would be made for the land component of compensation in the amount of $350,000. In any event, land value is a component of the gross figure settled. In Pastoral Finance Association Limited v. The Minister cited above, Lord Moulton said at 1089:

"Now it is evident that no man would pay for land in addition to its market value the capitalised value of the savings and additional profits which he would hope to make by the use of it. He would no doubt reckon out these savings and additional profits as indicating the elements of value of the land to him, and they would guide him in arriving at the price which he would be willing to pay for the land, but certainly if he were a business man that price would not be calculated by adding the capitalised savings and additional profits to the market value."

It is not appropriate, then, for loss of any profit which it is anticipated would be generated from the affected land be compensated for in addition to the diminution in the value of the land.

I will return to item (e) in appeal ground No 12 later, however, will now dispose of ground No 13. The words in the Warden's reasons referred to, I think, are these: "It demands a higher standard than normal 'good management'. It must in my opinion be a special feature or a unique circumstance that rises above the ordinary.' I will not adopt the Warden's language as mine in describing what is intended by Parliament in section 281(4)(c) MRA but will refer to my discussion in Wills v. Minerva Coal Pty Ltd where I dealt in detail with this provision and with what I have termed "statutory special value". By way of summary, at this point I should say that . I cannot see that what I have said above in favour of the landowners' grounds of appeal takes the claim to a status and use premium any further.

I come now to appeal grounds 12(e), 14, 15 and 16. Counsel concentrated on Appeal Ground 16 and did not take his submission on the matter to the point of actually saying what the status and use premium should be based on. I assume, however, that ground No 14 indicates that the "hub" is suggested as deserving of a status and use premium and that in addition to that or perhaps as an alternative, the land owners adopt the Warden's basis of his determination of status and use, subject to the criticism of his methodology. It is useful then to consider what the Warden had to say about the matter. At page 11 of his reasons, the Warden wrote:-

" I consider that there are two factors that might be said to add special value to
the land of the owners resulting from its status and use. The first is the
current 'hub' which an essential part of the management process. The
relocation of the 'hub' will involve extra infrastructure requirements and a
higher management effort. There will be loss of production which will be
the result of the loss of part of the cultivated land, assessed by the
landowner at 200 head per year.

The other factor is the method of breeding and fattening adopted over the three properties in the aggregation. According to the evidence, the breeding conducted on Tiny Downs and Wynette feeds young cattle into Lake Vermont for fattening and this procedure allows the landowner to turn off cattle in numbers."

He then went on to refer to the matters raised now in ground of appeal No 12, made reference to two authorities concerned with the concept of "special value", then at page 14 of his reasons made a number of points concerning his conclusion on the question of status and use premium:-

• "I do not consider that the 'hub' adds anything to the 'status and use'. The 'hub' can be shifted and new infrastructure constructed."

• "I am satisfied that there will be a loss of production for a number of years due to a loss of surface land." He then provided an estimate of four years' loss.

• "I consider any loss of profit is accommodated under the settlement reached."

• Next the Warden considered a range of percentages above market value that the owners might pay in addition to market value "to acquire the property", "bearing in mind the apparent success of the current operation conducted by the owners, and their reluctance to reduce production and the higher management effort needed to bring other land up to the same production level."

Now whilst the various points that I have mentioned above do not appear to be capable of construction into a chain argument, it is the last point which, on my understanding of the learned Warden's reasons, gave rise to his assessment of the "status and use" premium which he allowed. The applicant miner submitted that there is no evidence concerning such "higher management" effort and therefore the Warden's reasons on this point fall at the starting post. I accept that the phrase used by the Warden was not used in evidence, however, I think that the evidence given by Mr Parkinson points clearly to the costs and difficulties associated with bringing other land up to the same production level. I take it that it was this evidence to which the Warden was referring. Counsel for the applicant miner also submitted that the learned Warden ought not to have directed his mind towards the replacement land as it is the land to be lost to the additional surface area that falls for consideration. I must confess to some difficulty in understanding what the Warden's reasoning actually was on this point, however, have settled on the following analysis. The Warden's determination speaks of the land owners, on his view, being prepared to pay at least 20% more than market value to acquire "the property" which I take to be the "surface land" mentioned in the second dot point above, but not the "hub" which I understand to be the "infrastructure". The Warden would be aware that s.281(4)(c) is relevant only to a current use and not to an intended use on replacement land. The best understanding I can offer is that the learned Warden had regard to the difficulties associated with the development of replacement land as a relevant factor, concluding that the owners would therefore pay an above market price for the "surface land" in the additional surface area. His use of the phrase "bearing in mind" suggests this. His test of value is not, however, based on any aspect associated with the replacement land, but with the proposition that the land owners are "placed in the position of an adjoining owner who is desirous of obtaining the land on the open market". I return to this last proposition, below.

One other difficulty that I have with what the Warden said is that it is not clear to me in his reference to "other land" whether he is referring to other land on "Lake Vermont" or to replacement land purchased by the land owners. If he is referring to other land on "Lake Vermont" then what I say starting in the next paragraph applies. If the reference is to land other than "Lake Vermont" , I deal with this also below as part of my general reasons on this point, then specifically.

In his discussion on the question of the premium to be added under sub- section 4(c), the Warden mentioned a range of 20% to 40% then arrived at a figure of $100,000 which apparently was settled on after the Warden considered the land value component in the partial settlement to be $350,000. He expressly said that he did not adopt a percentage, however Mr Batch SC calculated the premium to be about 28.6% of $350,000 and said that the Warden had calculated the premium based on the wrong figure, that is, he ought to have based it upon the overall figure of $615,500 though this was not a submission that I read as having been made below. Counsel also submitted that the percentage allowance ought to have been 50% based on Mr Todd's figures contained in his valuation although I understand Mr Todd's percentage rate to include both a premium under s.281(4)(c) and an additional amount under sub-section 4(e). I will set aside Mr Todd's figures for the moment and will first concentrate on the basis of the submission from counsel. My responses are these. I do not accept the submission that the calculated percentage attributed to the Warden ought to apply to the full amount of compensation which was the subject of the partial settlement agreement. First, there is on my understanding an agreement between the parties that land compensation comprises $350,000. Second, I see nothing in s.281(4)(c) which directs a Court to apply a percentage rate nor that such rate be applied to the aggregate compensation determined under s.281(3)(a). There is no sense in adding a percentage figure to a gross figure which represents a diminution in value having regard to a variety of matters including injurious affection, which can hardly be seen as being an element of value which might attract a premium. The logic of the submission is unsustainable. It is the case that there may be a requirement for any amount assessed under s.281(4)(c) to be expressed as a percentage for the purpose of considering the additional amount to be awarded under s.281(4)(e). The mechanics of this is discussed in Wills v. Minerva Coal Pty Ltd. It is my view, however, that given the nature of the matters to be taken into account in determining a premium under subsection (4)(c), the premium would generally be expressed initially as a sum of money and not as a percentage. This brings me to a different and most important aspect of this issue.

If the argument is that the "hub", or even the "surface land" to use the Warden's language, is part of statutory special value then that argument would say that the special value applies to this land as part of "Lake Vermont" or possibly as part of "Lake Vermont" together with "Tiny Downs" and "Wynette". In other words, the approach would be to say that before the loss of the additional surface area the value of "Lake Vermont" was market value plus "X" dollars, whereas after the grant of the additional surface area the value is a reduced market value, only, or perhaps a reduced market value together with a reduced statutory special value. If required, the precise premium awarded under s.281(4)(c) can be easily identified by simple mathematics. The approach adopted by the Warden was to place the owner in the position of an adjoining owner wishing to purchase the surface area land and to then apply an escalation to what he understood to be the market value for that land as represented by the $350,000 figure contained in the partial settlement agreement. Whilst this appears to differ from the approach I introduced above, it may be that the Warden simply used a shorthand form of expressing a similar method to mine. His test of special value, however, does trouble me. It will frequently be the case that where there is a loss of part of a parcel of land, whether the land has a special value or not, that the value of that land to the owner will be its value to him as an adjoining owner. That is the corollary of the proposition that a loss of part of land will often result in a loss due to severance, as described in Gold Coast City Council v. Suntown Pty Ltd (cited above) at 207. Severance is provided for in s.281(3)(a)(iv) MRA. The adjoining owner test propounded by the Warden is not therefore a test of special value for it is not the adjacency of the relevant land which gives it a special value, but a feature of the land, given its use or intended use. One needs, therefore, to focus on that special feature which will either be found in "a positive advantage, or in an exemption from disadvantage" (Commissioner of Highways v. Tynan (1982) 53 LGRA 1 at 6).

I see no benefit in turning these reasons into a dissertation on the learned Warden's reasons with respect to the status and use premium, but will simply say that I do not agree with the methodology employed by him, nor do I agree that the facts of the case reveal that an allowance for a status and use premium should be provided for. Let me provide reasons in support of this second conclusion.

In Arkaba Holdings Limited v. Commissioner of Highways (1969) 19 LGRA 398 at 404, Bray CJ of the South Australian Supreme Court made reference to Pastoral Finance Association Limited v. The Minister (cited above) and to Minister for Public Works v. Thistlethwayte [1954] AC 475 then went on to say:

"But this special value must, in my view, arise from some attribute of the land, some use made or to be made of it or advantage derived or to be derived from it, which is peculiar to the claimant and would not exist in the case of the abstract hypothetical purchaser."

This quotation is unremarkable given the collection of cases which deal with the concept of special value, however, is particularly pertinent to the facts of the case before me. The same point expressed by His Honour was made in, perhaps, simpler language in Re: Wilson and the State Electricity Commission of Victoria (1921) VLR 459 at 464 quoted with approval by Dixon J in The Moreton Club v. The Commonwealth (1948) 77 CLR 253 at 257 to 258:-

"In cases of compulsory acquisition the value to the owner may, according to the circumstances, be approved in more ways than one, but a very common way is to base it upon, though not necessarily to confine it to, the market price - that is, the price which a willing buyer would give to a willing seller who was desirous of getting rid of the property and had made preparations accordingly. In cases of compulsory acquisition, however, an owner may be able to show that the value to him is something more than such market price..." (The underlining is mine).

Now the test of market value is expressed in the often-cited authority of Spencer v. The Commonwealth (1907) 5 CLR 418 and I take the following quotation from the judgment of Isaacs J at 441:-

"To arrive at the value of the land at that date, we have, as I conceive, to support it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and, cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."

The test for ascertaining special value is usually identified with Pastoral Finance Association Limited v. The Minister and at page 1088 of that decision is presented thus:-

"Probably the most practical form in which the matter can be put is that they were entitled to that which a prudent man in their position would have been willing to give for the land sooner than fail to obtain it."

The inquiry that one makes in considering the question of special value is therefore quite similar to that provided in Spencer, however, the inquiry differs in that it adopts the perspective of the prudent owner as the hypothetical purchaser and has regard to the commercial aspects which would attract that purchaser to pay something more for the land. Now it is only where the application of the type of inquiry authorised by Pastoral Finance Limited produces a higher value that special value is found to be present. This is expressed no better than in the words of Kitto J in Turner v. Minister of Public Instruction (1956) 85 CLR 245 at 291-292:

"I must reiterate, however, that this is not a case where there is a difference between the value of the land in general and its value to the expropriated owner in particular. The suitability of the land for subdivision was one of its inherent characteristics; it was available to be exploited by the owner whoever he might be; the land had no special value for the appellants. But I cannot forbear to add that if the test of value which has been approved for cases where there is special value to the owner be applied here, the question must be asked in the familiar words of Lord Moulton in Pastoral Finance Association Ltd. v. The Minister: what would a prudent man in the position of the appellants have been willing to give for the land sooner than fail to obtain it? And the answer must be: precisely what any other prudent purchaser would have been willing to give for it."

I come now to the valuation provided by Mr Todd. In that document he said under the heading "Injurious Affection":-

"the reduction in the size of 'Lake Vermont' will upset the balance of the aggregation which involves three (3) properties. "Lake Vermont's" role is to receive, grow and fatten all weaners from the two breeder properties. The loss of capacity to perform this role will severely strain the viability of the entire operation upon which three families rely. There is no choice but for additional land to be acquired to compensate for the shortfall. This will entail significant costs for relocating and management and still incur infrastructure costs which will effect the profit margin.

These costs include new replacement paddocks, water points, yards, working up contoured cultivation, and the construction of replacement homestead complex."

Later in his valuation Mr Todd included an amount of $110,000 for severance and $194,000 for injurious affection before he embarked upon a consideration of the application of any other amounts to be awarded under section 281(4)(c) and 281(4)(e). Now putting aside for the moment that I would have categorised the comments of Mr Todd in the above quotation as being a reference to severance rather than injurious affection, it is quite clear that from his view that the reduction in size of "Lake Vermont" can be accommodated in a "before" and "after" market value approach. His valuation also includes these words: "The surface being taken contained the 'hub' of the property upon which is the homestead, yards and paddock infrastructure including fodder cropping paddocks surrounding the main homestead complex. This infrastructure facilitates the receiving of weaners from the aggregation's two breeding properties where weaners are grazed initially and culled heifers are fattened for the trade." Those words appear under the heading "Effects of the Taking of the Additional Surface Area" and appear to be reflected in the land value assessed by Mr Todd. The following exchange taken from the transcript of Mr Todd's cross-examination provide a further insight into his thinking on the matter:

"415 A HECTARE. NOW THAT'S 415 A HECTARE.. THAT'S BUYING PRETTY GOOD PROPERTY ISN'T IT. THAT'S BUYING PROPERTY THAT'S FULLY DEVELOPED PROPERTY?

I think that on that land component in this instance that that average at 415 reflects a couple of very important aspects. One being that the..you've got to remember that their only cultivation country..122 hectares is included in that and it's value is in excess of $600 a hectare. The second consideration and we touched on it earlier in our discussions that there is an adjoining owner influence there undeniably so and maybe there's a little bit of that in it but really it's it reflects the nature of a small piece of country.. strategically located as that is within Lake Vermont. It's not outrageous by any stretch of the imagination. It falls within the market ambits."

I have no criticism of this approach and it seems that this market value approach has found its way into the partial settlement agreed upon by the parties. It is my view that one is perfectly able to take into account an area such as the "hub", the "surface land" or even the interrelationship between three grazing properties in the "before and after" valuation approach. Consider for the moment a scenario where the owners of "Lake Vermont", "Wynette" and "Tiny Downs" decide to sell the properties. Any purchaser could acquire the three properties and take advantage of the properties' interrelationship in the same way, or perhaps in a similar way, to the manner in which the properties are managed by the present landowners, just as any owner can take advantage of the additional surface area land, or the "hub" as part of "Lake Vermont". It is then possible to ascertain a value of the land after the taking of the additional surface area and by a simple matter of deduction of the "after" value from the "before" value to ascertain the diminution in value as a result of the loss of land, severance and injurious affection. Now such an approach is clearly open given the wording of section 281(3)(a) and is the approach that would be appropriate in this case. Having done this, it is not appropriate to then consider the difficulties associated with developing replacement land somewhere else on "Lake Vermont" except to the extent that there may be specific items of disturbance not revealed in the above method (s.281(3)(a)(vi) refers). To proceed otherwise would be a clear case of "double dipping".

I have no doubt that the land in the additional surface area is special to the land owners but being special does not mean that the Pastoral Finance special value test applies to reveal that a premium should be added to the market value of the land. The land area would be special to any prudent purchaser wishing to manage "Lake Vermont" by itself or "Lake Vermont" in conjunction with "Tiny Downs" and "Wynette". It will often be the case that a particular part of a grazing or farming property will be of great importance in the conduct of the enterprise on the property. Cultivation land will be of particular value on a grazing property, as will land adjacent to a permanent stream or that over which an access road is constructed. In such cases the owner of the land would undoubtedly pay a premium to acquire such land were it not in his ownership. This does not give the land a special value, however, of the type discussed in Pastoral Finance Association Ltd v. The Minister and which I describe as statutory special value in Wills v. Minerva Coal Pty Ltd. This is because once that particular piece of land has been acquired and joined with the other land of the owner, the aggregate price that he would pay for it would be the same as anyone else wishing to use the land for grazing purposes. Moreover, such a particular piece of land would be purchased at a price determined in the same way by any owner of the grazing property wishing to pursue that use.

Let me mention one other aspect on this issue and that is the evidence from Mr Parkinson that suitable replacement land is not readily available and that he anticipates having to spend money and effort in developing any replacement land to a suitable standard. These are matters that I understand to have influenced the Warden in his adoption of a status and use premium. They are not, however, matters that properly fall to be considered in this way. Whether there are costs to be applied to improve the replacement land to a suitable standard; or whether, for that matter, the land purchased is acquired at a bargain price are not matters for consideration in ascertaining the value of the land lost. (Service Welding v. Tyne and Wear CC (DA) 77 LGR 647 (UK) at 652). There is a rebuttable presumption that in acquiring replacement land the purchaser acquires value for money.

My reasoning has led me not to a precise understanding as to how the parties settled the various figures which produced their aggregate partial settlement figure. Rather I have been concerned to point out that the loss of the additional surface land and indeed the creation of an imbalance between "Lake Vermont", "Tiny Downs" and "Wynette" are all matters for which the compensation figure is capable of ascertainment by normal market value methods and, if approached correctly, will be reflected in figures ascertained without reference to section 281(4)(c). Further, I am of the view that if it was not the case that the parties arrived at their partial settlement figure in the manner that I described, or in a manner similar in principle, then it is not appropriate to cure any such defect by resorting to a misapplication of section 281(4)(c).

I am not aware of any factual basis other than those discussed above upon which a claim for a status and use premium might properly be made out in the evidence. I was certainly taken to none by the appellant. It follows then from what I have said above that I am in agreement with the proposition contained in the appeal from the applicant miner that there was no status and use deserving of a premium in this case. It follows that I do not need to consider how Mr Todd arrived at his percentage assessment which he said should apply to a status and use premium. I will, however, mention that Mr Todd referred to "mining sales" in arriving at his percentage estimate: an approach I consider and reject below under the heading "Additional Amount".

Capital Gains Tax
Appeal grounds Nos 1 to 7 inclusive raise questions concerning the issue of

the request by the landowners that the applicant miner be ordered to provide an indemnity with respect to the prospect of an assessment of CGT being made on the compensation proceeds resulting from this present action.

I see no benefit in dealing with each of these grounds of appeal seriatim but will make reference generally to what I had to say in Wills v. Minerva Coal Pty Ltd. on this issue and will draw into these reasons all that I said there on this topic, except that which is confined to the facts of that case. For the sake of clarity, I emphasise that I also adopt the reasoning in Wills v. Minerva Coal Pty Ltd where I concluded that exposure to a CGT assessment is not a matter which arises for assessment as an item of compensation under s.281(3)(a)(vi) MRA as it is not a consequence of the grant of the mining lease.

I have already mentioned the various dealings in land ownership with respect to "Lake Vermont" and these indicate quite clearly that given the post-1985 nature of the acquisition of the various interests by the present land owners a CGT assessment will visit upon them. This is confirmed in the evidence of Mr Don Munro, a taxation accountant whose statement was tendered in evidence for the applicant owner; and by evidence given via Mr John Newby, a taxation accountant, who provided a statement for the land owners. Evidence before the Warden's Court comprised only Taxation Ruling TR 95/35 which was handed up by counsel for the land owners and submissions were made in support of the claim.

Whilst I find that the prospect of exposure to a CGT assessment is not compensable under s.281(3)(a)(vi) and I decline to order the giving of an indemnity, I consider the CGT issue further under the following heading in a similar way to my treatment of this issue in Wills v. Minerva Coal Pty Ltd.

Additional Amount
In evidence before the Warden's Court, Mr Parkinson said that he and his

partners had no intentions of selling "Lake Vermont" . He also gave evidence that the owners were desirous of finding and purchasing land to replace the land to be lost to the additional surface area. In the circumstances, a CGT assessment and the prospect of the owners electing to contest the matter will constitute a substantial business inconvenience which ought to fall for consideration in the striking of the additional amount under s.281(4)(e). It is a matter associated with the ownership of "Lake Vermont" . I have no specific evidence of the nature of this inconvenience and I need none. I take judicial notice that the circumstances will be costly and disruptive and will direct managerial focus away from the main business of managing the property.

As in the case of Wills v. Minerva Coal Pty Ltd, I have decided to give the parties the opportunity to address on the question as to whether the grounds of appeal allow me to order compensation, given that the land owners' appeal appears to be limited to a request that I order an indemnity.

I should mention that if it were the case that the miner offered to the land owners an indemnity in a form acceptable to the Court indemnifying the appellant with respect to the costs and expenses reasonably incurred in contesting any CGT assessment of the Commissioner with respect to the award of compensation; then such an offer is a matter which I would take into account in the determination of the additional amount under s.281(4)(e).

Ground 9 of the land owners' appeal complains that the Warden did not allow "a premium under s.281(4)(e) in the range between 50% and 100%". Mr Todd had employed the method of placing reliance on "mining sales" that I referred to and rejected in Wills v. Minerva Coal Pty Ltd as the basis for his assessed additional amount under subsection (4)(e). It follows that I also reject that approach here. In his written valuation Mr Todd presented his reasons for the award of an additional amount of 50% to 100% in this way:

" b The likelihood that the status and use of the land prior to the Mining Lease will not be equivalent after the mining lease. It is unlikely in the foreseeable future that the land can be restored to its former economic performance. At the very least there is an undeniable element of doubt which must be weighed in favour of the landowner.

c The probability of ongoing off-site disturbance both environmentally and economically that cannot be quantified.

d	Compensate for the possible adverse market perception of having a mine located within a property - difficult to accurately quantify.
e	The compulsion of the landowners to relinquish his interest in the property for the benefit of another commercial enterprise. It is well recognised in commercial dealings that in the case where a property contains a special potential which a second party can exploit and derive benefit, a premium above market value will invariably be paid."

My comments on these points, are, in order:

b This either featured or ought to have featured in the partial settlement figure for diminution in land value (s.281(3)(a)(ii) MRA .

c	To the extent that "off-site disturbance" relates to acts carried out lawfully on the mining lease area which cause discomfort in the use of the balance land this is, or ought to have been, compensated under s.281(3)(a)(iii) MRA. To the extent that the concern is that the disturbance complained of is illegal, then it is to the general law that one must turn as compensation under s. 281 MRA is not concerned with such consequences. (See, for example, Joyce v. Northern Electric Authority of Queensland (1974) 1 QLCR 171 at 178).
d	A difficulty in quantification does not mean that s.281(4)(e) must be employed in some general and erroneous way. In any event, the claimed difficulty would remain. Such compensation either featured or ought to have featured in the partial settlement figure for diminution in land value. (s.281(3)(a)(ii) and (iii) MRA)
e	This appears to suggest that the value should be based on value to the applicant miner. I rejected this in Wills v. Minerva Coal Pty Ltd and understood counsel for the land owners to adopt a similar position. Mr Todd also said that the applicant miner in the present case ought to pay a high price because it is an adjoining owner. Such an approach is contrary to the statutory approach to compensation in s.281 MRA and which I discuss in detail in Wills v. Minerva Coal Pty Ltd.

I find that, apart from what I have said about CGT, there is no basis upon which the additional amount should be enlarged above the statutory 10%.

The Warden determined the additional amount under s.281(4)(e) at $50,000. This figure, it will be seen, is less than a straight 10% calculation of the settlement sum of $665,500 would produce and was arrived at following the Warden's consideration of the $100,000 he had already allowed under s.281(4)(c). I deal with the inter-relationship between subsections (4)(c) and (4)(e) in Wills v. Minerva Coal Pty Ltd and will not repeat here what I said there about the limited circumstances in which a reduced additional amount under subsection (4)(e) might be determined. For present purposes, it is sufficient to note that given my conclusion that no premium is justified under subsection (4)(c), the additional amount to be determined under subsection (4)(e) must be based on a full 10% calculation, at a minimum. One difficulty I have is that that part of the partial settlement agreement referred to as "disturbance" ($50,000) was also said to include an amount for costs of the hearing before the Warden. Such costs are not part of compensation under s.281(3)(a), therefore do not form part of the calculation that s.281(4)(e) requires be carried out in assessing the additional amount. I have no evidence as to what proportion of the $50,000 comprises such costs, so will simply include the full partial settlement figure of $665,500 as the basis for calculating the minimum 10% additional amount.

Appeal grounds 18 and 19 have been disposed of by what I have written above. Appeal ground 20 says that the Warden erred in holding that s.281(4)(e) provides for the grant of compensation for "solatium". In Wills v. Minerva Coal Pty Ltd I declined to describe the additional amount referred to in subsection (4)(e) in that way, though I drew conclusions there that pointed to certain similarities between what is described as solatium in certain statutes and what is provided for in s.281(4)(e). In his determination the learned Warden does not appear to be using the term "solatium" in anything but a general way and in the context of his reasons cannot be criticised as being wrong in law. I would add, however, that it would be preferable to employ the statutory phrase "additional amount" lest the use of other terms leads one into error.

Other Grounds

Appeal ground 21 says that the Warden erred in ordering that the parties give consideration to entering into the agistment licence offered by the applicant miner. I have commented on the licence earlier in these reasons. In Wills v. Minerva Coal Pty Ltd I discussed the jurisdiction of the Land Court and the Wardens Court under s.281 MRA and concluded that the jurisdiction conferred provides for each of these Courts to determine an amount of compensation and to make consequential orders concerning payment of the amount determined. (s.281(5) refers) Accordingly, an order of the type complained of would not, in my view, be within jurisdiction.

Ground 22 in the land owners' appeal suggests that the Warden erred in failing to abide by s.360(1) MRA regarding the form of his determination. For the same reasons given by me in Wills v. Minerva Coal Pty Ltd, referring to a ground expressed in similar terms, I will not comment further on this appeal ground.

Finally, let me now dispose of ground No 11 raised by the land owners. That ground appears to be a reference to part of the Wardens reasons where he said:

" For the purpose of compensation is to put the owner back as far as monetary order can to as near to his original position as is possible. It is not the intention of the Court nor is it in the spirit of the Act to provide windfall profits to any party."

I have no disagreement with what the Warden conveys by his words and, having studied his determination, I do not understand him to have characterised any particular part of the claim from the landowners as being rejected or modified on the basis of the general principle expressed.

In conclusion, I invite submissions on the question of my jurisdiction to determine the additional amount under s.281(4)(e) MRA by having regard to the conclusions that I have drawn with respect to exposure to a CGT assessment. I also invite submission on the form that final orders should take.

RP SCOTT
MEMBER OF THE LAND COURT