Bookall Mining Company Pty Ltd v Kummerfeld

[2009] QLC 186

LAND COURT OF QUEENSLAND

CITATION:

Bookall Mining Company Pty Ltd v Kummerfeld [2009] QLC 0186

PARTIES:

Bookall Mining Company Pty Ltd
(applicant)

v.

HJ, JA, MD & TW Kummerfeld
(respondents)

FILE NOS:

MRA1309-08

DIVISION:

Land Court of Queensland

PROCEEDING:

Application for variation of access under the Mineral Resources Act 1989

DELIVERED ON:

26 November 2009 (ex tempore)

DELIVERED AT:

Atherton

HEARD AT:

Atherton

MEMBER:

Mr PA Smith

ORDERS:

1.    Consent to the variation of access given.

2.    Compensation determined for variation of access in the nominal amount of $50.

3.    Compensation be paid by the applicant to the respondents within 28 days of the registration of the variation of access by the Mining Registrar.

CATCHWORDS:

Variation of access to Mining Lease – no appearance by respondent – consent – compensation - Mineral Resources Act 1989

APPEARANCES:

Mr D Anthony, David Anthony Solicitors, on behalf of the applicant
No appearance on behalf of the respondents

1. I have before me an application for variation of access pursuant to section 317 of the Mineral Resources Act 1989 (“MRA”) relating to Mining Lease 5126, insofar as that variation of access traverses land owned by the respondents HJ, JA, MD and TW Kummerfeld. The respondents have failed to attend at the hearing today even though due notice of the formal hearing of this matter was provided to them by formal court notice dated 16 October 2009.

2. I note that the respondents did attend at a directions hearing by phone with Judicial Registrar O'Connor on 20 July 2009 where a proposal was put that the parties would attempt to reach some agreement in this matter. I further note that when the matter was called on for a directions hearing before then Member Scott in Atherton on the 18th March 2009 that there was no appearance by the respondent.

3. I note from a decision of Mining Referee Windridge in the Land and Resources Tribunal on 1 February 2006 that compensation was assessed for the mining lease in this matter in the sum of $231. The reason given in Mr Windridges’ decision for that compensation being assessed at such a low amount is that the predominance of the mining lease, or at least the mining activities undertaken under the lease, do not occur on the respondents property but within the bed of state land being a creek or river. The actual impact on the respondent’s property for the mining activities was therefore quite limited.

4. The access variation does now clearly by the metes and bounds description provided with the variation of access include parts of the respondent’s property. I appreciate that the access in this regard has only a minimal impact upon the country concerned.  I also note that there has been no appearance by the respondents today and I also appreciate that in the scheme of life the quantum of this matter is very low, such that any parties appearing can quickly incur many times the actual compensation which may be held to be appropriate should they choose to engage their own legal or valuation experts. This is quite often the reason why parties choose neither to appear nor make any submissions in these matters.  I would expect that that would be the reason why the respondents have not attended today, although of course that is only a supposition.

5. In all the circumstances of this matter and given that it has been before the Land Court for mention and directions on a number of occasions in the past and was clearly set down for hearing today, and also taking into account the decision that I have already made today with respect to Land Court matter MRA1310/08, which also relates to a variation of access to Mining Lease 5126 as regards the Bar Barrum People #4, I consider that a proper opportunity has been provided to the respondents to appear in court, no correspondence has been received by the court explaining their absence, nor have any submissions been received by the court as to what the respondents say should occur with respect to the access. I consider the application for variation of access reasonable and in the circumstances I consider that consent to the variation of access should be given and I order accordingly.

6. As regard compensation I note the provisions of section 317(5)(a) and (b) of the MRA. As I have determined that consent to the variation of access should be given, I now turn to the quantum of compensation. In the Bar Barrum matter I ordered a nominal amount of compensation in the sum of $50 and I see no reason to depart from a like award in these circumstances. Accordingly, taking into account all the material before me and absent any material from the landholders, I determine compensation for variation of access in the nominal amount of $50. I further order that the compensation be paid by the applicant to the respondents within 28 days of the registration of the variation of access by the Mining Registrar.

Orders

1.Consent to the variation of access given.

2.Compensation determined for variation of access in the nominal amount of $50.

3.Compensation be paid by the applicant to the respondents within 28 days of the registration of the variation of access by the Mining Registrar.

P A SMITH

MEMBER OF THE LAND COURT