Burtenshaw v Mudge

[2015] QLC 1

LAND COURT OF QUEENSLAND

CITATION:

Burtenshaw v Mudge  [2015] QLC 1

PARTIES:

Rosemary Anne Burtenshaw
(applicant)

v

John Davey Mudge
(respondent)

FILE NO:

MRA434-14

DIVISION:

General Division

PROCEEDING:

Determination of compensation for renewal of mining claim

DELIVERED ON:

21 January 2015

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed on 18 December 2014

HEARD AT:

Heard on the papers

A/JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.     Compensation is determined in the sum of Fifty Dollars ($50.00).

2.     The applicant is to pay the respondent the total compensation amount of Fifty Dollars ($50.00) within two (2) months of the renewal of Mining Claim 1913 by DNRM.

CATCHWORDS:

MINING CLAIM – determination of compensation -renewal - factors to be considered-no material provided by either party.

Mineral Resources Act 1989, ss 85 , 85A
Land Court Rules 2000, Rule 36A
Unimin Australia Limited v Freeman [2007] QLC 76
Eacham Abrasive Blasting Pty Ltd v Gundersen & anor
[2014] QLC 38

APPEARANCES:

Not applicable

1. This matter involves a referral to the Land Court pursuant to s 85A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of a mining claim.

Background

1. On 23 December 2013, Rosemary Anne Burtenshaw (the applicant) applied for the renewal of Mining Claim 1913 over land located approximately 11 km south of the town of Irvinebank in the Mareeba District. The land is within the Tableland Regional Council local government area. Further renewal is sought for a period of 10 years.  The purpose of the proposed renewal is for the mining of tin.

2. Access to the mining claim area is over land owned by Mr John Davey Mudge.  The land is more particularly described as Lot 1 on AP 17369.  The access comprises a 2.1 km track with an area of 0.84 hectares. 

Relevant Legislation

1. Section 85 of the MRA provides that a mining claim shall not be granted or renewed unless compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the subject of the application and of any surface access to that land. In respect of this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and accordingly the matter has been referred to the Land Court for determination.

2. The matters that must be considered by the Court are set out in s 85(7) of the MRA which provides that an owner of land is entitled to compensation for:

   (a)   deprivation of possession of the surface of land of the owner;

   (b)   diminution of the value of the land of the owner or any improvements thereon;

   (c)   diminution of the use made or which may be made of the land of the owner or any improvements thereon;

   (d)   severance of any part of the land from other parts thereof or from other land of the owner;

   (e)   any surface rights of access;

   (f)    all loss or expense that arises;

   as a consequence of the grant or renewal of the mining claim.

3. Section 85(8) of the MRA enables various additional factors to be included in the compensation assessment. In the present case, only paragraph (e) is relevant. It provides as follows:

   “(8) In assessing the amount of compensation payable under subsection (7)—

   …

   (e)   an additional amount shall be determined to reflect the compulsory nature of action taken under this chapter which amount … shall be not less than 10% of the aggregate amount determined under subsection (7).”

The Conduct of the Proceedings and Evidence

1. On 16 October 2014, the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No 5 of 2013.

2. A further letter was sent to the parties on 16 December 2014 advising them of the Court’s intention to proceed with determining the matter pursuant to Rule 36A of the Land Court Rules 2000.  No response or objection was received from either party.

3. In the absence of any material from the parties, the determination of compensation can be quite challenging.  In Unimin Australia Limited v Freeman,[1] Member Jones [as he then was] noted as follows:

   “I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

   [1] [2007] QLC 76 at [14].

1. However several Court judgments in the North Queensland area will assist with determining compensation in the present case, with such determinations in the Mareeba District ranging from $5 per hectare per year to $15 per hectare per year[2].  In the recent case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor[3], Member Smith allowed the sum of $10 per hectare per year for the area covered by mining and $5 per hectare per year for access in respect of a renewal of a mining lease in the Mareeba District. 

   [2]Oosen v Emu Creek Bar-Barrum Aboriginal Corporation [2008] QLC 23; Re Fitzgerald & Anor [2009] QLC 15; Re Fitzgerald and Hughes [2009] QLC 73; Re Kimmoth & Poole [2009] QLC 117; Donovan v Struber & Anor [2009] QLC 160.

   [3] [2014] QLC 38.

Determination

1. The information provided by DNRM confirms that the access track across the subject land is 2.10 km in length and 4.0 m wide which equates to an area 0.84 hectares

2. Having considered the limited material and the relevant Court determinations cited above, and taking account of all heads of compensation set out in s 85(7) of the MRA, I assess compensation for Mining Claim 1913 at $5 per hectare per year for access. This results in a compensation amount of $4.20 per year for access. Applying this amount over the term of the mining claim i.e. 10 years, amounts to a total compensation $42.00.

3. Pursuant to Section 85(8)(e) of the MRA, I will add an additional sum of $8 to reflect the compulsory nature of the grant of the mining claim.

4. This results in a total compensation for the entire period of the mining claim of $50.00

Terms of Payment

1. I order that the applicant pay total compensation of $50.00 to the respondent within two (2) months of the renewal of the mining claim by DNRM.

Orders

1.Compensation is determined in the sum of Fifty Dollars ($50.00).

2.The applicant is to pay the respondent the total compensation amount of Fifty Dollars ($50.00) within two (2) months of the renewal of Mining Claim 1913 by DNRM.

G.J. SMITH

ACTING JUDICIAL REGISTRAR