Buttcroft Pty Ltd v Edgar
[2010] QLC 139
•12 November 2010
LAND COURT OF QUEENSLAND
CITATION: Buttcroft Pty Ltd v Edgar [2010] QLC 0139 PARTIES: Buttcroft Pty Ltd
(applicant)v. Jeffrey Ridgway Edgar
(respondent)FILE NO: MRA1313-08 DIVISION: General Division PROCEEDING: Application for compensation for mining lease under the Mineral Resources Act 1989 DELIVERED ON: 12 November 2010 DELIVERED AT: Brisbane HEARD AT:
HEARING DATE:
Rockhampton
4 November 2010
MEMBER: Mr WA Isdale ORDER/S: 1. The Court orders that compensation is payable by the miner to the landowner as follows:-
- within 30 days of the grant of the mining tenure the miner pay the sum of $4,914 being compensation for loss of possession of the surface area of ML5856 for the period 1 October 2008 to 30 September 2011;
- within the same period the miner also pay the sum of $1,120 compensation for the cost of constructing access to the water point ie loss of surface rights of access;
- within the same period the miner also pay $603.40 being a 10% allowance in recognition of the compulsory nature of the process in accordance with s.281(4)(e) of the Act.
The total of these payments is $6,637.40.
2. The Court orders that for the remaining 2 years of the tenure from 1 October 2011 the miner pay to the landowner the sum of $1,638 per annum in advance as compensation for loss of possession of the surface area plus $163.80 per annum in advance being the 10% allowance in recognition of the compulsory nature of the process This is $1,801.80 per annum to be paid in advance.
CATCHWORDS: Mineral Resources Act 1989, ss 279A(2), 281 APPEARANCES: Mr L Coleman, as agent for the applicant
Mr A Palmer, solicitor of Rees R & Sydney Jones, solicitors, for the respondent
Background
On 11 June 2008 the Mining Registrar at Rockhampton forwarded to the Land Court the matter of compensation for Mining Lease 5856. The Registrar acted in accordance with s.279A(2) of the Mineral Resources Act 1989.
A telephone directions hearing to progress the matter was conducted by the Judicial Registrar on 20 August 2008. Unfortunately, the parties were not able to reach a concluded compensation agreement in the time that has elapsed since then and the Court made orders on 9 September 2010 for the filing and exchange of material in preparation for the matter to be resolved by a hearing set down to commence on 4 November 2010.
When the steps directed by that order were not all taken timeously, the Court, in pursuance of its case management, conducted a further directions hearing on 25 October 2010 and set a revised timetable with the same hearing date.
The proceedings
These proceedings concern the renewal of Mining Lease (ML) 5856 which expired on 30 September 2008, over 2 years ago. Mining may continue in such circumstances while the process of reaching a new arrangement for compensation goes on. The lease, which may be renewed once compensation has been decided, will operate from 1 October 2008.
In this case a 5 year term has been sought for the renewal so the lease, when renewed, would run until 30 September 2013.
The evidence
On behalf of Buttcroft Pty Ltd (the miner), it was submitted that compensation should be assessed at $651 per annum for this 28.66 ha lease, that sum to be paid annually in advance. The written submissions made on behalf of the miner refer to a 10 year tenure period but in the course of the hearing it became clear that at present the actual application is for a 5 year period.
It is proposed to carry out mining by a cellular method in order to minimise the area of disturbance at any one time.
No witnesses were called on behalf of the miner. The respondent, the landowner, gave evidence in support of his affidavit and was cross-examined. Also called on behalf of the landowner was Mr Noel Peter Hamilton, a livestock agent and salesman with 40 years experience in this work. Mr Hamilton gave evidence by telephone and was cross-examined.
The issues between the parties were the compensation payable for loss of the use of the surface area for grazing and the cost of constructing an access track so that the landowner could maintain access to a water point, which consists of a windmill, tank and trough. This is the only water available to cattle in the part of the landowner’s property, "Craigilee" which is known as "Rosewood" paddock.
"Rosewood" has an area of 292.145 ha within the overall holding of 12,400 ha, on which the landowner was "born and bred". ML5856 is part of "Rosewood" paddock.
The miner contends for the compensation to be assessed at a total of $651 per annum on the basis that it represents a doubling of what was paid about a decade ago, using that earlier level of compensation as a yardstick and doubling it to allow for the increases in costs over that period.
The landowner contends that the allowance payable in recognition of the compulsory nature of the acquisition of the mining tenure over his land is appropriately set at the statutory minimum of 10% provided by s.281(4)(e) of the Mineral Resources Act 1989.
The evidence of Mr Edgar, supported by that of Mr Hamilton, was that the land the subject of this mining tenure would conservatively carry, in the long term, 14 weaner heifers during the 39 weeks of each year that the paddock is used. It is spelled for the remainder of the year to allow the grass to recover.
The landowner is not asking for any compensation for the 13 weeks in a year when the land would normally not be used for grazing.
The weaners are, on average, about 200 kg in weight.
The evidence of carrying capacity was tested in cross-examination but did not change.
The evidence was that agistment of cattle such as those normally "backgrounded" in this paddock would cost $3 per head per week. Doing the maths of 14 cattle at $3 per week for 39 weeks per year for 5 years yields $8,190 which is contended for as the cost of not being able to use the land once it has been fenced off for mining.
Although it was suggested on behalf of the miner that in the past the land had been grazed while subject to a mining tenure, the evidence is that the land will be fenced so that stock will be excluded.
The evidence by and for the landowner provides a cogent basis for the claim of $8,190 being attributable to loss of the use of the surface area. I am satisfied that the evidence of the use of the relevant area is reliable and having seen the demeanour of Mr Edgar in the witness box and heard his evidence, and heard the evidence of Mr Hamilton, I accept their evidence as witnesses of truth. No contrary evidence was given or called by or on behalf of the miner.
The other area of dispute between the parties was the compensation attributable to the landowner’s need to construct access to the water point once the mining tenure is fenced off and access through it is no longer available to him.
Mr Edgar's evidence was that a track constructed where he proposes would take 8 hours on his D7 bulldozer. He has allowed $140 an hour to cover that cost. His evidence was that on the basis of his research, a contractor would charge $160 an hour plus the cost of delivering the machine to the site.
Cross-examined as to the possibility of a shorter route, Mr Edgar drew a possible route on the map which became Exhibit 4 but pointed out that it involved crossing a creek and the consequent risk of erosion damage. Because of that, he preferred his proposed route.
Findings
I am satisfied that Mr Edgar's proposal is a reasonable one and that it would be unreasonable to impose upon the landowner a route against his better judgment when he has expressed understandable concern about the risks of erosion involved in that other route.
I accept Mr Edgar's evidence and note the absence of evidence contradicting his concern about erosion if the shorter route was taken across the creek.
According to Mr Edgar’s evidence, the cost of eight hours of operating the D7 bulldozer is $140 per hour, a total of $1,120. There was no evidence of any competing level of cost or that the machine was not appropriate to the task and I accept the landowner’s evidence in this regard.
It was submitted for the landowner that compensation should be ordered to be paid in one lump sum within 30 days of the granting of the lease.
In the alternative, it was submitted for the landowner that in view of the time which has elapsed since 1 October 2008, the commencement date of the tenure once renewed, it would be appropriate that the first 3 years' payments be payable within 30 days of the grant of the renewal tenure, effectively making payment up to 30 September 2011. This would be $4,914 for the loss of use of the surface area.
Additionally, it was submitted that the $1,120 for the access track should also be paid within 30 days of the grant of the renewed tenure, as should be the 10% per annum amount in recognition of the compulsory nature of the process affecting the landowner.
I accept this alternative submission as it recognizes the extent to which the lease period has already passed and reduces the burden on the miner which would, under the first proposal, be greater.
ORDERS
1. The Court orders that compensation is payable by the miner to the landowner as follows:-
-within 30 days of the grant of the mining tenure the miner pay the sum of $4,914 being compensation for loss of possession of the surface area of ML5856 for the period 1 October 2008 to 30 September 2011;
-within the same period the miner also pay the sum of $1,120 compensation for the cost of constructing access to the water point ie loss of surface rights of access;
-within the same period the miner also pay $603.40 being a 10% allowance in recognition of the nature of the process.
The total of these payments is $6,637.40.
2. The Court orders that for the remaining 2 years of the tenure from 1 October 2011 the miner pay to the landowner the sum of $1,638 per annum in advance as compensation for loss of possession of the surface area plus $163.80 per annum in advance being the 10% allowance in recognition of the compulsory nature of the process This is $1,801.80 per annum to be paid in advance.
WA ISDALE
MEMBER OF THE LAND COURT
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