Carabella Resources Limited v Goodwin
[2016] QLC 32
•27 May 2016
LAND COURT OF QUEENSLAND
CITATION: Carabella Resources Limited v Goodwin [2016] QLC 32 PARTIES: Carabella Resources Limited
(applicant)v Patricia June Goodwin
(respondent)FILE NO: MRA123-14 DIVISION: General Division PROCEEDING: Determination of compensation payable for mining lease DELIVERED ON: 27 May 2016 DELIVERED AT: Brisbane HEARD ON: 15, 16, 17, 18, 19 September 2014
19, 20, 21, 22 January 2015
12 March 2015
21 August 2015
Submissions closed 25 August 2015HEARD AT: Rockhampton, Yeppoon and Brisbane MEMBER: PA Smith ORDERS: 1. Compensation payable by the applicant to the respondent for the grant of MLA 80194 is determined in the total sum of $1,394,819 which sum includes the items agreed between the parties and the additional amount pursuant to s 281(4)(e) of the Mineral Resources Act 1989
2. The compensation in order 1 of $1,394,819 is payable within 14 days of the grant of MLA 80194 save for the determined compensation for the relocated house related items which is payable within 14 days of the applicant being provided with a copy of a binding contract for the construction of a house on the land and not before 14 days after the grant of MLA 80194.
CATCHWORDS: MINING – compensation for mining lease – s 281 Mineral Resources Act 1989 – method of valuation – no separate assessment for each head – no “doubling-up” – consider circumstances of each case
MINING – compensation for mining lease – consideration of legal principles - highest and best use of land – similar legal principles to compensation available under the Acquisition of Land Act 1967
MINING – compensation for mining lease – consideration of comparison sales – conclusions of both sides valuers unreliable – court to do the best it can with what evidence it has before it – benefit given to landowner - check value against sale of neighbouring property to the miner
MINING – compensation for mining lease – consideration of loss of resources (timber and non-mineral) in the proposed mining lease – loss of possible business activity – discounts applied
MINING – compensation for mining lease – consideration of claim for depreciation/diminution to balance land – severance, noise and dust impacts discussed
MINING – compensation for mining lease – loss of adjoining rental property – outside mining lease area – provides no basis for a claim of compensation
MINING – compensation for mining lease – rental income – maintenance costs deduction – rental market evidence – no reasonable evidence of loss – quantum nil
MINING – compensation for mining lease – forced sale of cattle – loss – doubling-up – timing of grant – lack of business and stock records – evidence vague – conjecture – quantum nil
MINING – compensation for mining lease – claim items contended by applicant – not specifically claimed by respondent – stamp duty – livestock transport– settling costs – claims allowed
MINING – compensation for mining lease – 10% value of land – s 281(a)(e) Mineral Resources Act 1989 – greater percentage not contended – additional amount allowed at 10%
Acquisition of Land Act 1967
Land Act 1994
Land Court Act 2000, s 7A
Land Court Rules 2000Mineral Resources Act 1989, ss 46, 234, 279, 279(5), 281(3), (4), (5), 320(1), (3), 321
Mineral Resources Regulation 2013
Uniform Civil Procedure Rules 1999
Vegetation Management Act 1999Australian Securities & Investment Commission v Rich (2005) 190 FLR 242
Barrett v Weir and Gregcarbil Pty Ltd [2009] QLC 182
Beard v The Director of Housing [1961] TAS SR 141
BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107
Couper Essex v Local Board of Action (1889) 14 App CAS 153
Crisp & Gunn Co-operative Ltd v Hobart Corporation (1963) 110 CLR 538
Crompton v Commissioner of Highways (1973) 32 LGRA 8
Edinburgh Pty Ltd v The Minister (1963) 8 LGRA 45
Emerald Quarry Industries Pty Ltd v Commissioner of Highways [No 2] (1979-81_ 43 LGERA 273
Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 32 QLCR 146
Gregcarbil Pty Ltd v Backus & Ors (No. 4) [2013] QLC 68
GWE Armstrong & Ors v Council of the City of Caloundra Unreported, 13 October 1998
Henry v ERO Georgetown Gold Operations Pty Ltd [2016] QLC 17
Horn v Sunderland Corporation [1941] 2 KB 26
Jones v Dunkel [1959] 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11
Marcus Clark & Co Ltd v Commissioner of Railways (1949) 11 The Valuer 29
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2006] NSW CA 314
Mitchell v Oakhill & Mitchell (1998) 19 QLCR 66
Mitchell v Oakhill and Mitchell (10 March 1998) unreported
Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495
Pastoral Association Ltd v The Minister (1914) AC 1083
Re Q Coal Pty Ltd v Watts [2006] QLRT 115
Vyricherla Narayana Gajapatiraju v The Revenue Divisional Officer, Vizagapatam [1939] AC 302
Realty Corporation Ltd v Commissioner of Main Roads (1940) 14 NSW LGR 204
Redeam Pty Ltd v South Australian Land Commission (1977) 40 LGRA 151
Reference Under The Electricity Commission (Balmain Electric Light Co. Purchase) Act 1950 (1956) 1 LGRA 49
Richardson v Barrett [2001] QLRT 89Richardson v Roads and Traffic Authority of New South Wales (1996) 90 LGERA 294
Salmon v Armstrong (2002) QLRT 54
Savimaki v Sunshine Coast Regional Council [2013] QLC 33
Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139
Smith v Cameron (1986) 11 QLCR 64
Spencer v Commonwealth (1907) 5 CLR 418
Suntown Pty Ltd v Gold Coast City Council (1979) 6 QLCR 196
Sydney Harbour Foreshore Authority (2009) 233 CLR 259
Turner v Minister of Public Instruction (1956) 95 CLR 245
Van Byron Pty Ltd v Chief Executive, Department of Main Roads (2011) 32 QLCR 325
Waters & Ors v Welsh Development Agency [2004] 2 All ER 915
Wills v Minerva Coal Pty Ltd (1998) 19 QLCR 297
Zimmerebner v Hawkins (1999) QLCR 71APPEARANCES: JS Brien of Counsel for the applicant
GR Allan of Counsel and J Hammond of Counsel for the respondentSOLICITORS: McCullough Robertson for the applicant
Sanderson Park for the respondent
Background
Carabella Resources Limited (the applicant) has applied for Mining Lease 80194 (MLA 80194) situated at Bluff. MLA 80194 has a total area of 1106.9 ha and is primarily located on two cattle grazing properties, being Kalari owned by Patricia June Goodwin (the respondent) and Colorado formerly owned by Colin Goodwin. Kalari and Colorado are separated by a road.
As compensation between the applicant and the respondent has not been agreed, the determination of compensation was referred by the Coal Assessment Hub, Department of Natural Resources and Mines, to the Land Court pursuant to s 279(5) of the Mineral Resources Act 1989 (the MRA).
Pursuant to Land Court Practice Direction No. 6 of 2015, the referral by the Coal Assessment Hub resulted in the miner being deemed the applicant in this matter, and the landholder being deemed the respondent.
Of the total area of MLA 80194 of 1106.9 ha, 588.3 ha are located on Kalari, 462.6 are located on Colorado, 13 ha on Central Highlands Regional Council controlled land, and 26.46 ha on Queensland Rail land. The Council matter has not been referred to the Land Court, while the Queensland Rail matter was referred and then settled.
The issues of compensation as between the applicant and Colin Goodwin relating to Colorado was referred to the Land Court pursuant to s 279(5) of the MRA. However, the applicant subsequently purchased Colorado resulting in that referral coming to an end. The sale of Colorado will be further discussed later in these reasons.
In addition to claims for compensation relating to Kalari, the respondent has also made a claim with respect to another property owner by the respondent, being a term lease of Lot 2 on HT 185 with an area of 0.8094 ha, granted for residential purposes, which is currently rented (the rental property). The rental property is leased by the respondent under the Land Act 1994. The lease commenced on 9 February 2000 and is due to expire, subject of course to rights of renewal, on 8 February 2020.
The rental property is bordered on three sides by Kalari and on the fourth side by railway land. The rental property is in close proximity to MLA 80194 but MLA 80194 is not over any part of the rental property and does not border the rental property.
The respondent’s claim
Although in the lead up to the hearing and during the hearing itself, various amounts were sought by the respondent, the final figure which the respondent is seeking for compensation was ultimately fixed in the sum of $3,076,259. The applicant contends that compensation should be determined in the sum of $877,576.
The final claim of the respondent of $3,076,259 is made up as follows:[1]
[1]Note that the figures are taken from a compilation of the figures set out in both the applicant’s and respondent’s submissions.
Item Relevant section of the MRA Description of claim Amount of compensation 1 281(3)(a)(i), (ii), (iii) 588.3 ha @ $1,000/ha (assessed as a total loss) $588,300 2 281(3)(a)(i), (iii), (vi) Loss of added value of rosewood timber 6000 rosewood fence posts/annum @ $8/post $321,000 3 281(3)(a)(i), (iii), (iv) Loss of added value non-mineral resources (calculated by Dugald Gray mining engineer paragraphs 4.8 to 4.10 report filed 28.08.14) $815,000 4 281(3)(a)(iii), (vi)
281(4)(a)Loss of improvements – racehorse training track (1370m) $12,000 5 281(3)(a)(ii), (iii), (iv) Allow 20% depreciation to remaining area of Kalari in perpetuity due to severance (reduction in area) and the existence of mining lease and coal mine on property (incl. blot on title) 1969 ha @ $200/ha $393,800 6 281(3)(a)(iii), (vi)
281(4)(d)Loss of value of 44 weaners/years @ $250/head due to reduced carrying capacity on 580ha: NPV of $11,000 pa for 15 years at 4% discount $122,302 7 281(3)(a)(iii), (vi)
281(4)(a)Loss of use of existing house, shed and stables:-
Quantum of loss equates to construction cost of replacement:
Dwelling
Shed
Stables$227,760
$21,500
$10,0008 & 9 281(3)(a)(iii), (vi)
281(4)(a)Cost of connecting power to new house site: 4.7km @ $40,000/km and cost of connecting telephone service at new home $121,000 10 281(3)(a)(iii),(vi)
281(4)(a)Cost to provide a water supply to the new house site, construct a house dam, solar pump system, 5000 tank for the house supply and fences forming part of fences and water $50,000 11 281(3)(a)(v)
281(4)(a)Provision of new access road to new house 5.8km @ $15,000/km $72,000 12 281(3)(a)(iii), (vi)
281(4)(d)Loss of income from adjoining rental house property: NPV of $13,379.12 pa for 15 years @ 4% discount $148,754 13 281(3)(a)(iii), (vi)
281(4)(d)Loss of value of cattle through forced sale of drought stock onto a depressed market: 90 stock forced dale @ $224/head – market price in normal seasons ($750/head – loss of $526/head $47,340 14 281(3)(a)(vi) Legal and valuation expenses incurred prior to 27 May 2014 when matter referred to Land Court $27,293 15 281(4)(e) Plus additional amount of 10% on compensation on loss of land ($588,300) and diminution in value of balance land ($393,800) equals total compensation $982,100 x 10% $98,210 Total: $3,076,259
A number of items were ultimately agreed between the applicant and the respondent. The agreed items are as follows:
Item Claim Agreed Sum 4 Race track $12,000 7 House, shed and stables $259,260 8 and 9 Power and phone $121,000 10 Water supply and fences forming part of fences and water $50,000 11 Access $72,000 14 Legal and valuation $27,293 Total $541,553
The position of the parties with respect to the eight outstanding items is as follows:
Item Claim Applicant’s position Respondent’s position 1 Area affected by ML $235,320 $588,300 2 Rosewood Nil $321,000 3 Non-mineral resource Nil $815,000 5 Depreciation/diminution to balance land $32,992 $393,800 6 Reduction in cattle on 580 ha – dust Nil $122,302 12 Rental income Nil $148,754 13 Loss of value of cattle forced sale Nil $47,340 Stamp duty $14,189 NIL Cost to transport livestock $1,875 NIL Settling costs $5,000 NIL 15 10% of value of land $46,647 $98,210 Respective Totals $336,023 $2,534,706
The Hearing
The hearing of this matter commenced in Rockhampton on 15 September 2014 and continued in Yeppoon on 16 September 2014. A view of MLA 80194, Kalari, the rental property, Bluff, and various sales properties was conducted on 17 September 2014. The hearing then continued on 18 and 19 September 2014 in Rockhampton. As the matter was more complex than the parties (and in particular the respondent) anticipated, the matter was then adjourned. The hearing subsequently continued in Brisbane from 19 to 22 January 2015. Written submissions were then provided, and the hearing of oral submissions took place on 12 March 2015.
After the close of submissions, but before the decision is this matter had been finalised, the Supreme Court handed down its decision in the matter of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors.[2] The key finding of the Supreme Court in the BHP Billiton case was that an objection hearing under the MRA was not a “proceeding” for the purposes of the Land Court Rules (LCR) which had the consequence that the Uniform Civil Procedures Rules 1999 (Qld) (UCPR) did not apply in the Land Court to such objections hearings. Although the current case is not an objection hearing, it is, like an objection hearing, a referral to the Land Court under the MRA.
[2][2015] QSC 107.
Particularly in the first week of the hearing, there were significant objections to evidence and rulings made on those objections. It was the understanding of all concerned at the time that the UCPR applied to the matter unless there was a specific rule under the LCR.
In light of the uncertainties relating to the evidence as a consequence of the decision in BHP Billiton, the parties were called back before the Court on 21 August 2015. The parties were then given until 25 August 2015 to provide the Court with joint written submissions, if possible, as to the impact of the BHP Billiton case on the evidence received by the Court at the hearing of this matter. Other matters of relevance to be considered by the parties included amendments to the Land Court Act 2000 (LCA) made as a consequence of the BHP Billiton decision, together with Land Court Practice Direction 1 of 2015.
The solicitors for the parties included the following in their joint written submissions of 25 August 2015:
“In accordance with the orders, the parties have reached a joint position as to the issues of admissibility raised by his Honour. Consequently, the parties jointly request that the Court makes its decision having regard to the totality of evidence adduced in the hearing and the submissions made by the parties.”
Accordingly, no party contends that the Land Court cannot have regard to the evidence at the hearing of the matter even though the Land Court arguably did not have power under the UCPR to make rulings on the admissibility of evidence. Importantly, however, the Land Court had at all relevant times, and still has, power under the LCA to make the rulings that it did. This position was confirmed in Henry v ERO Georgetown Gold Operations Pty Ltd[3] where I found at paras 12-16 that mining compensation matters are proceedings and not administrative enquiries for the purposes of the LCA.
[3][2016] QLC 17.
Throughout the hearing the applicant was represented by Ms JS Brien of Counsel, instructed by McCullough Robertson Lawyers. The respondent was represented for the first week of the hearing by Mr GR Allan of Counsel and Mr J Hammond of Counsel, instructed by Sanderson Park Solicitors. However, Mr Allan of Counsel withdrew from the case after the conclusion of the first week. The respondent was subsequently represented by Mr Hammond instructed by Sanderson Park Solicitors.
The applicant relies upon evidence adduced from:
(a) Mr William McLay – valuer (Ex 3 and Ex 4); and
(b) Mr Bruce Robertson – mining engineer, executive manager for technical services and planning – Carabella (Ex 2).
The respondent relies upon evidence adduced from:
(a) Mr Jack Cowie – valuer (Ex 8 and Ex 9);
(b) Mr Alistair Byrom – surveyor (Ex 6);
(c) Mr Dugald Gray – mining engineer (Ex 51 and Ex 52);
(d) Dr Graham Shorten – geologist (Ex 7); and
(e) Mr Selke – tenant (Ex 14).
Principles of compensation under the MRA
Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the mining registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this matter, no agreement has been lodged with the mining registrar and the matter has been referred to the Court for determination.
The issues which must be considered by the Court are set forth in s 281(3), (4) and (5) of the MRA which provides as follows:
281 Determination of compensation by Land Court
…
(3)Upon an application made under subsection (1), the Land Court shall settle the amount of compensation an owner of land is entitled to as compensation for—
(a) in the case of compensation referred to in section 279—
(i)deprivation of possession of the surface of land of the owner;
(ii)diminution of the value of the land of the owner or any improvements thereon;
(iii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iv)severance of any part of the land from other parts thereof or from other land of the owner;
(v)any surface rights of access;
(vi)all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease; and
(b) in the case of compensation referred to in section 280—
(i)diminution of the value of the land of the owner or any improvements thereon;
(ii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iii)all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease.
(4)In assessing the amount of compensation payable under subsection (3)—
(a) where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner’s resettlement and the relocation of the owner’s livestock or other chattels as at the date of the assessment shall be considered;
(b) no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned;
(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;
(d) loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgement of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant;
(e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).
(5)In any case the Land Court may determine the amounts and the terms, conditions and times when payments aggregating the total compensation payable shall be payable.
Although s 281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron,[4] the Land Court held:
“The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”
[4](1986) 11 QLCR 64 at p 74 and 75.
In Shaw v Heritage Holdings Pty Ltd,[5] the Land Court said:
‘The method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”
[5](1992-93) 14 QLCR 139 at p 146.
In considering Mitchell v Oakhill and Mitchell,[6] the then President of the Land Court, referring to s 281(3) of the MRA, found:
“the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”
[6](10 March 1998) unreported.
In determining compensation under s 281 of the MRA, I have adopted the same approach I took in Richardson v Barrett.[7] This means that the matters set out in the section are concepts to be taken into account in determining compensation, not a notion of separate heads of compensation requiring separate and discreet treatment to arrive at an accumulated figure.
[7][2001] QLRT 89 at paragraphs 9, 10 and 14.
The overriding principle is of equivalence, ensuring that, so far as money can do it, the landholders are placed in the same position as if the mining leases were not granted.[8] Of course, great care must also be taken to ensure that there is no “doubling up” of compensation.[9]
[8]Horn v Sunderland Corporation [1941] 2 KB 26 at 43 per Jacobs J.
[9]Gregcarbil Pty Ltd v Backus & Ors (No. 4) [2013] QLC 68.
Section 281 is concerned with ‘compensation’ to the affected landowner. The purpose of compensation is to provide the owner of the land with the full money equivalent of that of which the owner has been deprived.[10] Compensation is assessed as the full monetary equivalent of the value to the owner of the land.[11] This is to be achieved by valuing the land for its most advantageous purpose, namely its highest and best use.
[10]Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 571 per Dixon J, and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 233 CLR 259 at 271-272.
[11]Turner v Minister of Public Instruction (1956) 95 CLR 245 at 264.
For the purposes of s 281 of the MRA, the value of the land is to be ascertained in accordance with the Spencer test.[12] The Spencer test provides that in assessing the amount of compensation, what is required is an estimate of the price which would have been agreed upon in a voluntary bargain between a properly advised vendor and purchaser, each willing to trade but neither of whom was so anxious to do so that they would overlook any ordinary business considerations.[13]
[12]Wills v Minerva Coal Pty Ltd (1998) 19 QLCR 297 at 318.
[13]Spencer v Commonwealth (1907) 5 CLR 418
Returning to Smith v Cameron a mining lease was described in the following manner:[14]
“I see an affinity and similarity between the imposition of an encumbrance on the appellants’ land by means of the grant of a mining lease and that of the compulsory taking of an easement over land for public purposes.”
[14]Smith v Cameron at p 73.
Further, in Zimmerebner v Hawkins[15] the Court stated:
“The test to be applied in cases such as the present was set out by the Land Court in Smith v Cameron (1986) 11 QLCR 64.
… In that case the court likened the use of land for mining purposes to compulsory acquisition of land for a limited period, and applied the various principles and practices of valuation which are applied in determining compensation for the taking of limited right over land for public purposes.”
[15](1999) QLCR 71 at 19.
Once the Land Court makes a determination as to compensation or there is an agreement, the mining lease may be granted.[16] In addition to any special terms and conditions as the MRA provides a general set of conditions that each mining lease is subject to.[17] The general conditions include matters relating to obligations for restoration, access, payments of compensation and payment of royalties.
[16]Sections 279 and 234 MRA.
[17]Section 276 MRA and s 22 and Schedule 1 Mineral Resources Regulation 2013.
By s 235, the lessee is entitled to go on the mining lease for purposes connected with mining. The holder of the mining lease does not have a right of exclusive possession. The impact of the mining lease does not necessarily deprive the owner of the use of the whole of the lease area for the term of the lease.[18]
[18]Barrett v Weir and Gregcarbil Pty Ltd [2009] QLC 182 at [26].
Pursuant to s 235 of the MRA the grant of a mining lease entitles the holder to enter and be on the lease area for any purpose for which the mining lease is granted (relevantly in this case, coal mining) or for any purpose permitted or required under the lease or by the MRA and may do all such things as are permitted. Section 245(1)(k) of the MRA requires the identification of the mineral in respect of which the mining lease is sought. Mineral is defined in s 6 of the MRA. Section 6(3)(d)(i) of the MRA specifically excludes soil, sand, gravel and rock from the definition of mineral. A mining lease authorises the extraction of a mineral.
Compensation determined pursuant to s 281 is to compensate the owner of land in respect of the grant of the mining lease, that is mining for minerals and related purposes. Section 235 is expressed to be subject to s 236. Section 236 provides:
236Entitlement to use sand, gravel and rock
(1)Subject to compliance with any conditions specified in the mining lease and payment of the prescribed royalty to the person having the property in any sand, gravel or hold the holder of the mining lease may utilise, upon the area of the mining lease and for any purpose permitted under the mining lease, sand, gravel and rock occurring in or on the area of the mining lease except to the extent that an authority granted under any other Act prior to the grant of the mining lease or, with the consent of the holder of the mining lease, after the grant of the mining lease for the use or disposal applies thereto.
…
(3)For the purposes of chapter 11, sand, gravel and rock utilised by the holder of a mining lease pursuant to this section shall be deemed to be mineral mined by the holder.
Section 236(1) of the MRA allows the use of sand, gravel and rock occurring in or on the area of the mining lease for any purpose permitted under the mining lease subject to compliance with any conditions specified in the mining lease and payment of the prescribed royalty to the person having the property in any sand, gravel or rock. For the purposes of chapter 11 only of the MRA, sand, gravel and rock utilised by the holder of the mining lease pursuant to s 236 is deemed to be a mineral mined by the holder and the royalty provisions in the chapter apply.
The holder of a mining lease under the MRA must pay royalties as prescribed to the person with the property in the deemed mineral.[19] The MRA and the Mineral Resources Regulation 2013 (MRR) fix the royalty rates. The royalty rates for each tonne of material area, clay shale ($0.50), sand, gravel and rock, other than rock mined in block or slab form for building or monumental purposes ($0.50) and for a mineral for which a royalty rate is not otherwise stated in this schedule is 2.5% of the value of the mineral.[20]
[19]Section 320(1) and (3) MRA.
[20]Section 321 MRA and s 46 and Schedule 3, part 2 MRR.
Having considered the relevant provisions of the MRA and the MRR, I now turn to consider each item of compensation claimed which is disputed.
In considering the claims for compensation, I have taken into account all of the evidence presented by the parties at the hearing. Where necessary, under each item I refer to specific evidence that I have taken into account and/or salient points with respect to the evidence.
Item 1 – Area to be affected by MLA 80194
The first item to be considered is that part of Kalari on which MLA 80194 is located. As already indicated, this is an area of 588.3 ha out of the total area of Kalari of 2,558 ha.
As indicated, the Court has the assistance of two expert valuers; Mr McLay called by the applicant, and Mr Cowrie for the respondent. Mr McLay assesses compensation under this item in the sum of $235,320 based on a value of the land on Kalari within MLA 80194 of $400/ha.[21] Mr Cowie had valued all of the land at Kalara at $1,000/ha which results in his assessment for the loss of land on Kalari within MLA 80194 of $588,300.
[21]Ex 3 para 7.3.
The differences in the valuation for Item 1 arise as a result of each valuer having a different assessment of Kalari and also because of the different opinions as to comparable sales.
Both valuers have agreed that a piecemeal valuation approach is appropriate for the assessment of the overall compensation in this matter. Both also agree that the highest and best use of Kalara is its current grazing use, although Mr Cowie also notes the relevance of the impact of the MLA on the harvesting of rosewood posts and rails and the quarrying of white clay and gravel.[22] I will leave the rosewood and quarrying issues for consideration under Items 2 and 3 respectively. As regards to compensation under Item 1, both valuers have used a direct comparison method comparing sales of other properties.
[22]Ex 8 para 15.
The valuers also agree that the area of 588.3 ha should be viewed as a 100% loss.
I will now turn to examine the evidence of each valuer in some detail.
Mr McLay
Mr McLay has this to say about Kalari:[23]
[23]Extracts from Ex 3 pp 2 – 7.
“2.2 Easements, Encumbrances and Interests
A full list of encumbrances is retained on file.
A list of encumbrances which may have a negative impact on value are listed below:
·Rights and interests reserved to the Crown by Deed of Grant No. 30579102 (Lot 10 on CPHT547)
·Rights and interests reserved to the Crown by Deed of Grant No. 40056120 (Lot 3 on SP136854)
·Easement No. 602800209 burdening the land to The Capricornia Regional Electricity Board over Eastment B on HT384
·Sec 174 Notation No. 711587462 The provisions of Section 174(1), Land Act 1994 apply to a Transfer of the whole or part of the land. This requires ministerial consent for transfer of whole or part of the land.
·Mortgage No. 714364740 Kintail Farming Pty Limited
Administrative Advices
Dealing Type Lodgement Date Status
712781273 Vegetation Notice 08/10/2009 Current
…
4.1 Location Details
Locality The subject is located approx. 1 km from the Bluff township, south of the Capricorn Highway.
…
Surrounding Development Surrounding land uses comprise similar type grazing enterprises.
Bluff is a small rural/railway town of approximately 300 people, situated approximately 180 kilometres west of Rockhampton on the Capricorn Highway. Most employment is with Queensland Rail. The town has a post office, Primary school, hotel and shop. Housing construction dates back to 1900.
4.2 Country Description
Area 2,558 hectares. Topography, Soils and Native Timber The land comprises harder lancewood ironbark gravely ridges in the northern part of the property, merging into sandy box, gum, ironbark and yapunyah in the central areas, and brigalow/box on the estern boundary. Sandy bloodwood, budgeroo and wattle forest in the southern areas, funning into range escarpments. Land Classification For valuation purposes the property has been apportioned into various land use components. Areas are approximate. Country Classification Area (ha) % Brigalow and associated softwood 260 10%
scrub on clay soils. Buffel and
native grasses.Pulled and semi open box, ironbark, 743 29%
yapunyah, gum forest on sandy soils.
Native and buffel pasture.Bloodwood, ironbark, budgeroo and 330 13%
wattle forest on sandy soils in the south
eastern corner. Native pastures.Hard lancewood, ironbark, wattle 1000 39%
and gum tablelands, part pulled
and seeded.Range escarpment and foothills. 225 9%
Timbered.Total 2,558 100% Flooding None detrimental to the property. Road System and Access Access to the property is via the Capricorn Highway then earth and gravel roads to the homestead. Internal roads consist of periodically graded earth tracks providing fair dry weather access through the property. Services The following major services are connected: reticulated tank water, septic, telephone, electric power.
Rainfall The Bureau of Meteorology rainfall mapping indicates that the property is located within an area with an annual rainfall range of between about 600 mm and 700 mm with an average of 650 mm. Pasture Buffel grass and stylos supported by native pastures in the developed areas. A property plan is attached at Annexure 3.
4.3 Productivity
Operative Overview We have assessed the ongoing carrying capacity at 270 breeders taking progeny to weaner age. Steers are fattened in the brigalow country. …
4.5 Fencing Improvements
Description Condition Boundary ‘Colorado’ – 3 barb wires on timber posts Fair/Good
‘Charlevue’ – natural range boundary
Western boundary – new 4 barb wires and
Rosewood post fenceNorthern boundary – 4 barb wires on steel
postsInernal The property is internally subdivided into Fair/Good
3 paddocks and a horse paddock with 3 barb
wire on rosewood posts and 3 barb wires on
mixed steel post fences.4.6 Water Improvement
Description Natural Permanent No permanent natural water Non
PermanentSeasonal creek flows after local rain
Artificial Condition Dams Top Walton Creek – 3,000 cubic metres Good/Fair
Fisher’s Paddock Dam – 5,500 cubic metres
fenced, walk-in water. This dam is equipped
with a windmill, turkeys nest and trough.Share Dam – 7,000 cubic metres fenced and
equipped with windmill, tank and 2 troughsNorth Dam – 2,500 cubic metres fenced
”
It should be noted that in Exhibit 4 Mr McLay sets out, although in different order, essentially the same description and opinions with respect to Kalari. One important addition though relates to his views on productivity where he has added the following in Exhibit 4 regarding 270 breeders: “This converts to about 350 adult equivalents (AE) at a rate of 1 AE:7.30 ha.”
Mr McLay relies on five sales in support of his valuation of Kalari. He has summarised those sales as follows:[24]
“6.1 Sales Commentary and Conclusions
We have summarised the sales utilised in the valuation in the following table.
[24]Ex 3 p 11.
Property Sale Price Land Area
(ha)
$/HA Ex-
Structures$/BR Ex-
StructuresComparison to Subject 1. ‘Lagoon
Paddock’$710,000 2,022 $351 $2,968 Smaller area – Comparable quality 2. ‘Karamea’ $600,000 908 $661 $3,319 Smaller area – Superior quality 3. ‘Yard
Paddock’$915,000 1,531 $489 $3,644 Smaller area – Superior quality. 4. ‘Timberoo’ $2,100,000 4,403 $441 $3,319 Larger – Superior quality 5. ‘Myimbarr’ $705,000 397 $1,360 $5,400 Smaller area – Superior quality ”
Mr Cowie
For his part, Mr Cowie says the following about Kalari:[25]
[25]Ex 8 pp 6 – 8.
“10.Kalari is adjacent to and immediately south from the Town of Bluff. The property adjoins the Capricorn Highway in the north-eastern corner with the Central Western rail line along the northern boundary of the property. The property is situated about 175km westerly from the City of Rockhampton
Access
11.The property has frontage to the Capricorn Highway which is bitumen surfaced.
Services
12.Rural power and telephone services are connected to the property.
Zoning
13.The land is zoned ‘rural’ under the Central Highlands Regional Council town planning scheme.
Land Use
14.Kalari is used for grazing beef cattle. Historically, gravel and white clay have been extracted
and soldfrom the reserves on the property. Rosewood timber fence posts have also historically been harvested from land within the mining lease area.Highest and Best Use
15.The highest and best use of Kalari assuming that the mining lease had not been applied for is the existing use. After the grant of the proposed mining lease the harvesting of rosewood posts and rails will be lost to the mining operation as will the quarrying of white clay and gravel and the grazing operation will be adversely affected because the carrying capacity will be reduced significantly by the mining operations.
Water Facilities
16.Natural: Water lasts in gullies for short periods after rain. There is a small spring in the south-eastern part of the property which lasts throughout the year. Suitable underground water for stock is not available on the property.
17.Artificial: Artificially watered by four (4) dams plus a shared dam on the western boundary.
Description of Country
18.The property comprises a mix of country from developed scrub to open undulating forest, areas of poor forest of lancewood-rosewood gravelly ridges with the southern boundary running into a steep escarpment range with vertical cliffs along the southern boundary.
19.There is an area of about 300 hectares of developed scrub in the south-western corner, with a brigalow regrowth on the area recently re-pulled. The area is well grassed with buffel.
20.The northern part of the property comprises a mix of forest of Box and Narrow-leaf Ironbark country interspersed with lancewood and Rosewood ridges with areas of lighter country timbered with Cyprus pine and Bull oak.
21.The southern part of the property south from the high tension power line comprises mainly open frost country of narrow-leaf ironbark, Moreton Bay Ash with some box and wattle in areas.
Description of Country within Mining Lease Area
22.The country covered by the mining lease some 588.3 hectares contains a mix of country. This area originally comprised open forest of Box, Sandalwood and Bloodwood on gently undulating duplex soils extending along the eastern and southern areas of the proposed mining lease area.
23.The country rises from this forest area to low ridges of broken country comprising a mix of Box and of Bull Oak, Bloodwood, Wattle, Lancewood, Turkey bush and Rosewood interspersed with areas of Bloodwood forest.
24.The soils in this area comprise a mix of red, red gravelly to stony areas on jump ups. About 100 hectares (15%) of forest has been developed along the eastern and southern areas. The higher country provides a good mix of country within the subject property and provides shelter and protection for stock during the winter period and rain events.
25.For these reasons, the loss of this area by the proposed mining lease will have a detrimental effect on the overall management of the balance area of the property.
26.photographs of the country types on Kalari are included in Appendices as summarised in the following table:
Appendix
NumberDescription 13 Forest country on southern part of Kalari near powerline easement 14 Area within ML 80194 improved forest country including dam in foreground 15 Rosewood country within the mining lease area
Pasture
27.About 100ha of forest country mainly along the eastern boundary adjacent to the homestead and extending towards the centre of the northern part has been pulled and developed.
28.The property has a good mix of pasture with buffel, seca stylo, uraclower, couch, black and white spear, browntop and wire grasses.
Soils
29.The soils comprise a mix of lighter duplex soils, black soil, and gravelly red soils with some areas subject to severe erosion after the surface has been disturbed, mainly on the lighter duplex soils.
Carrying Capacity
30.1 beast to 6.5 ha (398 head).
Fencing
31.The property is fenced into three (3) main paddocks.
32.The fencing comprises a mix of 2 Plan 1Barb on 6 metre spacing wood posts to 4 barb on 8 metre spacing wood posts and 2 Barb 1Plain on 8 metre spacing wood posts.”
Leaving to one side the sale of Colorado, Mr Cowie relies on seven sales. Unfortunately, he has not provided a short form table summary of his sales. Mr Hammond of Counsel for the respondent has summarised the sales into tabular form, albeit without noting the sale price and the comparisons to the subject. Set out below is an adaption of Mr Hammond’s table of Mr Cowie’s sales to which I have added a summary of Mr Cowie’s comparison notes and sale prices:
“
Sale Number Sale Price Name of Property Date of Sale Area (ha) $/ha TFW Comparison
to Subject
1 $730,000 402 Charlevue Rd 01.04.14 397.1 1471.00 Inferior 2 $2,000,000 521 Granleigh – Pheasant Creek Road 20.05.13 1092.95 1354.00 Superior 3 $830,000 Lenz Access Road 06.11.13 781.45 1037.00 Inferior 4 $1,800,000 Capricorn Hwy June 2013 1434 1255.00 Similar 5 $915,000 Yard Paddock 11.05.12 1990.195 584.00 Inferior 6 $710,000 Lagoon Paddock 06.03.12 2022 351.00 Inferiorr 7 $5,200,000 Mt. Flora Road 21.03.12 3750 1386.00 Superior ”
There are three common sales between Mr McLay and Mr Cowie. These are McLay’s sales 1, 3 and 5, which are Mr Cowie’s sales 6, 5 and 1 respectively. I discuss the commonality of Mr McLay’s sale 5 and Mr Cowie’s sale 1 later in these reasons.
Ms Brien for the applicant submits that Mr McLay’s sales are more closely located to the subject than Mr Cowie’s sales. This is true at least with respect to Mr Cowie’s sales 2 and 3, as is evidence from an analysis of Exhibit 46 which is as follows:
It must be pointed out that there is an error in Exhibit 46. Mr McLay’s sale 1 (Lagoon Paddock) is linked with Mr Cowie’s sale 5, where it should be linked with Mr Cowie’s sale 6. Likewise, Mr McLay’s sale 3 (Yard Paddock) is linked with Mr Cowie’s sale 6 where it should be linked with Mr Cowie’s sale 5. As Yard Paddock and Lagoon Paddock are common sales in extremely close proximity to each other, the discrepancy in Exhibit 46 is not of concern.
It is now necessary to consider each of the sale properties.
Mr McLay Sale 1 / Mr Cowie Sale 6 – Lagoon Paddock
Lagoon Paddock has an area of 2,022 ha and sold on 6 March 2012 for $710,000 which has been analysed by both valuers to $351/ha.[26]
[26]Ex 3 p 9, Ex 9 p 7.
Mr McLay describes Lagoon Paddock as being made up of mixed ironbark and bloodwood forest country broken by inferior harder rosewood, lancewood and wattle ridges. The land comprises mostly standing timber with a small area having been pulled and raked, and now carrying mostly native pastures. He notes that Lagoon Paddock is fenced into two main paddocks plus a forestry lease paddock, and is watered from four stock dams and some natural lagoons. Mr McLay notes that Lagoon Paddock has no structural improvements and no power and is of a smaller size to Kalari. Overall, Mr McLay considers Lagoon Paddock to be comparable in quality to Kalari.
For his part, Mr Cowie notes that Lagoon Paddock is made up of mainly hard tableland country with areas of better forest along the northern and eastern boundaries with a narrow area extending from the centre of the southern boundary into the centre of the property. He notes that about 1,020 ha of the buffer forest had been pulled but carried heavy regrowth which has been re-pulled since the date of sale. He states that the balance area is hard tableland country. Mr Cowie also notes that a large steel tower powerline extends through the property. In Mr Cowie’s opinion, the property was poorly watered and had no yard facilities and no services. In his view, Lagoon Paddock has a carrying capacity of 1 beast to 13.6 ha which equates to 148 head.
In Mr Cowie’s view, Kalari is superior to Lagoon Paddock because Kalari has better country, better access and situation, and better services.
Mr McLay Sale 2 - Karamea
Karamea sold on 29 September 2011 for $600,000. It has a land area of 908 ha which results in an analysed value of $661/ha.[27]
[27]Ex 3 p 8.
Mr McLay describes Karamea as having a fair quality of mixed softer ironbark and bloodwood forest country of which about 2/3rds has been pulled and raked with the balance being open standing timber. Mr McLay notes that Karamea is now mostly native pastures with seca and some buffel scattered throughout.
Mr McLay advises that Karamea is fenced into one main paddock and is watered by two large open walk-in stock dams. The property has no structural improvements and no power.
Mr McLay notes that Karamea is smaller in size to Kalari but in his opinion is of superior quality.
Mr Cowie has not relied upon this sale because, in his opinion, it is a dated sale.[28]
[28]Ex 9 p 2.
Mr McLay Sale 3 / Mr Cowie Sale 5 – Yard Paddock
Yard Paddock sold on 11 May 2012 for $915,000. It has a total area of 1,980 ha. Excluding structures, Mr McLay has analysed the sale price of Yard Paddock at $412/ha.[29] For his part, Mr Cowie has analysed the sale price of Yard Paddock at $584/ha.[30]
[29]Ex 3 p 10.
[30]Ex 9 p 7.
Mr McLay describes Yard Paddock as being made up of mixed ironbark and bloodwood forest country broken by inferior harder rosewood, lancewood and wattle ridges. He notes that it is mostly standing timber with a small area having been pulled and raked and that it now carries mostly native pastures with seca and some buffel scattered throughout.
Mr McLay also notes that Yard Paddock includes a parcel of forestry lease country on the southern boundary which consists of mostly harder spotted gum and ironbark forest country. He says that Yard Paddock is watered from four open walk-in stock dams plus some natural lagoons.
Mr McLay notes that at the time of sale Yard Paddock had a very good set of new steel cattle rail yards which he says cost $150,000 new.
In Mr McLay’s view, Yard Paddock is slightly superior to Kalari due to its better productive capacity through its development, although he notes that it is smaller in size than Kalari.[31]
[31]Ex T 2–45 l 37–l 44.
In Mr Cowie’s opinion, Yard Paddock suffers because it is severed by Springton Creek and its many tributaries. Mr Cowie notes that Yard Paddock is made up of all forest country with a hard tableland ridge extending from the northern boundary through the centre of the property to the southern boundary, with a similar hard ridge along the western boundary. He says that the balance of the land is comprised of close forest of narrow leaf ironbark, bloodwood, wattle and spotted gum.
In Mr Cowie’s view, approximately 680 ha of the forest had been pulled in several areas but that it carried heavy regrowth at the time of the sale.
As regards the special lease component of Yard Paddock, he notes that this timber reserve lease expires on 31 December 2020. Mr Cowie has attributed a value of $18,000 to the 445.155 ha of the timber reserve which equates to a value of $45/ha.[32] Mr Cowie notes that the only structures on Yard Paddock are steel stockyards and in his opinion Yard Paddock is serviced by poor water.
[32]Ex 9 and Ex 19 and T 5-20 l 28-l 30.
In Mr Cowie’s view, Kalari is superior to Yard Paddock because Kalari is made up of better country, better access and situation, and better services.
Mr McLay Sale 4 - Timberoo
Timberoo sold on 1 November 2012 for $2,100,000. It has a total area of 4,400 ha and is an improved property with a homestead, machinery shed, yards shed and cattle yards. Mr McLay has analysed the sale price of Timberoo excluding the structures in the amount of $441/ha.
Mr McLay describes Timberoo as made up of pulled brigalow scrub country with bean tree and forest influences of 1,690 ha, cleared open broadleaf ironbark country of 203 ha, and densely timbered tableland forest of rosewood, lancewood, and narrow-leaf ironbark of 2,510 ha.
Mr McLay notes that Timberoo is divided into seven main paddocks plus some smaller holding paddocks with mostly three and four barbed wires on timber posts, mostly in sound condition but poorly maintained in the years prior to the sale. He noted that there is also a central laneway covering approximately 4 kms with a small section remaining unfinished. In addition, the property is watered from nine permanent dams, plus one unequipped spring fed well, as well as numerous semi-permanent waterholes and smaller dams. Mr McLay notes that Timberoo is much larger than Kalari and in his opinion Timberoo is superior in quality to Kalari due to the larger areas of developed brigalow scrub on Timberoo.
Mr Cowie has not relied upon the sale of Timberoo. He articulated his reasons for not relying on this sale in his supplementary report as follows:[33]
“I have not relied on the sale of Timberoo because my investigations reveal that the property had to be sold as the result of a divorce where the parents and children both owned different parts of the property, but the property was worked as a single grazing enterprise. On the information available to me, as part of the matrimonial settlement the whole property had to be sold. For these reasons, I do not consider that the sale provides reliable evidence of value as it does not meet the “willing but not overanxious” vendor criteria set out in the Spencer case.”
[33]Ex 9 p 2 para 4.
Mr Cowie’s views regarding the sale of Timberoo not meeting, in his view, the Spencer test were subject to detailed cross-examination by Ms Brien as follows:[34]
[34]T 4-73 l 7-74 l 18.
“There were two vendors involved in the same of Timberoo, a Mr – there was a Coates Proprietary Limited, and there’s a Saunders or – two separate parties involved. And on further investigating with the adjoining owner of the property, Mr Peter McKenzie, who was also the vendor and my sale number 7. He informed me that there had been considerable problems within that partnership, and that one of the – two of the parties involved were separated and been divorced, and the property had to be sold. And that was after I investigated as much as I could from the other local inhabitants of the Dingo area, I decided, that under – that that particular sale did not meet the Spencer case protocol.
And so you did not speak with the vendor yourself?‑‑‑No. I was unable to contact them.
And when you said it was two separate parties ‑ ‑ ‑?‑‑‑Yes.‑ ‑ ‑ but from your investigations, were they related parties? When I used that phrase, I’m making reference to, for example, an individual person and a company that the – has a relationship with that person?‑‑‑Two individual parties – I’ll give you the full detail relating to it very shortly when I – the – one party, the owner or registered proprietor on lot 4 and lot 5 on LR 10. Russell John and Selina Rose Curren were the parties – vendors on two of those portions. The other portion, lot 6 on LR 10, was owned by Peter Coates and Associates Australia Proprietary Limited. I understand that Selina Curren was the daughter of Peter Coates, and the property had been purchased in two separate parcels. And Russell and Selina were to live on the property and to work it. And, according to the next door neighbour, he didn’t do much work. He couldn’t even keep the boundary fence in order. And ‑ ‑ ‑
Perhaps we’d better not speculate about his farming abilities?‑‑‑Anyway, those – that particular couple, Russell and Selina, they separated and divorced. And so the property was then in the – in the joint ownership between parties that were no longer – were together.
And, did you investigate how long that property was on the market before it was sold?‑‑‑Well, to my ‑ ‑ ‑
Sorry?‑‑‑ ‑ ‑ ‑to my local knowledge of that area, the – Mr Peter McKenzie, the next door neighbour, actually told Doug Olive that it was available for sale. How long it had been on the market for, I don’t know, and how long it had been advertised, or whether it had been advertised, I have no knowledge of. But, Doug Olive was unaware that that property was for sale, and he lives in the area, so I don’t know how well it was advertised to try and sell.
But, the length of time it’s on the market would be relevant to whether or not there was any urgency to the sale; do you agree with that?‑‑‑I believe it had got to the stage where the property had to be sold.So, is that a yes to my ‑ ‑ ‑?‑‑‑It depends on – it depends on what it was on the market for as to how long it’s going to be there, whether it conforms to being a realistic level of values.
So, my question was that the length of time is relevant when you are looking at whether or not it was a sale with a degree or urgency?‑‑‑it was, certainly, because they got the price immediately, half a million dollars. As soon as there was contact – Mr Olive made contact with them, they reduced the price immediately from 2.7 to 2.1 million dollars.
And, how do you know that information?‑‑‑From Mr Doug Olive who was the purchaser in the property.
So, Mr Olive told you ‑ ‑ ‑?‑‑‑Mr Olive me that himself.”
Mr McLay on the other hand was strongly of the view that the sale of Timberoo had been well tested in the market.[35] He also made the following comments in examination-in-chief:[36]
“Now, could I ask you, particularly with reference to the sentence starting ‘I have not relied on the sale’, do you agree with that statement?---I don’t agree with the inference that is made that the sale was sold under duress due to the divorce circumstances. I’ve spoken with the agent, and the property was in the market for well over 12 months. I asked the agent directly was there anything in your instruction to expedite the sale process, and he said not at all.”
[35]T 2-46 l 38.
[36]T 2-50 l 38-43.
Mr McLay Sale 5 / Mr Cowie Sale 1 - Myimbarr
Regrettably, there is some confusion in the evidence and the submissions with respect to the sale of Myimbarr. Ms Brien of Counsel for the applicant, in her submissions[37] treats the Myimbarr sale as a common sale between Mr McLay and Mr Cowie. However, Mr Hammond of Counsel for the respondent in his submissions deals with Mr McLay’s sale 5 and Mr Cowie’s sale 1 as two separate sales of two distinct properties. An examination of the evidence shows the reason for this confusion. Mr Cowie in his supplementary report[38] does not refer to the sale property in any place by the name Myimbarr, identifying the property simply by its address of 402 Charlevue Road, Bluff. Mr Cowie notes the date of his sale 1 as 1 April 2013, whereas Mr McLay refers to the sale of Myimbarr as taking place on 17 May 2013.[39] As described by the respective valuers, there is certainly scope for argument that two separate sales of two different properties are being referred to by the valuers, consistent with the manner in which Mr Hammond has done his submissions. However, a close examination of the evidence reveals that Mr McLay’s sale 5 and Mr Cowie’s sale 1 are indeed one and the same, being a sale of the property Myimbarr.
[37]Applicant’s submissions para 124 - 127.
[38]Ex 9 p 5.
[39]Ex 3 p 11.
There is clear evidence to support my conclusion that the references by the valuers both relate to the sale of Myimbarr. Firstly, exhibit 46, which is set out earlier in these reasons, clearly shows “Sale figure 5 WM Sale figure 1 JC” as relating to the one property location. However, exhibit 46 can hardly be taken as being conclusive because, as I have already pointed out, there are errors in exhibit 46 relating to the other two common sales. To add to the confusion that maps tendered in evidence in this matter create, exhibit 5 page 20 sets out the location of what were then the respective sales of Mr Cowie and Mr McLay. Although from my review of the evidence it would appear that at the time of the preparation of the map in exhibit 5 that Mr Cowie had four sales and Mr McLay had five sales, Mr McLay’s fifth sale, Myimbarr, is not included on the map, although Mr Cowie’s first sale, described as 402 Charlevue Road, is shown.
Mr McLay’s sale 5 refers to Myimbarr as having the address of 402 Charlevue Road, Bluff, which is an identical address to Mr Cowie’s sale 1. Further, both reports also contain an identical real property description of Lot 2, RP 616780, Parish of Walton. Both valuers also have an identical sale price of $730,000, and a land area of 397.1 ha. Clearly, there has been a mistake made by one valuer or the other as to the appropriate date of sale, but as the respective dates are only approximately one month apart, this difference is not relevant to an assessment of the comparability of the sale.
In his exhibit 3 report, Mr McLay applies a dollar value per hectare ex structures for Myimbarr of $1,360/ha. However, Mr McLay made it clear during his evidence that he relies primarily on his sales 1 to 4, and has referred to sale 5 not for its rate per ha but for its value as a site. Relevantly, he had this to say:[40]
“… But the application for me of this sale is not so much on a per hectare basis. It identifies the market in this area for sites, so what would people pay for a site? They can buy a house in Bluff for, you know, three or three hundred and fifty thousand dollars. They can go and buy 1000 acres for $705,000 with a house. So that’s the kind of relativity I’ve applied this sale. And for me, standing back, looking at the subject, it endorses for me that the market says rural lifestyle values, if you like, you know, exist for 1000 hectare, not – reasonable house around the $700,000 mark. For me it underpins – this sale underpins the subject as a site. You know, 1.09 million. Would people pay that sort of money based on this sale for a property that’s larger but arguably has an inferior development standard? So for me this sale is based as a site, not so much as a per hectare rate.”
[40]T 2-47 l 11-21.
Mr McLay describes Myimbarr as being comprised as 2/3rd sandy loam ridge, ironbark 1/3rd developed scrub and pulled mixture forest and scrub of 750 acres. He also notes the presence of standing lancewood and rosewood. He describes the property as being broken up into four main paddocks and two holding paddocks with the fencing in fair condition. He notes that Myimbarr has two good dams and one semi-permanent dam, one of which supplies water to two 5,000 gallon tanks at the Myimbarr residence, which he describes as having two bedrooms, two sleep-outs, one bath and in structurally fine but dated condition. Mr McLay considers that Myimbarr is smaller but better in quality than Kalari.
Mr Cowie values Myimbarr excluding the structures at $1,471/ha. He describes Myimbarr as being made up of mainly undulating forest country of box, bloodwood, wattle, whitewood, narrow-leaf and quinine on light loam duplex soils with a small area of rosewood ridge in the south-western corner and a small area of lancewood tableland in the north-eastern corner. He puts the carrying capacity at 1 beast per 10 ha and notes that there is extensive regrowth particularly in the southern part. Mr Cowie considers the internal fencing, the dwelling, the shed and the stockyard as being in poor condition. He considers that three dams are unequipped. He gives an added value of the structural improvements of $131,000. He has also made allowance for a broken down HD 11 dozer included in the sale which he values at $15,000.
In Mr Cowie’s views, Myimbarr overall contains inferior property to that of Kalari.
Mr Cowie sale 2
Mr Cowie describes sale 2 as 521 Granleigh-Pheasant Creek Road, Wowan. The property has an area of 1,092.95 ha which Mr Cowie has assessed ex structural improvements at $1,354/ha.
Mr Cowie notes that the property relies on artificial water supplies with seven equipped bores. The country is about 50% developed brigalow softwood scrub in good condition on undulating brown red soils, while the balance area comprises about 31% of undeveloped green forest country of narrow-leaf ironbark and bloodwood on undulating gravelly ridges rising to steep mountainous country of about 19% extending to the crest of the Gogango Range. In Mr Cowie’s view, his sale 2 has a carrying capacity of 1 beast to 3.9 ha which equates to about 280 head.
In Mr Cowie’s view, his sale 2 is superior to Kalari because of the developed scrub on the sale property.
Mr McLay notes that Mr Cowie’s sale 2 is well under half of the size of Kalari. Mr McLay further notes that Mr Cowie has adopted a land value rate for Kalari of 35% below that of sale 2, and a beast area rate over 20% higher.[41] In Mr McLay’s view, the carrying capacity assessments made by Mr Cowie are not within accepted district standards.
[41]Ex 4 para 38.
Mr Cowie sale 3
Mr Cowie’s sale 3 is located at Lenz Access Road, Duaringa. It has an area of 781.45 ha and sold on 6 November 2013 for $830,000.
Mr Cowie describes his sale 3 as having gravel and bush track access which is severed during wet weather. The property is serviced by five unequipped dams. The country comprises steeply undulating to steep range country comprising about 25% old developed scrub in several areas with extensive regrowth with the balance area of 75% comprising undeveloped forest country on steep stony gravelly soils of narrow-leaf, rosewood, wattle, bloodwood, bean bush and lancewood. In Mr Cowie’s view, his sale 3 has a carrying capacity of 1 beast to 9.1 ha.
Mr Cowie notes that the sale property is infested with harissia cactus throughout, and that no electricity is connected to the property. Mr Cowie also notes that the sale property has two rough bush sheds and a 4,000 litre poly tank. He assesses the added value of the structural improvements at $20,000. In his view, the property runs about 85 head of cattle.
Mr Cowie arrives at a per hectare value for the property ex structural improvements of $1,037/ha. In Mr Cowie’s opinion, his sale 3 is inferior to Kalari because of the country type and also due to the heavy infestation of cactus.
Mr McLay considers the beast area value for sale 3 to be far beyond current values for rural land of this nature. He also does not believe that Mr Cowie’s estimates of carrying capacity are within accepted district standards. Mr McLay also notes that Mr Cowie’s sale 3 is far removed from the location of Kalari, being located about 95 km to the east.
Mr Cowie sale 4
Mr Cowie’s sale 4 is located on the Capricorn Highway at Goowarra near the town of Dingo. It has an area of 1,434 ha and sold in June 2013 for $1,800,000. At the time of preparation of Mr Cowie’s exhibit 9, this sale had not settled.
Mr Cowie notes that his sale 4 contains near level to gently sloping forest country of box, narrow-leaf ironbark, wattle, quinine, paperbark ti tree, sandalwood, whitewood, with some areas of bulloak and lancewood. Although about 20% of the forest has been pulled it carried at the sale period heavy wattle and paperbark ti tree regrowth. Mr Cowie’s sale 4 has no structural improvements.
Mr Cowie considers his sale 4 to be of a similar type of country to Kalari. He assesses the value of sale 4 on a per ha basis at $1,255/ha.
Mr McLay is of the view that Mr Cowie’s sale 4 was not purchased in accordance with its highest and best use as a grazing property, but rather for workers accommodation and a high impact industry-major hazard facility of chemical manufacturing.
Mr Cowie acknowledges that sale 4 was being purchased by the explosives company Orica but in his view Orica were buying the property in the market and negotiations went on for quite some time and, in his view, the purpose of Orica’s purchase was not relevant.[42]
[42]T 5-19 l 16-20.
Mr Cowie sale 7
Mr Cowie’s sale 7 is located at Mount Flora Road, Dingo. It has an area of 3,750 ha and sold on 23 March 2012 for $5,200,000. Mr Cowie describes his sale 7 as made up of old developed brigalow, yellow wood and wilga with near level to undulating heavy black to brown clay soils. The property has heavy regrowth to about 50% of the property and melon holes extend over about half of the property.
Mr Cowie’s sale 7 had four equipped dams and a partly equipped bore. In Mr Cowie’s opinion three of the dams were unreliable and he noted that since the date of sale three new dams had been installed by the purchaser. The property has no yards, power or telephone and no structural improvements.
In Mr Cowie’s view, his sale 7 has a carrying capacity of 1 beast to 4 ha which he equates to 940 head. Mr Cowie has arrived at a value for sale 7 of $1,386/ha. In Mr Cowie’s opinion, his sale 7 is superior to Kalari because the sale comprises all developed scrub although carrying heavy regrowth over about half the property. He concedes however that Kalari is better situated and has power and telephone connection and is adjacent to a town.
Mr Cowie’s sale 7 is another of Mr Cowie’s sales that Mr McLay criticises as being too far distant location wise from Kalari, as the sale is located about 40 kms south of Dingo.
Sale of Colorado
Mr Cowie in his oral evidence-in-chief referred to an additional sale that was not in either of his reports. That was the purchase of Colorado by the applicant. It should be remembered that Colorado borders Kalari and on which MLA 80194 is also located. Colorado was owned by the respondent’s brother, and compensation with respect to MLA 81094 over Colorado was originally to be heard in conjunction with this hearing.
Mr Cowie’s evidence is that he was not aware of the contract for sale of Colorado at the time of making his reports. This is surprising. Be that as it may, the evidence shows that on 21 July 2014 the applicant and Mr Goodwin entered into a binding Heads of Agreement[43] for the sale of Colorado. The Heads of Agreement was not conditioned by uncertainties such as finance clauses, satisfactory inspection reports, or the like. The transaction completed in accordance with the Heads of Agreement in December 2014.
[43]Ex 6.
The sale price of Colorado was $1,850,000. This of course is the unanalysed price. The terms of the Heads of Agreement are of vital importance when analysing the sale price. Those terms are as follows:[44]
[44]Ex 16 para 4-9.
“Right of Use of the Land
4. Carabella will:
(a)Grant to Colin William Goodwin and Deborah May Goodwin (‘CW & DM Goodwin’) the right to use the Land for grazing purposes for a period of two (2) years from the date of completion of the sale of the Land by Goodwin to Carabella. The payment of local authority rates will be the responsibility of CW & DM Goodwin.
(b)It is acknowledged by CW & DM Goodwin that Carabella has the right to undertake activities on the Land pursuant to the terms of mining lease 80194 on the area of mining lease 80194 provided that Goodwin is given seven (7) days notice.
(c)Ensure that CW & DM Goodwin have access to the house, the homestead and the shed during the period of two (2) years from the date of completion and ensure that CW & DM Goodwin has access along the existing access road or an alternate access road constructed by Carabella;
(d)Ensure that CW & DM Goodwin has power and telephone to the house during the period two (2) years from date of completion;
(e)Provided that it is not inconsistent with the safe and efficient conducting of mine development and mining activities on the surface of mining lease 80194, allow CW & DM Goodwin to have access to existing water on the area of mining lease 80194, within the boundaries of the Land.
5. CW & DM Goodwin will:
(a) Maintain the homestead and shed prior to removal from the Land;
(b) Maintain the house during the period that it is occupied by CW & DM Goodwin;
(c) Insure the house whilst it is occupied by CW & DM Goodwin and insure the homestead and the shed prior to removal from the Land (including public risk insurance);
(d) Indemnity Carabella against any actions, suits, claims or demands made by any person against Carabella in relation to the house, homestead and shed.
Right to Remove Homestead & Shed
6. Goodwin will be entitled to remove the original homestead and shed erected on the Land (‘the homestead and shed’) and to access the property for the purpose of removing the homestead and shed. The homestead and shed are to be removed at the cost of Goodwin within a period of five (5) years from the date of completion of the contract for sale.
7. For avoidance of doubt, Carablla has no obligation to maintain the homestead and shed.
8. For the purpose of enabling the maintenance of the homestead and shed, Carabella will allow Goodwin access to the homestead and shed during the period of three (3) years from the date of expiration of the two year right of access and right of use of the Land as set out in clause 4(b) along the existing access road or an alternate access road constructed by Carabella.
Right to Receive Payments under the CCA
9. Carabella will:
(a)Allow Goodwin to retain the Annual Payment payable pursuant to the Conduct and Compensation Agreement entered into between Goodwin and OME Resources Australia Pty Ltd dated 24th October, 2013 (‘the CCA’) for a period of seven (7) years following the date of completion of the contract of sale.
(b)Allow Goodwin to take such legal action as may be necessary to enforce the payment provisions of the CCA on the condition that any costs of such enforcement will be met by Goodwin and there is no obligation on Carabella to take any action to enforce the payment provisions of the CCA. For the purpose of clarity, Goodwin has no right to bind Carabella in relation to any provision in the CCA.”
During examination-in-chief, Mr Cowie arrived at an analysed sale price of $2,177,000 which he then took to be the amount of $1,127/ha based on the 1,931[45] ha size of Colorado.[46] During cross-examination, Mr Cowie conceded that his per ha sum should be reduced by the amount of $90/ha to take into account the added value to the purchaser of rights under the CCA referred to in the Heads of Agreement.[47]
[45]Rounded.
[46]T 4-8 l 38 – 4-14 l 8.
[47]T 6-20 l 1-6.
Ms Brien of Counsel has provided a good summary of Mr Cowie’s calculation in her submissions:[48]
“Mr Cowie undertook an exercise of valuing some of the conditions in the following manner: agistment for 2 years based on 280 cattle carried at the present time (as advised by Mr Goodwin) at a rate of $3/head/week, less rates of $1,012/half year (as advised by Mr Goodwin), net $85,336 (correct calculation ($83,312); rental of the homestead and shed for 2 years @ $380/week for the homestead and shed, less insurance of $1,169 p.a., net $37,186; OME Resources gas lease payment for 7 years, present value with an adopted interest rate of 4% net $204,000. Mr Cowie initially then added those three items to the sale of $1,850,000 to give a figure of $2,177,000 which when divided by the 1931 ha is $1,127.
… Mr Cowie had not in his calculation made an adjustment for the value to the Applicant of the remainder of the gas lease. He calculated that the figure of $1,127/ha should be reduced by $90.”
[48]Applicant’s submissions para 144-145.
To continue the intrigue with respect to the sale of Colorado, Mr Cowie had earlier prepared, on 25 February 2014, a valuation report for Colorado[49] which had the stated purpose “to assess the value of the property for acquisition by the Carbella (stet) Resources Limited”.[50] He calculated a value for Colorado of $3,245,000, which he arrived at as follows:[51]
[49]Ex 40.
[50]Ex 40 p 1 (following title page).
[51]Ex 40 p 11.
“V A L U A T I O N
Land Value as presently developed, as fenced and watered with yard facilities:
Lot 11: 868.885ha @ $1300/ha: $1,129,550.
Plus added value of Structural Improvements: $250,500.Lot 12: 1061.693ha @ $800/ha: $849,354.
TOTAL VALUE OF REAL PROPERTY: $2,229,404.
Plus 30% premium/acquisition for mining: $668,821.
TOTAL VALUE: $2,898,225.Added Value of Lease to Queensland Gas Company: $346,893.
TOTAL VALUE OF PROPERTY
KNOWN AS ‘COLORADO’: $3,245,118.ADOPT: $3,245,000.
Costs for the relocation and purchase of a replacement property to be considered after a settlement figure has been reached.”
Of further note, Mr Cowie relied on three sales in his valuation report of Colorado,[52] and those sales are also sales he has relied on in this matter, being Mr Cowie’s sales 1, 3 and 4.
[52]Ex 40 p 8-9.
Mr Cowie sets out the features of Colorado in exhibit 40. He notes that Colorado is made up of two lots, Lot 11 and Lot 12.
Mr Cowie describes Lot 11 as being intersected by Walton Creek which extends diagonally through the land in a north-easterly direction. Lot 11 comprises near level to gently undulating forest country on light loam duplex soils with some erosion adjacent to watercourses. He considers the country to be generally comprised of open forest country of box, narrow-leaf, ironbark with a current bush influence through the country. He notes that there is a small area of bull oak along the north-eastern boundary. In Mr Cowie’s view, approximately 320 ha of Lot 11 has been pulled along the western boundary and extends across to parts of the northern boundary and eastern boundary, with the cleared area having some regrowth of mainly ti tree and some box. Mr Cowie further notes that a tree clearing permit has been issued for the clearing of most of Lot 11.
As regards Lot 12, Mr Cowie notes that the country rises up the lower slopes of red tableland country and is timbered with wattle, lancewood, bloodwood, moreton-bay ash, narrow-leaf ironbark and cyprus.
As regards to the soils that make up Colorado, Mr Cowie says that the soils on Lot 11 comprise mainly sandy loam compex soil, with stony and gravelly red-brown soils and lighter sandy loam in places on Lot 12. The property is well grassed with buffel, wyncasia, uraclover, white and black spear, seca stylo, wararno, bishop, mitchell and wire grass. Mr Cowie assesses the carrying capacity of the property overall as 290 head which he assesses at 1 beast to 6.7 ha.
Colorado has no natural water supplies on the property of any consequence, in Mr Cowie’s view. Lot 11 is serviced by five unequipped dams, and Lot 12 by three dams, one of which is equipped and pumps through a reticulation scheme to the homestead.
Mr Cowie in exhibit 40 refers to the property as being improved by a dwelling which he values at $200,000, and two sheds, one of which he values at $45,500 and the other at $5,000. It should be noted that there is an inconsistency between exhibit 40 and exhibit 16, as exhibit 16 specifically refers to Colorado as having a house, a homestead and a shed.
In exhibit 40, Mr Cowie also refers to the lease over Lot 11 of Colorado to Queensland Gas Company relating to the construction of a number of gas bores on the property. Mr Cowie notes that the establishment of the gas bores commenced on 24 October 2014 for a period of 15 years at the annual rate of $31,200. He has applied a present value to these annual payments of $346,893.[53]
[53]Ex 40 p 7.
Mr McLay said quite firmly that he would not rely upon the sale of Colorado as directly relevant evidence to assess the market value of Kalari.[54] He had a number of reasons for this, including that the purchase was not for Colorado’s highest and best use of cattle grazing but for mining by a miner who has applied for a mining lease over the property.
[54]T 3-48 l 33-34.
The legal point has also been made by Ms Brien that the Colorado sale was entered into by parties in litigation and that such sale did not meet the Spencer test.
Submissions relating to the evidence of Mr McLay
Mr Hammond of Counsel very strongly asserts that the valuation evidence of Mr McLay should be rejected. Importantly, though, Mr Hammond does not assert in any way that Mr McLay’s evidence was deliberately in error or deceptive.[55]
[55]Respondent’s submissions para 68(m).
Mr Hammond’s submissions in support of his contention that I should have no regard to Mr McLay’s evidence are lengthy. Thankfully, he summarised his key elements of criticism of Mr McLay as follows:[56]
[56]Respondent’s submissions para 63.
“a.He did not inspect any of his comparable sales prior to the preparation of his reports and cannot therefore furnish sufficient evidence about these sales to allow any meaningful evaluation of the validity of the conclusions he has reached (Perpetual Trustee Company Limited);
b.He swore that he had inspected each property both in his evidence and in his reports even though he agreed under cross-examination that he had not inspected any of his comparable sales at the time of preparing his report (2-59 @ 25);
c.His evidence is that he either flew over or ‘drove by’ some of the properties (although he could provide no details) but that he did not physically inspect any of the properties for the purpose of preparing his report;
d.Where he did fly over or ‘drive by’ a property, he is unable to provide any dates or other details;
e.His failure to inspect any of his comparable sales should result in the Court rejecting his opinion as to value insofar as he relies on those comparable sales (Glencore Coal)
f.He has relied on the opinions of other valuers and the input from other valuers but has failed to disclose this in his report or to include a statement as to ‘the degree of reliance (if any) on his professional opinion from outside experts’ as is required by rule 6.4(f) API;
g.He has relied on the reports of other professionals without those persons being called to give evidence as to their opinion and accordingly ‘without evidence from the experts who made those valuations and cost assessment reports, they are of no weight’ (ING Management Ltd);
h.By failing to inspect the sales evidence and by relying on other experts’ opinions, McLay’s evidence fails to satisfy the requirements of Perpetual Trustee Company Limited that ‘Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert…’;
i.By failing to inspect the sales evidence and by relying on other experts’ opinions, the court is unable to examine the substance of the opinions expressed by McLay as is required in Perpetual Trustee Company Limited and his opinions should accordingly be disregarded;
j.He has failed to disclose, as is required by rule 6.4(e) API, that he had not verified all of the facts and information contained within his reports nor the extent to which that failure might affect his valuation;
k.He did not make enquiries of any of the owners of any of the sales evidence properties as to the state of those properties at the times of their respective sales for the purpose of preparing his reports, nor was he able to give any reliable evidence as to the state of those properties at the times of their respective sales; and
l.He has been unable to rely on any notes or records made or used by him in the preparation of his reports and is accordingly unable to provide the Court with ‘... sufficient information to enable it to evaluate the validity of the experts conclusions…’ (Perpetual Trustee Company Limited).
m.Whilst the Court should note that McLay was factually in error in suggesting that he had personally inspected each of his comparable sales and that he had omitted important disclosures from his reports, he openly conceded the errors when they were put to him and there is no suggestion that his conduct was in any way deliberate or deceptive.”
I explained in my analysis of Item 5 my finding that the percentage of diminution I allowed under that item included losses of grazing ability on the balance land in light of the mining operations. I remain of the view that to allow Item 5 in the quantum which I did and also to allow Item 6 would result in a classic case of doubling-up.
The dangers of doubling-up in awards of compensation is an issue that I give close scrutiny to in all my determinations of compensation under the MRA. Indeed, the comments that I make as to doubling-up at paragraph [27] of this decision are repeated in numerous other decisions that I have given relating to MRA compensation.
As Justice Talbot said in the case of Richardson v Roads and Traffic Authority of New South Wales[141] at page 303:
“It would be a classic case of ‘double dipping’ to allow compensation for existing improvements on the acquired property and then to allow further compensation as the cost of reinstating the equivalent fixtures and improvements on another property.”
[141](1996) 90 LGERA 294.
Consistent with the reasoning set out by Talbot J in Richardson above, I consider it a classic case of doubling-up to award compensation for the diminution on the balance lands in accordance with various factors including dust, and to go on to allow a further claim with respect to a reduction in carrying capacity on the balance land caused by dust.
I agree with the submissions of Ms Brien. The claim in Item 6 is not allowed.
Item 12 – Rental Income
In considering this item, two factors arise. The first is the legal question as to whether the claim can be sustained in light of the different tenure of the rental house land and the different use to which that land is put (rental house) when compared to Kalari (grazing property). The second point to consider is the quantum claimed by the respondent. I will deal with each separately.
Legal Basis for Item 12
With respect to the legal basis on which this claim is made, Ms Brien had this to say:[142]
“229.The Respondent is the registered lessee of a term lease of Lot 2 on HT185 with an area of 0.8094 ha, granted for residential purposes, commencing on 9 February 2000 and expiring on 8 February 2020, under the Land Act 1994. The lease is subject to conditions including that the lessee shall use the leased land for residential purposes (A46(1)), in the event of ceasing this use the lease may be forfeited (A46(2)), and the lessee will maintain all improvements. The Respondent purchased her interest in Lot 2, including the house, on 24 June 2002, for $10,000.
230.The rental property is on a separate title to Kalari, is held under a different tenure and is used for a different purpose to Kalari. The rental property is not an aggregation with the Kalari grazing holding. This is apparent from the use identified in the lease. As discussed under the ‘Legal principles’ heading in these submissions, the rental property is not land that is included in the application for the mining lease and on that basis s.281 has no application to this item.
231.Mr McLay has properly not considered it as part of his assessment.”
[142]Applicant’s submissions paras 228-231.
Earlier in her submissions at paragraph 42, Ms Brien observed as follows:
“Item 12 seeks compensation relating to the rental house on adjoining land. The rental property is not situated on land the subject of the mining lease application. The application describes the relevant parcels of land (s.245) and compensation must be settled with the person who is the owner of the land the subject of the application (s. 279). The reference to ‘the land’ in s. 281 applies to the parcels of land (or parts thereof) that are included in the application for the mining lease. Section 281 refers back to s. 279. Section 279 refers to the person ‘who is the owner of land the surface of which is the subject of the application’. The reference in s. 281 to ‘the land’ is a reference to the land (or part thereof) the subject of the application and not unrelated land irrespective of whether or not it is under the ownership or control of the owner.”
Ms Brien relied on observations I made when Deputy President of the Land and Resources Tribunal regarding the meaning of owner of land pursuant to the compensation provisions of the MRA. The case referred to was that of Re Q Coal Pty Ltd v Watts[143] where I had this to say at paragraphs 33-38:[144]
[143][2006] QLRT 115.
[144]Although one aspect of this decision was taken on appeal, that being injurious affection, the appeal does not impact on the following extracts.
“[33]In my view, the scheme of the MRA, when taken as a whole, means that reference in section 281(3) to ‘compensation an owner of land is entitled to’ relates to compensation for the land actually taken by the mining lease. Of course, compensation is also payable for severance of any part of that land from other parts of the land of the owner, as well as under the provisions of section 281(4).
[34]Where the meaning of a revision of an act is, amongst other things, ambiguous or obscure, reference may be had to extrinsic material, including an explanatory note or memorandum relating to the bill and the second reading speech for the bill. As regards the extrinsic material for the MRA, I turn first to the second reading speech of the Minister for Mines and Energy of 7 September 1989 where the Minister said that:-
‘It must be remembered that the current Mining Act, introduced in 1968, has required considerable amendment. Even so, it has been subject to judicial challenge as well as criticism in relation to ambiguity in its interpretation. Further, the current legislation is more a rationalisation of the 1898 Mining Act, which in itself was a consolidation of Queensland’s early mining statutes, rather than the creation of a new and progressive system of mining administration.
The legislation now before the House introduces a totally new concept which relies on adopting a new approach to the definition of land and the authorities available for accessing such land for the purposes of prospecting, exploration and mining. The major issues which result from this approach and which form important components of the legislation relate to –
the definition and ownership of minerals;
availability of land and access thereto;
prospecting and exploration;
mining and development; and
compensation for affected land-owners.’[35]The Minister incorporated into his second reading speech explanatory notes. Importantly, the explanatory notes have this to say with respect to compensation:-
‘The basic principle of compensation to owners whose lands are included in mining claims and mining leases has been retained. However, the provisions have been worded to ensure that the compensation agreed upon or determined prior to grant is for the lands of an owner of which an area of surface has been taken up or to which a surface access applies.’
[36]For completeness, I should add that the second reading speech and explanatory notes referred to above related to a Mineral Resources Bill in 1989 which was subsequently withdrawn. However, on 5 October 1989 a new Mineral Resources Bill was introduced to Parliament, founded on the withdrawn bill. The provisions relating to compensation in the withdrawn bill were retained and extended as set out by the Minister for Mines and Energy and Minister for Northern and Regional Development …
[38]My view (which accords with that of the Mining Referee in Xstrata) that the relevant compensation heads relate to the land the subject of the mining lease, is consistent with the approach that the Court of Appeal took in Sullivan v Oil Company of Australia Ltd (No. 2). Sullivan concerned the issue of the quantum of compensation payable under the Petroleum Act 1923.”
Mr Hammond submitted that under s 281 of the MRA all of the land of the owner should attract the benefit of compensation.[145] Mr Hammond went on in his reply submissions to say as follows:[146]
“31.It is clear that s.279(1)(a) does nothing more than identify the qualification of the person with whom compensation must be settled. That person must be the ‘owner of the land the surface of which is the subject of the application and of any surface access to the mining lease land.’ S.279 does not limit the nature or extent of the assessable compensation.
32.The criterial for the assessment of compensation is contained within s.281 which includes, in sub-s.281(3)(a)(ii), (iii) and (iv), a requirement to assess compensation in respect of ‘the land of the owner’ or ‘other land of the owner.’”
[145]Respondent’s submissions para 177.
[146]Respondent’s reply submissions paras 31 and 32.
Mr Hammond in his reply went on to refer to the decision of President MacDonald in the Land Court decision of Van Byron Pty Ltd v Chief Executive, Department of Main Roads.[147] That was a case involving determining of compensation under the ALA. President MacDonald had this to say at paragraphs 42 to 46:
“[42] In the Court of Appeal in Springfield, Keane JA said that the text of s.20(3) did not reveal any concern as to the means whereby a claimant for compensation evidenced its ownership of the land. It is the value of the land adjoining the land taken which is significant, not the evidence by which ownership of that land is proved. Further a purposive approach to s.20(3) indicated that it was impossible to attribute to the legislature an intention that the amount of compensation payable to a landowner might vary depending on whether the balance of the land retained by the landowner was contained in one or a hundred titles.
[43] The Courts in Springfield were construing the phrase "any land adjoining the land taken" in s.20(3) of the Act. The question is whether that reasoning should be applied in construing the word "land" in the phrase "other land" in s.20(1) of the Act. I consider that it should, for a number of reasons. In s.20(3), there is to be set off any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works on purpose for which the land is taken to be set off. Springfield held that "any land" adjoining the land taken was the landowner's whole parcel of land adjoining the land taken. It necessarily follows, in my opinion, that in considering whether there has been enhancement of the value of "any land … severed therefrom", within the meaning of s.20(3), the whole of the landowner's balance parcel severed from the land taken is what is referred to.
[44] Moving then to s.20(1)(a), and remembering that in Halcyon the Land Appeal Court said that it was difficult to think that the legislature intended to adopt different concepts of severance in s.20(3) and s.20(1), it would follow that, in referring to the "severing of the land taken from other land of the claimant", the words "other land" in s.20(1)(a) are to be construed with the same meaning as "any land" in s.20(3), that is they refer to the whole of the landowner's balance parcel.
[45] This is consistent with the rule of statutory construction that, so far as possible, words are to be given the same meaning throughout an Act. There is no reason to give the word "land" in the phrase "other land" in ss.20(1)(a) and 20(1)(b) a different meaning from the word "land" in the phrase "any land" in s.20(3). Further, as with s.20(3), I can see no reason to attribute to the legislature an intention that the amount of compensation payable to the landowner under s.20(1)(b) might vary depending on whether the balance of the land retained by the landowner is contained in one or a hundred titles.
[46] The effect of the respondent's submission is that the severance test is to be applied to each lot in the landowner's remaining parcel of land. Section 20(1) does not say that severance must be established between various parts of the remaining land. Once it is accepted, as it has been here, that the balance of Lot 14 is "other land" within the meaning of s.20(1)(b), there is nothing in the section or the authorities to indicate that it is necessary to establish that any lots that adjoin the "other land" are to be treated separately from that "other land". Rather the decision in Springfield is to the contrary.”
[147](2011) 32 QLCR 325.
I have already referred to the Land Appeal Court’s decision in Halcyon Waters where that Court quoted from Lord Watson in Couper Essex. It is appropriate to consider further comments of Lord Watson as follows:[148]
“The fact that lands are held under the same title is not enough to establish that they are held ‘with’ each other, in the sense of the Act; and the fact that a line of railway runs through them is, in my opinion, as little conclusive that they are not. I shall not attempt to lay down any general rule upon this matter. But I am prepared to hold that, where several pieces of land, owned by the same person, are so near each other, and so situated that the possession and control of each gives an enhanced value to all of them, they are land held together within the meaning of the Act; so that if one piece is compulsorily taken, and converted to uses which depreciate the value of the rest, the owner has a right to compensation’.”
[148]Taken from Halcyon Waters para 18.
The Land Appeal Court went on to point out the following in paragraph 19 of Halcyon Waters:
“A somewhat similar approach was taken in Crisp & Gunn Co-operative Ltd v Hobart Corporation (1963) 110 CLR 538. A landowner owned three separate parcels of land, which were not contiguous, but were separated by two streets. They were, however, used by the landowner in its general business as a timber merchant. One of them, that which was located at the south-western end of the holding, was the subject of a resumption. The landowner made a claim for compensation, including for damages sustained by reason of severance of the resumed land from the land comprising the other two parcels. Of that claim, the High Court said [at 548] ‘[w]e have no doubt that this case was a case of severance although the three parcels were not contiguous’.”
In my view, the authorities set out above are relatively clear (at least to some extent) in determining this aspect of the claim. When considering what makes up the land of the owner, it is irrelevant whether the owner’s land is contained within one or indeed 1,000 separate lots. That however is not the end of the matter, as in my view the authorities tend to indicate that there is to be some form of common use by the owner of the lands of those separate lots in order for the separate lots to all be considered as the land of the owner.
It is not at all difficult to envisage circumstances where a grazing property owned by a landholder may indeed be made up of various lots, some of which may indeed have different forms of tenure holding. So much is made abundantly clear by a close assessment of various sales relied upon by the valuers in this matter where such sales simply referred to the property name of the sale but the details of the sale noted that the sale was over various lots. However, as the High Court pointed out in Crisp & Gunn Co-operative Ltd, another factor is the use to which the landowner puts the various lots; in that case, the landholder used the various lots in the landholder’s general business as a timber merchant.
Accordingly, I am in no doubt that it is irrelevant when considering the land of the owner of a grazing property that the property may be made up of various lots and titles. The key factor is that the landholder is the owner of the various lots and all are used for a like purpose. Thus, in this case, had Kalari been broken up into various lots, all lots would have encompassed Kalari and therefore been other land of the landholder for the purposes of determining compensation under s 281 of the MRA.
It is particularly noteworthy that not even Mr Cowie attempted to incorporate the rental house lot into the property Kalari. This was because, clearly in my view of the evidence, it is a stand-alone business of Mrs Goodwin that operates quite independently to Kalari.
Although the matter is certainly not without some doubt, on balance I am inclined to the view as put by Ms Brien that the lot on which the rental house is located is not part of Kalari on which the MLA is located and is used for a distinct, separate business and as such is not the other land of the landholder for the purposes of s 281 of the MRA. Accordingly, it is my view that, on a proper construction of the statute, the respondent’s claim in Item 12 is not legally sustainable.
[329] For completeness, and in case I am found to be wrong as to my legal interpretation of the claim in Item 12, I now turn to consider the quantum of the claim made by the respondent in Item 12.
Quantum of claim in Item 12
The respondent seeks the sum of $133,879 for Item 12. Mr Cowie had assessed the amount which he believes is payable under this item at $148,754 which he calculated as follows:[149]
“Present Value $1 pa for 15 years: 11.11839 x $13,379.12 (net income) 148,754”
[149]Ex 8 p 25.
Mr Cowie conceded in cross-examination that he had not included any amount in his calculations for maintenance costs.[150] In light of that concession, the respondent accepted that the amount claimed should be reduced, and the respondent chose 10% of the rental income as an appropriate deduction.[151]
[150]T 4-68 l 19 – l 22.
[151]Respondent’s submissions para 179.
Mr Hammond gave the following submissions in support of the Item 12 claim:[152]
[152]Respondent’s submissions paras 172-174, 176.
“172.The rental home has been rented to Lawrence and Ruth Selky since October 2009 at a weekly rental of $320 (Affidavit of L. G. Selke sworn 26 August 2014, Exhibit 14). In his affidavit, Selke deposes (at paragraph 6) that:
‘… in the event of the mining venture going ahead… It is both my intention and my wife’s intention to, upon finding a suitable replacement property to rent, move as both my wife and I are concerned about the dust and noise pollution that we envisage will occur as a result of the proposed mining operations next door.’
173.The rental home is situated about 160 m from the North Western boundary of the mining lease area. (para 7, Exhibit 14 and page 12, Exhibit 5).
174.Under cross-examination it was suggested that if Selke were to vacate the rental home there is a market place onto which one would put their property if they were looking for a tenant (4.71 @ 35). Cowie gave evidence (4-72 @ 10):
‘… We are living in a town of Bluff. You have been to the town of Bluff. The availability of tenants within that area could be somewhat restricted.’
…
176.There is no specific evidence as to the ‘market rent’ that may be achieved for the rental home. However:
a. The evidence is that the current tenants have occupied the home at a rental of $320.00 per week for over 5 years;
b. There is no suggestion, either through the applicant’s own expert (McLay) or through cross examination of Cowie by the applicant, that this rental is other than the market rental;
c. Cowie has assessed weekly rental that would represent the market rental of the homestead and shed on Colorado at $380.00 per week (4-9 @ 40) which was unchallenged by the applicant;
d. The Court had the benefit of seeing both the rental home and the homestead at Colorado and would be in no doubt that the homestead at Colorado would attract a higher rental than the rental home.”
Ms Brien’s submissions as to the quantum of the claim in Item 12 are summed up in the following two paragraphs from her submissions:[153]
“233.Mr Cowie has assessed the loss on the basis that due to dust and noise impacts, the present tenant will move out on the grant of the mining lease, no other tenant would occupy the premises for the next 15 years, that $320 weekly rental will be maintained into the future, but that for the grant of the mining lease, the house would have 100% occupancy for the next 15 years, and that the lease will be extended beyond its term and the mine will impact on a decision as to whether to renew the lease. Those assumptions are not proven.
234.The present tenant does not state that he will move out on the grant of the mining lease. Mr Selke deposes that should the mining venture go ahead, it is his intention to move ‘upon finding a suitable replacement property to rent’. He also states that the current house is ideal for his purposes as he has a fair number of chattels and runs two horses within the property. There is no evidence before the court as to the rental market in the area that would suit Mr Selke’s needs based upon price, and the property and animals he has, to draw a conclusion as to when or if the present tenant will move out. Some of the workers and employees of the proposal would be potential tenants for the property.” [footnotes omitted]
[153]Applicant’s submissions paras 233-234.
Ms Brien then continued in some detail to further attack the basis of the quantum of this claim.
In Ms Brien’s opinion, Mr Cowie’s pessimistic view of the impacts on the rental house caused by dust and noise are based upon an incorrect understanding that the processing plant at the mine would be working 24 hours a day[154] and a lack of knowledge of the effect of the EA and the constraints it imposes on the operation, despite appending it to his report. As Ms Brien puts it, when Mr Cowie wrote paragraphs 85 and 86 of exhibit 8, he did not particularly consider the matters in condition B1 because he was unaware of what the levels meant and that conditions B1 and D1 are outside his area of expertise.[155] In relation to the noise conditions, as Ms Brien has pointed out, Mr Cowie stated “I am unaware of what the noise limits as they’re described actually mean”.[156]
[154]See Ex 2 para 17(e), T 5-43 l 39-41.
[155]T 4-39 l 40-46.
[156]T4-36 l 31-33.
Ms Brien notes that conditions B1 and D1 of the EA conditions impose limits on both noise and dust emissions at residential dwellings in addition to requiring compliance with the general environmental duty.
Ms Brien was critical of Mr Cowie for not taking into account the location of the rental property when considering the impacts, noting that a five-track railway line passes the rental property and one of its purposes is for the cartage of coal as the main central line running between Rockhampton and Longreach.[157] Ms Brien pointed out that the adjacent railway line typically has 100 coal trains and nine livestock trains (and others) weekly, and the coal trucks on trains are not generally covered.[158]
[157]T4-66 l 30-34.
[158]T4-66 l 39-40.
Very perceptively, Ms Brien notes an inconsistency in what Mr Cowie has to say in this item compared to his alternate assessment for a quarry operation of up to 5,000 tonnes per annum in Item 3. As Ms Brien puts it:[159]
“Mr Gray considered that the haulage to take the quarry material off site would use the access track past the house and over the five-track railway line. The track around the rental house is the easiest way to get onto the road system. On the basis of an average of around 30 tonnes per truck to remove the material off site (being a truck with a dog trailer attached) at 5,000 tonnes per annum, there would be 156 truck movements per year. Typically, the way these pits are worked is as a campaign operation with two or three trucks that will operate for a day or two and then you will not see them again for another month and then they will come back and have another bite. Usually if you have two or three trucks carting to a job say 10 or 15 km away, you might have one truck every 20 minutes to half an hour. If you have two or three trucks operating, you could have a truck every 10 or 15 minutes for short durations. The operator will physically push material up into a stock pile and if there is any beneficial screening, that would be done by a quarry operator. Theoretically, you could screen and process 5,000 tonnes in a few days.” [footnotes omitted]
[159]Applicant’s submissions para 239.
As regards the point of the respondent in her submission allowing an arbitrary figure of 10% for maintenance costs, Ms Brien notes that this was not the subject of any evidence from the respondent or anyone else on her behalf.
Ms Brien was critical of Mr Cowie for assuming that the property will be unoccupied for 100% of the time for 15 years[160] even though he agreed there is a market place for rental properties.[161] When queried on this, Ms Brien points out that Mr Cowie states he is not assuming there will be no other tenant in the market place but rather, if the area will be affected by dust, if one tenant moves out, and another tenants moves in, they would also suffer the same impacts and probably would not continue to reside in that residence.[162]
[160]T 4-69 l 17-23.
[161]T4-71 l 34-41.
[162]T4-71 l 43-46.
Further, Ms Brien notes that Mr Cowie expressed a concern that if the tenants moved out and the property is unoccupied, that the term lease may be cancelled or forfeited (as a consequence of condition A46(2).[163] Ms Brien submits that condition A46(2) is directed towards the use for a residential purpose, not continuous occupation. She argues that Mr Cowie’s concern lacks any foundation as there is no basis to expect that the grant of the mining lease will have any impact on the grant of a renewal of the term lease having regard to the matters in s 158 and 159 of the Land Act 1994.
[163]T 4-72 l 1-18, T 4-69 l 43 to T 4-70 l 15.
I agree with all of Ms Brien’s criticisms of the evidence with respect to the quantification of Item 12.
I find the lack of any coherent evidence as to the rental market in Bluff and the surrounding area of extreme concern. Further, such evidence as there is, is in my view woefully inadequate to substantiate the quantum of this claim. One would have thought that it would have been a relatively simple matter to have obtained detailed expert evaluation as to the rental market in the surrounding area; the number of houses available for rent; the occupation rate; the average rental rate; general market conditions; and so on. All of this evidence was missing, either from Mr Cowie or indeed another expert witness who no doubt could have been called to give expert opinion in this regard.
Indeed, assuming that the current tenants do actually vacate the rental property because of mining operations on the ML, that would of itself mean that substantial new employment opportunities would have arisen on or in relation to ML 80194 and those workers would themselves have to find places to live in either the short or long term.
It is virtually beyond belief that the respondent is seriously having this Court believe that a rental property directly beside five rail tracks with a heavy carriage of uncovered lengthy coal trains and other general goods at the rear of the property, and multiple movements of trucks carrying gravel material from the quarry via the front of the rental property, have no impact on the ability to rent the rental property in the slightest, whilst the existence of the mine will lead of itself to the rental house being totally unavailable for rent for the entirety of the 15 year period of the lease. Put simply, I am not convinced.
In my view, the respondent has failed to establish by any reasonable evidence that she will suffer any loss at all as a result of the grant of MLA 80194 over and above those aspects of normal risk of occupancy which any owner of a rental property needs to take into account from time to time.
In my view, even if a claim under Item 12 was properly made out at law, the quantum of such claim should be NIL.
Item 13 – Loss of value of cattle forced sale
Mr Hammond has this to say as regards this item of claim:[164]
“180.With the granting of the mining lease and the resultant reduction of 588ha in the grazing area available at Kalari, the sustainable herd will be reduced by about 90 head of cattle from 393 head to 303 head based on Cowie’s assessment of 6.5 head per hectare carrying capacity.
181.Upon the granting of the mining lease, the respondent will no longer be able to graze her cattle on the mining lease area which will be fenced off. This will necessitate her taking prompt action to reduce the number of cattle grazed on the property. The property is currently severely drought affected and the cattle market is depressed.
182.The respondent will not have the opportunity to raise the condition of the cattle for market, nor will she be in a position to wait for the market to improve.
183.Cowie has estimated that the current value of the cattle is about $244 per head given their current condition, the depressed market and the fact that the sale will be a forced sale. Cowie further assesses that the market price of cattle in normal seasons would be about $750 per head. This equates to a loss of $526 per head or a total loss of $47,340.00 (Exhibit 8 at page 25).
184.The respondent claims compensation in the sum of $47,340 pursuant to s.281(3)(a)(iii), (vi) and s.281(4)(e) MRA.”
[164]Respondent’s submissions paras 180-184.
Ms Brien submits that this item is a doubling-up, as any losses of this nature are captured in the award for loss of the area of the mining lease.
Ms Brien points out that Mr Cowie states that as a consequence of the area of the mining lease being fenced, the balance land is physically severed with the result that there is a reduction in the area for cattle grazing impacting on the flexibility the respondent has in her management practice for the rotation of stock[165] and result in a loss in overall grazing capabilities.
[165]Ex 8 p 21 paras 114-116.
It is submitted by Ms Brien that the Court has no evidence from the respondent in relation to management practices about stock rotation and any impacts on flexibility. Further, as to whether a loss is likely to occur, this will depend upon the timing of the alleged impact as the grant of a mining lease does not affect an overnight loss of land.
Ms Brien notes that, similar to the assessment of loss for the forced sale of cattle due to dust effects, the assessment of Item 13 rests on the following two assumptions, neither of which have any basis in factual evidence:
(a) that at the time of the grant of the mining lease, the level of stock was as stated by Mr Cowie; and
(b) that at the time of the grant of the mining lease, it is necessary to reduce the stock levels by 90 head.
Ms Brien strongly submits that a stock book for the property is not in evidence; there is no evidence of the age of the cattle on Kalari; the Court has no evidence as to how frequently cattle are sold from Kalari or the price achieved for the cattle; there is no evidence of the condition of the stock on the land at a particular time; and no business records of any description were produced.
The submissions of Ms Brien in relation to this item conclude this way:[166]
“253.This is a theoretical claim based upon assumptions not proved. The Respondent attended court every day and therefore was available to give evidence. Her failure to give evidence in support of this claim is telling. It should be inferred that she could not have given evidence supporting the opinions expressed by Mr Cowie.
254.Mr McLay does not understand how the mining lease will change flexibility in management or rotation of stock as it is simply a reduction in the area. That is understandable given the lack of evidence on the subject from the Respondent. Mr McLay says it is simply a reduction in the area of the property.
255.No allowance ought be made for this item.” [footnotes omitted]
[166]Applicant’s submissions paras 253-255.
I agree with Ms Brien’s submissions in their totality with respect to this item of claim.
To begin with, this is a classic case of doubling-up. All of my comments relating to doubling-up made in my finding relating to Item 6 are equally applicable here. The doubling-up relates both to Item 1 and Item 5.
Again, just as was the case for Item 6, any loss which the applicant may suffer over and above the value of the land in Item 1 is in my view fully compensated by the amount of depreciation of the balance lands which I have allowed in Item 5.
In addition, even if Item 13 was not a doubling-up, the evidence is so vague, and is made up of such conjecture, that I agree with Ms Brien that it simply cannot be relied on.
I award NIL with respect to Item 13.
Unnumbered Items
Curiously, there are three unnumbered items which the applicant considers are properly payable to the respondent which the respondent does not specifically claim. Those unnumbered items are set out in paragraph [11] of these reasons and are as follows:
“
Stamp duty $14,189 Cost to transport livestock $1,875 Settling costs $5,000
”
As the applicant has essentially conceded these costs, I will allow them.
This results in a total for the unnumbered items of $21,064 which I allow.
Item 15 – 10% of value of land
In his submissions, Mr Hammond claims Item 15 in accordance with s 281(4)(e) of the MRA in the amount of 10%. He claims this amount of 10% with respect to the value of the land contained within the mining lease area (Item 1) and the diminution in the value of the balance land (Item 5).[167]
[167]Respondent’s submissions para 185.
Ms Brien accepts that an amount of compensation is payable to the respondent pursuant to s 281(4)(e) of the MRA. That provision is already set out in paragraph [22] of these reasons.
The wording of s 281(4)(e) of the MRA is clear. An additional amount to reflect the compulsory nature of the grant of MLA 80194 over the respondent’s land shall be determined at a rate of not less than 10% of the aggregate amount determined under s 281(3).
Of course, a difficulty arises in this matter in that a number of the items of claim have been agreed as between the applicant and the respondent, and further that some items are claimed as an amalgam of s 281(3) and s 281(4) of the MRA.
Neither party has contended that this Court should allow an amount greater than 10% for Item 15. Accordingly, the additional amount pursuant to Item 15 will be allowed at the rate of 10%. Consistent with the submissions of the respondent, I will allow the amount of 10% on the quantum that I have found for Items 1 and 5, being the amounts of $382,395 and $255,970. When both these sums are added together, they make a total of $638,365. Ten percent of that amount equate to $63,837.
I determine the additional amount payable with respect to Item 15 in the sum of $63,837.
Summary of conclusions with respect to each item claimed
Consistent with my findings above, the amount of each item in dispute is determined as follows:
Item Claim Finding 1 Area affected by ML $382,395 2 Rosewood $93,000 3 Non-mineral resource $37,000 5 Depreciation/diminution to balance land $255,970 6 Reduction in cattle on 580 ha – dust NIL 12 Rental income NIL 13 Loss of value of cattle forced sale NIL Stamp duty $14,189 Cost to transport livestock $1,875 Settling costs $5,000 15 10% of value of land $63,837 Total $853,266
Of course, to the sum of $853,266 needs to be added the sum of $541,553 as agreed between the parties. When added together, this results in a determination of the total compensation payable by the applicant to the respondent of the sum of $1,394,819.
Timing of payment of compensation to the respondent
The issue of the timing of the payment of the compensation by the applicant to the respondent is essentially a matter of agreement. That is, the compensation should be payable within 14 days of the grant of MLA 80194 save for the determined compensation for the relocated house related items which is payable within 14 days of the applicant being provided with a copy of a binding contract for the construction of a house on the land and not before 14 days after the grant of MLA 80194.
ORDERS
1. Compensation payable by the applicant to the respondent for the grant of MLA 80194 is determined in the total sum of $1,394,819 which sum includes the items agreed between the parties and the additional amount pursuant to s 281(4)(e) of the Mineral Resources Act 1989.
2. The compensation of $1,394,819 in order 1 is payable within 14 days of the grant of MLA 80194 save for the determined compensation for the relocated house related items which is payable within 14 days of the applicant being provided with a copy of a binding contract for the construction of a house on the land and not before 14 days after the grant of MLA 80194.
PA SMITH
MEMBER OF THE LAND COURT
5
11
4