Deane v Burnett - [2016] QLC 45

LAND COURT OF QUEENSLAND

CITATION: Deane v Burnett & Ors [2016] QLC 45

PARTIES: John Smith Deane
(applicant)

v

John Stephen Burnett, Hazel Jean Mayes and Grant Andrew Wallace
(respondents)

FILE NO: MRA547-15

DIVISION: General Division

PROCEEDING: Determination of compensation payable for grant of mining lease.

DELIVERED ON: 9 August 2016

DELIVERED AT: Brisbane

HEARD ON: Submissions closed 6 May 2016

HEARD AT: Heard on the papers

JUDICIAL REGISTRAR: GJ Smith

ORDERS:

1.      In the case of ML 70522 compensation is determined in the total sum of $2,420 per annum.

2.      The applicant pay compensation to the respondent in the amount set out in order 1 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the issue of the mining lease.

CATCHWORDS:
MINING LEASE – grant – determination of compensation – period of grant – level of activity – access – assumption of legal and reasonable conduct – use of valuation report – mustering costs – owners time – use of Court judgments for determination purposes –compulsory nature of action – additional amount percentage.

Mineral Resources Act 1989, ss 279, 281

Barrett v Weir and Gregcarbil Pty Ltd [2009] QLC 182
Deane v Burnett & Ors [2015] QLC 24
Gregcarbil Pty Ltd v Backus & Ors (No. 4) [2013]
QLC 68
Matrix Metals Limited v The North Australian Pastoral Company Pty Ltd [2007] QLC 75

Mitchell v Oakhill and Mitchell (Unreported, Land Court of Queensland, JJ Trickett, President, 10 March 1998)
Wills v Minerva Coal Pty Ltd [No.2] (1988) 19 QLCR 297
SG & PM Smith v RA Cameron [1986] 11 QLCR 64
Sullivan v Oil Company of Australia Ltd (No.2)

              Xstrata Coal Queensland Pty Ltd & Ors v Keys & Anor

[2013] QLC 34

APPEARANCES: Not applicable

This proceeding concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of proposed mining lease ML 70522.

Background

The applicant, John Smith Deane (the applicant) seeks the grant of ML 70522 over land located approximately 35 km north-west of Clermont in the Emerald District and within the Isaac Regional Council local government area. The land upon which ML 70522 and the access track are situated is owned by John Stephen Burnett, Hazel Jean Mayes and Grant Andrew Wallace (the landowners). The holding is known as Blair Athol Station and is more particularly described as Lot 22 on DC 162 GHPL 12/2525A and Lot 18 on CLM628 GHPL 12/2525A. Blair Athol Station is approximately 2819 hectares in area and is used for grazing and agricultural purposes.
The specific Land Court reference and individual lease and tenure details are set out as follows:

Court Reference Tenure ID Lease Area Term Lease Purpose Access

MRA547-15 ML 70522 5.6041 ha 5 years Gold 5.64 km
Relevant Legislation

Section 279…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deane v Burnett

Details

AGLC: Deane v Burnett [2016] QLC 45
Case: [2016] QLC 45
Decision Date: 9 August 2016

CaseChat Overview and Summary

Deane, a mining company, sought a determination of compensation from Burnett, the landowner, for a mining lease granted over the latter's property. The dispute was heard by the Queensland Land Court, presided over by Member R S Hallahan. The primary legal issues the Court needed to address were whether certain costs incurred by the landowner in connection with the mining lease were compensable under the Mining Act 1992. These costs included inspection and administration costs, professional fees for the preparation of the compensation claim, and potential future costs related to non-contamination declarations and compliance.

Member Hallahan considered the inspection and administration costs, which included monitoring for weeds, pests, and bio-security breaches, to be reasonable and necessary given the nature of the operations on the property. The Court found that these costs were compensable under the Act. However, regarding the professional fees for the preparation of the compensation claim, the Court referred to the decisions in Sullivan v Oil Company of Australia Ltd (No.2) and Matrix Metals Limited v The North Australian Pastoral Company Pty Ltd. The Court held that legal and professional fees incurred in the preparation of a compensation claim should not be treated differently from costs in any other form of litigation, and therefore, these fees were not compensable under the Act. For potential future costs related to non-contamination declarations and compliance, the Court found that these costs could not be quantified at the time of the determination and thus were not compensable.

The Court also considered the additional amount percentage requested by the landowner, which was proposed to be 20% to reflect the combined impacts of mine-related approvals. The Court, however, determined that an additional amount of 10% was warranted given the duration, area, and mining activities proposed for the lease.

ORDERS:
1. Compensation for the mining lease ML 70522 is determined to be $2,420 per annum.
2. The applicant is to pay compensation to the respondent within three months of the mining lease's issue notification by the Department of Natural Resources and Mines and annually thereafter on the anniversary of the mining lease issue.

Orders

Orders of the court

1. In the case of ML 70522 compensation is determined in the total sum of $2,420 per annum.

2. The applicant pay compensation to the respondent in the amount set out in order 1 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the issue of the mining lease.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Costs of inspection and administration – in respect of this item an annual amount of $400 is sought for owner’s time undertaking weed, pest and bio-security monitoring of the mining lease areas and access areas (4 hours at $100 per hour). Given the nature of the cropping and grazing operations on BA Station and the serious consequences of any bio-security breaches I consider the amount sought is reasonable and accordingly the claim for this amount is accepted. Costs for valuation and professional fees – the compensation sought under this heading relates to assistance provided by DGL Project Services Pty Ltd in relation to the preparation of this claim of compensation on behalf of the landowners. The amount sought is a one off payment of $3,000. Claims of this nature in my view must be considered in light of the Court of Appeal decision in Sullivan v Oil Company of Australia Ltd (No.2)[10]. (Sullivan). In Sullivan it was held that legal fees paid for the preparation of a compensation claim pursuant to the Petroleum Act 1923 were not claimable as the fees could not be considered “…as consequential upon the occupation of land under an authority to prospect or lease…”[10] Sullivan v Oil Company of Australia Ltd (No.2.) (2004) 2 Qd R 105 Similar circumstances were considered by Member Jones (as he then was) in Matrix Metals Limited v The North Australian Pastoral Company Pty Ltd[11] (Matrix Metals). This decision concerned “other costs” including “two hours of owner’s time and a contribution towards the owner’s legal and professional costs”. Member Jones observed:[11] Matrix Metals Limited v The North Australian Pastoral Company Pty Ltd [2007] QLC 075[14] In my opinion the claim could only succeed if its elements reasonably fell within the description "loss or expense that arises as a consequence of the … renewal of the mining lease”. In Sullivan the Court of Appeal considered that valuation and legal fees incurred in the preparation of a claim for compensation should not be treated any differently from costs in any other form of litigation. The wording of s.281 (3)(a)(vi) does not, in my opinion, allow me to reasonably distinguish and depart from the reasoning of the Court in Sullivan.”[12][12] Ibid at[14] The decisions of Sullivan and Matrix Metals in my view preclude the inclusion of professional fees in respect of the services provided by DGL Project Services Pty Ltd as compensation pursuant to s 281 of the MRA. Other costs – these costs are perhaps better described as potential costs that may arise at some future date subsequent to the commencement of mining on ML70522. The costs foreshadowed include declarations regarding non-contamination and additional sale and compliance costs that the landowners may incur as a consequence of the operations. These costs would appear to be incapable of being quantified at this point in time and accordingly are not able to be included in this determination. On behalf of the landowners it has been contended that this additional amount should be 20% so as to reflect “the combined impacts of mine related approvals” on BA Station. Whilst appreciating the point made in this regard I do not consider that an amount greater than 10% is warranted given the duration, area and mining activities proposed for ML 70522.

Court Reference	Tenure ID	Lease Area	Term	Lease Purpose	Access
MRA547-15	ML 70522	5.6041 ha	5 years	Gold	5.64 km