Deeley v Tucker
[2008] QLC 93
•22 May 2008
LAND COURT OF QUEENSLAND
CITATION: Deeley v Tucker [2008] QLC 0093 PARTIES: In the Matter of Application for Mining Lease 70270 – Application by Ronald Leslie Deeley and objections by Renee Tucker to its grant
FILE NO: AML00161/2007 DIVISION: Land Court of Queensland PROCEEDING: Hearing of application for Mining Lease and objections to its grant DELIVERED ON: 22 May 2008 DELIVERED AT: Brisbane HEARD AT: Emerald MEMBER: Mrs CAC MacDonald ORDER: I recommend to the Honourable the Minister for Mines and Energy that Mining Lease 70270 be granted over the application area exclusive of a five (5) metre wide strip abutting the western boundary of the objector's property. CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION
Mineral Resources Act 1989, ss.238, 252, 269, 422.APPEARANCES: Mr RL Deeley in person
Ms R Tucker in person
On 31 August 2001, Ronald Leslie Deeley (the applicant) lodged Mining Lease Application 70270 over land described as Lot 3 on USL 47049 in the County of Plantagenet, Parish of Anakie, having an area of .2099 ha. The land is situated in the Emerald Mining District between Rubyvale and Sapphire and adjoins existing mining leases to the west and south. The application (as amended) sought a lease of the subject land for a term of two years for the purpose of open cut alluvial sapphire and zircon mining operations.
Objections to the grant of the lease were lodged by Renee Tucker who is the owner of a freehold residential property which adjoins the application area to the east.
The application and objections were heard in Emerald where Mr Deeley and Ms Tucker gave evidence. Following the hearing, I inspected the application area and various other parcels of land in the district. Mr Deeley arrived late at the inspection of the first site (the application area) because he had misunderstood the arrangements as to the meeting place. The Court and Ms Tucker arrived independently at the meeting place on time and, on my direction, waited for 15 minutes for Mr Deeley. When he had not arrived at the expiry of that time, I decided to proceed with the inspection in his absence, since he had been given the opportunity to be present. On proceeding to the application area, the inspection took place in the presence of Ms Tucker for about ten minutes until Mr Deeley arrived. Mr Deeley was given the opportunity to point out any relevant features of the land. Inspection of the other parcels of land took place in the presence of both the parties. I found that the inspections assisted me in my understanding of the evidence given in this matter.
Ms Tucker's grounds of objection were -
1. All his pegs are within 100 metres of my freehold block.
2. My 9 year old daughter has bronchial asthma.
3. My father who resides with us has emphysema.
4. The land has already been mined.
5. He only has permission from a deceased person who his activity is not going to affect.
6. He has other mining claims he doesn't mine.
7. His only objective is to real estate this claim.
8. He doesn't rehabilitate either.
Section 238
The first issue to be determined is whether it was necessary for the applicant to obtain Ms Tucker's consent to the grant of the mining lease.
Section 238(2) and (3) of the Mineral Resources Act 1989 (the Act) provide that -
"238 Mining lease over surface of reserve or land near a dwelling house
…
(2)Also, a mining lease may be granted over the surface of land that was restricted land when the application for the lease was lodged only if -
(a) the owner of the land where the relevant permanent building, or relevant feature, is situated, consents in writing to the application; and
(b)the applicant lodges the consent with the mining registrar before the last objection day ends.
(3) A consent given for subection (2) can not be withdrawn."
The Schedule (Dictionary) to the Act defines restricted land as -
restricted land means restricted land (category A) or (category B).
restricted land (category A) means land within 100m laterally of a permanent building used -
(a) mainly as accommodation or for business purposes; or
(b) for community, sporting or recreational purposes or as a place of worship."
At the time the lease application was lodged, the application area was restricted land (Category A) within the meaning of the Act. This is because there is a block of land adjoining the application area to the east on which, at the relevant time, there was a permanent building used mainly for accommodation purposes which was within 100 m laterally of the subject land. Under s.238(2), therefore, a prerequisite to the grant of the lease was that the owner of that land should consent in writing to the application and that the applicant lodge the consent before the end of the last objection day. As at the date of the application for lease, the restricted land and house were owned by a Ms Shirley Morgan who, at the request of Mr Deeley, provided him with a consent in writing dated 15 January 2001 "to mine beside my homestead providing he reinstates my fence and fence line. I would also like him to have a dam area if that is possible." In compliance with s.238(2)(b) of the Act, Mr Deeley lodged that consent with the mining registrar on 9 July 2007, that is before the end of the last objection date (15 August 2007).
The evidence showed that, because of native title negotiations, there was a delay of approximately 6 years between the date of Mr Deeley's application and the date of advertisement of the application. Ms Morgan died sometime after 2001 and Ms Tucker subsequently purchased Ms Morgan's property from her estate. As the adjoining owner at the time the application was advertised (4 July 2007) Ms Tucker lodged an objection and appeared at the hearing to give evidence in support of her objection. Ground 5 of her objection was that -
"he [Mr Deeley] only has permission from a deceased person who his activity is not going to affect."
Although the applicant had obtained and lodged the consent of the owner of the restricted land as at the date of the application, Ms Tucker's objection raises the question of whether her consent, as owner of that land as at the date of the advertisement and hearing, was necessary. If Ms Tucker had been the owner of the restricted land at the date of the application, her lack of consent would have prevented the grant of the lease.
I consider that what is required to ensure compliance with s.238(2) is that the owner of the restricted land at the time the application was lodged consent in writing to the application. Further, it is noted that s.238(3) of the Act provides that a consent given for subs(2) cannot be withdrawn. This indicates, in my view, that once an appropriate consent is given it is final and there is no room for withdrawal of the consent by any person, not even a subsequent owner of the relevant land.
I am satisfied, therefore, that the requirements of s.238(2) have been fulfilled and that, despite the change in ownership of the restricted land subsequent to the application, that subsection does not provide any reason for refusing the application. That does not mean, of course, that a grant of the mining lease automatically follows. The other requirements of the Act must be complied with and all of Ms Tucker's objections considered.
Section 269
Section 269(4) of the Act provides that the Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider a number of specified matters. Each of those matters is now discussed.
Section 269(4)(a) – Whether the provisions of the Act have been complied with
On 19 April 2007, the Mining Registrar, Emerald District, issued a Certificate of Application for Mining Lease No. 70270. The effect of s.252(1) of the Act is that the Mining Registrar can only prepare a certificate of application for a mining lease on being satisfied that the applicant is eligible to apply for the lease and that the applicant has complied with the requirements of the Act with respect to the application.
The Acting Mining Registrar's Report of 22 August 2008 does not reveal any issue of non-compliance. The subject land is Unallocated State Land. The Report indicates that the application area is non-exclusive land within the meaning of s.422 of the Act and that the area is subject to an Indigenous Land Use Agreement (ILUA). It is the applicant's responsibility to comply with the ILUA. The applicant has signed a Deed by Miner document and paid the native title compensation and inspection fees as required by the agreement and, it appears, has amended his application to restrict his proposed operation to mining sapphire and zircon, in compliance with the terms of the ILUA.
The evidence indicates that the Act's provisions have been complied with.
Section 269(4)(b) – Whether the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate
The subject land is located on the Central Queensland Gemfield between Rubyvale and Sapphire and adjoins existing mining leases. I am satisfied that the land is in an area that is generally mineralised. However, Ms Tucker says that the application area has been previously mined (Ground 4). She said that, at her request, the Mines Department had removed an old shack from the application area because squatters were using it, and that two shafts on the area had been back filled. Local miners had also assured her that the whole area had been mined.
There was evidence of previous mining activity on the application area and Mr Deeley ultimately conceded that about 45% of the area has been mined. The inspection of the application area confirmed the photographs which had been tendered into evidence, that part but not all of the application area appears to have been mined and that Mr Deeley's estimate of 45% appears to be correct. Part of the mined area has not been rehabilitated and is in a degraded condition. There was a substantial 'pond' of water on the application area at the time of the inspection resulting from the heavy rain in the area some months previously.
It appears that the previous mining activity is likely to have reduced the mineralisation of the application area but I am satisfied that the balance unmined area is likely to be mineralised.
Section 269(4)(c) – If the land applied for is mineralised, whether there will be an acceptable level of development and utilisation for the mineral resources within the area applied for
The application area is .2099ha. The applicant proposes to mine the area with an excavator and trucks. He indicated that he would not be processing on the application area and that he had a wash plant set up on another lease area.
Ground 7 of Ms Tucker's objections was that Mr Deeley's objective in applying for the mining lease was to 'real estate' the claim. Ms Tucker said that she had been approached some time ago by a Mr Shepherd who told her that Mr Deeley had offered to sell him both the mining lease and Ms Tucker's property. Mr Deeley denied both the allegations. Mr Deeley also tendered a statutory declaration signed by Mr Shepherd which stated that he had no intention of purchasing the mining lease. I have accepted Mr Deeley's evidence that he intends to mine the land and he does not intend to sell it to the third party.
I also consider that the evidence as a whole established that there will be an acceptable level of development and use of the mineral resources within the area applied for.
Section 269(4)(d) – Whether the land and the surface area of that land are of an appropriate size and shape
Mr Deeley has applied for a lease over the whole of the small area of available land. As set out above, the application area abuts Ms Tucker's land and, Ms Tucker said, all of the pegs are within 100 metres of her land (Ground 1). Mr Deeley said at the hearing that he was prepared to restrict his operations to the application area beginning 1 metre away from the boundary of Ms Tucker's property. Ms Tucker had said at an earlier directions hearing that she would not oppose the mining activity if it did not extend to within 5 metres of that boundary. The applicant's response was that the application area was part of the main scrub run, the implication being that it would not be acceptable to him to lose access to the area within 5 metres of the boundary. He said that, in his experience, there was no problem with a mine right up to a fence provided it is backfilled straight away which he intended to do. Mr Deeley also said that he would generally set up a plant to face south west so that, nine times out of ten, the breeze would blow away from the house. He did not consider that the mining activity would cause a great deal of disturbance.
Ms Tucker was particularly concerned about the impact of dust from the proposed mining activity on the health of both her daughter, who has bronchial asthma, and Ms Tucker's father who suffers from emphysema (Grounds 2 and 3). The medical conditions of Ms Tucker's father and daughter were verified by medical certificates tendered by Ms Tucker. Both Ms Tucker's daughter and father live with her on the adjoining land as does her son who, Ms Tucker said, was also diagnosed with bronchial asthma three weeks prior to the hearing. While there was no medical evidence to establish that the dust from the proposed mining activity would aggravate her family's medical conditions, I consider that Ms Tucker's fears were honestly held and were likely to be well founded.
Ms Tucker was also concerned that, because of the nature of the black soil in the area, subsidence would occur which would adversely affect her land if mining took place up to the boundary. She did not repeat, at the hearing, her earlier statement that she would not oppose the application if the mining did not extend to within 5 metres of her boundary. However, it is relevant to note, in this context, that two other boundaries of Ms Tucker's land adjoin a mining lease over a much larger area of land than the application area. Ms Tucker said that she did not have a problem with that operation as the miner was required by his plan of operations to have his machinery 100 metres away from her land and the miner had not mined within 5 metres of her land.
If a setback of 5 metres were imposed along the boundary with Ms Tucker's land, the area that would become unavailable for mining would be less than 10% of the whole area. To be balanced against that is the fact that Mr Deeley said that he would lose access to a valuable area if that setback were imposed. He also pointed out that if it were not for the native title complications his application would normally have been processed within 12 months of his lodging it, that is before the transfer of the freehold property to Ms Tucker. In that case there would have been no objections to the grant of the lease. Further, the evidence is that 45% of the area has been previously mined so that removal of an area of 5 metres from the boundary will limit further the available resource. However, given the proximity of the objector's residence to the application area, I consider that it is inappropriate that the lease be granted over either the whole of the application area or to within 1 metre of the boundary of Ms Tucker's property. I consider therefore that it would be an appropriate that this mining lease be granted for the application area exclusive of a 5 metre wide strip abutting the western boundary of Ms Tucker's land.
Section 269(4)(e) – Whether the term sought is appropriate
The applicant seeks a term of two years. Given the small size of the relevant area, I consider that a term of two years is appropriate.
Section 269(4)(f) – Whether the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease
No evidence was given as to Mr Deeley's financial capability to carry out the proposed mining. Mr Deeley said that he had been mining on the gemfields for 40 years and that he had the knowledge and 'know how', to be able to mine the area. He also said that he had enough machinery to mine and rehabilitate the land.
Subject to the discussion below as to the applicant's past performance there is no evidence to establish that the applicant does not have the necessary financial and technical capability to carry on the proposed mining operations.
Section 269(4)(g) – Whether the past performance of the applicant has been satisfactory
The Mining Registrar's Report details some 17 cases where mining tenements have been terminated because of Mr Deeley's default – 4 Mining Claims were cancelled in 1990 for failure to lodge security deposits, 6 Mining Lease Applications were rejected between 1989 and 1991 for failure to pay annual rentals, 5 Mining Lease Applications were rejected in 1991 and 1992 for failure to lodge survey plans and a Mining Lease Application was rejected in each of 1989 and 1992 for failure to carry out public notification and failure to respond to correspondence respectively. It is noted that these defaults occurred between 1989 and 1992.
Ms Tucker claimed that Mr Deeley has other mining claims which he does not mine (Ground 6). In response, Mr Deeley said that he had not been able to mine for approximately 4 years due to lack of water but since the recent significant summer rains he was anxious to restart mining.
Ms Tucker also claimed that Mr Deeley does not rehabilitate an area after mining (Ground 8). As a result of a Freedom of Information application, Ms Tucker had received copies of correspondence and memoranda from the Environmental Protection Authority (EPA) which she tendered into evidence. Those documents have established that as at 10 July 2007 Mr Deeley was the holder of Mining Lease 2317 which was due for renewal at that time, that there was no Plan of Operation in place for the lease, that inspections prior to 2001 had revealed that approximately 95% of the lease area had been disturbed and that the EPA did not wish the lease to be renewed unless financial assurance of $5,000 had been paid or rehabilitation undertaken.
Mr Deeley said that he was in negotiations with the EPA to resolve this issue. He had obtained a quote of about $1,650 for the rehabilitation of Mining Lease 2317. He had posted a bond with a bank in the early 1990's and proposed arranging with the EPA that the bond money be transferred to Mining Lease 2317 which would cover the outstanding rehabilitation. On questioning by me, Mr Deeley said that, apart from that matter, there were no other requisitions outstanding against him.
Mr Deeley tendered photographs of various areas of land which he said he had rehabilitated. He subsequently showed the Court some of those parcels of land. I accept that the photographs show that that land had been rehabilitated. However, Ms Tucker said, in respect of one of those areas, that the department had carried out the rehabilitation – Mr Deeley denied this. Ms Tucker also said that Mr Deeley had deliberately omitted to show the Court areas of land which he had not rehabilitated. Again, Mr Deeley denied this.
The inspection and the comments made by the parties during the inspection do not form part of the evidence. In any event, I consider that the assertions and denials made by each party during the inspection were inconclusive and I have not relied on them to reach my decision.
As set out above, there is evidence of numerous defaults in the past by the applicant in relation to various mining tenements. The most recent of those defaults was in 1992, some 16 years before the hearing of the application. There was further evidence of outstanding obligations by Mr Deeley in respect of Mining Lease 2317. Although Mr Deeley had not satisfied those obligations as at the date of the hearing it appears that he intended to do in the days following the hearing. It is noted also that Mining Lease 2317 was renewed in on 20 September 2007 for a term of 10 years commencing 1 February 2007.
Although Mr Deeley's record is not entirely satisfactory, it is considered that, on balance, his record is not sufficiently unsatisfactory to warrant refusal of the current application.
Section 269(4)(h) – Whether any disadvantage will result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences
There are no holders or applicants for the above tenures who will be disadvantaged by the grant.
Section 269(4)(i) – Whether the operations to be carried on under the authority of the mining lease conform with sound land use management
The current land use of the application area is low intensity grazing and it is otherwise capable of being used for mining purposes.
Section 269(4)(j) – Whether there will be any adverse environmental impact caused by those operations and, if so, the extent thereof
A draft environmental authority has been issued to the applicant in respect of the proposed mining activities. The authority requires the applicant to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects.
The impact of the proposed mining activity on the owner and occupier of the adjoining land has been considered above at [21] – [24].
Section 269(4)(k) – Whether the public right and interest will be prejudiced
There was no evidence that the public right and interest would be prejudiced by the proposed grant.
Section 269(4)(l) – Whether any good reason has been shown for a refusal to grant the mining lease
There are good reasons, as discussed above, for not granting a lease over the whole of the application area. However, provided the area to be mined is set back 5 metres from the boundary of Ms Tucker's land, I consider that those concerns will have been satisfactorily addressed.
Section 269(4)(m) – Whether the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of the land
On the basis of the evidence considered in relation to criteria (i), (j), (k) and (l), I consider that the proposed activity, as modified by my recommendation as to the area to be granted, is an appropriate land use.
Recommendation
For the reasons set out above, I recommend to the Honourable the Minister for Mines and Energy that Mining Lease 70270 be granted over the application area exclusive of a five (5) metre wide strip abutting the western boundary of the objector's property.
CAC MacDONALD
MEMBER OF THE LAND COURT
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