Dempster v Logan
[2008] QLC 96
•22 May 2008
LAND COURT OF QUEENSLAND
CITATION: Dempster & Anor v Logan & Anor [2008] QLC 0096
PARTIES:In the matter of Mining Lease 95085 – Application by Ian Gilbert Dempster and Sidney Douglas Cuddy for determination of compensation payable to Jock C Logan and Janice L Logan
FILE NO:MLC00034/2008
PROCEEDING: Application for determination of compensation
DELIVERED ON: 22 May 2008
DELIVERED AT: Brisbane
MEMBER:Mr FW Windridge, Judicial Registrar
ORDER/S:1. I determine total compensation under s.281 in the sum of One Hundred Dollars ($100).
2. I direct that the miner pay the total compensation in the sum of One Hundred Dollars ($100) to the landowners within 2 months of notification of the renewal of the mining lease by the Mining Registrar.
CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, ss 281, 283(a)
Smith v Cameron [1986-87] 11 QLCR 64
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139
Mitchell v Oakhill and Mitchell (10.03.98) unreported
COUNSEL: Not applicable – Heard on the Papers
Background
The applicants Ian Gilbert Dempster and Sidney Douglas Cuddy (the miners) seek the renewal of Mining Lease 95085 in the Winton District. The application for renewal for a term of 7 years was lodged at the office of the Mining Registrar on 31 October 2007. The lease is granted for the purpose of mining for opal. Since lodgement of the original application for renewal, an application for assignment of the lease to Ian Gilbert Dempster has been lodged, and this order will apply to that person only.
The lease is located on Lot 78 on OL363. Access is through the same property. A grazing operation is conducted on the property. The lease is over an area of 1.5091ha. For the purpose of this determination, I round off the area to 2ha.
The Act
Section 279 of the Mineral Resources Act 1989 (“the Act”) 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 Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Registrar and the matter has been referred to the Court for determination.
The matters which must be considered by the Court are set forth in s.281(3) of the Act. Although s.281 sets out the matters to be considered, it does not define any method of assessment. The following Land Court case Reports may offer some guidance in determining the approach to be adopted. In Smith v Cameron (1986) 11 QLCR 64, the Land Court held at p.74…
“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.”
In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p.146 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.”
In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the President of the Land Court, referring to s.281(3) of the Mineral Resources Act, 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.”
The evidence
Neither party sought to appear before the Court. This matter has been dealt with on the papers. Neither party filed statements or other supporting material. Some documentation in relation to factual matters was provided by the Registrar. Where necessary, I have referred to these documents for the purpose of accuracy.
There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination. Due to the small area involved, the cost of a valuation would far outweigh any award for compensation. Due to the small area involved, co-use or co-occupation would not be feasible.
In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of ss 4 of s.281 of the Act.
Access
From details provided in the copy of the application for renewal, it appears access is through the same property. There are no details of this access or the effect it will have on the operations of the landowners. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. I make no award for access.
Quantum
In making this determination I take into account that the only other viable use of the land is low intensity grazing.
Having regard to all the circumstances, I consider that the following award will satisfy the requirements of s. 281 for the term of the renewed lease for the limited purposes authorised by the renewal of the lease. Drawing on the limited evidence that is available, I determine compensation under Part 7 of the Mineral Resources Act 1989, to satisfy all heads of compensation set forth in ss 3 of s. 281 of the Mineral Resources Act 1989 shall be the sum of $5 per hectare per annum for the term of the renewal. The compensation award is $70. I further award the sum of $7 under s. 281(4)(e) to reflect the compulsory nature of the action taken under this part, making a total award of $77. I round off the compensation to the sum of $100.
Terms of payment
In relation to the terms, conditions and times when payments should be made, I take into account the quantum of the order, the size of the lease and the term of the lease and order that total compensation of $100 be paid to the landowners within a period of two (2) months from notification of renewal of the mining lease by the Mining Registrar.
FW WINDRIDGE
JUDICIAL REGISTRAR
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