Donovan v Struber - [2009] QLC 79

LAND COURT OF QUEENSLAND

CITATION: Donovan v Struber & Anor [2009] QLC 0079

PARTIES:In the matter of Mining Leases Nos 20459 and 20461 – Application by Colleen Anne Donovan for determination of compensation payable to Stephen Struber and Diane Wilson-Struber
FILE NO:MLC00147/2008
PROCEEDING:  Application for determination of compensation
DELIVERED ON:         10 June 2009
DELIVERED AT:                   Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDERS:1. I determine compensation under s.281 in the sum of $2,800.
2. I award an additional amount of $280 in accordance with s.281(4)(e).
3.   I direct that the miner pay the total compensation in the sum of $3,080 to the current landowner; $680 within three months of notification of grant of the mining lease by the Mining Registrar; the balance in four instalments of $600 on the fifth, tenth, fifteenth and twentieth anniversary date of the grant of the leases until expiry.

CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, ss 279, 281

Smith v Cameron [1986-87] 11 QLCR
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR
Mithcell v Oakhill and Mitchell (10 March 1998) unreported

APPEARANCES: Not applicable – Heard on the Papers

Background

The applicant Colleen Anne Donovan (the miner) seeks the grant of Mining Leases 20459 and 20461 in the Mereeba District. The applicant seeks terms of 25 years. The application was lodged at the office of the Mining Registrar Mareeba on 22 December 2004.
The leases are located on Palmerville Holding PH 14/5422. Access is through the same property. A grazing operation is conducted on the property. The leases on Palmerville are over an area of 16.2 ha (on ML 20459) and 5 ha (on ML 20461) –totalling 21 ha (rounded).

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. 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…

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 Donovan v Struber

Details

AGLC: Donovan v Struber [2009] QLC 79
Case: [2009] QLC 79
Decision Date: 10 June 2009

CaseChat Overview and Summary

Colleen Anne Donovan applied for the grant of Mining Leases 20459 and 20461 in the Mereeba District, which were located on Palmerville Holding PH 14/5422. Stephen Struber and Diane Wilson-Struber, the current landowners, opposed the application, and the matter was referred to the Land Court of Queensland for a determination of compensation under section 281 of the Mineral Resources Act 1989. The court was required to consider the relevant factors set forth in subsection 3 of section 281 of the Act, which include the amount of compensation that would be fair and reasonable, having regard to the effect of the grant of the lease on the land and its uses, the period for which the lease is granted, and any other matters the court considers appropriate. The court found that the small area of the leases and the lack of formal valuation evidence made it impractical to conduct a detailed assessment of the compensation. Instead, the court relied on the limited evidence available and previous determinations and agreements in the area to determine a fair and reasonable compensation amount.

The court determined that the compensation payable to the current landowners should be $2,800, which included $5 per annum per hectare for the term of the lease and an additional $50 for access. The court also awarded an additional sum of $280 under section 281(4)(e) of the Act to reflect the compulsory nature of the action taken under the Act. The court ordered that the miner pay the total compensation in instalments over the term of the lease, with the first payment of $680 due within three months of notification of the grant of the mining lease by the Mining Registrar and subsequent payments of $600 due on the fifth, tenth, fifteenth, and twentieth anniversary dates of the grant of the lease until expiry. The court did not award costs to either party, as it was not appropriate to do so in this matter.

This case highlights the importance of considering the relevant factors set forth in subsection 3 of section 281 of the Mineral Resources Act 1989 when determining compensation for the grant of a mining lease. The court found that the lack of formal valuation evidence and the small area of the leases made it impractical to conduct a detailed assessment of the compensation. Instead, the court relied on the limited evidence available and previous determinations and agreements in the area to determine a fair and reasonable compensation amount. The court also considered the compulsory nature of the action taken under the Act when determining the additional sum payable under section 281(4)(e) of the Act. This case serves as a reminder to miners and landowners that it is important to carefully consider the terms of any mining lease application and to seek legal advice if necessary.

Orders