Donovan v Struber & Anor - [2009] QLC 160

LAND COURT OF QUEENSLAND

CITATION: Donovan v Struber & Anor [2009] QLC 0160

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: MLC147-08 and MLC148-08

PROCEEDING: Application for determination of compensation DELIVERED ON: 5 November 2009
DELIVERED AT: Brisbane

MEMBER: Mr BR O’Connor, Judicial Registrar

ORDERS:1. I determine compensation under s.281 in the sum of $2,100 for ML20459 and $725 for ML20461.

2. I award an additional amount of $210 for ML20459 and $75 for ML20461 in accordance with s.281(4)(e).
3. I direct that the miner pay the total compensation in the sum of $2,310 for ML20459 and $800 for ML20461 to the current landowner within three months of notification of grant of the mining lease by the Mining Registrar.

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

This Court has previously made compensation determinations on ML204611 for access only and MLs20459 and 204612 a composite decisions for compensation for the mining lease areas and access. Due to certain administrative errors in these

[2009[ QLC 0031.
[2009] QLC 0079.

decisions, it is now proposed to set aside those decisions (under Rule 45 of the Land Court Rules 2000). The following decision effectively covers the matters in the two decisions set aside.

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 applications were lodged at the office of the Mining Registrar Mareeba on 22 December 2004.
The leases are partially 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 rounded to 16 ha (on ML 20459) and 5 ha (on ML 20461).

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…

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 & Anor

Details

AGLC: Donovan v Struber & Anor [2009] QLC 160
Case: [2009] QLC 160
Decision Date: 5 November 2009

CaseChat Overview and Summary

Colleen Anne Donovan, the applicant, sought the grant of Mining Leases 20459 and 20461 in the Mereeba District, Queensland, for a term of 25 years. The leases, lodged with the Mining Registrar on 22 December 2004, are situated on Palmerville Holding PH 14/5422, where a grazing operation is conducted. The leases cover an area of 16.2 ha for ML 20459 and 5 ha for ML 20461. Given that no agreement on compensation was lodged with the Registrar, the matter was referred to the Land Court for determination. The applicant sought to establish the compensation payable to the current landowner, Stephen Struber and Diane Wilson-Struber.

The court was tasked with determining the compensation payable under section 281 of the Mineral Resources Act 1989. This section outlines the matters to be considered in assessing compensation but does not prescribe a method of valuation, leaving the approach flexible depending on the circumstances of each case. The court considered the small area involved, the lack of formal valuation evidence, and prior compensation determinations and agreements in the region, which ranged from about $5 to $15 per hectare per year. Additionally, the court considered the impact on the land's use, the effect of mining operations on the grazing operation, and the compulsory nature of the action.

The court determined compensation based on the limited evidence available, setting the award at $5 per hectare per annum for the term of the lease, reflecting the low intensity grazing as the only other viable use of the land. The court also awarded a nominal sum of $100 for access to each lease, considering the term of the leases. Furthermore, the court awarded an additional sum under section 281(4)(e) to reflect the compulsory nature of the action. The total compensation was set at $2,310 for ML20459 and $800 for ML20461, to be paid within three months from the notification of the grant of the mining lease by the Mining Registrar.

The court ordered that the miner pay the total compensation to the current landowner within three months of notification of grant of the mining lease by the Mining Registrar. Costs were not sought by either party, and the court deemed it inappropriate to award costs in this matter.

Orders