ERO Georgetown Gold Operations Pty Ltd v Henry - [2015] QLAC 4

LAND APPEAL COURT OF QUEENSLAND

CITATION:

ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4

PARTIES:

ERO GEORGETOWN GOLD OPERATIONS PTY LTD

(appellant)

v
THOMAS PETER HENRY

(respondent)

FILE NO/S:

LAC003-15

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court

DELIVERED ON:

27 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 November 2015

THE COURT:

Peter Lyons J
WL Cochrane, Member of the Land Court
WA Isdale, Member of the Land Court

ORDER:

Appeal dismissed.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – MATERIAL CHANGE IN CIRCUMSTANCES FOR THE MINING LEASE – where the appellant held a mining lease over land leased by the respondent – where the mining lease was renewed in 2002 to 2011 and a related compensation agreement was entered into (2002 Compensation Agreement) – where the 2002 Compensation Agreement included a condition that the roads in the area of the mining operation would be maintained in good order – where the respondent applied for a further renewal on 1 November 2010, and the parties entered into a mining compensation agreement with respect to the proposed renewal on 23 March 2012 – where in September 2013 the appellant constructed a fence with a locked gate across an area of land on which there was then a constructed road (the Formation) – where, from the early 1990s, the local government has maintained a constructed road on the Formation “to a good standard” – where there was no suggestion that persons using the Formation thought it necessary to seek the permission of the lessee of the land which accommodates the Formation – whether the Land Court erred in deciding to amend the compensation payable with respect to the mining lease on the basis that the appellant’s construction of a fence across the Formation was a material change in circumstances for the mining lease for the purposes of s 283B(1)(b) – whether, for s 283B(1)(b)’s purposes, the change in circumstances must have “as its object or purpose the mining lease itself” – whether the appellant’s fencing off of the Formation was within the parties’ contemplation when they entered into the 2002 Compensation Agreement

Acts Interpretation Act 1954 (Qld), s 14.
Land Act 1994 (Qld), s 93, s 94, s 95, s 96, s 97
Local Government Act 2009 (Qld), s 59, s 60
Mineral Resources Act 1989 (Qld), s 276, s 279, s 281, s 282, s 283B
Property Law Act 1974 (Qld), s 198A

American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; [1981] HCA 65, cited.

Folkestone Corporation v Brockman [1914] AC 338, cited.
Hicks & Anor v Graham & Anor [2004] QLRT 47, cited.
Mann v Brody (1885) 10 AC 378, cited.
Newington v Windeyer (1985) 3 NSWLR 555; (1985) LGRA 289, cited.
R v Petrie (1855) 4 E & B 737; [1855] EngR 38, cited.

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.

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Details

Case: [2015] QLAC 4
Decision Date: 27 November 2015

CaseChat Overview and Summary

In the matter of ERO Georgetown Gold Operations Pty Ltd v Henry, the dispute involved a mining lease held by the appellant over land leased by the respondent. The appellant constructed a fence across an area of land that included a constructed road, which had been maintained by the local government since the early 1990s. The court was tasked with determining whether the Land Court erred in deciding that the appellant's construction of the fence across the road was a material change in circumstances for the mining lease under section 283B(1)(b). Additionally, the court considered whether the change in circumstances must have "as its object or purpose the mining lease itself" and whether the appellant's actions were within the parties' contemplation when they entered into the 2002 Compensation Agreement.

The court examined whether the establishment of the fence and gate by the appellant constituted a material change in circumstances that affected the compensation payable under the mining lease. The court held that the appellant had failed to demonstrate that the learned Member erred in finding that there had been a material change in circumstances due to the appellant's actions. The court also determined that it was unnecessary to decide whether there was a public or other right to use the road on the Formation, as the appeal could be resolved without addressing this issue.

The court's reasoning was that the appellant's construction of the fence and gate across the road was a significant alteration to the existing conditions under the 2002 Compensation Agreement. The court found that this action constituted a material change in circumstances that warranted an amendment to the compensation payable. The court concluded that the appellant had not successfully argued that the learned Member had erred in his decision.

ORDERS:
The appeal was dismissed, and the decision of the Land Court was upheld. The court found that the appellant's actions in constructing a fence and gate across the road constituted a material change in circumstances, justifying the amendment in compensation payable under the mining lease.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Because this appeal can be determined without deciding whether there is a public (or other) right to use the Formation, it is unnecessary to determine this question.Conclusion The appellant has failed to demonstrate that the learned Member erred in holding that there had been a material change of circumstances in relation to ML 30124, as a result of the appellant’s establishment of the fence and gate across the Formation, and its subsequent activities with respect to it. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4
PARTIES:	ERO GEORGETOWN GOLD OPERATIONS PTY LTD (appellant) v THOMAS PETER HENRY (respondent)
FILE NO/S:	LAC003-15
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Appeal from the Land Court of Queensland
ORIGINATING COURT:	Land Court
DELIVERED ON:	27 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	16 November 2015
THE COURT:	Peter Lyons J WL Cochrane, Member of the Land Court WA Isdale, Member of the Land Court
ORDER:	Appeal dismissed.
CATCHWORDS:	ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – MATERIAL CHANGE IN CIRCUMSTANCES FOR THE MINING LEASE – where the appellant held a mining lease over land leased by the respondent – where the mining lease was renewed in 2002 to 2011 and a related compensation agreement was entered into (2002 Compensation Agreement) – where the 2002 Compensation Agreement included a condition that the roads in the area of the mining operation would be maintained in good order – where the respondent applied for a further renewal on 1 November 2010, and the parties entered into a mining compensation agreement with respect to the proposed renewal on 23 March 2012 – where in September 2013 the appellant constructed a fence with a locked gate across an area of land on which there was then a constructed road (the Formation) – where, from the early 1990s, the local government has maintained a constructed road on the Formation “to a good standard” – where there was no suggestion that persons using the Formation thought it necessary to seek the permission of the lessee of the land which accommodates the Formation – whether the Land Court erred in deciding to amend the compensation payable with respect to the mining lease on the basis that the appellant’s construction of a fence across the Formation was a material change in circumstances for the mining lease for the purposes of s 283B(1)(b) – whether, for s 283B(1)(b)’s purposes, the change in circumstances must have “as its object or purpose the mining lease itself” – whether the appellant’s fencing off of the Formation was within the parties’ contemplation when they entered into the 2002 Compensation Agreement Acts Interpretation Act 1954 (Qld), s 14. Land Act 1994 (Qld), s 93, s 94, s 95, s 96, s 97 Local Government Act 2009 (Qld), s 59, s 60 Mineral Resources Act 1989 (Qld), s 276, s 279, s 281, s 282, s 283B Property Law Act 1974 (Qld), s 198A American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; [1981] HCA 65, cited. Folkestone Corporation v Brockman [1914] AC 338, cited. Hicks & Anor v Graham & Anor [2004] QLRT 47, cited. Mann v Brody (1885) 10 AC 378, cited. Newington v Windeyer (1985) 3 NSWLR 555; (1985) LGRA 289, cited. R v Petrie (1855) 4 E & B 737; [1855] EngR 38, cited.