Fitzgerald & Anor v Struber & Ors - [2014] QLC 29

LAND COURT OF QUEENSLAND

CITATION: Fitzgerald & Anor v Struber & Ors [2014] QLC 29

PARTIES:
Patrick Charles Fitzgerald and Kay Frances Fitzgerald

(Applicants)

v.

Stephen Struber and Dianne Wilson-Struber

(Respondents)

And

Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)

FILE NO/S: MRA079-11, EPA080-11 and MRA871-12

DIVISION: Land Court of Queensland

PROCEEDINGS: Application for Mining Lease and Objections; Objections to draft environmental authority; Claim for compensation for grant of mining lease.

DELIVERED ON: 5 September 2014

DELIVERED AT: Brisbane

HEARD AT: Decision on the papers.

MEMBER: His Honour, Mr WL Cochrane

ORDERS:
1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20659 be granted over the application area for the term sought.

2. Pursuant to s 222(1)(a) of the Environmental Protection Act 1994, I recommend to the Honourable the Minister for Environment and Heritage Protection that the environmental authority be issued in terms of the draft Environmental Authority No. MIC 201161110 issued on 24 February 2010.

3. The Applicants are to pay compensation in respect of ML 20659 in the following amounts:-

(a) A one off fee of $500 for inspection of the application documents and mining lease.

(b) $680 per year for the mining lease and access.

4.The Applicants are to pay the compensation, including the one off inspection fee, within three months of the notification of the grant of the mining lease by the mining registrar and thereafter annually in advance on the anniversary of the notification.

5. I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection and to the Honourable the Minister for Natural Resources and Mines.

CATCHWORDS:
Mining – Mining Lease – Recommendation – Objections – Mineral Resources Act1989 ss 238, 252, 269, and 422 – Mining – Mining Lease – Determination of Compensation – Mineral Resources Act 1989 s 281 – Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32 - Environment – draft Environmental Authority – objections – Environmental Protection Act1994 – ss 219, 220, 222, 223

Baldwin v Struber [2012] QLC 0056

Dembrowski & Anor v Struber & Anor, Re [2006] QLRT 44

Mitchell v Oakhill and Mitchell (10 March 1998)

Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32.

Re Wilkins and Mudge [2009] QLC 0075
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139
Smith v Cameron [1986-87] 11 QLCR 64

APPEARANCES: Not applicable – Heard on the papers.

Background

Files MRA079-11 and EPA080-11 were referred by the Mining Registrar for the Mareeba District on 8 March 2011 for determination by this Court in accordance with the Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA) for an application for ML 20659 and associated environmental authority together with objections. File MRA871-12 was referred by…

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 Fitzgerald & Anor v Struber & Ors

Details

AGLC: Fitzgerald & Anor v Struber & Ors [2014] QLC 29
Case: [2014] QLC 29
Decision Date: 5 September 2014

CaseChat Overview and Summary

Fitzgerald & Anor v Struber & Ors involved a dispute over a mining lease and an application for an environmental authority in Queensland. The applicants, Mr. and Mrs. Fitzgerald, sought a mining lease over a specified area, while the respondents, Struber and others, lodged objections to both the mining lease and the environmental authority. The case was heard in the Queensland Land Court, which had to decide on the objections and make recommendations to the respective ministers regarding the grant of the mining lease and the environmental authority.

The primary legal issues before the court were whether the objections raised by the respondents were valid under the Mineral Resources Act 1989 and the Environmental Protection Act 1994, and if so, what recommendations should be made to the ministers regarding the mining lease and environmental authority. The court also needed to determine the appropriate compensation for the mining lease as required by the Mineral Resources Act. The court considered various statutory provisions, including sections 220, 222, and 223 of the EPA, and sections 238, 252, 269, and 422 of the MRA. The court was particularly mindful of the limitations imposed by section 268(3) of the MRA, which restricts objections that have not been formally lodged.

The court found that the objections were valid and considered the relevant statutory criteria, including the application documents, regulatory requirements, standard criteria, and objections raised. The court determined that the objections did not warrant refusal of the mining lease or the environmental authority, and therefore recommended to the Minister for Natural Resources and Mines that the mining lease be granted and to the Minister for Environment and Heritage Protection that the environmental authority be issued in accordance with the draft. The court also calculated the compensation payable by the applicants under the Mineral Resources Act, setting a one-off inspection fee and an annual fee for the mining lease and access.

In conclusion, the Land Court recommended the grant of the mining lease and the environmental authority, subject to the objections being considered, and ordered the applicants to pay the specified compensation within the stipulated timeframe. The court directed the Registrar of the Land Court to send a copy of the reasons to the relevant ministers.

Orders

Orders of the court

1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20659 be granted over the application area for the term sought.

2. Pursuant to s 222(1)(a) of the Environmental Protection Act 1994, I recommend to the Honourable the Minister for Environment and Heritage Protection that the environmental authority be issued in terms of the draft Environmental Authority No. MIC 201161110 issued on 24 February 2010.

3. The Applicants are to pay compensation in respect of ML 20659 in the following amounts:-

(a) A one off fee of $500 for inspection of the application documents and mining lease.

(b) $680 per year for the mining lease and access.

4.The Applicants are to pay the compensation, including the one off inspection fee, within three months of the notification of the grant of the mining lease by the mining registrar and thereafter annually in advance on the anniversary of the notification.

5. I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection and to the Honourable the Minister for Natural Resources and Mines.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 220 of the EPA provides as follows:“220 Objections decision hearing(1) The Land Court may, of its own initiative, make orders or directions it considers appropriate for a hearing for the objections decision (the objections decision hearing).(2) The orders or directions must, as much as practicable, ensure the objections decision hearing happens as closely as possible to hearings under the Mineral Resources Act for each relevant mining tenement.” In the present case the objection to the mining lease and the objection to the application for an environmental authority were to be heard and determined together along with the determination of the matter of compensation. Section 222(1) of the EPA identifies the nature of the decision which I am entitled to make in respect of the environmental authority namely, a recommendation to the EPA minister that:“…(a) the application be granted on the basis of the draft environmental authority for the application; or(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or(c)the application be refused.” Section 223 of the EPA identifies the matters to be considered for the objections decision and specifically provides that I must consider the following:(a) the application documents for the application;(b) any relevant regulatory requirement;(c) the standard criteria;(d)to the extent the application relates to mining activities in a wild river area – the wild river declaration for the area;(e)each current objection;(f)any suitability report obtained for the application;(g)the status of any application under the MRA for each relevant mining tenement. With respect to my obligation in the context of the objections to the grant of the mining lease s 268(3) of the MRA provides:“(3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.” The MRA and EPA do not contain any provisions which entitle me to go beyond the ambit of the relevant objections. In all the circumstances of this case, given the ample opportunities which were provided to the parties to put further material before the Court, I am satisfied that this is a case in which it is appropriate for the Court to make a determination on the papers. In addition to the mining registrar’s report for the Land Court, which exhibited all of the correspondence received in respect of the application by Mr and Mrs Fitzgerald, the Court also received, on 17 December 2012, correspondence from The Australian Mining and Exploration Titles Services Pty Ltd under the signature of one Fiona Abbey setting out additional information in respect of the application by Mr and Mrs Fitzgerald (“The AMETS letter”). Section 269(4) of the MRA provides that the Land Court, in making a recommendation to the Minister that an application for a mining lease shall be granted either in whole or in part, must take into account and consider a number of specified matters.

Ratio Decidendi

Legal Principle Established

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CITATION:	Fitzgerald & Anor v Struber & Ors [2014] QLC 29
PARTIES:	Patrick Charles Fitzgerald and Kay Frances Fitzgerald (Applicants)
v.
Stephen Struber and Dianne Wilson-Struber (Respondents)
And
Chief Executive, Department of Environment and Heritage Protection (Statutory Party)
FILE NO/S:	MRA079-11, EPA080-11 and MRA871-12
DIVISION:	Land Court of Queensland
PROCEEDINGS:	Application for Mining Lease and Objections; Objections to draft environmental authority; Claim for compensation for grant of mining lease.
DELIVERED ON:	5 September 2014
DELIVERED AT:	Brisbane
HEARD AT:	Decision on the papers.
MEMBER:	His Honour, Mr WL Cochrane
ORDERS:	1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20659 be granted over the application area for the term sought. 2. Pursuant to s 222(1)(a) of the Environmental Protection Act 1994, I recommend to the Honourable the Minister for Environment and Heritage Protection that the environmental authority be issued in terms of the draft Environmental Authority No. MIC 201161110 issued on 24 February 2010. 3. The Applicants are to pay compensation in respect of ML 20659 in the following amounts:- (a) A one off fee of $500 for inspection of the application documents and mining lease. (b) $680 per year for the mining lease and access. 4.The Applicants are to pay the compensation, including the one off inspection fee, within three months of the notification of the grant of the mining lease by the mining registrar and thereafter annually in advance on the anniversary of the notification. 5. I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection and to the Honourable the Minister for Natural Resources and Mines.
CATCHWORDS:	Mining – Mining Lease – Recommendation – Objections – Mineral Resources Act1989 ss 238, 252, 269, and 422 – Mining – Mining Lease – Determination of Compensation – Mineral Resources Act 1989 s 281 – Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32 - Environment – draft Environmental Authority – objections – Environmental Protection Act1994 – ss 219, 220, 222, 223 Baldwin v Struber [2012] QLC 0056 Dembrowski & Anor v Struber & Anor, Re [2006] QLRT 44 Mitchell v Oakhill and Mitchell (10 March 1998) Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32. Re Wilkins and Mudge [2009] QLC 0075 Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139 Smith v Cameron [1986-87] 11 QLCR 64
APPEARANCES:	Not applicable – Heard on the papers.