Fitzgerald v Struber

[2014] QLC 20

LAND COURT OF QUEENSLAND

CITATION:

Fitzgerald v Struber [2014] QLC 20

PARTIES:

Kay Frances Fitzgerald
(applicant)

v

Stephen Struber and Dianne Wilson Struber
(respondents)

FILE NO:

MRA022-14

DIVISION:

General Division

PROCEEDING:

Application for determination of compensation

DELIVERED ON:

15 May 2014

DELIVERED AT:

Brisbane

HEARD ON:

Heard on the Papers
Decision reserved 8 May 2014

HEARD AT:

BRISBANE

MEMBER:

WA Isdale

ORDER:

1. Compensation is determined in the amount of Ten Dollars ($10) per hectare per annum for an area of 5 ha under s 281(3) of the Mineral Resources Act 1989.

2. Under s 281(4)(e) of the Mineral Resources Act 1989 an additional amount of compensation of One Dollar ($1) per hectare per annum for an area of 5 ha is determined.

3. The applicant shall pay the respondents the total compensation of Fifty-five Dollars ($55) per annum in advance of the year to which it relates with the first payment being made within 30 days of the grant of Mining Lease 20712.

4. The parties are to bear their own costs of the present proceedings.

CATCHWORDS:

Mineral Resources Act 1989, ss 279, 281

Mining Lease – Grant – Determination of Compensation

Fitzgerald v Struber [2013] QLC 43
Fitzgerald v Struber [2013] QLC 44
Mitchell v Oakhill and Mitchell (Unreported, Land Court of Queensland, 10 March 1998)
Shaw v Heritage Holdings Pty Ltd (1992-1993) 14 QLCR 139
Smith v Cameron (1986-1987) 11 QLCR 64

APPEARANCES:

The applicant made written submissions and requested that the matter be determined on the papers. The respondents did not make submissions.

Background

1. On 28 January 2014 the Mining Registrar referred to the Court the matter of compensation for the grant of Mining Lease (ML) 20712. This action was in accordance with s 279 of the Mineral Resources Act 1989 (the Act). The Mining Registrar has taken this step because compensation must be determined before a mining lease is granted and the holder of the mining tenement, the applicant, and the landowners, the respondents, have not reached agreement on the compensation which the applicant should pay to the landowners in accordance with the Act.

2. On 18 February 2014 the Court wrote to the parties setting out a timetable for them to provide information in the present proceeding. A copy of Land Court Practice Direction 5 of 2013 was included. The letter made clear that if material was not received within the time set and no application for an extension of time was sought, the Court may proceed to determine the matter without further notice to the parties. Material was provided on behalf of the applicant.

3. On the applicant’s behalf, it is requested that the matter be determined on the papers. The time within which the respondents were to provide their material has passed and no request for any extension of time has been received. The Court wrote to the respondents at the address given on the referral to the Court, namely PMB 14 at Cairns. In material filed on behalf of the applicant, the Court was informed that correspondence relating to the mining lease certificate of application had been returned by Australia Post as the private mail bag is no longer held by Palmerville Station. Those acting for the applicant in the present matter sent a letter dated 4 March 2014 by email to the respondents care of Bottoms English Lawyers, PO Box 101, Atherton 4883, referring to this matter and expressing a wish to discuss compensation prior to the matter going to Court. They wrote to these solicitors as a new land search showed the solicitors as the contact address. On 4 March 2014 those acting for the applicant received a return email from solicitor Anne English to the effect that her firm did not presently hold instructions from the respondents in this matter, was not a “de facto mail box for them” and suggested that they be telephoned. This prompted a reply from those acting for the applicant attaching a copy of the search which had led to Bottoms English and also stating that attempts to telephone the respondents had been unsuccessful.

4. A statutory declaration declared on 17 March 2014 and filed on behalf of the applicant sets out the attempts made to contact the respondents by telephone and via the solicitors. Two messages were left on an answering machine at the telephone number of Palmerville Station, the number shown on the referral to the Court as the landowner contact telephone number.

5. In the circumstances, the Court will proceed to determine the issue of compensation on the papers which have been filed.

6. The compensation suggested on behalf of the applicant is $10 per ha per annum for Mining Lease (ML) 20712. This is on the basis of an estimate that 5 ha of surface area of the respondents’ property is within the lease. A copy of a compensation agreement dated 20 February 2014 between the miner and NBT Pty Ltd of Bellevue Station for an area of 12.5358 ha has been provided. It relates to ML 20712 and the compensation has been agreed as “$zero”, with the miner to maintain the road access.

7. The land is currently used for cattle grazing and the mining is for gold and silver. The total area of the lease is 12.53 ha and the period applied for was 10 years.

The compensation

1. The Court must settle the amount of compensation in respect of the matters set out in s 281(3)(a) of the Act. They are:

   “(i)deprivation of possession of the surface of land of the owner;

   (ii)  diminution of the value of the land of the owner or any improvements thereon;

   (iii) diminution of the use made or which may be made of the land of the owner or any improvements thereon;

   (iv) severance of any part of the land from other parts thereof or from other land of the owner;

   (v)  any surface rights of access;

   (vi) all loss or expense that arises;

   as a consequence of the grant or renewal of the mining lease;”

The legal framework within which the Court must act

1. Section 279 of the Act provides that a mining lease shall not be renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. The matters which must be considered by the Court are set forth in s 281(3) of the Act. While s 281 sets out the matters to be considered, it does not define any precise method of assessment. In Smith v Cameron (1986) 11 QLCR 64, the Land Court said 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. …”

1. 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. …”

1. In Mitchell v Oakhill and Mitchell (unreported, Land Court of Queensland, 10 March 1998), the President of the Land Court, referring to s 281(3) of the Act, said:

   “… the latter section does not prescribe a method of valuation. 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

1. The evidence provided is that the portion of the lease that falls within the respondents’ property is 5 ha. That is stated in the letter dated 4 March 2014 from those acting for the applicant to the respondents care of Bottoms English Lawyers. The same letter refers to two previous determinations of compensation between the applicant and the respondents where this Court awarded the amount of $10 per ha per annum compensation. The applicant has sought agreement at this level of compensation.

2. In relation to ML 5219, referred to in the letter of 4 March 2014, this was the case of Fitzgerald v Struber[1]. In that case the Judicial Registrar assessed compensation in the amount of $10 per ha per annum for the term of the lease. Pursuant to s 281(4)(e) an additional sum of $45 per annum was awarded. The lease area was about 46 ha.

   [1][2013] QLC 44.

3. In relation to ML 20168, also referred to in the letter of 4 March 2014, this was the case of Fitzgerald v Struber.[2] In that case the area of the mining lease was approximately 11 ha. Again, $10 per ha per annum compensation was assessed with an additional sum of $10.

   [2][2013] QLC 43.

Conclusion

1. On the basis of the material provided and in view of the matters and considerations to which reference has been made compensation is determined at the rate of $10 per ha per annum for an area of 5 ha in all for the period of the lease. This includes all of the criteria encompassed within s 281(3) of the Act. In relation to s 281(4)(e) of the Act, an amount of $1 per ha per annum is determined for an area of 5 ha for the period of this lease. This is 10% of the amount determined under s 281(3) of the Act.

Orders

1. Compensation is determined in the amount of Ten Dollars ($10) per hectare per annum for an area of 5 ha under s 281(3) of the Mineral Resources Act 1989.

2. Under s 281(4)(e) of the Mineral Resources Act 1989 an additional amount of compensation of One Dollar ($1) per hectare per annum for an area of 5 ha is determined.

3.     The applicant shall pay the respondents the total compensation of Fifty-five Dollars ($55) per annum in advance of the year to which it relates with the first payment being made within 30 days of the grant of Mining Lease 20712.

4.     The parties are to bear their own costs of the present proceedings.

WA ISDALE

MEMBER OF THE LAND COURT