Ge Kelly v Struber
[2012] QLC 74
•21 December 2012
LAND COURT OF QUEENSLAND
CITATION: GE Kelly v Struber & Anor [2012] QLC 74 PARTIES: Gilbert Errol Kelly
(Applicant)
v. Stephen Struber and Dianne Wilson-Struber
(Respondents)
FILE NOs: MRA694-10, MRA724-10, MRA730-10 DIVISION: Land Court of Queensland PROCEEDINGS: Applications for Determination of Compensation DELIVERED ON: 21 December 2012 DELIVERED AT: Brisbane HEARD AT: Cairns MEMBER: His Honour Mr WL Cochrane ORDERS: 1. The determination of compensation in respect of each file will be as follows:
(a) In respect of file MRA694-10 (relating to ML20472) with a calculated area of 12 hectares (12 km x 10 metres) for access compensation is determined in a figure of $5 per hectare and producing a total compensation of $60 per annum.
(b) In respect of file MRA724-10 (relating to ML20473):
(i) With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare per annum.
(ii) With respect to the Mining Lease area for an area of 187.5 hectares calculated at $10 per hectare compensation will be $1,875 per annum.
(c) In respect of file MRA730-10 (relating to ML20475):
(i) With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare.
(ii) With respect to the Mining Lease for an area of 13.8570 ha (rounded up 14 hectares) calculated at $10 per hectare compensation is determined at $140 per annum.
2. With respect to each of the determinations of compensation above I direct that the miner should pay the relevant compensation to the current landowner within two (2) months of notification of the grant of the Mining Lease by the Mining Registrar, and thereafter such compensation should be paid annually in advance.
CATCHWORDS: Mining – Mining Lease – Determination of Compensation - Mineral Resources Act 1989 s.281 –
Absence of Evidence
Re Wallace & Ors & Evans [2006] QLRT 93 applied.
Dembowski & Anor & Struber & Anor, Re [2006] QLRT 44 (26 May 2006)
Background
These three matters are referrals by the Mining Registrar at Mareeba for the determination of compensation payable in respect of Mining Leases applied for by the Applicant Gilbert Errol Kelly.
File MRA694-10
File MRA694-10 relates to Mining Lease ML20472 and concerns access sought by Mr Kelly across Palmerville Station property the leasehold of which is held by the Respondents.
On 10 May 2005 Mr Kelly made an application for a Mining Lease ML 20472.
The lease sought was to achieve access over an area which was already the subject of an Exploration Permit EPM 14001 held by Terence A Kinnaird which EPM area was 44.7734 hectares.
The access is required to allow Mr Kelly to reach a mining lease conducted on Lot 23 on PH 1796 Parish of Aralba, County of Strathleven.
It is difficult to glean from the application documents filed by Mr Kelly[1] exactly the length of the access sought by him although I note that at page 8 of the Pro-forma Application for a Mining Lease he identifies the width of the access required as being 10 metres.
[1] Exhibit 7, page 2.
In documents filed by Mr Kelly in the Court he informs the Court that the access is 12 kilometres long.[2]
[2] Exhibit 7, page 2.
ML20472 is, according to Mr Kelly, intended to achieve access over a distance of approximately 12 kilometres on an already established road.[3] In respect of that access Mr Kelly proposes that he should have to pay $5 per Hectare per annum for each hectare of road which he traverses.
[3] Exhibit 7, page 1.
Elsewhere in the relevant exhibit[4] Mr Kelly contends that the average width of the access to be used by him is 4 metres so that, in effect, access over ML20472 constitutes the utilisation of 4.8 hectares.
[4] Exhibit 7, page 4.
However, as pointed out above, in his application for a Mining Lease Mr Kelly in his signed application identifies his access requirement as being, in fact, 10 metres. Accordingly 12 kilometres of access by a 10 metre wide access way calculates to 12 hectares of land arguably being required even if Mr Kelly proposes to drive on only 4 metres of the 10 metres width available to him.
It seems to me that that is the appropriate area upon which the calculation of compensation for access ought be calculated according to the maximum figure to be gleaned from the material filed by Mr Kelly.
File MRA724-10
File MRA724-10 relates to an application made by Mr Kelly for a Mining Lease ML20473 on 17 June 2005.
Relevantly Mr Kelly seeks a lease over a total area of 209.6988 hectares.
In Court in Cairns Mr Kelly clarified the position by pointing out that 22.17 hectares of the Mining Lease area sought is on a station known as “Gummi Junga” which is owned by an aboriginal corporation. The balance of the land of 187.5 hectares is on Palmerville Station and accordingly that is the area in respect of which compensation is to be assessed not withstanding that in the documentation filed before the Court Mr Kelly asserts that only 110 hectares will be disturbed.[5]
[5] Exhibit 7, page 2.
Unfortunately at page 8 of the Application for a Mining Lease Mr Kelly has declined to identify the length of the access road but merely suggests that it needs to be 10 metres wide and declines to identify the distance with any precision but simply writes on the application form “Map attached and Data”. Reference to the attached map and data leaves the Court in a largely uninformed position. There is some reference to the distances along Karma Waters Road which is a gazetted but unformed road and in respect of which no compensation would be payable.
In his application material at page 8 under the heading of “Access” the pro-forma document calls for a description of the access from the start point to the end point with all bearings to be magnetic. It also calls for distances in metres to be inserted.
In that section Mr Kelly merely inserted “Map attached and Data”. The “Map attached and Data” are largely uninformative because, as I read it, it fails to distinguish between the access which might be achieved from a gazetted road and the access proposed across the Palmerville Station. On one calculation (at page 2 and 3 of the Access Document) the calculations seem to suggest an access approximately 36 kilometres long although later in material filed before the Court Mr Kelly tells us that the access indeed is 13,000 metres long (i.e. 13 kilometres).[6]
[6] Exhibit 7.
As with the preceding application Mr Kelly asserts that the width of the access is 10 metres, although in other material before the Court he says that he only drives on 3 metres. That may well be, but on one view of things the access applied for is 10 metres x 13 kilometres long, so that that produces an area of 13 hectares sought for access. On another view having regard to the figures contained in the formal application documents the access applied for may be calculated to be 36 kilometres x 10 kilometres wide which would produce an area of 36 hectares.
It is the actual lease area in respect of which compensation is calculated not merely the area proposed to be disturbed.
If the calculation which has been carried out by me is somewhat inaccurate for reasons set out herein I am comfortable that it is tolerably close to the actual figure and, given that I have proposed to award $5 per hectare compensation in respect of access, no great injustice would seem to be done to the miner who has otherwise failed to make clear with any precision at all the area required by him for access.
File MRA730-10
File MRA730-10 is in respect of Mining Lease Application 20475 made on 17 June 2005.
That application seeks a Mining Lease area of 13.8570 hectares.
Once again as with the previous file Mr Kelly declines to provide full details of the access but merely attaches an identical set of documentation which, as I indicate above, I calculate to produce approximately 36 kilometres of access at a nominal width of 10 metres producing an area (appropriately rounded) of 27 hectares occupied by the access way.[7]
[7] Exhibit 3, page 37.
That figure is not at all consistent with the figures contained in Exhibit 7 wherein Mr Kelly contends that the access of ML20475 is for only a distance of 6 kilometres.
I surmise, but it is not entirely clear, that that 6 kilometres must be added on to some other access and I have formed the view that the figures provided by him in respect of his Application for an Environmental Permit are probably more accurate and have relied upon those figures. As with the preceding file the access on one view of things is for either 36 hectares or, having regard to Exhibit 7, 6 hectares.
If there is a discrepancy in my calculation then that can only favour the landowner and if an Applicant for a Mining Lease does not see fit to provide an unequivocal and clearly set out application including appropriately calculated distances with the result that they pay compensation for a larger area than was intended to be applied for than that is a problem about which they will have little basis for complaint.
The Conduct of the Hearing
By an Order made on 15 June 2011 the parties were directed to file any material upon which they wished to rely in the Land Court registry by particular dates in July 2011.
In particular, the Respondents were directed to file their material and to serve them on the Applicant Mr Kelly by 20 July 2011.
The Applicant Mr Kelly prepared substantial material and filed it in the Court and by correspondence later sent to the Court establishes that he also sent copies of the material by registered mail to the Respondent at various times up until 21 July 2011.[8]
[8] Exhibits 7, 8, 9, 10 and 11.
Nothing was heard from the Struber’s either by way of correspondence, telephone call or by filing of material in Court. The outcome of that was at the time the matter came on for hearing in Cairns where Mr Struber appeared in person he readily conceded that he had not filed any material. He gave various unsatisfactory explanations for that failure.
Mr Struber did file a pair of Statutory Declarations relating to one Edward Saxby and two Prospecting Permits and Applications for Mining Leases 20613, 20666, 20668 but upon inquiry being made of Mr Struber in Court it became clear, and he accepted, that they had nothing to do with the application presently before the Court.
Mr Struber also filed an Originating Application seeking injunctive relief in respect of Mining Leases ML3007 and ML3009 but again neither of those leases were the subject of the hearing before the Court at that time and accordingly could be disregarded.
Very shortly before the date of hearing Mr Kelly filed a document that became Exhibit 12 which set out a number of decisions of the Land Court relating to compensation in the Mareeba area together with evidence of compensation agreements which had been reached between Mr Kelly and other landholders where he had mining leases granted.
Notwithstanding Mr Struber’s abject failure to file any material which sensibly related to the issue of compensation I made Orders giving him one last opportunity to file such material as he wished with respect to the issue of compensation and then directed that Mr Kelly also have an opportunity to respond to whatever material Mr Struber may choose to file.
The reasons for making the orders which I made were as follows:
(a)There was no cogent or acceptable explanation from Mr Struber as to why he failed to file any material.
(b)Mr Struber did not, in Court, indicate that he had any particular calculations or figures in mind which he wished to advance.
(c)The Orders which I made gave Mr Struber an opportunity to contend for some particular figures.
(d)The Orders made enable the Court to proceed with determining compensation in circumstances where both parties have had an opportunity to make appropriate submissions consistent with the Court’s obligation to act with equity and good conscience and attempt to glean the substantial merits of any case.[9]
(e)The miner is entitled to have his application for a Mining Lease determined without suffering at the hands of a landowner who declines to comply with the Court Orders.
[9] Land Court Act 2000 s.7(b).
In the event Mr Struber filed nothing and accordingly Mr Kelly wrote to the Court on 18 June 2012 pointing out the failure by Mr Struber and requesting that the Court then proceed to determine the matter of compensation.
At the meeting in Cairns Mr Kelly sought leave and was allowed to file a further document setting out his contentions with respect to both access and the Mining Lease areas.[10]
[10] Exhibit 7.
In the course of that document[11] Mr Kelly set out what he contended were the access requirements in the following terms:
“Approximate land used for access to be compensated: random width measures of the road vary in width from 3 metres to 4 metres.
· ML20472 - › 12 Kms x average width of 4 metres = 12000m x 4m = 48000m² = 4.8 hectares
· ML20473 - › 13 Kms x average width of 4 metres = 13000m x 4m = 52000m² = 5.8 hectares
· ML20475 - › 6 Kms x average width of 4 metres = 6000m x 4m = 24000m² = 2.4 hectares
There are three leases however I will only be accessing one lease at any one time. There will be no interference in the form of traversing roads on the Station until work commences on each individual mining lease.”
[11] Exhibit 7, page 2.
As I have pointed out above those figures advanced by Mr Kelly in his written submissions in Court do not accord with the figures contained within the application documents.
A question then arises as to how this Court should proceed to calculate the appropriate area to be utilised for access and to then determine compensation.
I have come to the view that where a formal document calls for a distance for access to be described in metres and an Applicant fails to do so and leaves the Court in a position where on the official application material one area might be calculated as being required for access and yet in written submissions to the Court without any clarification for the discrepancy a miner later contends that a vastly smaller area may be required for access, the Court, in order to do justice to the landowner and to recognise the obligations placed upon the miner, should adopt the larger figure. This is particularly so because the amount allowed for compensation is generally quite low and adopting the higher figure for access area does not, in my view, wreak any grave injustice on the miner. This is particularly so when the miner ahs provide equivocal figures.
Mr Kelly contends that although there are two leases where actual mining will take place he will only be disturbing one lease at any particular time and accordingly appears to contend that compensation for access should be determined in a single figure which will apply to both Mining Leases.
Such a proposition ignores the fact that mining leases might be sold, transferred or assigned so that at any one time both of the leases could, theoretically, be being utilised and accordingly generating additional traffic on the access routes.
The figures allowed for access are, in any event, relatively low and accordingly I am disinclined to accede to Mr Kelly’s proposition about access.
I propose to order compensation be payable in respect of each access for each Mining Lease, recognising that, with respect to file MRA694-10, that claim is for access only.
The task then remains of determining what compensation should be. This task must be discharged in the circumstance that only one party has seen fit to advance any particular figures.
I come to the view that in the context of the leases presently sought by Mr Kelly that they will have a negligible effect if indeed they have any effect at all on the management of the Struber’s Pastoral Activities.
The mining activity proposed is essentially an alluvial one to be conducted in the stream bed.
The Court has commented on a number of occasions previously about the difficulty of determining compensation in circumstances where scant or no evidence is provided to the Court.
For example, Judicial Registrar O’Connor has observed[12]:
“It is not an uncommon occurrence for either of both parties in a compensation matter before the Court to fail to comply with the Practice Direction. The absence of detailed compensation evidence from both sides clearly makes the task of the Court in determining compensation difficult. In the circumstances, I adopt the analysis of the legislative provisions, compensation principles and methodology applied by Mining Referee Windridge in Re Wallace & Ors & Evans [2006] QLRT 93.”
[12] Re Wilkins and Mudge [2009] QLC 0075 (29 May 2009), page 2 para [5].
In Wallace & Ors & Evans, Mining Referee Windridge observed:
“The evidence
…
[8]There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination. Due to the small area involved, the cost of a valuation would far outweigh any award for compensation. Due to the small area involved, co-use or co-occupation would not be feasible, and the land owner has notionally lost the use of the lease area of approximately 8ha for the term of the renewal. However, as the intention is to extract tin, gold and gravel from the creek alluvium, the mining operation will have little or no effect on the grazing operation.
[9]Prior determinations and agreements for leases and claims in the Mareeba area for alluvial gold or tin operations range from about $1.00 per hectare per year to $3.00 per hectare per year.
[10]In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of section 281 of the Act.
Access
[11]From details provided in the copy of the application for renewal, it appears access is partly through the same property. There are no details of this access or the effect it will have on the operations of the landowners. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. I award a nominal sum of $10.00 in relation access to the lease, noting that the term of the renewal is not of a short duration.
Blot on title
[12]The loss of land through a mining tenure of lengthy duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v Cameron (1986-87) 11 QLCR). In this instance, the renewed lease is over an area of 8 hectares, and the term of the renewed lease is 21 years. In the absence of any evidence, I make no allowance for any perceived blot on title. I note that a mining lease grants the right to mine on a limited area for a limited time. Other than the right to mine, the grant of a lease does not create any interest or title in the land. There is no endorsement or registration of the lease on the background title document.”
In his decision, Mining Referee Windridge, took into account, as seems appropriate in the present case, that the only viable use of the land is low intensity grazing if pasture is available in the alluvial beds.
He concluded that mining operations on the lease would have no measurable effect on the operations conducted on the property and, while there would be some minor effect which would the noise of machinery and the movement of people and vehicles on or about the lease area and along the access road, there was no evidence of severance of one part of the property from any other part.
Those observations are entirely apposite in the present case. The Mining Referee also found that the lease was taken out for alluvial mining and was a low impact operation. Again, those observations apply to the present case.
In Wallace & Ors the Referee allowed $1.00 per annum per hectare for the term of the renewal on the notional area of 8 Ha and awarded an additional sum of $10.00 for access.
In the present case on the miner’s submissions[13] there have been a wide range of awards in respect of lease areas as well as access areas. There have been a number of decisions[14] involving the land held by the Struber’s of more recent times the figures in which suggest that the figures of $5 per hectare for access and $10 per hectare for the Mining Lease seems to be a common award.
[13] Exhibit 12.
[14] Donovan v Struber & Anor QLC 0038, Re Fitzgerald & Anor v SR Struber & Anor [2009] QLC 0076, Fitzgerald v Struber& Anor [2010] QLC 0064.
Indeed, the figures of $5 per hectare, $10 per hectare for the mining activity were contended for by Mr Kelly and, as indicated above no submissions were received by Mr Struber seeking to displace those propositions. Accordingly, I come to the view that those are the appropriate figures for the determination of compensation.
The determination of compensation in respect of each file will be as follows:
(a)File MRA694-10 (relating to ML20472) with a calculated area of 12 hectares compensation is determined in a figure of $5 per hectare and producing a total compensation of $60 per annum.
(b)File MRA724-10 (relating to ML20473):
(i)With respect to access calculated at 36 hectares (36 kilometres x 10 metres) compensation is determined at $180 at a rate of $5 per hectare per annum.
(ii)With respect to the Mining Lease for an area of 187.5 hectares calculated at $10 per hectare compensation will be $1,875 per annum.
(c)File MRA730-10 (relating to ML20475):
(i)With respect to access calculated at 36 hectares (36 kilometres x 10 metres) at a rate of $5 per hectare compensation is determined at $180 per annum.
(ii)With respect to the Mining Lease for an area of 13.8570 (rounded up 14 hectares) calculated at $10 per hectare compensation will be $140 per annum.
With respect to each of the determinations of compensation above I direct that the miner should pay compensation to the current landowner within two (2) months of notification of the grant of the Mining Lease by the Mining Registrar and thereafter such compensation should be paid annually in advance.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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