Goldhounds Exploration and Mining Pty Ltd v Struber

[2016] QLC 65

LAND COURT OF QUEENSLAND

CITATION:

Goldhounds Exploration and Mining Pty Ltd v Struber & Anor [2016] QLC 65

PARTIES:

Goldhounds Exploration and Mining Pty Ltd
ACN 92 607 633 456
(applicant)

v

Stephen Roy Struber and Dianne Rose Wilson-Struber

(respondents)

FILE NO:

MRA214-16
MRA268-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of mining leases.

DELIVERED ON:

3 November 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 18 August 2016 and 21 September 2016

HEARD AT:

Heard on the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.   In respect of ML 100065 compensation is determined in the sum of $330 per annum.

2.   In respect of ML 100066 compensation is determined in the sum of $572 per annum.

3.   The applicant pay compensation to the Public Trustee of Queensland on behalf of the respondents the amounts set out in orders 1 and 2 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.

CATCHWORDS:

MINING LEASE – grant – referral – determination of   compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes

Mineral Resources Act 1989

Public Trustee Act 1978

Brown v Struber & Anor [2016] QLC 54

Fitzgerald & Anor v Struber & Anor [2009] QLC 76

Kelly v Struber & Anor [2016] QLC 7

Munro & Anor v Struber & Anor [2016] QLC 49

Northeast Mining Co Pty Ltd v Struber & Anor

[2016] QLC 5

Valenti v Struber & Anor [2015] QLC 17

Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297

APPEARANCES:

Not applicable

1. Each proceeding concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Leases 100065 (ML 100065) and 100066 (ML 100066).

2. The referral documents list the address for the respondents as:

   PRINCIPAL PUBLIC TRUST OFFICER
   PUBLIC TRUST OFFICE
   PO BOX 656
   CAIRNS QLD 4870

Background

1. The applicant, Goldhounds Exploration and Mining Pty Ltd ACN 92 607 633 456, (the miner) seeks the grant of two mining leases situated on land described as Lot 14 on SP250040.  ML 100065 comprises a mining area of 27.26 ha while ML 100066 has a mining area of 49.55 ha.  Both leases can be accessed via a track 3.9 km in length. 

2. The mining and access areas of both ML 100065 and ML 100066 are situated on land owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).  The land is more commonly known as Palmerville Station and is used for grazing purposes. The relevant area of Palmerville Station is located in the Cook Shire Local Government area.

3. A separate certificate of application was issued by the Department of Natural Resources and Mines for ML 100065 and ML 100066 on 21 January 2016.

Relevant legislation

1. Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In this matter, no agreement has been lodged with DNRM and the matter has been referred to the Land Court for determination.

2. Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

   “(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.”

3. Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows:

   “(4) In assessing the amount of compensation payable under subsection (3) -

   (e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

4. The assessment process to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd [No.2][1] as follows:

   “It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said:

   ‘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.’

   Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.”

   [1] (1998) 19 QLCR 297 at p 315.

The Conduct of the Proceedings and Evidence

1. On 16 June 2016 (MRA214-16) and 19 July 2016 (MRA268-16) the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No. 6 of 2015.  As the landowners are currently serving a period of imprisonment the correspondence was forwarded to the landowners c/- Stephen R Struber, Lotus Glenn Correctional Centre, Private Bag 1, Mareeba Qld 4880.

2. The miner’s submissions regarding the assessment of compensation for each lease were received by the registry on 12 July 2016 (ML 100065) and 1 August 2016 (ML 100066).

3. In respect of both leases the miner contended:

   1.that the compensation offered i.e. $10 per ha per annum was in line with recent Land Court determinations for mining leases on Palmerville Station and compensation should be determined at this rate for the mining areas.

   2.that the land on Palmerville Station “is considered to be low grade grazing land and is surrounded by other mining tenures for the purpose of alluvial gold extraction”.

4. The landowners have not filed any material in response to the submissions relied upon by the miner.

Determination

1. As there has been no expert evidence filed by either party or no submissions from the landowners I consider it appropriate to seek guidance from the earlier Court judgments from the Mareeba district in undertaking the determination of compensation in respect of ML 100065 and ML 100066.

2. The miner has identified the following judgments namely, Valenti v Struber & Anor,[2] Kelly v Struber & Anor,[3] (Kelly) and Northeast Mining Co Pty Ltd v Struber & Anor[4] (Northeast) as justifying a contended compensation amount of $10 per ha per annum for the mining lease areas. These judgments are helpful given that each was guided by Fitzgerald & Anor v Struber & Anor[5], a decision which followed a full hearing in Cooktown, involved Mr and Mrs Struber and had the benefit of evidence tested by cross examination and submissions. These judgments all concern compensation in respect of mining areas on Palmerville Station and in my view are generally supportive or the miner’s proposal for resolution.

   [2] [2015] QLC 17.

   [3] [2016] QLC 7.

   [4] [2016] QLC 5.

   [5] [2009] QLC 76.

3. Both ML 100065 and ML 100066 are reached via access tracks across Palmerville Station which are 3.9 km in length and 10 m in width.  Although no submissions have been received  regarding compensation in respect of these tracks, I again consider that earlier Court determinations[6] in respect of access areas across Palmerville Station support compensation at a rate of $5 per ha per annum.

   6           Brown v Struber & Anor [2016] QLC 54; Munro & Anor v Struber & Anor [2016] QLC 49.

4. ML 100065 contains a mining area of 27.26 ha and ML 100066, an area of 49.55 ha. The access area to each lease is 3.9 ha.  For the purposes of calculation all areas will be rounded to the next full hectare.

5. On the basis of the Court judgments already referred to, the determination in each case is set out as follows:  

   ML 100065

   Area covered by mining lease –            28 ha @ $10 per ha = $280.00 per annum

   Area covered by access –   4 ha @ $  5 per ha = $  20.00 per annum

   add s 281(4)(e) re: compulsory nature of grant   = $  30.00 per annum

   Total= $330.00 per annum

   ML 100065

   Area covered by mining lease –            50 ha @ $10 per ha = $500.00 per annum
   Area covered by access –   4 ha @ $  5 per ha = $   20.00 per annum
   add s 281(4)(e) re: compulsory nature of grant                      = $  52.00 per annum
   Total   = $572.00 per annum

6. In light of the landowners’ present incarceration, I intend to order that the compensation determined be paid to the Public Trustee of Queensland.[7]

   [7] Refer Part 7 Public Trustee Act 1978. 

Orders

1.In respect of ML 100065 compensation is determined in the total sum of $330 per annum.

2.In respect of ML 100066 compensation is determined in the total sum of $572 per annum.

3.The applicant pay compensation to the Public Trustee of Queensland on behalf of the respondents the amounts set out in orders 1 and 2 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR