Henry v ERO Georgetown Gold Operations Pty Ltd - [2015] QLC 13

LAND COURT OF QUEENSLAND

CITATION: Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13

PARTIES: Thomas Peter Henry
(applicant)

v

ERO Georgetown Gold Operations Pty Ltd
ACN 104 826 959
(respondent)

FILE NO: MRA036-14

DIVISION: General Division

PROCEEDING: Application for determination of compensation pursuant to s 283B and/or s 363 of the Mineral Resources Act 1989

DELIVERED ON: 13 May 2015

DELIVERED AT: Brisbane

HEARD ON: 15-17 July 2014
Submissions closed 1 September 2014

HEARD AT: Georgetown

MEMBER: PA Smith

ORDERS:
1. The additional amount of compensation awarded to Henry is the sum of Thirty Seven Thousand, Nine Hundred and Seven Dollars and Ten cents ($37,907.10) for the period up until 13 July 2014, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

2. The additional amount of compensation awarded to Henry is the further monthly sum of Three Thousand, Nine Hundred and Fifty-four Dollars and Sixty-two cents ($3,954.62), payable for the period 14 July 2014 until the re-opening of the formation, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

CATCHWORDS:
EVIDENCE – exhibits – historical evidence – road tenure history-factual background evidence not in dispute – tracks/roads – surveyor reports – unchallenged – neither expert surveyor being called to give evidence – not required for cross examination – topographical charts – aerial photograph – cadastral boundaries – uncommon occurrence – cattle tracks – computer aided drafting – inherently inconsistent evidence

MINING LEASE – right to have compensation reviewed if change in circumstances-compensation to owner – determination or agreement under s 279 MRA – s 283B MRA

MINING LEASE – assessment – s 283B MRA – damage – injury or loss-road – loss of access by applicant due to mining activities by Respondent – MRA authority – compensation agreement – review of compensation – jurisdictional facts – change of circumstances

ROADS AND ACCESS – legal status – formation-dedication-notification-declaration – common law position-public right of way – Fourmile v Selpham Pty Ltd – public user – local authority maintenance – Local Government Act 1974 – definitions s 93 Land Act1994 – s 59 Local Government Act1989 – control of roads – s 60 Local Government Act1989 – right of access – s 276 MRA-interference with road – s 404E MRA

MINING LEASE – compensation and agreements – which applicable – s 286 (2) MRA – nature and terms of agreement – material change in circumstances – takes effect-filing and stamping of agreement – s 282 MRA – no grant of lease until agreement or Land Court determination – s 283A MRA – original lease – renewal - lack of agreement Benny v Vella – original agreement remains in force – operative date

MINING LEASE – compensation and assessment of elements-amendment of original compensation – additional 10% amount s 281(4)(e) MRA applies to amendment – valuation evidence – quantification –…

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] QLC 13
Decision Date: 13 May 2015

CaseChat Overview and Summary

In the case of Henry v ERO Georgetown Gold Operations Pty Ltd, the applicant, Henry, sought additional compensation from the respondent, ERO, due to changes in circumstances related to the mining lease. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT), with the Tribunal being required to determine whether there had been a material change in circumstances justifying an increase in compensation. The Tribunal also needed to ascertain the appropriate amount of compensation if a change in circumstances was found. The applicant contended that the respondent's mining activities had blocked access to a road used for private purposes, which was a significant change from the circumstances existing when the original compensation was agreed upon. The respondent argued that there had been no material change in circumstances.

The Tribunal began by examining the nature of the road in question, noting that it was not a public road but a private access road. It was established that the road had been in use for over a century and was documented in historical evidence such as surveyor reports and cadastral maps. The Tribunal accepted that the road's blockage due to the respondent's mining activities constituted a material change in circumstances, triggering a review of the compensation under section 283B of the Mining Act 1978 (MRA). The Tribunal also considered the evidence regarding the quantification of damages, including loss of access, additional expenses, and lost income opportunities. The Tribunal concluded that the applicant was entitled to additional compensation and assessed the amount based on the evidence presented.

The Tribunal awarded the applicant an additional sum of compensation, both as a lump sum for the period up until 13 July 2014 and as a monthly amount thereafter until the road was reopened. The lump sum was calculated at Thirty Seven Thousand, Nine Hundred and Seven Dollars and Ten Cents ($37,907.10), and the monthly compensation was set at Three Thousand, Nine Hundred and Fifty-four Dollars and Sixty-two Cents ($3,954.62). These sums were to be paid by the respondent to the applicant in addition to the compensation determined in the 2012 agreement. The Tribunal also noted that the original compensation agreement remained in force for all other aspects not covered by this decision.

Orders

Orders of the court

1. The additional amount of compensation awarded to Henry is the sum of Thirty Seven Thousand, Nine Hundred and Seven Dollars and Ten cents ($37,907.10) for the period up until 13 July 2014, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

2. The additional amount of compensation awarded to Henry is the further monthly sum of Three Thousand, Nine Hundred and Fifty-four Dollars and Sixty-two cents ($3,954.62), payable for the period 14 July 2014 until the re-opening of the formation, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13
PARTIES:	Thomas Peter Henry (applicant)
v
ERO Georgetown Gold Operations Pty Ltd ACN 104 826 959 (respondent)
FILE NO:	MRA036-14
DIVISION:	General Division
PROCEEDING:	Application for determination of compensation pursuant to s 283B and/or s 363 of the Mineral Resources Act 1989
DELIVERED ON:	13 May 2015
DELIVERED AT:	Brisbane
HEARD ON:	15-17 July 2014 Submissions closed 1 September 2014
HEARD AT:	Georgetown
MEMBER:	PA Smith
ORDERS:	1. The additional amount of compensation awarded to Henry is the sum of Thirty Seven Thousand, Nine Hundred and Seven Dollars and Ten cents ($37,907.10) for the period up until 13 July 2014, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement. 2. The additional amount of compensation awarded to Henry is the further monthly sum of Three Thousand, Nine Hundred and Fifty-four Dollars and Sixty-two cents ($3,954.62), payable for the period 14 July 2014 until the re-opening of the formation, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.
CATCHWORDS:	EVIDENCE – exhibits – historical evidence – road tenure history-factual background evidence not in dispute – tracks/roads – surveyor reports – unchallenged – neither expert surveyor being called to give evidence – not required for cross examination – topographical charts – aerial photograph – cadastral boundaries – uncommon occurrence – cattle tracks – computer aided drafting – inherently inconsistent evidence MINING LEASE – right to have compensation reviewed if change in circumstances-compensation to owner – determination or agreement under s 279 MRA – s 283B MRA MINING LEASE – assessment – s 283B MRA – damage – injury or loss-road – loss of access by applicant due to mining activities by Respondent – MRA authority – compensation agreement – review of compensation – jurisdictional facts – change of circumstances ROADS AND ACCESS – legal status – formation-dedication-notification-declaration – common law position-public right of way – Fourmile v Selpham Pty Ltd – public user – local authority maintenance – Local Government Act 1974 – definitions s 93 Land Act1994 – s 59 Local Government Act1989 – control of roads – s 60 Local Government Act1989 – right of access – s 276 MRA-interference with road – s 404E MRA MINING LEASE – compensation and agreements – which applicable – s 286 (2) MRA – nature and terms of agreement – material change in circumstances – takes effect-filing and stamping of agreement – s 282 MRA – no grant of lease until agreement or Land Court determination – s 283A MRA – original lease – renewal - lack of agreement Benny v Vella – original agreement remains in force – operative date MINING LEASE – compensation and assessment of elements-amendment of original compensation – additional 10% amount s 281(4)(e) MRA applies to amendment – valuation evidence – quantification –…