Hewitt v Tully

[2016] QLC 72

LAND COURT OF QUEENSLAND

CITATION:

Hewitt & Ors v Tully & Anor [2016] QLC 72

PARTIES:

Darcy John Hewitt, Christopher Lloyd Hewitt and Helen Hewitt
(applicants)
v
Mark Durack Tully and Elizabeth Ann Tully
(respondents)

FILE NO:

MRA231-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for renewal of mining lease.

DELIVERED ON:

11 November 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 29 August 2016

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.     In respect of ML 60379 compensation is determined in the sum of $250.00 per annum.

2.     The applicants pay compensation to the respondents the amount set out in order 1 within two months from notification of the renewal of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

CATCHWORDS:

MINING LEASE – referral – renewal – mining and access areas – determination of compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes.

Mineral Resources Act 1989 s 279A

Keefe v Georgina Pastoral Company [2013] QLC 67

Stoverink  v Higgins [2016] QLC 26

Unimin Australia Limited v Freeman [2007] QLC 76

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

APPEARANCES:

Not applicable

1. This proceeding concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease 60379 (ML 60379).

Background

1. The applicants, Darcy John Hewitt, Christopher Lloyd Hewitt and Helen Hewitt (the miners) seek the renewal of a mining lease located on land described as Lot 1 on Plan BG7. The area relevant to this determination concerns a 7.8 ha mining area and a 1.48 km access track across land owned by the respondents, Mark Durack Tully and Elizabeth Ann Tully (the landowners).  The land is located approximately 78 km north-east of the town of Quilpie within Quilpie Shire Local Government area and is used for grazing purposes. 

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 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.’
   

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

   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.”

The Conduct of the Proceedings and Evidence

1. On 24 June 2016, 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.  No material has been filed by either party in response to this letter from the registry.

Determination

1. As neither party has sought to place any material expert or other evidence before the Court the following observations of Member Jones [as he then was] in Unimin Australia Limited v Freeman[2]  regarding the nature of the assessment process are relevant:

   “I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

   [2][2007] QLC 76.

2. In such circumstances I consider the most helpful option is to seek guidance from recent Court judgments from within the Quilpie mining district in undertaking this determination.  In the matter of Keefe v Georgina Pastoral Company[3] the Court assessed compensation at $15 per hectare per annum for a lease area of 3.2 ha and $10 per hectare per annum for access for a renewal period of 5 years and in Stoverink, A v Higgins[4] the Court ordered $31 per hectare per annum in respect of a lease area of approximately 13 ha for a renewal period of 10 years. 

   [3][2013] QLC 67.

   [4][2016] QLC 26.

3. Having considered the referral materials provided by DNRM, the relevant areas and renewal period in light of these Court determinations I consider that $30 per hectare per annum in respect of the mining area and an amount of $10 per hectare per annum in respect of access to be appropriate compensation, taking into account the matters set out in s 281(3)(a) of the MRA.

4. These relevant amounts are inclusive of the additional amount envisaged by s 281(4)(e) of the MRA and the relevant areas rounded to the next full hectare.

5. The final determination in respect of ML 60379 is set out as follows:

   Mining Area –  8 ha @ $30 per ha = $240.00 per annum
   Area covered by access –  1 ha @ $10 per ha = $  10.00 per annum

   Total= $250.00 per annum

Orders

1.In respect of ML 60379 compensation is determined in the sum of $250.00 per annum.

2.The applicants pay compensation to the respondents the amount set out in order 1 within two months from notification of the renewal of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH
JUDICIAL REGISTRAR