Kelly v Struber

[2016] QLC 78

LAND COURT OF QUEENSLAND

CITATION:

Kelly v Struber & Anor [2016] QLC 78

PARTIES:

Gilbert Errol Kelly
(applicant)

v

Stephen Roy Struber & Dianne Rose Wilson-Struber
(respondents)

FILE NO:

MRA1083-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for renewal of mining lease.

DELIVERED ON:

14 December 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 7 December 2016.

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.     In respect of ML 3009 compensation is determined in the sum of $374.00 per annum.

2.     The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within three 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 renewal of the mining lease.

CATCHWORDS:

MINING LEASE – referral – renewal – determination of   compensation – compensation statement – use of Court judgments for determination purposes – Public Trustee of Queensland.

Mineral Resources Act 1989 s 279, 281

Public Trustee Act 1978 Part 7

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

Wallace & Ors v Bottomer & Ors [2015] QLC 23

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 3009 (ML 3009). 

Background

1. The applicant, Gilbert Errol Kelly (the miner), seeks the renewal of ML 3009, which comprises a mining lease area of 27.06 ha and an access track area of 11.9 ha and is located within the Cook Shire local government area on land more particularly described as Lot 14 on SP250040. The property, more commonly known as Palmerville Station, is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners) and is used for grazing purposes. 

2. The specific Land Court reference and tenure details are set out as follows: 

Court Reference	Tenure ID	Tenure Area	Term	Lease Purpose
MRA1083-16	3009	27.06 ha	5 years	Gold/Tin

Relevant Legislation

1. Section 279 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 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…