Kelly v Struber
[2013] QLC 41
•5 July 2013
LAND COURT OF QUEENSLAND
CITATION: Kelly v Struber [2013] QLC 41
PARTIES:In the matter of Mining Lease No 20350 – Determination of compensation payable by Gilbert Errol Kelly to Stephen Struber and Dianne Wilson-Struber
FILE NO:MRA967-11
PROCEEDING: Application for determination of compensation
DELIVERED ON: 5 July 2013
DELIVERED AT: Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDERS:1. Compensation determined at $330 per annum.
2. The miner pay compensation of $330 to the landholders within two months from notification of the grant of the mining lease by the Mining Registrar and $330 per annum payable on the anniversary of the grant of the mining lease.
CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989 s.281
APPEARANCES: Not applicable – Heard on the Papers
Background
On 3 November 2010 Gilbert Errol Kelly (the miner) lodged an application for Mining Lease 20350 for a term of 10 years with the Mining Registrar, Mareeba District.
This determination of compensation relates to access to the mining lease and the mining lease itself. Both access and lease relate to property (Palmerville Station) Lot 14 on SP 208316 (formerly Lot 2 on CP 910619) owned by Stephen Struber and Dianne Wilson-Struber (the landholders). The Mining Lease area is 29 hectares (rounded).
The reason that this matter has been delayed (along with other Mining Leases relating to Palmerville Station) is that notices to the landowners inviting them to make submissions on this compensation hearing were returned to the Court marked “unable to be delivered”. After alternative attempts to arrange service were unsuccessful, the Court Registrar was ultimately able to arrange with the landowners’ solicitor, Mrs Anne English (Bottoms English Solicitors Cairns), for delivery of the material to be made to the landowners. This took place on or about Monday, 3 June 2013.
No response has been received from the landowners regarding submissions on compensation by the required date 1 July 2013.
The miner has made the following submissions in regard to access and the mining lease itself.
“COMPENSATION STATEMENT
Proposal relative to access
●If the land is used for access I propose to pay the amount of $5 per hectare per annum for each hectare of road I traverse.
Proposal relative to mining
●If the land is to be mined I propose to pay the amount of $10 per hectare per annum.
Justification of my proposal relative to access road and mining
●Relative to access I estimate diminution of the use made of the land to be minimal as the road have been established for many years.
●The established dirt road follows the ridges only and is not in any watercourse.
●The DPI has estimated the livestock carrying capability in the area as classed as ‘range country’ and as a guideline that is one adult beast per 15 hectares. They freely range and are not inhibited by the road.
●The country is non-fenced land with no gates or grids and has minimal livestock and is unimproved land. The established dirt road I upgrade each year after ‘the wet’ allows for greater access for the station owners to access their pastoral land as well as improving the valuation of the property as at present there is no alternate access to that area of Palmerville Station.
●I have personally maintained a major access road to my and other miners mining leases in this area for the past five years. This much used road enables access to the above mentioned mining lease and access to what would be otherwise inaccessible areas of Palmerville Station. I have spent well over $55 000 in machinery and operator hire and fuel to maintain this road.
●Any upgrading work undertaken by me of already existing roads improves, not diminishes, the value of the land.
●Approximate land used for access to be compensated: random width measures of the road vary in width from 3 metres to 4 metres.
●ML20350 - > 4.9 Kms x average width of 4 meters = 4900 m² x 4m = 1.96 Ha.
●Relative to all mining I estimate diminution of the use made of the land to be minimal as the lands stock carrying capacity is minimal.
●To the best of my knowledge the area we are talking about on Palmerville Station is locally classified as Pastoral where low intensity grazing is conducted.
●The dam I build holds water for the majority of the dry season ensuring a water supply for any cattle in the area.
●I am a small scale miner, who employs only two employees at any one time. During the school holidays my family joins me on my working mining lease. We do not interfere with station business or stock and we are mindful of appropriate behaviour relative to livestock (normally unbranded cattle if we see any at all as well as wild pigs and brumbies)
●Approximate land used for mining to be compensated.
●ML20350> mining area – 28.639 Ha.”
The absence of detailed compensation evidence from both sides clearly makes the task of the Court in determining compensation difficult. In the circumstances, I am prepared to accept the evidence of the miner and I adopt the analysis of the legislative provisions, compensation principles and methodology applied by Mining Referee Windridge in Re Wallace & Ors & Evans.[1]
[1] [2006] QLRT 93.
Determination
Taking into account all heads of compensation in s.281(3) of the Mineral Resources Act 1989 (the Act), I assess compensation for the mining lease in the minimal sum of $10 per hectare per annum for the term of the lease, plus payment of $10 per annum for access. Pursuant to s.281(4)(e) of the Act, I award the additional sum of $30 per annum (rounded).
Taking all relevant factors into account, I order that the miners pay the total compensation of $330 per annum to the landholders, the first payment within two months from notification of the grant of the mining lease by the Mining Registrar and annual payments on the anniversary of the date of grant of the lease.
BR O’CONNOR
JUDICIAL REGISTRAR
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