Kelly v Struber - [2013] QLC 41

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…

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.

Continue reading Kelly v Struber

Details

AGLC: Kelly v Struber [2013] QLC 41
Case: [2013] QLC 41
Decision Date: 5 July 2013

CaseChat Overview and Summary

The Land Court of Queensland was called upon to determine the compensation payable by Gilbert Errol Kelly to Stephen Struber and Dianne Wilson-Struber for the grant of Mining Lease No 20350. This case involved a dispute over the amount of compensation owed by Kelly for the use of the landholders' property, Palmerville Station, for access and mining purposes. The miner proposed to pay $5 per hectare per annum for access and $10 per hectare per annum for mining. The landholders, however, did not submit any evidence to counter the miner's proposal.

The court was required to decide the appropriate amount of compensation to be paid by Kelly to the landholders under the Mineral Resources Act 1989. The legal issues included determining the fair compensation for the use of the land for access and mining purposes, as well as any additional compensation for any additional benefit or advantage the miner may have gained from the use of the land.

The court considered the evidence submitted by the miner and applied the principles of compensation set out in the relevant legislation and previous cases. The court accepted the miner's evidence and applied the methodology used by Mining Referee Windridge in Re Wallace & Ors & Evans. The court assessed compensation for the mining lease at $10 per hectare per annum for the term of the lease, plus payment of $10 per annum for access, and an additional sum of $30 per annum. The total compensation payable by Kelly to the landholders was determined to be $330 per annum.

The court ordered that Kelly 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. The court's decision was based on the evidence presented and the relevant legislation and case law. The court found that the compensation awarded was fair and reasonable under the circumstances.

Orders