Kelly v Struber

[2013] QLC 35

LAND COURT OF QUEENSLAND

CITATION:  Kelly v Struber [2013] QLC 35

PARTIES:In the matter of Mining Lease No 20630– Determination of compensation payable by Gilbert William Kelly to Stephen Struber and Dianne Wilson-Struber

FILE NO:MRA167-12

PROCEEDING:  Application for determination of compensation

DELIVERED ON:                  1 July 2013

DELIVERED AT:                   Brisbane

MEMBER:Mr BR O’Connor, Judicial Registrar

ORDERS:1.        Compensation determined at $160 per annum.

2.    The miner pay compensation of $160 to the landholders within two months from notification of the grant of the mining lease by the Mining Registrar and $160 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

1. On 21 August 2009 Gilbert William Kelly (the miner) lodged an application for mining lease 20630 for a term of 15 years with the Mining Registrar, Mareeba District.

2. 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 208310 (formerly Lot 2 on CP 910619) owned by Stephen Struber and Dianne Wilson-Struber (the landholders).  The Mining Lease area is 27 hectares (rounded).

3. This matter has been delayed for a number of reasons.  First, the landowners objected to the grant of the mining lease and the associated draft environmental authority.  Objections in similar form were also lodged in relation to a number of other mining lease applications on the same property. 

4. The objection, with others, was heard in an oral hearing in Cairns in September 2011 and a recommendation was made to the Minister in December 2012.  The recommendation was that the mining lease should be granted and that an environmental authority be issued in terms of the draft environmental authority without amendment. 

5. The second reason for the delay was 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. 

6. No response has been received from the landowners regarding submissions on compensation by the required date 1 July 2013.  The miner, who has been in telephone contact with the Court registry pressing for a decision, also has made no written submissions as to compensation.  He did indicate, again by telephone to the registry, that he was content to rely on evidence he gave at the objection hearing. 

7. I have perused both the transcript of the objection hearing and the decision itself, [2012] QLC 0076, and neither contains material which is of direct assistance in assessing compensation in the present matter.

8. The absence of detailed compensation evidence from both sides clearly makes the task of the Court in determining compensation difficult. In the circumstances, 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

1. Taking into account all heads of compensation in s.281(3) of the Mineral Resources Act 1989 (the Act), the Court’s decisions in Kuziov Struber [2012] QLC 0054, and more recently Pryce v Struber [2013] QLC 32, I assess compensation for the mining lease in the minimal sum of $5 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 $15 per annum (rounded).

2. Taking all relevant factors into account, I order that the miners pay the total compensation of $160 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.

JUDICIAL REGISTRAR