Keyse v Phillipson & Ors

[2016] QLC 40

LAND COURT OF QUEENSLAND

CITATION:

Keyse v Phillipson & Ors [2016] QLC 40

PARTIES:

Terry David Keyse
(applicant)

v

Neville J Phillipson, Leonie G Phillipson, Kelvin R Sibson, Lynette E Sibson, Dale K Sibson, Robert L Wight, Rachael G Wight, Craig L Wight and Mark L Wight
(respondents)

FILE NO:

MRA414-15
MRA415-15

DIVISION:

General Division

 PROCEEDINGS:

Determination of compensation payable for grant of mining claim

DELIVERED ON:

7 July 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 11 November 2016

HEARD AT:

Heard on the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDER:

1.     In respect of MC 10034 compensation is determined in an amount of $22 per annum in respect of the renewal  period of 10 years, giving a total amount of $220.00.

2.    In respect of MC 10035 compensation is determined in an amount of $17 per annum in respect of the renewal period of 10 years, giving a total amount of $170.00.

3.    That the applicant Terry David Keyse pay compensation to the respondents in the amount set out in Orders 1 and 2 within three months from notification of the grant of the mining claims by the Department of Natural Resources and Mines.

CATCHWORDS:

MINING CLAIM – grant – determination of compensation – claim area – access – mining district – use of Court judgments for determination purposes.

Mineral Resources Act 1989 s 85

Alphadale Pty Ltd v Dore & Ors [2014] QLC 25
Burtenshaw v Mudge [2015] QLC 1
Mitchell v Oakhill and Mitchell (Unreported, Land Court of Queensland, JJ Trickett, President, 10 March 1998
Wills v Minerva Coal Pty Ltd [No. 2] (1998)19 QCLR 297

APPEARANCES:

Not applicable

1. These matters involve referrals to the Land Court pursuant to s 85(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining claims MC 10034 and MC 10035.

Background

1. The applicant, Terry David Keyse (the applicant) applied for the grant of mining claims

   MC 10034 and MC 10035 on 10 July 2014.  The land upon which the proposed mining claims are located is approximately 55 km east south-east of Ayr, within the Charters Towers mining district.  The land is within the Whitsunday Regional Council local government area.  The purpose of the proposed grant is for the mining of Gold.

2. The land upon which the mining claims and access tracks are situated is owned by Neville J Phillipson, Leonie G Phillipson, Kelvin R Sibson, Lynette E Sibson, Dale K Sibson, Robert L Wight, Rachael G Wight, Craig L Wight and Mark L Wight (the respondents).  The land is more particularly described as Lot 91 on Crown Plan SB749, is approximately 2040 hectares   and is used for grazing purposes.

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

Court Reference	Tenure ID	Tenure Area	Purpose	Term
MRA414-15	MC 10034	0.9056 ha	Gold	10 years
MRA415-15	MC 10035	0.8741 ha	Gold	10 years

Relevant Legislation

1. Section 85 of the MRA provides that a mining claim shall not be granted or renewed unless compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the subject of the application and of any surface access to that land. In respect of this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and accordingly the matter has been referred to the Land Court for determination.

2. The matters that must be considered by the Court are set out in s 85(7) of the MRA which provides that an owner of land is entitled to compensation for:

   (a)   deprivation of possession of the surface of land of the owner;
   (b)   diminution of the value of the land of the owner or any improvements thereon;

   (c)   diminution of the use made or which may be made of the land of the owner or any improvements thereon;

   (d)   severance of any part of the land from other parts thereof or from other land of the owner;

   (e)   any surface rights of access;
   (f)    all loss or expense that arises;
         as a consequence of the grant or renewal of the mining claim.

3. Section 85(8) of the MRA enables various additional factors to be included in the compensation assessment. In the present case, only paragraph (e) is relevant. It provides as follows:

   “(8) In assessing the amount of compensation payable under subsection (7) -

   …

   (e)   an additional amount shall be determined to reflect the compulsory nature of action taken under this chapter which amount … shall be not less than 10% of the aggregate amount determined under subsection (7).”

4. In Wills v Minerva Coal Pty Ltd [No. 2][1], when considering a provision effectively identical to s 85 of the MRA this Court observed 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.’
   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.”

   [1] (1998) 19 QLCR 297 @ 315.

5. Similarly in Mitchell v Oakhill and Mitchell[2], the then President of the Land Court observed in relation to s 281 of the MRA:

   “the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”

   [2]        (Unreported, Land Court of Queensland, JJ Trickett, President, 10 March 1998).

The Conduct of Proceedings

1. On 9 September 2015, the Land Court registry forwarded correspondence to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No 5 of 2013.

2. On 7 October 2015 Mining Tenure Management provided written materials in support of the applicant’s position. No materials or submissions have been filed on behalf of the respondents.

The Applicant’s Submissions

1. The following matters have been addressed by the submissions filed on behalf of the applicant:

   i.Details of the dimensions for each claim and access area

   ii.Suggested compensation of $10/ha per annum for claim area and $5/ha per annum for access.

   iii.Land Court determination in Burtenshaw v Mudge[3]

   iv.s 85 of the MRA factors.

   v.Other matters – use of hand tools, absence of permanent structures and minimal impact of operations.

   [3] [2015] QLC 1.

The Respondents’ Submission

1. The respondents filed no evidence or submissions in response to the material relied upon by the applicant.

Compensation

1. I have considered the materials provided by the applicant and the referral documents provided by DNRM.  Although the Court determination in Burtenshaw v Mudge[4] (Burtenshaw) relates to mining operations within the Mareeba district, the determined amounts are also supported by the recent determination of Alphadale Pty Ltd v Dore & Ors[5] (Alphadale) from within the Charters Towers district.

   [4] Ibid.

   [5] [2014] QLC 25.

2. On the basis of Burtenshaw and Alphadale I am prepared to accept the rates of compensation contended by the applicant as fair and reasonable. 

3. The current determination in respect of each mining claim concerns both mining and access areas.  MC 10034 comprises a mining area of .9056 ha with access 6.4 km long and 3 m wide giving an area of 1.92 ha for access.  MC 10035 comprises a mining area of .8741 ha with access 1.8 km long and 3 m wide giving an area of .54 ha.  In respect of each claim I intend rounding the areas to the next full hectare for assessment purposes.

4. The determination in respect of each mining claim will be as follows:

   MC 10034

   Area covered by mining lease – 1 ha @ $10/ha             = $10.00 per annum

   Area covered by access – 2 ha @ $5/ha   = $10.00 per annum

   add s 85(8)(e) re compulsory nature of grant = $ 2.00 per annum

   Total  = $22.00 per annum

   MC 10035

   Area covered by mining lease – 1 ha @ $10/ha             = $10.00 per annum

   Area covered by access – 1 ha @ $5/ha   = $  5.00 per annum

   add s 85(8)(e) re compulsory nature of grant = $ 2.00 per annum

   Total  = $17.00 per annum

5. Given the amounts assessed and the length of the initial period of grant I intend to order the that the total amounts for the initial 10 year period be paid within 3 months of the grant of each mining claim by DNRM.

ORDERS

1.In respect of MC 10034 compensation is determined in an amount of $22 per annum in respect of the renewal period of 10 years, giving a total amount of $220.00.

2.In respect of MC 10035 compensation is determined in an amount of $17 per annum in respect of the renewal period of 10 years, giving a total amount of $170.00.

3.That the applicant Terry David Keyse pay compensation to the respondents in the amount set out in Orders 1 and 2 within three months from notification of the grant of the mining claims by the Department of Natural Resources and Mines.

GJ SMITH

JUDICIAL REGISTRAR