Markert v Struber
[2012] QLC 59
•19 October 2012
LAND COURT OF QUEENSLAND
CITATION: Markert v Struber [2012] QLC 0059 PARTIES: Frank Josef Markert (formerly Raymond Kenneth Ellis and Paul David Ellis )
(Applicant)v. Stephen Struber and Dianne Wilson-Struber
(Respondents)
FILE NOs: MRA096-10, MRA153-10 and MRA081-11 DIVISION: Land Court of Queensland PROCEEDINGS: Hearing of Application for Mining Lease and Objections to its Grant and Application for Determination of Compensation DELIVERED ON: 19 October 2012 DELIVERED AT: Cairns HEARD AT: Cairns MEMBER: His Honour, Mr WL Cochrane ORDERS: 1. Total annual compensation in respect of ML 20239 awarded under all heads in the sum of $308.00 per annum.
2. Total annual compensation in respect of ML 3114 awarded under all heads in the sum of $462.00 per annum.
3. The Miner pay compensation of $308.00 for ML 20239 to the landowners within two months of the notification of the Grant of the Renewal of the Mining Lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
4. The miner pay compensation of $462.00 for ML3114 to the landowners within two months of the notification of the Grant of the Renewal of the Mining Lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
5. I dismiss the Originating Application seeking an injunction.
CATCHWORDS: Mining – Application for Lease – Criteria to be considered
Mining – Application for Lease – Objections by Local Resident – Environmental Issues
Mining – Mining Lease – Determination of Compensation - Mineral Resources Act 1989 s.281 – Re Wallace & Ors & Evans [2006] QLRT 93 applied.
Dembowski & Anor & Struber & Anor, Re [2006] QLRT 44 (26 May 2006)
Re Wallace & Ors & Evans [2006] QLRT 93.
APPEARANCES: Applicant in person.
Mr Stephen Struber for the Respondents.
Background
File Number MRA 096-10 was a referral by the Mining Registrar for the Mareeba District on 13 April 2010 for Determination of Landholder Compensation for Mining and Access in respect of a Lease ML 20239 on a property known as Palmerville Station located near Chillagoe and in respect of which the leases are held by the Respondents whom I shall, for convenience, refer as the “Strubers”.
The correct description of Palmerville Station is Lot 2 on CF 10 Palmerville Holdings Parish of Combar County of Chelmsford. The area in respect of which the lease is sought is for 27.4 Ha.
The application is for renewal of Mining Lease 20239 which was due to expire on 30 November 2010. The renewal seeks a term of 10 years.
Notice was given to the Land Court on or about 19 August 2011 by Mr Markert that Mining Leases ML 20238, ML 20239, ML 20339 and ML 20314 had been transferred from Raymond Kenneth Ellis and Paul David Ellis to Frank Josef Markert. Accordingly, it seems appropriate given that Mr Market is now the registered lessee to identify him rather than Raymond and Paul Ellis as the relevant Applicant.[1]
[1] Exhibit 15.
That correspondence attached a letter from the Department of Employment and Economic Development and Innovation dated 17 August 2011 acknowledging the assignment of those Mining Leases to Mr Markert.
File Number MRA 081-11 was created as a consequence of a referral by the Mining Registrar at Mareeba of an Application for Renewal of Mining Lease 3114 by Raymond Kenneth Ellis which also related to a lease located on Palmerville Station. ML 3114 proposes an area of 41.18 Ha.
Even though the formal application document identified Raymond Kenneth Ellis as the Applicant the signatures to the document make it clear that it was an application by both Raymond Kenneth Ellis and Paul David Ellis.
As indicated above that Mining Lease has been assigned to Mr Markert as evidenced by correspondence in Exhibit 17.
The reference by the Mining Registrar was for determination of compensation.
File Number MRA 153-10 was created as a consequence of an Originating Application filed by the Strubers in respect of the Mining Lease held by R & P Ellis.
That Originating Application sought an Injunction Order against the Ellis’s on the grounds identified in the Application as:
“Failed to comply with the Code of Environmental Compliance for Mining Lease Project. Failed to comply with Mineral Resources Act 1989. Failed to comply Mineral Resources Regulations 2003. Not containing Mined Material and Contaminated Water on Mining Lease, Oil and Diesel Spillages still remain after three years.”
The Injunction which seemed to be cast in the form of a Mandatory Injunction requiring the Ellis’s to carry out certain works, sought to identify “Grounds on which Orders or other Relief is Sought” as follows:
“For the Miners to fix and rehabilitate Mining Lease and Affected Land outside Mining Lease. Compensate landholder. A Study and Report on Endanger (sic) Species. A combined (landowner and miner) co-ordinated a Rehabilitation Plant Agreement”
Both this matter and MRA 081-11 together with MRA153-10 were the subject of an attempt at mediation which failed.
With respect to the determination of compensation for the Leases and Access to the Leases, Mr Struber has made it clear that his disinclination to enter into any meaningful negotiations with respect to compensation arises out of his dissatisfaction with the conduct of R & P Ellis as the previous holders of the Mining Lease.
Mr Struber set those concerns out in correspondence[2] sent to the Court in which he made the following six points:
[2] Exhibit 9.
“1.Under Mineral Resources Act 1989 section 363 substantive jurisdiction on 4-6-2010 we sought an Injunction Order with Land Court to minimise land conflict and force compliance on the miner.
2.An Environmental Report on Ellis Mining Leases done by Gilbert & Sutherland sent to Land Court June 2010 Section Statement to the Court Part 15 requires further detailed analysis and investigation; to determine loss and expenses.
3.There was an inspection report undertaken by E.P.A. Officers 2007, on Ellis Mining Leases on non-compliance.
4.The Land Court has photographic evidence of non-compliance sent to the Court when determining compensation on ML20238.
5.The Ellis failed to comply with previous compensation agreements on Mining Leases ML20238 and ML20239 determined by the Land Court under the Mineral Resource Act 1989 section 281 Determination of Compensation by Tribunal Part 3 (VI) all loss or expense that arises.
6.Phone Hearing with Land Court in Dec 2010, Ellis spoke of being too busy building a Plant to do rehabilitation work. Condition 29 E.C. of Compliance Rehab must be completed prior to wet season. Wet seasons have now passed.
The mining they were doing between August and December 2010 was on restricted land.
A swift determination by the Land Court to rectify the situation.”
The Originating Application
The Originating Application in MRA096-10 nominates Raymond Ellis and Paul Ellis as the Respondents to that Application and thus the parties against whom injunctive relief is sought in the terms set out in the Application. No accompanying affidavit was filed by Mr Struber although in the course of the hearing a report prepared in June 2010 by Mr Robert Leslie Walker of Gilbert and Sutherland became an exhibit.[3] Neither of the Ellis’s appeared at the hearing of this matter, the explanation for that being that Mining Lease ML20238 together with ML20239, ML20339, ML20314 and ML3114 have all been assigned to Mr Markert.[4]
[3] Exhibit 7.
[4] See Exhibit 15.
There was no evidence that either of the Ellis’s had been served with a copy of the Originating Application. They are no longer parties to the lease as pointed out above.
Mr Markert was however responsive to some of the issues raised in the Originating Application by Mr Struber. That is a matter which counts strongly in his favour.
Mr Markert tendered correspondence from the Department of Employment, Economic Development and Innovation dated 17 August 2011 (two letters) acknowledging the assignment of the various Mining Leases and notifying a transfer of the Environmental Authorities (Mining Activities) MIC200682308 and MIC201995710 to Mr Markert.
At the hearing Mr Markert did not try to avoid his responsibilities pursuant to the Mineral Resources Act or the Environmental Protection Act. Indeed, he tendered[5] correspondence from him to the Land Court dated 14 September 2011 which had attached to it photographs together with a letter from the Department of Environment and Resource Management dated 21 July 2011.
[5] Exhibit 16.
The correspondence from Mr Markert was a response to complaint by Mr Struber in respect of the outer wall on the northern boundary of the Greasy Bill Dam and, in particular, an allegation that the outlet pipe had been covered by soil and rock at the inner bund exit.
Mr Struber had also been concerned that earth at the site of a previous location of a trailer mounted power plant unit may have been the subject of oil leakages.
The photographs attached to Exhibit 16 demonstrate the clearing of any blockage of the bund wall pipe and its extension.
Mr Markert as the incoming lessee had also treated the trailer area with an industrial oil absorbent which he proposes to remove prior to the onset of the wet season. I have no reason to doubt the sincerity of Mr Markert’s intentions in that respect.
He also exhibited correspondence from the Department of Environment and Resource Management in respect of the leases and that correspondence relevantly points out
“Non-compliant issues identified in the Department’s Compliance Inspection letter dated 6 July 2011 have now been addressed, no further action is required. Please note that further remedial works including but not limited to the removal of dam walls and ongoing erosion and sediment control measures will be required prior to the wet season to remain compliant with the Environmental Authority MIC2019957510 and the Code of Environmental Compliance for Mining Lease Projects.”
In the light of those evidentiary matters and having heard evidence from Mr Markert at the hearing of this matter I am satisfied that there is no basis upon which an Injunction Order of the kind sought by the Strubers is warranted at this time.
In any event Mr Markert was not the lessee at the time that the conduct complained of by Mr Struber occurred and it would be difficult to hold him responsible.
Even if it were able to be demonstrated that Mr Markert ought be held responsible for the conduct of the Ellis’s as the current holder of the leases which were held by the Ellis’s at the time the misconduct complained of by Mr Struber occurred I would, having regard to the balance of convenience and the question of whether there remains a serious question to be tried, be disinclined, in any event, to grant the relief sought by the Strubers.
Further, granting any injunctive of relief against the Ellis’s would be entirely nugatory.
I am however satisfied from the evidence given by Mr Markert and consequential upon an inspection of another mining site operated by him that he is likely to behave in an environmentally responsible way and in a manner compliant with the Code of Environmental Conduct. Accordingly, I dismiss the Originating Application.
The Question of Compensation
Section 279 of the Mineral Resources Act 1989 (“MRA”) provides that a lease shall not be granted nor renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, this Court has made a determination of compensation.
As indicated above the two matters for determination of compensation arise because of a referral by the Mining Registrar.
Section 281(3) of the MRA sets out the matters which must be considered by the Court although, as has been repeatedly pointed out by this Court s.281 does not define any particular method by which compensation is to be assessed.[6]
[6]See Smith v Cameron (1986) 11 QLCR 64 (at page 74) and Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139 (at page 146) and also Mitchell v Oakhill and Mitchell (10 March 1998) (unreported).
In the present case the Strubers placed a substantial amount of material before the Court but, when that material is properly considered it generally focuses on what the Struber’s contend was the unacceptable conduct of Raymond Kenneth Ellis and Paul David Ellis.
Much of the material provided by the Struber’s[7] focused on describing what they said was environmental damage consequential upon a failure to comply with the Environment Protection Act and the Mineral Resources Act.
[7] Exhibits 7, 8, 9, 10 and 11.
As far as I can glean from the Struber’s material they do not contend for any particular figures for compensation but they do, at page 130 of Exhibit 7 identify a sum of $12,100 as the cost of repairing part of the Greasy Bill Dam wall. However, the Department of Environment and Resource Management by correspondence dated 21 July 2011 wrote to Raymond and Paul Ellis stating as follows:
“Thank you for the photographs and your letter of reply dated 11 July 2011. In relation to the compliance inspection undertaken by the Department of Environment and Resource Management (the Department) at ML20238, ML20239, ML20339, and ML20314.
As advised by you on 12 July 2011, the Department understands that the normal flow channel of the creek has been reinstated, fines have been rock armoured and storm water has been diverted to prevent the erosion of fines and sedimentation of waterways on ML20238.
As the non-compliance issues identified in the Department’s Compliance Inspection Letter dated 6 July 2011 have now been addressed, no further action is required.
Please note that further remedial works including but not limited to the removal of dam walls and ongoing erosion and sediment control measures will be required prior to the wet season to remain compliant with Environmental Authority MIC201995710 and Code of Environmental Compliance for what mining lease projects.[8]”
[8] Exhibit 14.
Apart from the issue of the alleged environmental damage Mr Struber raises issues related not specifically to Mr Markert and his proposal to obtain renewal of the various mining leases but referring to what Mr Struber calls stress and hardship caused by miners generally, not complying with the various Acts or the Acts not being enforced.
The Struber’s contend that as a consequence of those matters they suffer the following disabilities or impacts:
a) No drinking water for months.
b) Sand on crossings.
c) Landowner fixing crossings.
d) Creeks being left like a road.
e) Cattle bogged and dying on Mining Leases.
f) Debris. Taking out fences.
g) Quicksand problems.
h) Theft of water.i) Loss of income and production.[9]
[9] Exhibit 7 page 114.
Unfortunately Mr Struber does not advance any particular dollar figure which he says would compensate him appropriately for those matters set out in s.281 of the MRA.
There have been a number of cases before this Court requiring determination of the compensation payable for mining activities on Palmerville Station.
Almost all of those cases have been characterised by a dearth of evidence as to actual dollar figures which might be attached to the various items to be considered pursuant to s.281 of the MRA.
A recent decision to which I have attached substantial weight relating to compensation to be paid to the Struber’s was a decision handed down by His Honour Mr Smith on 9 April 2010.[10]
[10] Markert v Struber & Anor [2010] QLC 0060 (9 April 2010).
In that earlier decision His Honour pointed out that while the miner had pointed to other previous determinations on Palmerville Station where minimal compensation awards had been made the miner had failed to appreciate that in those decisions awarding minimal compensation little evidence was generally placed before the Court particularly by the landholders.
In that earlier decision His Honour Mr Smith referred to his own observations in Fitzgerald.[11] In Fitzgerald, the reasoning of which I adopt in this case, His Honour had to consider the position where little evidence was available to found a properly calculated award for compensation.
[11] Fitzgerald v Struber [2009] QLC 0076.
I face the same difficulties in the present case.
In an attempt to provide a decision consistent with other decisions of this Court including decisions by myself and being aware of the general carrying capacity for stock purposes of land in and around Palmerville Station I come to the view that the sum allowed should be $10 per hectare per year for the area of land covered by the Mining Lease and a sum of $5 per hectare per year for access.
I do not see any justification for allowing a single figure for the access in recognition of the fact that, at the present time, all of the leases are held by Mr Markert.
It is important to recognise that any one of the leases could be sold to a presently unidentified third party and that all of the leases could be worked at the same time by different employees so that in reality the Struber’s may have to confront the use of the land not by one party attempting to exploit each of the Mining Leases ML 20239 and ML3114 but by several.
Part of the dam wall of the Dam Busters dam in the southern portion of the Palmerville Station is crossed by Cannibal Creek Road and accordingly no determination of access use of that public road is required although it is indisputable that the proposed mining lease will use access over part of Struber’s property.
Mr Struber at the hearing sought to rely on a report prepared by Robert Leslie Walker of Gilbert and Sutherland who are Agriculture-Water- Environmental consultants.
Mr Walker was not called to give evidence and was thus not available for cross-examination. The extent of his inspection of the property remained uncertain with it being likely that prior to writing the report Mr Walker had inspected the property only by helicopter and had relied upon photographs provided to him by Mr Struber.[12]
[12] T. 1-48 L. 10 – 15.
Having regard to the manner in which the report by Mr Walker was placed before the Court[13] it is difficult to place any substantial weight upon Mr Walker’s report.
[13] Exhibit 7 pages 137.
Indeed, the evidence seems to contradict much of what Mr Walker contends.
For example, I remain unconvinced having had the benefit of an inspection that there is any substantial reduction of access to the river systems for stock watering purposes or that stock have to travel longer distances to access water.
Also there is no evidence before the Court to support the Strubers’ contention that the length of time water is available for stock watering purposes post mining operations has been reduced due to changes in the Hydrologic Balance.
While it is clear that the miner proposes to use access over the Palmerville Station the length of that access is not clear.
Mr Struber[14] has annotated the decision in Markertv Struber from 2010 to suggest that the distance to ML20610 (another lease on Mr Struber’s property) is 9.5 km. That does not assist me much with respect to the length of the access contended for in the present case.
[14] Exhibit 11.
Mr Markert gave evidence that he was prepared to pay compensation of $10 per Ha for the area of land under the Mining Lease.[15]
[15] T. 2-6 L. 30.
When Mr Markert was giving evidence of his willingness to pay $10 per Ha for the area he also indicated a willingness to pay $5 per Ha for access on the basis of the 2010 Markertv Struber & Anor decision. In the course of that evidence[16] he indicated that the lease the subject of the 2010 decision is about 6 km away from the present leases, but does not clarify the distance travelled.
[16] T. 2-6 L. 40.
Later in his evidence[17] he says that his access from Whites Creek Road to ML20239 would be approximately 10 km long and have a width of approximately 6 m. That would equate to 0.6 km and thereby about $3.
[17] T. 2-7 L. 20.
Ultimately Mr Markert agreed that he would be willing to pay $5 for the access.[18]
[18] T. 2-7. L. 50.
Similarly Mr Markert gave evidence that access from Whites Creek Road to ML3114 was approximately 6km in respect of which he again was willing to pay $5.[19]
[19] T. 2-12. L. 10.
There was an issue raised by Mr Struber before me about the use of the dam wall and whether use could lawfully be made of that dam wall and who owned it.
Ultimately that issue fell by the wayside as it appears that a tenure was granted by Mr Struber’s predecessor in title who it transpired was his father in law.
It seemed from what was contained in the letter dated 31 December 1985 that the dam may have been constructed by a previous lessee namely AUR (an alluvial gold mining operator) some time in the mid 1980’s and that Mr G Wilson by signing that document agreed that the miner had an absolute right to use all of the annually stored water for mining purposes during their mining tenancy. Nothing seems to have changed from that time.
Mr Markert also pointed in Exhibit 17 to the public report which evidenced uninterrupted occupation by mining companies of the lease from April 1988.
Determination
Having regard to all of the circumstances in this case including the very sketchy evidence as to likely costs and losses etc I consider that the following award will satisfy the requirements of s.281 of the MRA.
In respect of each of the Mining Leases I determine compensation under Part 7 of the MRA, to satisfy all heads of compensation set forth in s.281(3) to be $10 per Ha per annum for the lease area of each lease. As regards access I award $5 per annum in respect of each lease.
To the calculated compensation in accordance with the above determination I award an additional sum pursuant to s.281(4)(e) of the MRA to reflect the compulsory nature of the grant of the Mining Lease.
In respect of MRA096-10 relating to Mining Lease 20239 with an area of 27.4 Ha I award annual compensation of $274 together with compensation of $5 for access making a total of $279. For convenience and to reflect the minor nature of the charge I propose to allow a total figure of $280 to which I add an additional sum $28.00 (s.281(4)(e) of the MRA) to reflect the compulsory nature of the grant of the Mining Lease resulting in a total compensation under all heads in the sum of $308.00.
In respect of MRA081-11 relating to Mining Lease 3114 with an area of 41.18 Ha I award annual compensation of $411.80 together with compensation of $5 for access making a total of $417. For convenience and to reflect the minor nature of the charge I propose to allow a total figure of $420 to which I add an additional sum $42.00 (s.281(4)(e) of the MRA) to reflect the compulsory nature of the grant of the Mining Lease resulting in a total compensation under all heads in the sum of $462.00
Terms of Payment
In relation to the terms, conditions and times when payment should be made I take into account the quantum, the order, the size of the mining lease and the period for which the Mining Lease will operate and in the circumstances I order that the miner pay compensation in respect of ML 20239 in a total sum of $308.00 within two months from the notification of the grant of the renewal of the Mining Lease by the Mining Registrar and there after annually in advance.
In relation to the terms, conditions and times when payment should be made I take into account the quantum, the order, the size of the mining lease and the period for which the Mining Lease will operate and in the circumstances I order that the miner pay compensation in respect of ML 3114 in a total sum of $462.00 within two months from the notification of the grant of the renewal of the Mining Lease by the Mining Registrar and there after annually in advance.
Costs
Neither party made any submission with respect to costs and in this matter, in my view it is not appropriate that any Costs Order be made.
Orders
1. Total annual compensation in respect of ML 20239 awarded under all heads in the sum of $308.00 per annum.
2. Total annual compensation in respect of ML 3114 awarded under all heads in the sum of $462.00 per annum.
3. The Miner pay compensation of $308.00 for ML 20239 to the landowners within two months of the notification of the Grant of the Renewal of the Mining Lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
4. The miner pay compensation of $462.00 for ML3114 to the landowners within two months of the notification of the Grant of the Renewal of the Mining Lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
5. I dismiss the Originating Application seeking an injunction.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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