Markert v Struber - [2010] QLC 60

LAND COURT OF QUEENSLAND

CITATION: Markert v Struber & Anor [2010] QLC 0060

PARTIES:In the matter of Mining Lease No 20610 – Application by Frank Josef Markert for determination of compensation payable to Stephen Struber and Dianne Wilson-Struber
FILE NO:MRA143-09
PROCEEDING:  Application for determination of compensation
DELIVERED ON:         9 April 2010
DELIVERED AT:                   Brisbane
MEMBER:Mr PA Smith
ORDERS:1.    Total compensation awarded under all heads in the sum of $957.
2.The miner pay the compensation of $957 to the current landowners by way of instalments, the first instalment being in the sum of $500 within a period of three months from notification of grant of the mining lease by the Mining Registrar and the balance of $457 on the fifth anniversary date of the grant of the lease.

CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, ss 279, 281

Smith v Cameron [1986-87] 11 QLCR
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR
Mitchell v Oakhill and Mitchell (10 March 1998) unreported
Re Fitzgerald & Anor and SR Struber & Anor [2009] QLC 0076

APPEARANCES: Not applicable – Heard on the Papers

Background

The applicant Frank Josef Markert (the miner) seeks the grant of Mining Lease 20610 in the Mareeba District for a term of 10 years. The lease is over an area of 8.2 ha.
The application was recommended for grant by a decision of the Land Court of 22 February 2010.[1]
[1] See 2010 QLC 0028.
The lease is located on Palmerville Holding which is owned by Stephen Struber and Dianne Wilson-Struber. Access is predominately by way of a public road through the same property. A grazing operation is conducted on the property.

MRA

Section 279 of the Mineral Resources Act 1989 (“MRA”) provides that a mining lease shall not be granted or 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, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Registrar and the matter has been referred to the Court for determination.
The matters which must be considered by the Court are set forth in s.281(3) of MRA. Although s.281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron (1986) 11 QLCR 64, the Land Court held at p.74:
“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. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”
In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p.146 said:
“The method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift…

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 Markert v Struber

Details

AGLC: Markert v Struber [2010] QLC 60
Case: [2010] QLC 60
Decision Date: 9 April 2010

CaseChat Overview and Summary

The matter of Markert v Struber and Anor was heard by the Land Court of Queensland, with the applicant Frank Josef Markert seeking the grant of Mining Lease 20610 over land owned by Stephen Struber and Dianne Wilson-Struber. The dispute centred on the determination of compensation payable to the landholders under the Mineral Resources Act 1989. As no agreement on compensation had been reached between the parties, the Court was required to make a determination. The legal issues included the method of assessing compensation under the Act and the appropriate compensation for the area affected by the mining lease and the access over the landholders' property.

The Court noted that section 281 of the Mineral Resources Act 1989 sets out the matters to be considered in determining compensation, but does not prescribe a specific method of assessment. The Court referred to previous cases, including Smith v Cameron, Shaw v Heritage Holdings Pty Ltd, and Mitchell v Oakhill and Mitchell, to clarify that the method of assessment is to be determined based on the facts and circumstances of each case. The Court also acknowledged the inherent difficulties in determining compensation, particularly regarding the equivalence principle and the valuation of land in uncertain economic conditions. The Court inspected the property and considered the submissions made by both parties, but ultimately found that neither party had provided formal valuation evidence. In the absence of such evidence, the Court based its determination on its previous decision in Fitzgerald, awarding $10 per hectare per year for the area covered by the mining lease and $5 per hectare per year for access.

In determining the appropriate compensation for access, the Court considered that the bulk of the access was over a public road and that the landholders had not provided conclusive evidence as to the precise length of the access traversing their property. The Court determined that an area of 1 hectare should be compensated for access, resulting in a total compensation award of $957. The Court also ordered that the compensation be paid in instalments, with the first instalment of $500 to be paid within three months of the grant of the mining lease and the balance of $457 to be paid on the fifth anniversary date of the grant of the lease.

In conclusion, the Land Court of Queensland awarded a total compensation of $957 to Stephen Struber and Dianne Wilson-Struber for the grant of Mining Lease 20610 over their property. The Court ordered that the compensation be paid in instalments, with the first instalment of $500 to be paid within three months of the grant of the mining lease and the balance of $457 to be paid on the fifth anniversary date of the grant of the lease.

Orders