Markert v Struber & Anor

[2019] QLC 7

LAND COURT OF QUEENSLAND

CITATION:

Markert v Struber & Anor [2019] QLC 7

PARTIES:

Frank Josef Markert
(applicant)

v

Stephen Roy Struber
(respondent)

Dianne Rose Wilson-Struber
(respondent)

FILE NO:

MRA423-18

DIVISION:

General Division

PROCEEDING:

Determination of compensation for renewal of mining lease

DELIVERED ON:

19 February 2019

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 12 February 2019

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.    In respect of ML 20553 compensation is determined in the total sum of $325 per annum.

2.    The applicant pay compensation to the Public Trustee of Queensland in the amount set out in Order 1 within one month from notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy and thereafter on the anniversary of the renewal of the mining lease.

CATCHWORDS:

MINING LEASE – renewal – determination of compensation – absence of evidence or submissions – referral documents – mining district – use of Court judgments for determination purposes.

Mineral Resources Act 1989, s 279, s 279A, s 281(1), s 281(3)(a)
Public Trustee Act 1978 part 7

Fitzgerald & Anor v Struber & Anor [2009] QLC 76, applied
Markert v Struber & Anor [2017] QLC 62, applied
Wallace & Ors v Bottomer & Ors [2015] QLC 23, applied

Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297, applied

APPEARANCES:

Not applicable

1. This proceeding concerns a referral by the Chief Executive, Department of Natural Resources, Mines and Energy (DNRME) pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation by the Court for the renewal of Mining Lease 20553 (ML 20553). 

Background

1. The applicant, Mr Frank Josef Markert (the miner) seeks the renewal of ML 20553 which is situated within the Cook Shire local government area on land known as Palmerville Station, but more particularly described as Lot 14 on SP 250040. Palmerville Station is owned by the respondents and has been used for grazing purposes for many years.

1. The Court reference and relevant tenure details are set out below:  

Court File No.	Tenure ID	Mining Area	Access	Term	Lease Purpose
MRA423-18	ML 20553	24.1659 ha	8.04 ha	10 years	Camp, Plant, Gold, Silver.

Relevant legislation

1. Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court.  In respect to the present referral concerning ML 20553, no agreement has been lodged with DNRME.

1. Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

“(i)     deprivation of possession of the surface of land of the owner;

(ii) diminution of the value of the land of the owner or any improvements thereon;

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

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

(v)    any surface rights of access;

(vi)all loss or expense that arises; as a consequence of the grant or renewal of the mining lease.”

1. Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant.  It provides as follows:

“(4) In assessing the amount of compensation payable under subsection (3) –

(e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

1. The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd [No.2][1] 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 at 315.

The conduct of the proceedings

1. On 18 December 2018 the Court made the following orders in relation to the ongoing conduct of this matter:

1.By 4:00pm on Friday 18 January 2019, Frank Markert must file in the Land Court Registry and serve on Stephen Struber a compensation statement in accordance with Land Court Practice Direction 1 of 2017 together with any supporting documentation including witness statements and expert reports.

2.By 4:00pm on Friday 1 February 2019, Stephen Struber must file in the Land Court Registry and serve on Frank Markert a statement of facts, matters and contentions in response to the compensation statement together with any supporting documentation including witness statements and expert reports.

3.By 4:00pm on Tuesday 12 February 2019, Frank Markert must file in the Land Court Registry and serve on Stephen Struber a statement of facts, matters and contentions in reply, if any.

4.Unless the parties otherwise request in writing, compensation will be determined on the filed material, without an oral hearing not before Monday 18 February 2019.

1. On 9 January 2019 the miner filed materials in the Court which included a compensation statement and supporting submission, draft compensation agreement, mapping of the mining lease and surrounding area, suggested corrections to tenure areas in the Form 5 referral document, public report for ML 20553, mining lease renewal application and the orders for the initial determination for ML 20553 in Markert v Struber [2008] QLC 103.

1. The miners primary contention is that compensation would be reasonable if determined by the Court at $10 per ha per annum for the mining area and $5 per ha per annum for the access areas. The miner suggests that the judgment in Markert v Struber & Anor [2017] QLC 62 provides an appropriate basis for these stated amounts, particularly given that the judgment also concerned an assessment of compensation as between the current parties in respect of mining activities on Palmerville Station some 5 km from ML 20553. The miner also contends that the suggested assessment is also supported by the earlier Court judgments in Fitzgerald & Anor v Struber & Anor [2009] QLC 76 and Wallace & Ors v Bottomer & Ors [2015] QLC 23.

1. No materials, evidence or submission to the contrary has been filed by or on behalf of the landowners.

Determination

1. The Court must do the best it can to determine reasonable compensation notwithstanding the absence of evidence from valuation or related experts regarding the impacts of proposed mining activities in light of the matters set out in s 281 of the MRA. In my view the most satisfactory alternative is to seek guidance from earlier Court judgments from within the Mareeba mining district. 

1. The written submission provided by the miner helpfully identifies two fairly recent Court judgments namely, Markert v Struber & Anor [2017] QLC 62 and Markert v Struber & Anor [2018] QLC 44 which, in addition to being determinations from within the local mining district are also determinations concerning mining activities conducted on Palmerville Station by Mr Markert.

1. In the circumstances it is considered that the best the Court can do is be guided by the assessments undertaken as part of these earlier judicial determinations. Accordingly, the approach and rates of compensation contended for by the miner namely, $10 per ha per annum for the mining area and $5 per ha per annum for the access area are accepted as reflecting reasonable compensation for ML 20553 in the circumstances. For calculation purposes the relevant areas will be rounded up to the next full hectare and an additional amount of $30 will be added pursuant to s 281 (4)(e) of the MRA.

1. As each landowner is presently serving a period of imprisonment the compensation as determined will be ordered to be paid to the Public Trustee of Queensland.[2]

   [2]Public Trustee Act 1978 part 7

1. The compensation as determined for ML 20553 is set out as follows:

Area covered by mining lease –  25 ha @ $10 per ha = $ 250.00 per annum

Area covered by access – 9 ha @ $  5 per ha = $   45.00 per annum

add s 281(4)(e) re: compulsory nature of grant         =  $  30.00 per annum

Total=  $325.00 per annum

Orders:

1. In respect of ML 20553 compensation is determined in the total sum of $325 per annum.

2. The applicant pay compensation to the Public Trustee of Queensland in the amount set out in Order 1 within one month from notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy and thereafter on the anniversary of the renewal of the mining lease.

   GJ SMITH
   JUDICIAL REGISTRAR OF THE LAND COURT