This is an appeal under the provisions of Section 282(1) of the Mineral Resources Act 1989 (the Act), against the determination of compensation by the Mining Warden before the grant of a mining lease over an area of land held by Mr RJ Mitchell (the appellant).

The appellant is the lessee of Grazing Homestead Perpetual Lease No 45/3608, described as Lot 5 on Plan FM13, Parish of Warnambool, County of Fermoy, containing an area of 16,364.678 hectares. The property is known as "Warnambool Downs" and is used for sheep breeding and wool growing and the grazing of some cattle.
"Warnambool Downs" is situated approximately 61 kms south-west of Winton on the Opalton Road. It comprises open to well shaded downs and timbered country. The carrying capacity assessed by the Department of Natural Resources is 1 sheep to 2.2 hectares, or 8,725 sheep.
One of the better lambing paddocks on "Warnambool Downs" is known as "Front 8 Mile" paddock with an area of 2772 hectares. It has a carrying capacity of 1 sheep to 1.6 hectares, or 1,732 sheep. That paddock is severed by the formed gravel Winton to Opalton Road, which is situated within a one mile wide Stock Route. The paddock's southern boundary is also the boundary between "Warnambool Downs" and "Jalloonda" and is fenced with a six foot netting fence.
Mr RR Oakhill and Mr MG Mitchell (the respondents) applied for Mining Lease No 95241, with an area of 49 hectares, for a term of ten years for the purpose of mining gypsum. The lease area applied for is irregular but roughly rectangular in shape, situated in "Front 8 Mile" paddock, with the southern boundary about 700 metres in length and parallel with and only about 15 metres removed from the "Jalloonda" boundary.

In addition to the lease area, the respondents have applied for an access road area of 2.2 hectares, being a strip of land 2,200 metres long by 10 metres wide. This strip of land is to provide access from the Opalton Road to the north-east corner of the lease area, following an old shot line (or seismic line) which leaves the road near the boundary grid and proceeds in a north- westerly direction at an angle to meet the north-east corner of the lease area, which is about 700 metres from the "Jalloonda" boundary. Part of the access road is on the Stock Route, but the balance of it traverses some of the best grazing country on the property.

At the hearing of the compensation claim in the Wardens Court on 8 April 1997, Mr RJ Mitchell claimed an amount of $50,167, derived by addressing each of the matters set out in subsection (3)(a) and subsection (4)(e) of section 281 of the Act. I will discuss those…

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 Mitchell v Oakhill and Mitchell

Details

AGLC: Mitchell v Oakhill and Mitchell [1998] QLC 25
Case: [1998] QLC 25
Decision Date: 10 March 1998

CaseChat Overview and Summary

The appeal was heard by the Land Court in Brisbane on 10 March 1998. The appellant, Robert John Mitchell, appealed against the determination of compensation by the Mining Warden before the grant of a mining lease over an area of land held by the appellant. The respondents, Robert Roy Oakhill and Martin Gerald Mitchell, applied for a mining lease for the purpose of mining gypsum over a 49-hectare area of the appellant's property. The appellant claimed an amount of $50,167 as compensation for the loss of control and use of his best lambing paddock for a period of ten years. The Warden determined that the compensation should be a nominal amount of $10 per hectare per annum, to be paid yearly in advance. The appellant appealed the Warden's decision, claiming that the decision was against the evidence and the weight of the evidence.

The court considered the provisions of Section 281 of the Mineral Resources Act 1989, which sets out the matters to be taken into account in determining compensation. The court noted that the "before" and "after" method of valuation was still open under section 281(3) of the Act, and that the appellant's piecemeal assessment of compensation was not validly based. The court also noted that the respondents' offer of $10 per hectare per annum was not a proper assessment of compensation in this case, as it did not address the matters to which the Act states that an owner of land is entitled as compensation.

The court considered the evidence of the appellant, which was based on the advice from a registered valuer, and rejected it as it was not the result of a "before" and "after" method of valuation. The court also rejected the respondents' evidence, as it did not address the matters required to be assessed under the provisions of Section 281(3)(a). The court found that compensation of $10 per hectare per annum would not adequately compensate the landowner.

The court considered the effect of the mining lease on the property and found that it would affect the price that a prudent purchaser would pay. The court arrived at a nominal figure of $22,000 to cover compensation, which takes into account the matters provided for in Section 281(3)(a)(i) to (v). The court also allowed the amount of $1500 claimed by the appellant for legal and valuation fees incurred in the preparation and lodgment of a claim for compensation.

The court allowed the appeal and varied the determination of the Warden. Compensation was determined in the sum of Twenty-three thousand, five hundred dollars ($23,500). The court ordered that the sum of $13,600 shall be payable within 60 days of the grant of the mining lease and the balance of $9,900 shall be payable in equal annual instalments of $1,100 for the remaining 9 years, commencing on the day of the first anniversary of the date of the grant of the mining lease. Both the appellant and the respondents forego any right to costs of the appeal.

Orders