Munro & Anor v Struber & Anor

[2016] QLC 49

LAND COURT OF QUEENSLAND

CITATION:

Munro & Anor v Struber & Anor [2016] QLC 49

PARTIES:

Ronald Gordon Munro & Edwina Jean Munro
(applicants)

v

Stephen Roy Struber & Dianne Rose Wilson-Struber

(respondents)

FILE NO:

MRA084-16
MRA085-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of a mining lease

DELIVERED ON:

18 August 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 5 May 2016

HEARD AT:

Heard on the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.     In respect of ML 100069 compensation is determined in the total sum of $330 for the initial grant period of 10 years.

2.     In respect of ML 100071 compensation is determined in the total sum of $330 for the initial grant period of 10 years.

3.     The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1 and 2 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines.

CATCHWORDS:

MINING LEASE – grant – referral – determination of   compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes.

Mineral Resources Act 1989 s 281(1)
Public Trustee Act 1978

Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38
Fitzgerald & Anor v Struber & Anor [2009] QLC 76 Unimin Australia Limited v Freeman [2007] QLC 76

Wallace & Ors v Bottomer & Ors [2015] QLC 23
Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297

APPEARANCES:

Not applicable

1. These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Leases ML 100069 and ML 100071.  The referral documents list the address for the respondents as:

   ANDREW RUSHTON
              PRINCIPAL PUBLIC TRUST OFFICER
              PUBLIC TRUST OFFICE
              PO BOX 656
              CAIRNS QLD 4870

Background

1. The applicants, Ronald Gordon and Edwina Jean Munro (the miners) seek the grant of mining leases ML 100069 and ML 100071.  Although the mining leases are to be situated on   adjoining land, the access track to the leases traverses Palmerville Station which is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). 

2. Palmerville Station is more particularly described as Lot 14 on SP 250040, is located in the Cook Shire Local Government area and is used for grazing purposes. 

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

Court References	Tenure ID	Access Area	Term	Lease Purpose
MRA084-16	ML 100071	5.84 ha	10 years	Gold
MRA085-16	ML 100069	5.84 ha	10 years	Gold

1. On 15 December 2015 a Certificate of Application for ML 100069 and ML 100071 was issued by the Mining Registrar at Mareeba.

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 this matter, no agreement has been lodged with DNRM and the matter has been referred to the Land Court for determination.

2. 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.”

3. 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).”

4. The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd [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]        Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297 at 315.

The Conduct of the Proceedings and Evidence

1. On 2 March 2016, the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction

   No. 6 of 2015.  As the landowners are currently serving a period of imprisonment a copy of this correspondence was also emailed to the Official Solicitor, Public Trustee of Queensland[2].

   [2] Refer Part 7 Public Trustee Act 1978.

2. On 30 March 2016 correspondence and submissions on behalf of the miners was received from Mining and Resource Permit Services of Mt Sheridan, Queensland. The correspondence indicated that the materials had been forwarded to the landowners’ c/- the Public Trust Office, Cairns. A “Registered Post” lodgement receipt was also provided in respect of the correspondence.

3. A compensation statement included in the correspondence set out the following points regarding the assessment of compensation:

   i.Access across Palmerville Station will utilise existing roads and tracks that will be shared with other miners.

   ii.The mining will comprise a very small-scale alluvial operation.

   iii.Operations will be undertaken for approximately 120 days per year.

   iv.No heavy hauling will be undertaken and access will be by conventional 4WD vehicles.

   v.Contended a compensation amount of $ 5 per hectare per year.

   vi.Guidance could be obtained from earlier determinations upon Palmerville Station including Fitzgerald & Anor v Struber & Anor [2009] QLC 76 and Kayes v Struber & Anor [2016] QLC 3.

4. No evidence or contentions have been filed by the landowners in response to the submissions filed on behalf of the miners.

Determination

1. In this case no valuation or other expert evidence has been placed before the Court in relation to the assessment of compensation. Accordingly I consider the following extract from Unimin Australia Limited v Freeman[3] regarding the nature of the assessment process to be of application to the present determinations:

“I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

[3][2007] QLC 76.

1. Given the absence of expert or valuation evidence in these proceedings I consider that Land Court judgments from the Mareeba district that have been based on evidence the subject of cross examination, full submissions and an inspection of Palmerville Station will be of most assistance.  Fitzgerald & Anor v Struber & Anor[4] is such a judgment.  The associated proceedings involved multiple applicants, Mr and Mrs Struber as respondents and resulted in a determination of compensation of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas. 

   [4][2009] QLC 0076

2. In a later case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor[5], the Court determined compensation at $10 per ha per annum for the relevant mining areas and $5 per ha per annum for access areas.  In the more recent judgment of  Wallace & Ors v Bottomer & Ors[6], the Court determined compensation for the mining area of a renewed lease at $10 per ha per annum.

   [5] [2014] QLC 38

   [6][2015] QLC 23

3. This determination only concerns access tracks across Palmerville Station, the mining areas for both ML 100069 and ML 100071 being situated on adjoining land.  The access area of each lease is 5.84 ha, which for the purposes of this assessment will be rounded to 6 ha.

4. On the basis of these earlier related judicial determinations of compensation from the Mareeba district I consider that $5 per ha per annum for the access areas of ML 100069 and ML 100071 to be appropriate compensation.

ML 100069 and ML 100071

1. The final determination in respect of ML 100069 and ML 100071 is set out as follows:

   Area covered by access – 6 ha @ $ 5 per ha               = $30.00 per annum

   add s 281(4)(e) re: compulsory nature of grant  = $  3.00 per annum

   Total= $33.00 per annum

2. In light of the duration of the term both ML 100069 and ML 100071 and the amounts assessed I intend to order that the compensation be paid as a single lump sum of $330 for the duration of the initial grant period of 10 years.

3. In view of the landholders’ present circumstances, I intend to order that the compensation determined be paid to the Public Trustee of Queensland.

ORDERS

1. In respect of ML 100069 compensation is determined in the total sum of $330 for the initial grant period of 10 years.

2. In respect of ML 100071 compensation is determined in the total sum of $330 for the initial grant period of 10 years.

3. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1 and 2 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines.

GJ SMITH

JUDICIAL REGISTRAR