Newcrest v Atlantic 3 Financial (Aust) Pty Ltd

[2008] QLC 60

LAND COURT OF QUEENSLAND

CITATION:  Newcrest & Ors v Atlantic 3 Financial (Aust) Pty Ltd [2008] QLC 0060

PARTIES:In the matter of Mining Lease 3228 – Application by Newcrest Operations Limited, Fernyside Pty Limited and Sedgold Pty Ltd for compensation payable to Atlantic 3 Financial (Aust) Pty Ltd

FILE NO:MLC00221/2007

PROCEEDING:  Application for determination of compensation

DELIVERED ON:                  20 March 2008

DELIVERED AT:                   Brisbane

HEARING DATE:                 19 March 2008

MEMBER:Mr FW Windridge, Judicial Registrar

ORDER/S:1. I determine total compensation under section 281 to be Nil. (at[10]).

CATCHWORDS:                  MINING LEASE – DETERMINATION OF COMPENSATION

Mineral Resources Act 1989, ss 279, 281

Smith v Cameron [1986-87] 11 QLCR 64

Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139

APPEARANCES:                  Mr B R Ruffles of Land and Resource Solutions for Newcrest Operations Limited.

Background

1. The applicant miners (Newcrest Operations Limited & Ors) seek the renewal of Mining Lease 3228 in the Rockhampton Mining District.  The application for renewal for a term of 21 years was lodged at the office of the Mining Registrar Rockhampton on 5 October 2006.  The lease is granted for the purpose of mining for a number of minerals principally gold.

1. Access to the lease is through part of Lot 1 on MPH 123.  

The Act

1. Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation in respect of the lease and access 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 Mining Registrar and the matter has been referred to the Court for determination. This determination relates to access only.

1. The matters which must be considered by the Court are set forth in s.281 (3) of the Act. Although s.281 sets out the matters to be considered, it does not define any method of assessment. The following Land Court case reports may offer some guidance in determining the approach to be adopted. 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.”

1. 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 from one method to another.”

The evidence

1. Mr Ruffles appeared for the applicant miners and read filed material which related to his extensive and wide ranging search for the correct owner of the land through which access was sought.  No other party appeared or lodged submissions although given the opportunity to do so.  Some documentation in relation to factual matters was provided by the Mining Registrar.  Where necessary, I have referred to these documents for the purpose of accuracy.

1. There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination.  Due to the small area involved, the cost of a valuation would far outweigh any award for compensation.  Due to the small area involved, co-use or co-occupation would not be feasible, and the land owner has notionally lost the use of the access area for the term of the renewed lease.  

1. In this particular instance, an extensive and diligent search by Mr Ruffles has failed to disclose any current registered owner of the land.  It appears from the affidavit material filed by Mr Ruffles, which I accept, that when a probable owner was located, there was an express lack of interest, or advice that the land had been sold on to others. These other owners, and it appears the land passed through a number of different owners, also expressed no interest in the issue. 

1. While common sense dictates that there must be an owner, I am satisfied through the well documented efforts of Mr Ruffles that such an owner cannot be ascertained or located, and the probable quantum of any order does not warrant the involvement of the Public Trustee under the provisions of section 283. 

Access

1. I therefore determine as a matter of law that there is no identifiable owner of the land over which access is sought, and order that the sum of compensation be determined at NIL.

2. If, in due course, an alleged owner comes forth and seeks compensation, this order may be reviewed under section 283(B) of the MRA or under section 283(a), an agreement can be struck between the parties and registered with the Registrar.  

1. I make no award for costs but thank Mr Ruffles for the diligent manner in which he addressed this unusual issue.

FW WINDRIDGE
JUDICIAL REGISTRAR