O'Shane v Cook Shire Council

LAND COURT OF QUEENSLAND

CITATION:

O’Shane & Anor v Cook Shire Council [2016] QLC 77

PARTIES:

Patrick Daniel Michael O’Shane & Hamish William Bergerson
(applicants)

v

Cook Shire Council
(respondent)

FILE NO:

MRA248-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of mining lease.

DELIVERED ON:

8 December 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 5 September 2016.

HEARD AT:

Heard on the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.      In respect of ML 100068 compensation is determined in the total amount of $495.00.

2.      That the applicants pay compensation to the respondent the amount set out in Order 1 within three months of the date of grant of the mining lease by Department of Natural Resources and Mines.

CATCHWORDS:

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

Mineral Resources Act 1989 s 279, 281

Fitzgerald & Anor v Struber & Anor [2009] QLC 76

Tinpitch Pty Ltd v Cook Shire Council [2016] QLC 34

Unimin Australia Limited v Freeman [2007] QLC 76

Walker v Cook Shire Council [2015] QLC 19

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

APPEARANCES:

Not applicable

1. This proceeding concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease 100068 (ML 100068).  

Background

1. The applicants, Patrick Daniel Michael O’Shane and Hamish William Bergerson

   (the miners) seek the grant of ML 100068 which is located approximately 9 km south-east of Laura within the Cook Shire local government area. Mapping data provided by DNRM indicates that 2.2 ha of ML 100068 is located within road reserve under the control of the Cook Shire Council (the respondent). The road reserve is more particularly described seg 8505025.

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

Court Reference	Tenure ID	Relevant Area	Term	Lease Purpose
MRA248-16	100068	2.2 ha	15 years	Gold/Tin

1. On 15 February 2016 a Certificate of Application for ML 100068 was issued by the Mineral Assessment Hub.

Relevant Legislation

1. Section 279 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 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…