O'Shane v Cook Shire Council
[2016] QLC 77
•8 December 2016
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
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
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.
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
On 15 February 2016 a Certificate of Application for ML 100068 was issued by the Mineral Assessment Hub.
Relevant Legislation
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.
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 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.”
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).”
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 p 315.
The Conduct of the Proceedings and Evidence
On 1 July 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.
No material or submission has been filed by either party regarding the assessment of compensation for the grant of ML 100068. Accordingly, I consider it is appropriate to proceed to determine the issue of compensation pursuant to s 281 of the MRA.
Determination
Given the absence of any materials or valuation or other expert evidence the views of Member Jones [as he then was] in Unimin Australia Limited v Freeman[2], regarding the assessment process are relevant:
“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.”
[2][2007] QLC 0076.
In the circumstances, I consider the most helpful guide for determining compensation are Land Court judgments from within the local mining district which have been based on evidence tested by cross examination, full submissions and where an inspection of the relevant lease area has been undertaken as part of the assessment.
The decision of Fitzgerald & Anor v Struber & Anor[3] (Fitzgerald) provides helpful guidance for the assessment of compensation in respect of a mining lease from within the Mareeba mining district. The case involved multiple applicants and resulted in a determination of $10 per ha per annum in respect of the mining lease areas and $5 per ha per annum for access areas.
[3][2009] QLC 0076.
In two later decisions, namely Walker v Cook Shire Council[4] and Tinpitch Pty Ltd v Cook Shire Council[5] the Court determined compensation at the rate of $10 per ha per annum for mining lease areas within a road reserve under the control of the Cook Shire Council.
[4][2015] QLC 19.
[5][2016] QLC 34.
On the basis of these earlier judicial determinations, I consider that $10 per ha per annum in respect of the area of ML 100068 situated within the road reserve to be an appropriate amount of compensation.
Given the duration of initial grant, namely 15 years and the relatively modest amount of compensation, I intend to order that the total amount of compensation be paid as one lump sum amount.
The final determination in respect of ML 100068 is as follows:
Area covered by mining lease – 3 ha @ $10/ha = $30.00 per annum
Add s 281(4)(e) re: compulsory nature of grant = $ 3.00 per annum
Sub Total= $33.00 per annum
Total – 15 year grant period x $33 per annum = $495.00
Orders
In respect of ML 100068 compensation is determined in the total amount of $495.00.
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.
GJ SMITH
JUDICIAL REGISTRAR
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