Opal Minded Pty Ltd v Pidgeon
[2018] QLC 7
•5 April 2018
LAND COURT OF QUEENSLAND
CITATION: Opal Minded Pty Ltd v Pidgeon [2018] QLC 7 PARTIES: Opal Minded Pty Ltd
(applicant)v Kerri Pidgeon
(respondent)FILE NO: MRA123-17 DIVISION: General Division PROCEEDING: Determination of compensation for renewal of mining lease DELIVERED ON: 5 April 2018 DELIVERED AT: Brisbane HEARD ON: Submissions closed 26 February 2018. Allocated for hearing on 20 March, 2018. HEARD AT: Heard on the papers MEMBER: WA Isdale ORDER: 1. In respect of ML 95230 compensation is determined in the sum of $1,920 per annum.
2. Compensation is to be paid yearly in advance with the first payment made within three months of the date of the issue of the renewal of ML 95230 by the Department of Natural Resources, Mines and Energy and thereafter on the anniversary of the date of that issue.
CATCHWORDS: Mining lease – Referral – Renewal – Determination of compensation – where both parties make disparate claims – Where there is an absence of evidence – Where the Court must do the best it can with the material the parties provided.
Mineral Resources Act 1989 s 279, s 281
Wills v Minerva Coal Pty Ltd (No 2) (1998) 19 QLCR 297, applied
APPEARANCES: Not applicable
Background
The applicant must have an arrangement to pay the respondent compensation so that it can continue to mine for opals on the respondent’s land. The applicant has a mining lease, ML 95230 and the parties have attempted, unsuccessfully, to agree on compensation for the respondent.
As they have been unable to resolve this, it now falls to the Court to do so.
The lease
The renewal of the lease is sought for ten years, the referral form 5 prepared by the senior mining registrar shows that the estimate is that 46.53 ha of the tenure area will affect the respondent’s property and approximately 6.31 ha of road reserve traverses the tenure.
The property is suitable for low-intensity grazing when sufficient feed is available. The lease is in the Winton Mining District. When the Land and Resources Tribunal considered this lease in 2007,[1] the former Mining Warden, Mr Windridge, rounded the area to 53 ha for the purposes of his consideration.[2] He noted that the only other viable use of the land, apart from opal mining, was low intensity grazing if pasture is available.[3]
[1]Opal minded Pty Ltd v Pidgeon [2007] QLRT 66.
[2]Ibid [2].
[3]Ibid [12].
Submissions
The parties have, pursuant to this Court’s order, made written submissions to the Court and provided them to each other. It is therefore unnecessary to set them all out. It is sufficient to observe that the respondent would like much more then applicant has offered.
The compensation
Section 281 of the Mineral Resources Act sets out the matters which the Court must consider when determining compensation.
The Act does not prescribe a method of valuation. Member Scott has said:
“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 on item, the chance that there will be a duplication of items assessed will be high.”[4]
[4]Wills v Minerva Coal Pty Ltd (No 2) (1998) 19 QLCR 297, 315.
I will consider the categories set out in the Act and conclude an overall amount of compensation after taking all the material which has been provided into account.
“Deprivation of possession of the surface of land of the owner.”[5] The applicant submits that this is 53 ha, the lease area. The respondent claims that 4,000 ha overall is adversely affected. As the leased area could be fenced off, it would not be reasonable to conclude that the larger area should be the subject of compensation.
[5]Mineral Resources Act 1989 (Qld) s 281(3)(a)(i).
“Diminution of the value of the land of the owner or any improvements thereon.”[6] This should also be related to the 53 ha lease area. It is effectively unproductive for the respondent who should have its productive capacity compensated for. The respondent submits that 4,000 ha will conservatively carry 60 cow and calf units. This is about 67 ha for one such unit, on the respondent’s claimed potential yield from the land. On the respondent’s claimed figures 60 units produce $48,000 per year. One unit therefore produces $800 per year. Rounding up to the nearest whole number, one unit should be allowed for. The respondent should be compensated accordingly in respect of this. The applicant has not disputed these figures but has pointed out that, with drought conditions, there has not been much, if any, stock on the land. The claim is for, it appears clear, average conditions and is reasonable and should be allowed.
[6]Ibid s 281(3)(a)(ii).
“Diminution of the use made or which may be made of the land of the owner or any improvements thereon.”[7] This has been accounted for in the last category.
[7]Ibid s 281(3)(a)(iii).
“Severance of any part of the land from other parts thereof or from other land of the owner.”[8] This lease, which should be considered as able to be fenced and denied to the respondent, is an impediment to moving about the property and, for this, some compensation should be paid.
[8]Ibid s 281(3)(a)(iv).
“Any surface rights of access.”[9] This concept of surface access has been considered in the last category and the material does not indicate any other specific difficulty in this regard.
[9]Ibid s 281(3)(a)(v).
“All loss or expense that arises; as a consequence of the grant or renewal of the mining lease.”[10] It is clear that the respondent takes the prudent step of, as land holder, keeping aware of operations on the lease. There is no figure specifically claimed for this but the Court will allow for it in the overall compensation as best it can to ensure that there is true compensation.
[10]Ibid s 281(3)(a)(vi).
In view of the difficulty and lack of utility in, for instance, working out from the material provided how often it might be reasonable for the respondent to monitor the lease, the Court will consider together the categories for which compensation should be awarded for severance and monitoring of the lease area as referred to above. The Court will award an aliquot amount on the basis that overall, these aspects appear to be as burdensome as the loss of the productive capacity. On that basis, a further $800 per year is determined as compensation.
The Court must also determine an additional amount, not less than 10% of the aggregate amount considered so far, to reflect the compulsory nature of the lease as it affects the respondent.[11] The 10% is the minimum.
[11]Ibid s 281(4)(e).
There is no basis upon which to restrict this category of compensation to the minimum as it appears that the respondent has properly engaged in the process and not delayed or obstructed it.
The Court will determine compensation under this category at 20%. It will therefore be 20% of $1,600 per year. That is $320 per year.
Conclusion
Compensation is therefore determined at $1,920 per annum.
Orders
In respect of ML 95230 compensation is determined in the sum of $1,920 per annum.1.
Compensation is to be paid yearly in advance with the first payment made within three months of the date of the issue of the renewal of ML 95230 by the Department of Natural Resources, Mines and Energy and thereafter on the anniversary of the date of that issue.2.
WA ISDALE
MEMBER OF THE LAND COURT
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