Parnwell v Camm
[2016] QLC 39
•30 June 2016
LAND COURT OF QUEENSLAND
| CITATION: | Parnwell v Camm [2016] QLC 39 | ||
| PARTIES: | Ian Gregory Parnwell (applicant) | ||
| v | |||
| Peter Robert Camm (respondent) | |||
| FILE NO: |
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| PROCEEDINGS: | Determination of compensation payable for renewal of mining claim | ||
| DELIVERED ON: | 30 June 2016 | ||
| DELIVERED AT: | Brisbane | ||
| HEARD ON: | Submissions closed 29 February 2016 | ||
| HEARD AT: | Heard on the papers | ||
| JUDICIAL REGISTRAR: | GJ Smith | ||
| ORDERS: | 1. In respect of MC 4438 compensation is determined in the total sum of $3,960 per annum. 2. The applicant pay compensation to the respondent in the amount set out in order 1 within three months from notification of the renewal of the mining claim by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining claim. | ||
CATCHWORDS: | MINING CLAIM – renewal – determination of compensation – evidence from respondent only – access – beneficial entitlement – road maintenance – remediation – assumption of reasonable and lawful conduct Mineral Resources Act 1989 ss 85, 85A
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| APPEARANCES: | Not applicable | ||
These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 85A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Claim 4438 (MC 4438).
Background
The applicant, Ian Gregory Parnwell, (the applicant) seeks the renewal of a mining claim located on land described as Lot 3 on CP 846344. The mining claim comprises an area of 1 ha and an access track across land owned by the respondent Peter Robert Camm (the respondent). The property is located in the Cloncurry Shire and Flinders Shire Local Government areas and is used for grazing purposes.
The specific Land Court reference and tenure details are set out as follows:
Court Reference Tenure ID Area Term Claim Purpose MRA128-15 4438 1 ha 10 years Goldmining Relevant Legislation
Section 85 of the MRA provides that a mining claim shall not be granted or renewed unless compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of the land subject of the application and of any surface access to that land. In respect of this matter, no agreement has been lodged with DNRM and accordingly the matter has been referred to the Land Court for determination.
The matters that must be considered by the Court are set out in s 85(7) of the MRA which provides that an owner of land is entitled to compensation for:
“(a) deprivation of possession of the surface of land of the owner;
(b) diminution of the value of the land of the owner or any improvements thereon;
(c) diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(d) severance of any part of the land from other parts thereof or from other land of the owner;
(e) any surface rights of access;
(f) all loss or expense that arises;
as a consequence of the grant or renewal of the mining claim.”
Section 85(8) of the MRA enables various additional factors to be included in the compensation assessment. In the present case, only paragraph (e) is relevant. It provides as follows:
“(8) In assessing the amount of compensation payable under subsection (7) -
……..
(e) an additional amount shall be determined to reflect the compulsory nature of action taken under this chapter which amount … shall be not less than 10% of the aggregate amount determined under subsection (7).”
In Wills v Minerva Coal Pty Ltd [No 2][1], when considering a provision effectively identical to s 85 of the MRA, this Court observed:
“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 QCLR 279 at 315.
Likewise in Mitchell v Oakhill and Mitchell[2], the then President of the Land Court observed in regard to s 281 of the MRA:
“the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”
[2] Unreported, Land Court of Queensland, JJ Trickett, President, 10 March 1998.
The Conduct of the Proceedings
On 18 May 2015, 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.5 of 2013.
On 25 May 2015, Russells Lawyers advised the Court that they acted on behalf of the respondent landowner in respect of these proceedings.
On 21 July 2015, an affidavit, hearing statement and draft compensation agreement was filed on behalf of the respondent.
No material was received by the Land Court from the applicant in accordance with the timetable set out in the correspondence from the Court dated 18 May 2015.
On 23 November 2015, the Court advised the parties that the provision of further spatial and mapping data was anticipated from DNRM. This additional information was provided to the parties on 11 February 2016 on the basis that any additional relevant submissions should be provided by 29 February 2016.
On 29 February 2016, an additional submission was filed on behalf of the respondent. This submission was in response to a letter by the applicant dated 19 January 2016 to DNRM. This letter proposed alternative access to MC 4438 involving the use of a helicopter. This submission opposed the applicant’s proposal. It should be noted that this decision is limited to the determination of compensation and does not purport to adjudicate on the merits of the any alternative access proposal.
Applicant’s Evidence
The materials before the Court relevant to the applicant’s position were limited to the referral documents from DNRM which included:
i.Application for renewal of mining claim;
ii.Mining claim work program template;
iii.Environmental Authority;
iv.MinesOnlineMaps showing MC 4438; and
v.A letter from the applicant to the Mining Registrar at Emerald dated 19 January 2016 regarding an alternative access proposal.
Respondent’s Evidence
On behalf of the respondent, an affidavit of Mr KA Vivian was filed. Mr Vivian is the respondent’s accountant and also his attorney pursuant to a power of attorney. Mr Vivian is involved with the management of the respondent’s property.
A summary of Mr Vivian’s evidence is set out below:
i.The mining claim impedes the respondent’s right to use the subject land for grazing purposes. This is primarily due to excavation of the applicant’s mining operations and other characteristics such as tailings and unremeditated land left after mining operations.
ii.The mining claim area is 1 ha in size. He (Mr Vivian) believes an appropriate payment by the applicant would be $2000 per annum plus GST (if any). This is based on the commercial return to the respondent and includes inconvenience, loss of pastoral land and additional health and safety burden for animals and employees caused by the presence of the applicant and his workings on the property.
iii.The respondent maintains a road which leads to the mining claim site. The total costs of maintaining that road are approximately $6,480 per annum. This is comprised of twice yearly grading of the road, which requires machine hire for 24 hours each time at $90 per hour plus GST, plus fuel. The dry hire cost of machinery is increased by a further 50% to estimate the total cost of maintenance. This is therefore $135 plus GST (if any) per hour, 24 hours x 2 events per annum. Mr Vivian deposes that they do not generally require the use of a large part of the subject road for their purposes as much of their work is conducted on horseback, motorbike or by helicopter. He therefore estimates that a 50% share of the maintenance costs to the applicant would be a fair cost for not only his share of maintenance costs, but also a recognition of the beneficial use of the road which is in addition to, but a necessary component of, the applicant’s use of the physical mining claim. Accordingly, the applicant’s 50% share for maintenance and in recognition of the beneficial use of the road amounts to $3,240 per annum.
iv.It is understood that the applicant will be excavating an area of “100 m2 by 100 m2 at a depth of 1.5 m2, equating to a total of 15 000 m2”. The applicant states that all excavation will be done by use of hand tools. Whilst the applicant is obliged to remediate at the end of the mining claim, and the respondent expects the applicant to do so. Mr Vivian does not see how the applicant could adequately rectify the excavations with the use of hand tools as this will require levelling work and also compacting. For additional remediation, an excavator may be required for approximately 7 days at the cost of approximately $4,410 plus GST (if any). Mr Vivian believes it is appropriate to add 10% of this cost per annum to ensure that the compensation fee covers the risk of additional remediation by the respondent. This equates to an amount of $441 per annum plus GST (if any).
v.In accordance with the above, Mr Vivian considers that the proper annual compensation is the sum of $5,681 plus GST (if any).
Consideration of Evidence
The evidence of Mr Vivian is the only sworn evidence filed in this proceeding. Neither party has provided any submission regarding the legal or evidentiary aspects of the assessment of compensation pursuant to s 85 of the MRA. In the absence of any contrary or other evidence, Mr Vivian’s affidavit is the only basis upon which the Court can determine compensation. While the contended amounts appear to be comparatively high there has been no submission filed by the applicant challenging the affidavit. With two exceptions, I intend to generally accept the evidence of Mr Vivian.
In respect of road maintenance, I consider that the inclusion of both maintenance costs and an amount “in recognition of beneficial use of the road” involves the inclusion of an additional amount that is not, in reality, compensation in the context of s 85 of the MRA. In the absence of a specific contention as to how this item constitutes compensation, I intend to allow an amount of $1600 per annum in respect of maintenance.
An additional amount of $441 per annum is sought to cover the likely failure by the applicant to properly remediate excavations at the conclusion of the claim. The program of works indicates that both excavation and backfilling will be undertaken on an ongoing basis. On balance, I am unable to conclude at this point that this amount will arise as a consequence of the renewal of MC 4468. This assessment must be undertaken “on the assumption that the applicant for the leases will act reasonably and at all times according to law and in accordance with the terms and conditions of the proposed leases.”[3] Should the applicant fail to remediate the respondent may seek appropriate redress at that time.
[3] Smith v Cameron (1986) 11 QLCR 64.
Compensation
Having considered the materials and evidence before me, and in particular the unchallenged evidence of Mr Vivian, I determine compensation in the total amount of $3,600 per annum. This amount comprises the sum of $2000 referred to in [17] ii and the sum of $1,600 referred to in [19]. To this sum I consider that an additional amount pursuant to s 85(8)(e) of the MRA should be added in the amount of $360 giving total compensation in the amount of $3,960 per annum.
ORDERS
In respect of MC 4438 compensation is determined in the total sum of $3960 per annum.
The applicant pay compensation to the respondent in the amount set out in order 1 within three months from notification of the renewal of the mining claim by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining claim.
GJ SMITH
JUDICIAL REGISTRAR
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