Pavey & Anor v Struber & Anor

[2016] QLC 79

LAND COURT OF QUEENSLAND

CITATION:

Pavey & Anor v Struber & Anor [2016] QLC 79

PARTIES:

Ashley Owen Pavey & Darrell Warren Skennar
(applicants)

v

Stephen Roy Struber & Dianne Rose Wilson-Struber
(respondents)

FILE NOs:

MRA1088-16
MRA1089-16

MRA1090-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of mining lease

DELIVERED ON:

14 December 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 9 December 2016

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.     In respect of ML 100095 compensation is determined in an amount of $171.00 per annum.

2.     In respect of ML 100086 compensation is determined in an amount of $374.00 per annum.

3.     In respect of ML 100093 compensation is determined in an amount of $187.00 per annum.

4.     The miners pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1, 2 and 3 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and on the anniversary of the grant of each lease.

CATCHWORDS:

MINING LEASE – referral – grant – determination of   compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes – Public Trustee of Queensland

Mineral Resources Act 1989 s 281

Public Trustee Act 1978 Part 7

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

Kayes v Struber & Anor [2016] QLC 3

Northeast Mining Co Pty Ltd v Struber & Anor

[2016] QLC 5

Munro & Anor v Struber & Anor[2016] QLC 49

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

APPEARANCES:

Not applicable

1. These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Leases  ML 100086, ML 100093 and ML 100095.

Background

1. The applicants, Ashley Owen Pavey and Darrell Warren Skennar (the miners) seek the grant of mining leases and access upon land described as Lot 14 on SP250040.  This land in more commonly known as Palmerville Station and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). 

2. Palmerville Station is located in the Cook Shire Local Government area and is used for grazing purposes. 

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

Court Reference	Tenure ID	Mining Area	Access Area	Term	Lease Purpose
MRA1088-16	ML 100095	14.86 ha	0.8 ha	12 years	Gold – Tin
MRA1089-16	ML 100086	28.49 ha	9.5 ha	10 years	Gold – Tin
MRA1090-16	ML 100093	8.853 ha	15.4 ha	10 years	Gold – Tin

1. The landowners are currently serving a period of imprisonment and consequently the referral documents list the address for the respondents as:

   QUEENSLAND PUBLIC TRUSTEE
             PO BOX 656

   CAIRNS QLD 4870

Relevant Legislation

1. Section 279 of the 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 of the 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.”

3. 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).”

4. 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

1. On 12 October 2016, a Deputy Registrar of the Land Court wrote to the parties in respect of each mining lease setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No. 6 of 2015. 

2. On 2 November 2016 correspondence and submissions on behalf of the miners were received from Mining and Resource Permit Services of Mt Sheridan, Queensland. A summary of the contentions on behalf of the miners is set out below:

   i.Mining will consist of small scale alluvial operations.

   ii.The miner is already undertaking mining in the area and these leases will be an extension of those operations.

   iii.Compensation should be determined at $10 per hectare per annum for mining areas and $5 per hectare per annum for access.

   iv.Detailed Court determinations said to support the amounts of compensation contended i.e. Fitzgerald & Ors v Struber & Anor [2009] QLC 76, Kayes v Struber & Anor [2016] QLC 3, Northeast Mining Co Pty Ltd v Struber & Anor[2016] QLC 5, Munro & Anor v Struber & Anor[2016] QLC 49.

3. No submission or material in reply to the miner’s material has been filed by or on behalf of the landowners.

Determination

1. In circumstances where there is no valuation or other expert evidence before the Court and no material at all from the landowners, I consider that the assessment of compensation is most accurately informed by relevant Land Court judgments from the Mareeba mining district that have been based on expert evidence tested by cross examination, full submissions and an inspection of Palmerville Station.  One such judgment is Fitzgerald & Ors v Struber & Anor[2] (Fitzgerald), which involved  the current landowners, Mr Struber and Mrs Wilson-Struber as respondents and resulted in the determination of compensation of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas. 

   [2][2009] QLC 76.

2. As the determinations cited[3] in the miners’ submission have also been guided by Fitzgerald, I accept the submission that similar rates of compensation should be assessed for ML 100095, ML 100086 and ML 100093. Accordingly, I consider that $10 per ha per annum in respect of the mining areas of each lease and $5 per ha per annum in respect of access areas are appropriate compensation.

   [3]Fitzgerald & Anor v Struber & Anor [2009] QLC 76, Kayes v Struber & Anor [2016] QLC 3, Northeast Mining Co Pty Ltd v Struber & Anor[2016] QLC 5, Munro & Anor v Struber & Anor[2016] QLC 49.

3. The relevant areas of each mining lease have been rounded to the next full hectare for calculation purposes. The final determination in each case is set out as follows:

MRA1088-16 re ML 100095

Area covered by mining lease – 15 ha @ $10 per ha = $150.00 per annum
Area covered by mining access –1 ha @ $5 per ha    = $    5.00 per annum

add s 281(4)(e) re: compulsory nature of grant         =  $  16.00 per annum

Total= $171.00 per annum

MRA1089-16 re ML 100086

Area covered by mining lease – 29 ha @ $10 per ha = $290.00 per annum
Area covered by mining access – 10 ha @ $5 per ha = $  50.00 per annum

add s 281(4)(e) re: compulsory nature of grant         = $  34.00 per annum

Total= $374.00 per annum

MRA1090-16 re ML 100093

Area covered by mining lease – 9 ha @ $10 per ha    = $ 90.00 per annum
Area covered by mining access –16 ha @ $5 per ha   = $ 80.00 per annum

add s 281(4)(e) re: compulsory nature of grant          = $ 17.00 per annum

Total= $187.00 per annum

1. As the landholders are presently incarcerated, I intend to order that the compensation determined be paid on their behalf to the Public Trustee of Queensland.[4]

[4]Refer Part 7 Public Trustee Act 1978

Orders

1. In respect of ML 100095 compensation is determined in an amount of $171.00 per annum.

2. In respect of ML 100086 compensation is determined in an amount of $374.00 per annum.

3. In respect of ML 100093 compensation is determined in an amount of $187.00 per annum.

4. The miners pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1, 2 and 3 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and on the anniversary of the grant of each lease.

GJ SMITH
JUDICIAL REGISTRAR