Re Carpentaria Gold Pty Ltd & Elizabeth Walsh
[2012] QLC 60
•25 October 2012
LAND COURT OF QUEENSLAND
CITATION: Re Carpentaria Gold Pty Ltd & Elizabeth Walsh [2012] QLC 0060
PARTIES:In the matter of Mining Lease 1753 – Application by Carpentaria Gold Pty Ltd for determination of compensation payable to Elizabeth Walsh
FILE NO:MRA187-12
PROCEEDING: Application for determination of compensation
DELIVERED ON: 25 October 2012
DELIVERED AT: Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDERS:1. I determine compensation under s.281 in the sum of $500.
2. I award an additional amount of $50 in accordance with s.281(4)(e).
3. I direct that the Applicant pay the total compensation in the sum of $550.00 to the current landowner within three months of notification of renewal of the mining lease by the Mining Registrar.
4. In the absence of an application from either side within 14 days of this decision, no costs are to be awarded.
CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, s.279, 281
Smith v Cameron [1986-87] 11 QLCR
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR
Mitchell v Oakhill and Mitchell (10 March 1998) unreported
APPEARANCES: Not applicable – Heard on the Papers
Background
The Applicant, Carpentaria Gold Pty Ltd, seeks the renewal of Mining Lease 1753 in the Charters Towers District. The Applicant seeks a term of 17 years. The application was lodged at the office of the Mining Registrar Charters Towers on 13 July 2011.
There is dispute between the parties as to whether the Mining Lease is partly located on Lot 3 on MHP 15821 owned by Elizabeth Walsh, the Respondent. If it is not, no question of compensation arises. Both parties have made extensive submissions on this question which is considered below.
Lease Boundary Dispute
Various written submissions were supplied by the parties. They are as follows:
Applicant’s Written Material
1. Compensation Statement - 29 May 2012
2. Affidavit of Lamb - 29 May 2012
3. Reply to Respondent’s
Compensation Statement - 2 July 2012
4. Second Affidavit of Lamb - 12 July 2012
5. Letter of rejection of offer - 21 September 2012
Respondent’s Written Material
1. Letter of Elizabeth Walsh - 3 May 2012
2. Letter of Elizabeth Walsh - 24 May 2012
3. Letter of Elizabeth Walsh - 8 June 2012
4. Letter of Elizabeth Walsh - 12 June 2012
5. Letter of Elizabeth Walsh - 10 September 2012
6. Letter of Elizabeth Walsh - 5 October 2012
7. Letter of Elizabeth Walsh - 8 October 2012
A telephone directions hearing was also held on 28 August 2012 at the Court’s request in an attempt to clarify certain material in the written submissions and possibly resolve the matter without Court determination.
A further offer by Mrs Walsh seeking the Applicant to purchase the whole of Lot 3 was rejected by the Applicant.
Both parties have consented to the matter now being determined on the papers.
This may not be the ideal process, given the apparent complexity of the boundary issue. However, the relatively small amount in dispute, the location of the parties (the Applicant’s representatives are in Perth, Mrs Walsh is in Bundaberg), the detailed written submissions and the lengthy telephone directions hearing make this course appropriate in all the current circumstances.
The Court and parties have also had the assistance of the Acting Mining Registrar, Charters Towers, Ms Rebecca Youngberry at the phone conference. Ms Youngberry has had close involvement in the current matter, has spoken to Mrs Walsh via phone on numerous occasions in an attempt to clarify disputed issues and has prepared a sketch material (A3 Form 256 dated 5/7/12). The latter was attached to the Walsh letter of 10 September 2012 supplied to the Applicant and the Court.
I should mention at the telephone directions hearing Ms Youngberry invited Mrs Walsh and Mr Williams (who assisted her at the conference) to conduct a physical inspection of the Mining Lease and Lot 3 with Ms Youngberry to clarify the boundary concerns. However, such offer was not accepted.
The telephone directions hearing was recorded and a written transcript provided to the parties. Given the Court’s wide discretion as to the evidence it receives (s.7 of the Land Court Act 2000), it is permissible to use material in this transcript in arriving at the current decision.
Issues in Dispute
The Reply to the Respondent’s compensation statement prepared by Applicant’s solicitors, Green Legal, dated 2 July 2012, identifies the issues between the parties.
After perusing all of the relevant material, I am satisfied that this is a fair and accurate outline of the issues.
It states:
“4. THE ISSUE BETWEEN THE APPLICANT AND RESPONDENT
4.1 The issue between the parties can be stated succinctly:
(1) the Applicant says that:
(a)its mining lease ML1753 overlaps the Respondent’s Lot 3 on Crown Plan MPH15821 (“Lot 3”) to the extent of 59.21 square metres;[1] and
[1] See [22] of the First Lamb Affidavit.
(b)in the circumstances, the Land Court should award compensation of $500 to the Respondent;[2]
[2] See [8.1] of the Applicant’s Statement.
(2) the Respondent says that:
(a)there is no overlap between ML1753 and Lot 3[3] and
[3] See sub-para e) on p4 of the Respondent’s letter dated 8 June 2012.
(b)in the circumstances:
(i) the Land Court need not make any determination of compensation;[4]
(ii) the Applicant is using portion of Lot 3 “illegally”;[5]
(c)the Land Court should “instruct [the Applicant] to hold direct negotiations with [the Respondent] to purchase the whole and not part of Lot 3 if [the Applicant] wish[es] to continue using part of [the Respondent’s] property as a haul road”.[6]
[4] See sub-para e) on p4 of the Respondent’s letter dated 8 June 2012.
[5] See paragraph 2, Respondent’s letter dated 4 June 2012.
[6] See sub-para h) on p4 of Respondent’s letter dated 8 June 2012.
The same document then proceeds to outline the parties’ respective positions. Again, I am satisfied that this is a fair and accurate summation. For the purposes of the present decision, I quote only the most relevant parts.
“5. THE APPLICANT’S POSITION – OVERLAP BETWEEN ML1753 AND LOT 3
5.1 The Applicant says there is an overlap between ML1753 and Lot 3 because:
(1)it commissioned a registered surveyor to verify, and to the extent necessary, re-establish, any survey pegs and boundary posts for ML1753;[7] and
[7] See [15] of the First Lamb Affidavit.
(2)as a separate exercise, it commissioned the same registered surveyor to identify, and to the extent necessary re-establish, the corner pegs for Lot 3;[8] and
[8] See [19] of the First Lamb Affidavit.
(3)it is apparent from the pegs and posts, as verified or re-established, that ML1753 and Lot 3 overlap.
5.2Page 32 of the First Lamb Affidavit contains a table, prepared by the surveyor, which describes each boundary post of ML1753 (“Table of Lease Boundary Posts”). The description includes whether the post is on the boundary of ML1753 (ie Application Post) or is offset from the boundary of ML1753 (ie Offset Post), the co-ordinate of the post (as it exists on the ground), the marking on the post, and a reference to the filename of one of more digital photographs of the post (“Boundary Post Photographs”).
5.12 Based on:
(1)the information shown in the Table of Lease Boundary Posts and on the Lot 3 Survey Plan; and
(2)advice from the surveyor as to the co-ordinates of the corners of Lot 3, as established to exist on the ground,[9]
[9] See [21] of the First Lamb Affidavit and [11] of the Second Lamb Affidavit.
the Applicant’s cartographer[10] prepared the plan at page 67 of the First Lamb Affidavit, which plan, the Applicant contends, shows the true relationship between the ML1753 and Lot 3.
[10]Mr Lamb holds a Bachelor of Science majoring in cartography – see [2] of the First Lamb Affidavit.
6. RESPONDENT’S FIRST ARGUMENT
6.2The surveyor incorrectly identified the corner of ML1753 which lies in the vicinity of the northern corner of Lot 3.[11]
[11]See para on p1, numbered paras 1 and 2 on p2 and para a) on p3 of Respondent’s letter dated 8 June 2012.
6.3 In particular, the Respondent states:
2.ML 1753 “Mellaneur” states that the lease boundary location between the ML1753 mining lease and my property is as follows and I quote “for 180.25 metres along the southern boundary of Cecil Street to a post at the eastern corner of the intersection of Christie & Cecil Streets”[12]
6.4That is, the Respondent says (as the Applicant understands it) that to identify the boundary of ML1753 between the corner of ML1753 in the vicinity of the northern corner of Lot 3 and the next corner of ML1753 in a clockwise direction, the words along the southern boundary of Cecil Street establish that ML1753 does not overlap with Lot 3.
6.5The Applicant says that the Respondent has not referred to the full description of that boundary as set out in the instrument of title for ML1753.
[12] See numbered para 2 on p2 of Respondent’s letter dated 8 June 2012.
7. RESPONDENT’S SECOND ARGUMENT
7.1The Respondent’s Second Argument is that survey pegs and boundary posts have been moved[13] and that the relocation of the survey pegs and boundary posts has been caused by the use of GPS co-ordinates.[14]
[13] See para 4 on p1, and numbered para c) on p4, of Respondent’s letter dated 8 June 2012.
[14] See para 4 on p1, and numbered para 9 on p3, of Respondent’s letter dated 8 June 2012.
7.2The Applicant denies that any survey pegs or boundary posts have been moved.[15]
7.3Rather, the Applicant says that survey pegs and boundary posts have been re-established in their original locations, either by identification of the original peg or post, or where the original peg or post cannot be found, the description of where that peg or post was located. Those descriptions are not dependent on GPS co-ordinates. There are descriptions of bearings and distances from established points on the ground – as are evident from each of Plan 15821, the Identification Survey Plan and the Instrument of Title for ML1753.
7.4Why the confusion has arisen in recent times is because parties have been looking at maps which have been prepared using incorrect GPS coordinates of the established points on the ground.”
[15] See [13] of the Second Lamb Affidavit.
In respect of 7.4, subsequent advice from the Acting Mining Registrar Ms Youngberry, suggests the confusion really arises from the original description of the Mining Lease being inaccurately shown on the Department's SIE (graphics) database. This could be for many reasons, such as an error in correctly locating the starting point, or an error when the original lease location sketch was entered into the MERLIN data base in 1989.
At the conclusion of the telephone directions, Mr Green, solicitor for the Applicant, after hearing the detailed oral case of Mr Williams, agent for Mrs Walsh and Mrs Walsh herself and input from Ms Youngberry, summarised what he perceived to be the proper way the matter could be resolved. I quote from the relevant parts of the transcript:[16]
“MR GREEN: The points are these, that, one, we agree with Mr Williams that the - the description of the pegs in the mining lease is correct or is paramount. Two, the only way in which the overlap can be determined is by going onto the land and looking at the pegs on the ground. That is there's no point looking at these aerial photographs or maps that people have prepared or that - that have been prepared by persons who are not qualified surveyors and who are not attesting to the accuracy of their work.
What Carpentaria has done, because it was concerned that what was being suggested was that it paid a licensed surveyor to go and identify the pegs of the mining lease and the pegs of Mrs Walsh's lot. And so Carpentaria hasn't looked at any plans. It said, ‘Where must the pegs be, let's find them?’ In one or two instances or perhaps more I can't recall, the pegs were missing so they were re-established according to - in the case of the mining lease the description on the instrument of mining lease and I believe in relation to Mrs Walsh's lot they were re-established according to the old survey plans which had been prepared by surveyors.
And so it's only when one goes onto the land and looks at the location of the pegs that one can actually determine whether there's an overlap or not.
MR O'CONNOR: Yes.
MR GREEN: We agree that there's no point looking at the aerial photographs. There's no point looking at the maps that are produced by the department's database. You actually have to go onto the land and measure things out in terms of bearing and distance, not GPS settings, in actual bearings and degrees and distances in metres, to actually identify where the boundary or corner pegs are. Only then can you say whether there's an overlap or not.”
[16] TP p.27.
Conclusion on the Boundary Issue
Having carefully considered written and oral evidence before the Court, I am satisfied that the subject mining lease does in fact overlap Lot 3 by some 59m². Key reasons for this conclusion are:
· The detailed report of a licensed surveyor engaged by the Applicant supports this finding. The surveying report is founded on a site inspection to locate a datum point and locating or repositioning posts in accord with the description in the Instrument of Lease. (The Applicant claims to have incurred legal and surveying costs in the vicinity of $30,000 to $40,000 for this comprehensive exercise). There is no contrary expert professional evidence to rebut these findings.
· The surveying report is supported by the evidence of Ms Youngberry, the Acting Mining Registrar, particularly with the sketch map she provided for Mrs Walsh (A3 from 256 dated 5/17/12). The green line on this map indicates the 59 m² overlap.
· The bearings and distances specified in the Instrument of Lease describing the lease boundaries would take precedence over any conflict arising from measurements made from the streets mentioned in such Instrument.
· The departmental drawings and aerial photographs referred to by the Respondent do not purport to have the same precision as survey plans detailed from on the ground investigations done by the licensed surveyor.
· Mr Williams, who is an experienced engineer, does not have the surveying or legal qualifications sufficient to challenge the expert evidence of the surveyor or Mr Green’s legal observations.
· The Instrument of Lease stated that it was not subject to a “formal survey”. Section 289(3) of the Mineral Resources Act1989 states that, for an Instrument of Lease, the area and boundaries of the lease must be described as accurately as possible, but that a defect in the description of the land does not invalidate or otherwise affect the lease. Section 295 of the Act allows for variation in the Mining Lease description for accuracy following survey or some other acceptable method of determination of the boundaries. Section 296 allows for the Instrument of Lease to be corrected if it is considered necessary by the Mining Registrar.
The Act
Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Mining Registrar and the matter has been referred to the Court for determination.
[19] The matters which must be considered by the Court are set forth in s.281(3) of the Act. Although s.281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron (1986) 11 QLCR. 64, the Land Court held at p.74…”
“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. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”
In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p.146 said:
“The method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”
In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, The President of the Land Court, referring to s.281(3) of the Mineral Resources Act, found:
“… 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.”
Valuation Evidence
Neither party provided formal valuation evidence before the Court. However the Applicant offers a sum of $500 based on a pro-rata amount on the figure for which Mrs Walsh was prepared to sell her property ($36,000). In the absence of any other formal valuation evidence I am prepared to accept this as a proper figure. A formal valuation would not be warranted given the relatively small amount in dispute.
A further amount of $50 is awarded under s.281(4)(e) of the Mineral Resources Act 1989 to reflect the compulsory nature of the action.
Other Observations
While not strictly necessary to the current decision, it is convenient to make the following comments:
1.The Court has no jurisdiction to make an order that the Applicant purchase the Respondent’s Lot 3 land nor to prescribe a price at which such could be done. The parties are certainly free to do this on their own motion but the Applicant has indicated it does not wish to do so.
2.The Court is not concerned with any trespass action the Applicant may be committing on Lot 3 (quite apart from the area of 59 m² now determined to overlap). The Respondent should take up any issue in this regard with the Mining Registrar if clarification is required or a breach sought to be remedied,
Orders
1. I determine compensation that the Applicant pay the Respondent a sum of $550.00 within a period of three months from the notification of the renewal of the Lease by the Mining Registrar.
Costs
1. In the absence of application from either side within the fourteen days of this decision, no costs are to be awarded.
BR O’CONNOR
JUDICIAL REGISTRAR
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