Re Fisher v Struber - [2008] QLC 102

LAND COURT OF QUEENSLAND

CITATION: Re Fisher v Struber & Anor [2008] QLC 0102

PARTIES:Max Henry Fisher (applicant miner) and Stephen Roy Struber and Dianne Rose Wilson-Struber (respondent landowners)

FILE NO/S:MLC00240/2007
PROCEEDING:  Application to determine compensation
DELIVERED ON:                  23 May 2008
DELIVERED AT:                   Brisbane
PRESIDING MEMBER:        Mr FW Windridge, Judicial Registrar
ORDER/S:1. Compensation determined at $1.
2.Such compensation to be paid by the miner to the landowner within 30 days of notification of the grant of the mining lease.

3.The property known as Palmerville Holding be acquired by the State of Queensland and placed under the control of the current Trustees of the Resources Reserve.
4. A copy of this determination be provided to the Hon. The Minister for Mines and Energy by the Registrar of the Land Court of Queensland.
5. The applicant miner is granted liberty to apply for injunctions, restraining orders, damages and costs on the giving of 21 days notice.

CATCHWORDS: COMPENSATION ––ACCESS ONLY - GRAZING PROPERTY –
Mineral Resources Act 1989, s. 281

Mining Right of Way Act (RSBC 1996) Chapter 294

Smith v Cameron [1986-1987] 11 QLCR 64
Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139
Mitchell v Oakhill and Mitchell (10 March 1998) unreported

APPEARANCES: Not applicable – Heard on the papers

Background

This is an application under s. 281 of the Mineral Resources Act 1989 (MRA) for the determination of compensation for the effect upon the respondent landowners of the renewal of the applicant’s mining lease number 5102 in the Mareeba District.

The lease is located on Palmerville Holding, being part of Lot 2 on CP910619, Parish Groganville, County Chelmsford. Access to the lease is partly through Palmerville Holding. The balance of the access is Road Reserve under the control of the Cook Shire Council. The matter for consideration here is compensation for the lease area of 6 ha with surface area of 1 ha, according to the Public Inquiry Report. This land is held by the respondent landowners Struber and Wilson-Struber.

The parties have been unable to resolve the issue of compensation, and the matter has been referred to the Court for determination. Whilst it is within the power of the parties to come to agreement on any issues, the power of the Court is limited to s. 281. It appears there is no response from the landowner on file or any response to Practice directions by the landowners.

The Court has given directions in relation to time frames for submissions, and this matter has been dealt with on the papers. The applicant miner has lodged a detailed submission in relation to compensation for the lease and access. No site visit has been conducted. The Court has attempted to carry out various site inspections in late 2007 and early 2008. However, adverse weather conditions have thwarted all attempts to visit the area. It is hoped some inspections will be carried out in late 2008 or early 2009.

Compensation

Relevantly, s. 281(3)(a) requires the Court to settle…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] QLC 102
Decision Date: 23 May 2008

CaseChat Overview and Summary

The case of Re Fisher v Struber and Anor involved Max Henry Fisher, an applicant miner, and Stephen Roy Struber and Dianne Rose Wilson-Struber, the respondent landowners. The matter was an application to determine compensation for the renewal of a mining lease held by Fisher on Palmerville Holding, which is part of Lot 2 on CP910619, Parish Groganville, County Chelmsford. The parties were unable to agree on the amount of compensation, leading to the matter being referred to the Land Court of Queensland for determination.

The primary legal issue the Court had to decide was the amount of compensation to be awarded to the respondents for the renewal of Fisher's mining lease. The Court had to assess the compensation based on the factors outlined in s. 281 of the Mineral Resources Act 1989 (MRA). These factors included deprivation of possession, diminution of the value of the land, diminution of use, severance of any part of the land, any surface rights of access, and all loss or expense that arises as a consequence of the grant or renewal of the mining lease. The Court also had to consider the additional 10% premium required under s. 281(4)(e) of the MRA.

In determining the compensation, the Court considered that there was no deprivation of possession, diminution of value, diminution of use, severance, or loss of access or expense. Given the attitude of the land owners and their failure to respond in any meaningful way to the practice directions of the Court, the Court determined that a nominal award was justified. The Court awarded compensation of $1.00 for the term of the lease, payable in full within 30 days of notification of the renewal of the lease by the Mining Registrar. The Court also recommended that the State of Queensland acquire the property known as Palmerville Station and include such property into the Resources Reserve for mining purposes.

The Court granted the applicant miner the liberty to apply for injunctions, restraining orders, damages and costs on the giving of 21 days notice if access was prevented or obstructed in any way. The Court also ordered that a copy of this determination be forwarded to the Honourable the Minister for Mines and Energy for his consideration by the Registrar of the Land Court.

Orders