Re Fitzgerald and Struber
[2008] QLC 230
•19 December 2008
LAND COURT OF QUEENSLAND
CITATION: Re Fitzgerald & Struber & Anor [2008] QLC 0230
PARTIES:In the matter of Mining Lease 20453 – Application by Raymond Michael Fitzgerald for determination of compensation payable to SR Struber and DR Wilson-Struber
FILE NO:MLC00161/2008
PROCEEDING: Application to determine compensation
DELIVERED ON: 19 December 2008
DELIVERED AT: Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDERS:1. I determine compensation under s. 281 in the sum of $50.
2. I award an additional amount of $10 in accordance with s. 281(4)(e).
3. I direct that the miner pay the total compensation in the sum of $60 to the current landowner within 3 months of notification of grant of the mining lease by the Mining Registrar.
4. No order for costs.
CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, s.279, 281
S.P. White v Warner [2003] QLRT 40
Smith v Cameron [1986-87] 11 QLCR
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR
APEARANCES: Not applicable – Heard on the Papers
Background
The applicant Raymond Michael Fitzgerald (the miner) seeks the grant of Mining Lease 20453 in the Mareeba District. The applicant seeks a term of 10 years. The application lodged at the office of the Mining Registrar Mareeba on 30 August 2004.
The lease is located on a mining reserve. Access however is through an adjoining property, Palmerville Station (Lot 2 on CP910619). A grazing operation is conducted on this property. The access over this property is 10 metres in width and under 600 m in length.
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 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 Registrar and the matter has been referred to the Court for determination.
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 section 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.”
The evidence
Neither party sought to appear before the Court and this matter has been dealt with on the papers. Neither party filed statements although the applicant provided certain supporting factual material in an Amendment of Access application. Some documentation in relation to factual matters was provided by the Registrar. In these reasons I refer to the salient points but not all the evidence that I relied upon in making my determination.
There was no formal valuation evidence to consider, therefore the Court does not have that assistance in arriving at a determination. Due to the small area involved, the cost of a valuation would far outweigh any award for compensation.
In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of section 281 of the Act.
There are no details of access or the effect it will have on the operations of the landowners. I award a nominal sum of $50 in relation to access to the claim, noting that the term of the renewal is not of a short duration.
Quantum
In making this determination I take into account that the only other viable use of the land is low intensity grazing. I consider access to the mining operations on this lease of this size would have no measurable effect on the operations conducted on the property. There would be some minor effect which would include the noise of machinery and the movement of people and vehicles along the access road. There is no evidence of severance of one part of the property from any other part and I make no allowance for injurious affection of the balance of the property.
Having regard to all the circumstances, I consider that the following award will satisfy the requirements of s.281 for the term of the lease. Drawing then on the limited evidence that is available, I determine compensation under Part 7 of the Mineral Resources Act 1989, to satisfy all heads of compensation set forth in subsection 3 of section 281 of the Mineral Resources Act 1989 shall be the sum of $5 for the full term of the lease. I further award the sum of $10 under s.281(4)(e) to reflect the compulsory nature of the action taken under this part
Terms of payment
In relation to the terms, conditions and times when payments should be made, I take into account the quantum of the order, the size of the access area and the period of the lease. In these circumstances, I order that the miner pay total compensation to the current landowners in the sum of $60 within a period of three (3) months from notification of grant of the mining lease by the Mining Registrar.
Costs
Neither party has sought an order for costs and in this matter it is not appropriate that costs be awarded.
BR O’CONNOR
JUDICIAL REGISTRAR
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