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Re Fitzgerald & Anor

Re Fitzgerald & Anor

Case [2009] QLC 15 30 January 2009

Adverse Possession

Compensatory Damages

Administrative Law

Determination of Compensation

Property Law

Administrative Law

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LAND COURT OF QUEENSLAND

CITATION: Re Fitzgerald & Anor [2009] QLC 0015

PARTIES:In the matter of Mining Lease 20394 – Application by Kay Frances Fitzgerald and Dennis Bernard Fitzgerald for determination of compensation payable to NBT Pty Ltd
FILE NO:MLC00077/2008
PROCEEDING:  Application for determination of compensation
DELIVERED ON:                  30 January 2009
DELIVERED AT:                   Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar

ORDER/S:1. I determine compensation under s.281 in the sum of $1,940.
2. I award an additional amount of $190 in accordance with s.281(4)(e).
3. I direct that the miner pay the total compensation in the sum of $2,130; $1,065 within 3 months of notification of grant of the mining lease by the Mining Registrar; the balance within 5 years of the date of issue of the mining grant. Payment is to be made to the landowner at the time payment is due.
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

APPEARANCES: Not applicable – Heard on the papers

Background

The applicants Kay Frances Fitzgerald and Dennis Bernard Fitzgerald (the miners) seek the grant of Mining Lease 20394 in the Mareeba District. The applicants seek a term of 21 years. The application was lodged at the office of the Mining Registrar Mareeba on 30 June 2003.

The lease is located on Belleve which is more particularly described as Lot 4567 on PH 1696, Parish of Groganville, County of Chelmsford. Access is through the same property. A grazing operation is conducted on the property. The lease is over an area of 17.67 ha and is sought for the purpose of mining for gold and silver and infrastructure requirements. For the purpose of this application I round off the area to 18 ha.

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)…

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

AGLC: Re Fitzgerald & Anor [2009] QLC 15
Case: [2009] QLC 15
Decision Date: 30 January 2009

CaseChat Overview and Summary

The Land Court of Queensland was asked to decide the compensation that should be paid to NBT Pty Ltd for a mining lease application by Kay Frances Fitzgerald and Dennis Bernard Fitzgerald. The application for Mining Lease 20394 was lodged on 30 June 2003, and the applicants sought a 21-year lease over an area of 17.67 ha for gold and silver mining and infrastructure. Section 281 of the Mineral Resources Act 1989 requires that compensation be determined by the court if no agreement has been reached between the parties. The court was required to consider the relevant factors set out in section 281(3) of the Act, including the size of the lease, the term of the lease, and the use of the land, among others. The court also had to determine the method of assessment, which was found to be flexible and dependent on the specific circumstances of each case.

The court considered the small area of the lease and the lack of formal valuation evidence. It noted that the land owner had lost the use of the lease area for the term of the lease and that prior determinations and agreements for leases and claims in the Mareeba area ranged from about $5 per hectare per year to $15 per hectare per year. The court awarded $5 per annum per hectare for the term of the lease, resulting in a total compensation of $1,940, and an additional $50 for access. The court ordered the miner to pay the total compensation in two installments, with $1,065 payable within three months of the notification of the grant of the mining lease by the Mining Registrar, and the balance payable five years from the date of the grant of the mining lease. The court made no order for costs.

In summary, the Land Court of Queensland determined the compensation payable to NBT Pty Ltd for the mining lease application by Kay Frances Fitzgerald and Dennis Bernard Fitzgerald. The court considered the relevant factors set out in section 281(3) of the Mineral Resources Act 1989 and awarded compensation of $1,940 plus an additional $50 for access. The court ordered the miner to pay the total compensation in two installments and made no order for costs.

Orders