Re Great Mines Pty Ltd & Titley
[2010] QLC 33
•4 March 2010
LAND COURT OF QUEENSLAND
CITATION: Re Great Mines Pty Ltd & Titley [2010] QLC 0033
PARTIES:In the matter of Mining Lease 10050 – Application by Great Mines Pty Ltd for determination of compensation payable to Anthony L Titley, Arthur R Titley, Benjamin H Titley, Rosemarie C Titley, Teena L Titley
FILE NO:MRA1351-08
(formerly MLC59/08)
PROCEEDING: Application for determination of compensation
DELIVERED ON: 4 March 2010
DELIVERED AT: Brisbane
MEMBER:Mr BR O’Connor, Judicial Registrar
ORDER/S:The following amounts are payable by the miner:
1.An amount per hectare based on three times the land valuation at the time of disturbance as determined by the Chief Executive, Department of Environment and Resource Management for areas to be disturbed temporarily by mining and access to the mining area or $1,000 per hectare, whichever is the greater.
2. An amount per hectare based on six times the land valuation at the time of disturbance as determined by the Chief Executive, Department of Environment and Resource Management for areas disturbed permanently by mining and access to the mining area or $1,000 per hectare, whichever is the greater.
3. The amount is payable prior to the commencement of mining.
4. Should no mining occur during the term of the lease, the miner shall pay to the landowner the sum of $250 at the end of the lease term.
CATCHWORDS: MINING – 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 applicant Great Mines Pty Ltd (the miner) seeks the renewal of Mining Lease 10050 in the Charters Towers District. The applicant seeks a term of 10 years. The application was lodged at the office of the Mining Registrar at Charters Towers on 24 October 2007.
The lease is located on Lot 2 on MPH 33483, Parish of Black Jack. Access is through the same property. A grazing operation is conducted on the property. The lease is over a surface area of 1 ha and is sought for the purpose of mining for various minerals and to allow for surface drilling and ventilation for underground mining.
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 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.”
The evidence
Neither party sought to appear before the Court and this matter had been dealt with on the papers. Both parties filed statements or other supporting material. 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 relatively small area involved, the cost of a valuation would outweigh any award for compensation. Due to the area involved, co-use or co-occupation would not be feasible, and the land owner has potentially lost the use of the lease area of 1 ha for the term of the lease.
Access
From details provided in the copy of the application for grant, it appears access (in part) is through the same property. There are no details of this access or the effect it will have on the operation of the landowners.
Quantum
In making this determination I take into account that the present use of the land is low intensity grazing but with plans to subdivide the larger lots into smaller rural living areas. There would be some minor effect from the mining operations which would include the noise of machinery and the movement of people and vehicles on or about the lease area and 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.
It is not the usual event that the mining lease is fenced to keep stock out, and it is common practice for the balance of the lease not disturbed by mining to be left available for grazing by stock and native fauna. This determination will reflect the level of usage of the surface of the lease by the miner against the right of the landowner to receive compensation and place the landowner as near a position that a monetary award can as if the lease did not exist.
Having regard to all the circumstances, I consider that the following award will satisfy the requirements of s.281 for the terms of the lease for the limited purposes authorised by the grant of the lease. Previous Court determinations for cases of this nature have been for a definite rate/hectare/year for the term of the lease payable within a short time of lease renewal. This approach would result in a much lesser amount payable to the landowner than the arrangement offered by the miner (and accepted by other landowners similarly affected). Accordingly, I propose to endorse the terms of settlement offered by the miner with slight adaptation. These are:
1. An amount per hectare based on three times the land valuation at the time of disturbance as determined by the Chief Executive, Department of Environment and Resource Management for areas to be disturbed temporarily by mining and access to the mining area or $1,000 per hectare, whichever is the greater.
2. An amount per hectare based on six times the land valuation at the time of disturbance as determined by the Chief Executive, Department of Environment and Resource Management for areas disturbed permanently by mining and access to the mining area or $1,000 per hectare, whichever is the greater.
3. The amount is payable prior to the commencement of mining.
4. Should no mining occur during the term of the lease, the miner shall pay to the landowner the sum of $250 at the end of the lease term.
These determinations include allowance for access and the allowance under s.281(4)(e) to reflect the compulsory nature of the taking.
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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