Re Markert v Struber - [2008] QLC 103

LAND COURT OF QUEENSLAND

CITATION: Re Markert v Struber & Anor [2008] QLC 0103

PARTIES:Frank Joseph Markert (applicant miner) and Stephen Roy Struber and Dianne Rose Wilson-Struber (respondent landowners)

FILE NO/S:MLC005/2008
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 ––RENEWAL OF LEASE GRAZING PROPERTY –PRACTICE DIRECTIONS

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 20553 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 matter for consideration here is compensation for the lease area of 25.2 ha with about 11 ha of that area being creek alluvium. 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 very 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 the amount of compensation an owner of land is entitled to as compensation for:
“(i) deprivation…

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.

Continue reading Re Markert v Struber

Details

AGLC: Re Markert [2008] QLC 103
Case: [2008] QLC 103
Decision Date: 23 May 2008

CaseChat Overview and Summary

Frank Joseph Markert, an applicant miner, filed an application against Stephen Roy Struber and Dianne Rose Wilson-Struber, the respondent landowners, seeking to determine compensation for the renewal of his mining lease. The lease is located on Palmerville Holding, part of Lot 2 on CP910619, Parish Groganville, County Chelmsford. The applicant and respondents were unable to agree on the compensation, resulting in the matter being referred to the Land Court of Queensland for determination. The court was required to decide the compensation under s. 281 of the Mineral Resources Act 1989 (MRA) for the renewal of the mining lease, considering factors such as deprivation of possession, diminution of value, diminution of use, severance, surface rights of access, and any loss or expense. The court also had to consider the additional amount to reflect the compulsory nature of the action, as per s. 281(4)(e) of the MRA.

The court found that there was no deprivation of possession, diminution of value, diminution of use, severance, or any other loss or expense. The access was assessed to be of nominal effect, and the court determined that no additional amount should be added under s. 281(4)(e) of the MRA. The court considered the attitude of the landowners and their failure to respond to practice directions, and ultimately decided that a nominal compensation award of $1.00 was justified. The court recommended that the State of Queensland acquire the property known as Palmerville Station and include it in the Resources Reserve for mining purposes. The court also granted the applicant miner liberty to apply for injunctions, restraining orders, damages, and costs if access was prevented or obstructed.

The final orders included compensation of $1.00 to be paid by the miner to the landowner within 30 days of notification of the grant of the mining lease, the acquisition of Palmerville Holding by the State of Queensland, and the provision of a copy of the determination to the Hon. The Minister for Mines and Energy. The applicant miner was also granted liberty to apply for injunctions, restraining orders, damages, and costs on the giving of 21 days notice.

Orders