Re Whitsunday E.D.E.N Park Pty Ltd & Pidgeon - [2009] QLC 99

LAND COURT OF QUEENSLAND

CITATION: Re Whitsunday E.D.E.N. Park Pty Ltd & Pidgeon [2009] QLC 0099

PARTIES:In the matter of Mining Lease No. 95596 – Determination of compensation payable by Whitsunday E.D.E.N. Park Pty Ltd to William James Pidgeon

FILE NO:MRA208-09
PROCEEDING:  Application to determine compensation
DELIVERED ON:         7 July 2009
DELIVERED AT:                   Brisbane
MEMBER:Mr BJ O’Connor, Judicial Registrar
ORDERS:1. I determine compensation under s.281 in the sum of $120.
2. I award an additional amount of $12 in accordance with s.281(4)(e).
3.   I direct that the miner pay the total compensation in the sum of $132 to the current landholders within three months of notification of the grant of the mining lease by the Mining Registrar.
4.   No order for costs.

CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION
Mineral Resources Act 1989, ss 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 Whitsunday E.D.E.N. Park Pty Ltd (the miner) seeks the grant of Mining Lease 95596 in the Winton District. The applicant seeks a term of 10 years. The application was lodged at the office of the Mining Registrar, Winton on 28 July 2008.
The lease is located on Lot 4040 on PH 1018 known as Tryeta Holding. Access is through the same property. A grazing operation is conducted on the property. The lease is over a surface area of 1.7743 ha and is sought for the purpose of mining for opal. For the purpose of this application I round off the area to 2 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) 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.”

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: [2009] QLC 99
Decision Date: 7 July 2009

CaseChat Overview and Summary

Whitsunday E.D.E.N Park Pty Ltd applied for the grant of Mining Lease 95596, which would be over an area of 1.7743 ha on Lot 4040 on PH 1018 known as Tryeta Holding for the purpose of mining for opal. The current landholder, William James Pidgeon, objected to the application on the basis that compensation had not been determined. The dispute was brought before the Land Court of Queensland to determine the compensation payable by Whitsunday E.D.E.N Park Pty Ltd to Pidgeon. The legal issues that the court had to decide were whether the compensation payable was appropriate and whether the compensation should be paid within a certain time frame. The court considered the relevant provisions of the Mineral Resources Act 1989 and previous cases on the matter. The court determined that the compensation payable should be $5 per annum per hectare for the term of the lease, plus an additional sum of $20 for access and $12 to reflect the compulsory nature of the action taken. The court ordered that the miner pay total compensation to the current landowners in the sum of $132 within a period of three months from notification of the grant of the mining lease by the Mining Registrar. No order for costs was made.

Orders