Sloan v Weir
[2010] QLC 136
•19 October 2010
LAND COURT OF QUEENSLAND
CITATION: Sloan & Anor v Weir & Anor [2010] QLC 0136 *
PARTIES:Barry William and Emma Louise Sloan (applicants/respondents)
v.
Kelven John Weir and Gregcarbil Pty Ltd (respondents/applicants)
FILE NO: MRA1320-08
DIVISION: General Division
PROCEEDING: Application for review of compensation for renewal of
mining lease
DELIVERED ON: 19 October 2010
DELIVERED AT: Brisbane
HEARD AT: Written submissions
PRESIDENT: Mrs CAC MacDonald
ORDER: 1. Orders 1, 2 and 3 made on 24 December 2009 are vacated.
2.The amended compensation is determined in the sum of $1,573.
3.The respondents, Barry William Sloan and Emma Louise Sloan, are ordered to pay $77 to the applicants, Kelven John Weir and Gregcarbil Pty Ltd, within one month of the date of this amended decision.
CATCHWORDS: Mining lease renewal - application for review of
compensation determination - effect of surrender of lease - S.283B Mineral Resources Act 1989.
* This is an amended decision and replaces a decision of 14 October 2010
On 24 December 2009, I handed down two decisions in respect of compensation for renewal of Mining Lease No 70211 (ML 70211).1 That lease affected two properties, one owned by Barry and Emma Sloan, the other owned by Rodney Barrett. Compensation in respect of the Sloan property (Lot 63 on PT 358 in the County of Plantagenet, Parish of Anakie) was determined at $5,500.00 based on the grant of the lease for a period of 5 years over an area of 35 hectares.
At the date of determination of compensation, the holders of the mining lease were Kelven John Weir and Gregcarbil Pty Ltd. By email dated 24 May 2010 the acting mining registrar at Emerald advised the Land Court that Gregcarbil's interest was assigned to Kelven John Weir on 15 April 2010.
Parts of ML 70211 have been surrendered since its renewal on 1 July 2008. In an application filed in this Court on 27 August 2010 by Carol Joy Graham as agent for Weir and Gregcarbil, Ms Graham seeks reductions in the compensation payable to the Sloans, on the basis that areas of the lease have been surrendered since its renewal. In this decision Weir and Gregcarbil are referred as the applicants. The Sloans are referred to as the respondents.
The mining registrar at Emerald has advised as follows in regard to the surrenders referred to by Ms Graham. The first surrender of 4.9662 ha was from part of Lot 63 and a tiny part was over the Barrett land. This surrender was accepted by the Minister on 5 June 2009. The second surrender of 31.1702 ha covered the remainder of the lease on Lot 63 and a small part over the Barrett land. This surrender was accepted by the Minister on 7 January 2010.
Ms Graham's application was accompanied by copies of supporting material which is summarised below:
The Sloan portion of the lease was partially surrendered twice:
Partial surrender of 4.9662 ha….approved by Mines Department on the 5/6/2009.
The second partial surrender of 31.1702 ha…approved by Mines Department on 7/1/2010…There is no area of land on the Sloan portion of the lease remaining in this lease. The current area of ML70211 of 14.0401 ha remains on Mr Barrett’s Lot 5.
Ms Graham contends that the total amount of compensation payable to the respondents should be $1,650.00. She has paid this amount to the respondents and attached a receipt for that amount from "Stanley Park" to her application.
Ms Emma Sloan on behalf of the respondents filed response submissions with the Court on 1 September 2010. Following are parts of her submission:
Sloan v Weir & Gregcarbil Pty Ltd [2009] QLC 0183.
During the very very long compensation hearing of determination of compensation for lease 70211 (2007-2009) there were a number of changes such as owners and size of lease. The change of size in lease did not occur until all submissions for the determination for compensation were closed. Gregcarbil did not put this information into the Land court in the submission time so I believe this should be ignored.
I was not allowed to submit addition information during the appeal of determination 70211 in 2006. My rejected submission was a request for the president to read the original compensation decision of 70211 which I did not submit for the second determination. This resulted is a big loss in compensation award $10000 in original compensation to $700 in the second….
The surrender of lease 70211 was not submitted during the determination of compensation and should be rejected.
Carol Graham was the representative of the miners of 70211 during this compensation determination so I believe it is her responsibly to ensure compensation should be paid in full to the land owner as per the decision 24/12/2010.
Up front payment which was requested by both land owners is not a grab for cash but the learnt survival, that miners will not pay compensation at all costs. This lease has changed hands a number of times, this one has 3-4 times, and the next miner-owner does not honour the outstanding compensation.
I believe that the Land court should ensure that payment of full compensation is made to land owners and that interest should be included if payment is not made by the payment time period set in determination 24/12/2009.
With the consent of the parties, this matter has been dealt with on the papers. [9] Section 283B of the Mineral Resources Act 1989 (the Act) .. states:
"283B Review of compensation by Land Court
(1) This section applies if -
(a)compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the original compensation); and
(b)there has, since the agreement or determination, been a material change in circumstances for the mining lease.
'Example of a material change in circumstances -
a different mining method that changes the impact of mining operations under the lease
(2) The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation.
(3) Sections 281(3) to (7), 282 and 282A apply, with necessary changes, to the review as if it were an application under section 281(1).
(4) The Land Court may, after conducting the review, decide to confirm the original compensation or amend it in a way the Land Court considers appropriate.
(5) However, before making the decision, the Land Court must have regard to -
(a)the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and
(b)whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and
(c)any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined.
(6) If the decision is to amend the original compensation, the original compensation, as amended under the decision, is for this Act, other than this section, taken to be the original compensation.
There has been a material change in the circumstances of the mining lease because the determination was made on the basis that the lease was renewed for a term of five years over 35 hectares. The lease has now been completely surrendered. The parties have been unable to reach agreement on whether or how the amount of compensation should be varied to take account of the surrenders. I consider therefore that it is appropriate to review the compensation determination pursuant to s.283B of the Act.
The compensation (as determined on 24 December 2009) was calculated as follows:
Diminution of the value of the owner's land $5,000 pursuant to s.281(3)(a)(ii)
Additional 10% to reflect the compulsory nature of the grant $500 pursuant to s.281(4)(e) $5,500
As set out above, the surrender occurred in 2 stages, on 5 June 2009 and 7 January 2010. The effect of the surrenders is that the length of time for which the Sloan's land has been impacted by the mining lease has been substantially reduced. Accordingly, I consider that the compensation payable should be reduced. The most appropriate way to calculate the reduction is to pro rata the amount awarded under s.281(3)(a)(ii) to reflect the progressive reductions in the area and term of the lease. The revised calculations (rounded for convenience) are -
The amount of $5,000 equates to a payment of $1,000 per annum -
1 July 2008 - 5 June 2009, say 12 months
Lease area - 35 ha $1,000
1 July 2009 - 7 January 2010, say 6 months
Lease area - 30 ha (approx) $430
$1,430
As the balance of the lease was completely surrendered on 7 January 2010, I consider that no compensation should be payable after that date.
Section 283B(3) provides that s.281(3) to (7) apply, with necessary changes, to the review. Section 283B(5)(a) of the Act provides that in reviewing a compensation award, the Land Court must have regard to the original compensation, other than any part of it that consists of an additional amount under s.281(4)(e). $500 was awarded under this heading.
The effect of s.283B(3) and s.283B(5)(a) is, I consider, that if the Court is varying the original compensation, the amount awarded under s.281(4)(e) is to be recalculated in accordance with the new award. Accordingly, the sum of $143 is awarded under this heading.
Conclusion
The determination of compensation made on 24 December 2009 is varied as follows: Diminution of the value of the owners' land under s.281(3)(a)(ii) $1,430 Additional amount payable under s.281(4)(e) $143
$1,573
The respondents have paid the sum of $1,650 to the applicants. The sum of $77 has been overpaid and should be repaid to the respondents. As Kelven John Weir and Gregcarbil Pty Ltd were the holders of the mining lease until 15 April 2010, that sum should be paid to both lessees.
ORDERS
Orders 1, 2 and 3 made on 24 December 2009 are vacated.
The amended compensation is determined in the sum of $1,573.
The respondents, Barry William Sloan and Emma Louise Sloan, are ordered to pay
$77 to the applicants, Kelven John Weir and Gregcarbil Pty Ltd, within one month of the date of this amended decision.
CAC MacDONALD PRESIDENT OF THE LAND COURT
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