Snow Peak Mining Pty Ltd v Burtenshaw

[2014] QLC 47

LAND COURT OF QUEENSLAND

CITATION:

Snow Peak Mining Pty Ltd v Burtenshaw & Ors [2014] QLC 47

PARTIES:

Snow Peak Mining Pty Ltd
(applicant)

v

Garry Frederick Burtenshaw, Rosemary Anne Burtenshaw and Cameron Grenville Frederick Burtenshaw
(respondents)

FILE NOS

MRA198-12
MRA192-13

DIVISION:

General Division

PROCEEDING:

Determination of compensation payable for renewal of mining leases

DELIVERED ON:

9 December 2014

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed on 23 October 2014

HEARD AT:

Heard on the Papers

MEMBER:

WA Isdale

ORDERS:

1. For ML 4043 compensation is determined in the sum of One Hundred Dollars ($100) per hectare per annum calculated on the total area of the mining lease.

2. For ML 4042 compensation is determined in the sum of One Hundred Dollars ($100) per hectare per annum calculated on the total area of the mining lease.

3. The compensation will be paid by the applicant to the respondents in each case within one month of the renewal of the mining lease and in each subsequent year of the term of the lease on the anniversary of the date of the renewal.

CATCHWORDS:

MINING LEASE – determination of compensation – factors to be considered – lack of material from parties

Mineral Resources Act 1989, ss 279, 281(3) and (4)

Horn v Sunderland Corporation [1941] 2 KB 26
Mitchell v Oakhill and Mitchell (10 March 1998) unreported
Richardson v Barrett [2001] QLRT 89
Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139
Smith v Cameron (1986-87) 11 QLCR 64

APPEARANCES:

Not applicable

Background

1. The applicant miner is now the holder of Mining Lease (ML) 4042 over 47.67 ha and ML 4043 over 33.61 ha. ML 4042 expired on 31 October 2012 and renewal for 15 years is being sought. The other lease, ML 4043, expired on 31 January 2012 and a renewal for 15 years is also applied for. The land is rural and used for cattle grazing. The Mining Registrar has referred these matters to the Land Court for compensation to be determined. The leases are for the mining of ores of silver, cadmium, cobalt, copper molybdenum, lead and zinc.

2. ML 4043, in the Mount Garnet locality, is Land Court file MRA198-12 and ML 4042, 115 km north-west of Cairns, is file MRA192-13. In the case of ML 4043 the Court wrote to the parties on 14 May 2012 setting out a timetable, to be completed by 17 July 2012, for the provision of material by the parties to each other and to the Court. That material was to state and support the claim that was made for compensation. In the case of ML 4042 the Court’s letters were dated 9 July 2013 and the timetable was to be completed by 10 September 2013.

3. In both matters the parties have delayed complying with the requirements of the Court and extensions of time to do so have occurred. On 7 August 2014 the applicant has provided to the Court unsigned compensation agreements which would be acceptable to it. The one relating to ML 4042 recites that the lease “affects approximately 18.67 hectares of the land” and that ML 4042 has an “area of approximately 47.67 hectares”. The one relating to ML 4043 says that the lease “affects approximately 11.6 hectares of the land” and that ML 4043 has an “area of approximately 33.61 hectares”. The documents refer to compensation “of $100 per hectare per annum calculated on the total area of the Mining Lease”. It is proposed to be paid within one month of notification of the grant of renewal and on the anniversary of the date of grant in each succeeding year. There is provision for annual adjustments in accordance with the Consumer Price Index and there are clauses relating to such things as repair of fencing and doing works on the land. The applicant’s letter dated 7 August 2014 in respect of both matters states that the amount of $100 per ha and all other conditions of the agreement have been agreed by the parties but the landowners have not yet signed it. There is nothing from the landowners, the respondents, to confirm this. The letter refers to $100 per hectare and does not say “per annum” which, however, is set out in the unsigned agreements.

4. On 2 October 2014 the Court wrote to the parties informing them that the matters would be determined without an oral hearing unless they objected, with reasons, by 4.00pm on 23 October 2013. They were also advised that any further material or submissions should be forwarded to the Court by then. There has been nothing resulting from these letters so the Court must, in order to perform its task of determining compensation, proceed on the basis of the material to hand. It is apparent that the parties have not taken the opportunity to provide the Court with anything else. The Court has the benefit of the material provided to it by the Mining Registrar.

The applicable law

1. Section 279 of the Mineral Resources Act 1989 (MRA) 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 Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In these matters, no agreements in registrable form have been lodged with the Mining Registrar and the matters have been referred to the Court for determination.

2. The issues which must be considered by the Court are set forth in s 281(3) and (4) of the MRA.

3. Although s 281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron,[1] the Land Court held:

   “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.”

[1](1986-87) 11 QLCR 64, 74 – 75.

1. In Shaw v Heritage Holdings Pty Ltd,[2] the Land Court 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.”

   [2](1992-93) 14 QLCR 139, 146.

2. In Mitchell v Oakhill and Mitchell,[3] the then President of the Land Court, referring to s 281(3) of the MRA, 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.”

   [3](10 March 1998) unreported.

3. In determining compensation under s 281 of the MRA, the Court has adopted the same approach that Deputy President Smith (as he then was) took in Richardson v Barrett.[4] The matters set out in the section are matters to be taken into account in determining compensation, rather than being separate heads of compensation requiring separate treatment to arrive at an accumulated figure.

   [4][2001] QLRT 89, 9, 10, 14.

4. The overriding principle is of equivalence, ensuring that, so far as money can do it, the landholders are placed in the same position as if the mining leases were not granted.[5] Care must also be taken to ensure that there is no “doubling up” of compensation. This Court is a specialised Court and will apply its own expertise in order to assist it to perform its function.

   [5]Horn v Sunderland Corporation [1941] 2 KB 26, 43 per Jacobs J.

5. Section 281(3) of the MRA states that the Land Court must determine compensation in terms of money only. There is no provision in the MRA for the Court to determine other matters such as CPI increases, fencing or other works as set out in the unsigned draft compensation agreement submitted by the applicant. Those are matters that the parties can agree on between themselves but they are not matters that the Court has the power to determine.

Determination of compensation

1. In the absence of any evidence or submissions from the respondents the Court must determine compensation from the material to hand, which was a course notified to the parties by the Court’s letter of 2 October 2014 to which there has been no response by the date set, 23 October 2014.

2. Considering what has been referred to above, compensation is determined in the amount of $100 per hectare per annum calculated on the total area of each mining lease. The compensation will be paid within one month of the renewal of the relevant mining lease and in each subsequent year of the term of the lease on the anniversary of the date of grant of the renewal.

Orders

1.     For ML 4043 compensation is determined in the sum of One Hundred Dollars ($100) per hectare per annum calculated on the total area of the mining lease.

2.     For ML 4042 compensation is determined in the sum of One Hundred Dollars ($100) per hectare per annum calculated on the total area of the mining lease.

3.     The compensation will be paid by the applicant to the respondents in each case within one month of the renewal of the mining lease and in each subsequent year of the term of the lease on the anniversary of the date of the renewal.

WA ISDALE

MEMBER OF THE LAND COURT