Solar Silicon Resources Group Pte Ltd v Carrington
[2014] QLC 39
•30 October 2014
LAND COURT OF QUEENSLAND
CITATION: Solar Silicon Resources Group Pte Ltd v Carrington & Anor [2014] QLC 39 PARTIES: Solar Silicon Resources Group Pte Ltd
(applicant)v Gary Francis Carrington and Sonia Lillian Watts
(respondent)FILE NO: MRA095-13 DIVISION: General Division PROCEEDING: Determination of compensation payable for grant of mining lease DELIVERED ON: 30 October 2014 DELIVERED AT: Brisbane HEARD ON: Submissions closed 10 October 2014 HEARD AT: Heard on the Papers MEMBER: PA Smith ORDERS: 1. Compensation is determined in the total sum of Five Thousand Eight Hundred and Fifty-Seven Dollars and Fifty Cents ($5,857.50).
2. Solar Silicon Resources Group Pte Ltd pay the total compensation of $5,857.50 to Gary Francis Carrington and Sonia Lillian Watts within two months of the grant of ML 30230.
CATCHWORDS: MINING LEASE – determination of compensation – factors to be considered – no material provided by either party
Mineral Resources Act 1989
Fitzgerald v Struber [2009] QLC 76
Horn v Sunderland Corporation [1941] 2 KB 26McGrath v Callaghan & Ors [2011] QLC 29
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) 11 QLCR 64
Unimin Australia Limited v Maurice and Tricia Freeman [2007] QLC 76APPEARANCES: Not applicable
Background
The applicant Solar Silicon Resources Group Pte Ltd (the miner) has applied for Mining Lease (MLA) 30230. The application was made on 15 September 2011 and seeks a term of 15 years.
The MLA is located in part on land which is owned by the Gary Francis Carrington and Sonia Lillian Watts (the landholders).
MLA 30230 has a total area of 395.07 ha. Of this, an area of 35.44 ha is on the landholders land.
Principles of compensation
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 this matter, no agreement has been lodged with the Mining Registrar and the matter has been referred to the Court for determination.
The issues which must be considered by the Court are set forth in s 281(3) and (4) of the MRA.
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) 11 QLCR 64 at p 74 and 75.
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 at p 146.
In considering 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.
In determining compensation under s 281 of the MRA, I have adopted the same approach I took in Richardson v Barrett.[4] This means that the matters set out in the section are concepts to be taken into account in determining compensation, not a notion of separate heads of compensation requiring separate and discreet treatment to arrive at an accumulated figure.
[4][2001] QLRT 89 at para 9, 10 and 14.
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] Of course, great care must also be taken to ensure that there is no “doubling up” of compensation.
[5]Horn v Sunderland Corporation [1941] 2 KB 26 at 43 per Jacobs J.
The Evidence
Following the procedures set out in Practice Direction 1 of 2011, the Court wrote to the parties setting out a timetable for the delivery of material and submissions.
No material has been supplied to the Court by either the miner or the landholder in response to the Court’s request.
No valuation evidence has been provided by either party.
As I said in McGrath v Callaghan & Ors,[6] it is always difficult for the Court when the parties to mining compensation matters either choose to place no submissions before the Court, or only very limited submissions. Fortunately, with respect to the North Queensland area, the Court is able to obtain assistance from a number of determinations of compensation under the MRA. In particular, I rely on the Fitzgerald decision of the Land Court which followed a formal hearing in Cooktown, with both the miner in that matter and landholder providing sworn evidence to the Court.[7]
[6][2011] QLC 29.
[7]See Fitzgerald v Struber [2009] QLC 0076.
As Member Jones said in the case of Unimin Australia Limited v Maurice and Tricia Freeman:[8]
“I realise that my determination of compensation in this case is a result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”
[8](2007) QLC 76.
Request for further adjournment
On 29 October 2014 advice was provided that the decision in this matter was to be handed down on 30 October 2014 at 2.30pm.
At 8.53am on 30 October 2014, the miner sent an email to the Court in the following terms:
“Please be advised that SSRG is in the process of moving the Mining Lease pegs (posts) for mining lease 30230 and this property (Lot 5259 on PH1559) will not be a background tenure to the lease after the pegs have been removed.
SSRG has not been able to get in contact with Carrington & Watts in the past, unfortunately I do not have any contact details for the respondents.
Could I ask for an indefinite adjournment until the pegs are moved and registered with the Mines Department.”
On its face, this seems a reasonable request. However, a review of the Court file gives a quite different impression.
Firstly, one of the landholders contacted the Court on 3 April 2013 advising that no one from the miner or their then agent Australian Mining and Exploration Title Services (AMETS) had been in contact with them. Therefore contact details for the landholders were then passed on to AMETS.
In response, AMETS sought an extension of time to file its material, which was granted by the Court.
Ultimately, on 10 December 2013, AMETS advised the Court as follows:
“The current owners of Lot 5259 on Plan PH1559 (Carrington & Watts) have a station manager running the property for them. SSRG have held discussions with the station manager, and have made initial contact with the owners of the property. It is thought that these negotiations should progress without issue.
We should also mention at this point that our client is considering reducing the size of ML30230. It is possible that such a reduction could see the lease no longer fall within the area of this landowners holding. We will keep you informed of progress on this.”
Very little further advice was received in this matter, so on 26 September 2014 both parties were written to, giving them a final opportunity to provide material to the Court within a set timeframe or a decision would be delivered by the Court.
No response was received until the email from the miner on 30 October 2014.
Despite what the miner says in its email of 30 October 2014, it is clear that the miner and the landholders have been in contact with respect to this matter, and further that there has been at least a proposal to reduce the size of MLA 30230 since at least December 2013.
It is entirely inappropriate for matters such as these to continue to be adjourned. There must be some finality to the proceedings. Accordingly, the miner’s request for an indefinite adjournment of the decision is refused.
Of course, the delivery of this decision in no way precludes the miner from abandoning part of the MLA prior to the grant. If all of the MLA which is on the landholder’s property is abandoned pre grant, that would made this decision nugatory.
Determination
Having considered the evidence in this matter, and taking into account my decision in Fitzgerald where I allowed the sum of $10 per hectare per year for the area of land covered by the mining lease, it is appropriate that I make a like award for MLA 30230 in this matter.
Allowing $10 per hectare per year for the mining land of 35.44 ha (which I round to 35.5ha) amounts to $355 per year.
Taking into account the proposed 15 year term of MLA 30230, this amounts to compensation of $5,325, to which I award the additional sum of $532.50 under s 281(4)(e) of the MRA to reflect the compulsory nature of the grant of the mining lease. This results in total compensation under all heads in the sum of $5857.50.
Neither party has made any request as to the timing of the payment of compensation and in particular whether there should be a number of part payments throughout the term of the MLA. Accordingly, I adopt the usual position and I order that the miner pay the total compensation of $5,857.50 to the landholders within a period of two months of the grant of MLA 30230.
Orders
1. Compensation is determined in the total sum of Five Thousand Eight Hundred and Fifty-Seven Dollars and Fifty Cents ($5,857.50).
2. Solar Silicon Resources Group Pte Ltd pay the total compensation of $5,857.50 to Gary Francis Carrington and Sonia Lillian Watts within two months of the grant of MLA 30230.
PA SMITH
MEMBER OF THE LAND COURT
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