Thomsen v Struber - [2017] QLC 33

LAND COURT OF QUEENSLAND

CITATION: Thomsen v Struber & Anor [2017] QLC 33

PARTIES: Luke Roy James Thomsen
(applicant)

v

Stephen Roy Struber and Dianne Rose Wilson-Struber

(respondents)

FILE NO/s: MRA068-17

DIVISION: General Division

PROCEEDING: Determination of compensation for grant of mining lease.

DELIVERED ON: 30 June 2017

DELIVERED AT: Brisbane

HEARD ON: Submissions closed 8 June 2017.

HEARD AT: Heard on the papers.

JUDICIAL REGISTRAR:
GJ Smith

ORDER/S:
1.   In respect of ML 100118 compensation is determined in the sum of $44.00 per annum.

2.   The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within one month of notification from the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.

CATCHWORDS:
MINING LEASE – referral – grant – determination of   compensation – compensation statement – use of Court judgments for determination purposes – absence of expert evidence – Public Trustee of Queensland.

Mineral Resources Act 1989, s 279, s 281

Public Trustee Act 1978, Part 7

Fitzgerald & Ors v Struber & Anor [2009] QLC 76

Pavey v Struber [2016] QLC 79

Wills v Minerva Coal Pty Ltd (No.2) (1998) 19 QLCR 297

APPEARANCES: Not applicable.

These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease ML 100118.

Background

The grant of mining lease ML 100118 is sought by the applicant, Mr Luke Roy James Thomsen, (the miner). The subject land is commonly known as Palmerville Station and is used for grazing. The land is more particularly described as Lot 14 on SP250040, is situated within the Cook Shire local government area and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).

This assessment of compensation relates only to an access track approximately 11.9 km in length across Palmerville Station. The relevant Land Court references and individual lease and tenure details are set out below:

Reference Tenure ID Mining Area Access Area Term Lease Purpose

MRA068-17 ML 100118 Access only 7.14 ha 25 years Gold-Tin Ore

Relevant Legislation

Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and the matter has been referred to the Land Court for determination.

Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

(i) deprivation of possession of the surface of…

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 Thomsen v Struber

Details

AGLC: Thomsen v Struber [2017] QLC 33
Case: [2017] QLC 33
Decision Date: 30 June 2017

CaseChat Overview and Summary

Thomsen v Struber involved a dispute over the compensation for a mining lease granted over land owned by the Thomsens. The case was heard in the Queensland Land Court. The Thomsens were seeking compensation for the mining activities conducted by Struber on their property. The primary issue was the determination of the appropriate compensation rate for the mining lease. The miner argued for a compensation rate of $5.00 per hectare per annum based on a recent court decision in Pavey v Struber. The court considered whether the compensation should be based on the recent court judgments, given the absence of expert evidence or submissions from the landowners.

The court found that recent court judgments, specifically Pavey v Struber and Fitzgerald & Ors v Struber, were an appropriate basis for assessing compensation due to the lack of expert evidence or material from the landowners. The court accepted the miner's contention that the compensation rate should be $5.00 per hectare per annum for the access area, as determined in Pavey. The calculation for the compensation was based on the rounded access area, which was rounded up to the nearest hectare. The court ordered that the compensation be paid to the Public Trustee of Queensland on behalf of the Thomsens, who were currently serving a period of imprisonment.

The court's decision resulted in an order for the miner to pay the determined compensation to the Public Trustee of Queensland on behalf of the landowners. The compensation was to be paid within one month of the notification of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease. The compensation for ML 100118 was determined to be $44.00 per annum.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A Deputy Registrar of the Land Court wrote to the parties on 6 April 2017 to confirm the timetable for the filing of evidence and submissions and subsequently, on 2 May 2017, a compensation statement and related submissions was received from Mining Tenure Management on behalf of the miner. No evidence of submissions were received from or on behalf of the landowners. The main contention on behalf of the miner is that compensation should be assessed $5.00 per hectare per annum only in respect of an access area on the basis of the recent determination in Pavey v Struber[2016] QLC 79. The determination in Pavey was guided by Fitzgerald & Ors v Struber & Anor[2], an assessment which involved expert evidence given in the course of a contested hearing concerning mining activities on Palmerville Station. Accordingly I am prepared to accept the miner’s contended rate per hectare on the basis of Pavey. In my view recent Court judgments concerning compensation for mining activities on the subject land are an appropriate basis to assess compensation in the absence of expert evidence or material from the landowners.[2] Fitzgerald & Ors v Struber & Anor [2009] QLC 76. The relevant access area has been rounded to the next full hectare for assessment purposes and the calculation is set out below: As the landowners are presently serving a period of imprisonment the compensation as assessed is ordered to be paid on their behalf to the Public Trustee of Queensland.[3] In respect of ML 100118 per annum.compensation is determined in the sum of $44.00 The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within one month of notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Thomsen v Struber & Anor [2017] QLC 33
PARTIES:	Luke Roy James Thomsen (applicant)
v
Stephen Roy Struber and Dianne Rose Wilson-Struber (respondents)
FILE NO/s:	MRA068-17
DIVISION:	General Division
PROCEEDING:	Determination of compensation for grant of mining lease.
DELIVERED ON:	30 June 2017
DELIVERED AT:	Brisbane
HEARD ON:	Submissions closed 8 June 2017.
HEARD AT:	Heard on the papers.
JUDICIAL REGISTRAR:	GJ Smith
ORDER/S:	1. In respect of ML 100118 compensation is determined in the sum of $44.00 per annum. 2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within one month of notification from the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.
CATCHWORDS:	MINING LEASE – referral – grant – determination of compensation – compensation statement – use of Court judgments for determination purposes – absence of expert evidence – Public Trustee of Queensland. Mineral Resources Act 1989, s 279, s 281 Public Trustee Act 1978, Part 7 Fitzgerald & Ors v Struber & Anor [2009] QLC 76 Pavey v Struber [2016] QLC 79 Wills v Minerva Coal Pty Ltd (No.2) (1998) 19 QLCR 297
APPEARANCES:	Not applicable.

Reference	Tenure ID	Mining Area	Access Area	Term	Lease Purpose
MRA068-17	ML 100118	Access only	7.14 ha	25 years	Gold-Tin Ore