Wieben v Camm - [2012] QLC 40

LAND COURT OF QUEENSLAND

CITATION:Wieben v Camm [2012] QLC 0040
PARTIES:Sydney Wieben
(Applicant)
v.
Peter R Camm

(Respondent)

FILE NOs:MRA109-09, MRA162-009 & MRA163-09, MLC256-07, MLC111-08
DIVISION:Land Court of Queensland
PROCEEDING:  Determination of Compensation
DELIVERED ON:                  28 September 2012
DELIVERED AT:                   Brisbane
HEARD AT:Heard on the Papers.
MEMBER:His Honour, Mr WL Cochrane

ORDERS:I determine that:

1.Compensation for mining lease ML 7526 and mining lease ML 90035 shall be nil.
2.Variation of the access is granted in the terms sought in the applications made.

CATCHWORDS: Mineral Resources Act 1989 s.281 and s.317.

Mining Lease – Compensation – Variation of Access – Absence of any claim for compensation by landowner

Background

These matters were called on by the Court in Brisbane on Friday 2 December, 2011. Notice had been given to the parties and there was no appearance by the party Mr Peter R Camm. Accordingly, a decision was made to deal with the matter on the papers.
All of these matters come within the ambit of the Mineral Resources Act 1989 (hereafter “MRA”).
By correspondence dated 8 December 2011 Mr Camm was notified by the Court over the signature of the Deputy Registrar in the following terms:
“This matter was listed for mention at the sittings of the Land Court on Friday 2 December 2011 with Court ordering that Mr Camm be advised as follows:- That with his non appearance and his failure to send a compensation agreement the Court will proceed to determine the matters in the amounts that have been agreed to between Mr Wieben and Mr Camm.
A copy of the agreement which was supplied by Mr Wieben is enclosed for your Information.”
Subsequent to that correspondence being sent by the Court on 13 December 2011 some correspondence was received from a Mr Windridge, a person with familiarity in the Land Court.
In the circumstances it is appropriate to quote that correspondence in its entirety. The email advised as follows:
“I have been asked by Mr Wieben to assist him to progress these matters. There are a number of leases all due for renewal and compensation matters to finalise. Unfortunately the renewals are for short terms and the compensation issues keep running into the next renewal period. There is no problem with the landowner except that he manages three large properties and travels from one to another by helicopter. He is therefore difficult to contact and get correctly signed agreements for filing.
I was not aware that one of these matters was before the Land Court recently until I saw it in the Law List. I was then not able to contact your office due to busy lines.
In order to assist, could you please appraise me of what is required in respect of each lease that is now before the Court.
Over the coming weeks, I will attempt to formalise any requirements and assist to bring the matters to finalisation. I have actually been up to the leases, and I am familiar with the country. I have intimated to Mr Wieben that we should take steps to amalgamate the adjoining leases so that finalisation of such matters is far easier in the future.
Please note that I only have verbal authority at this stage. I will obtain written authority to act as soon as possible.”
At my direction correspondence was sent to Mr Windridge advising that I did not propose to enter into dialogue with anyone not a party to the application or not otherwise appointed as an agent in writing.
That email was sent on Wednesday 1 February 2012. Notwithstanding the earlier information in his correspondence of 13 December 2011, no written authority for Mr Windridge to act on Mr Wieben’s behalf has been received by the Court and in light of queries as to the likelihood of a decision being made in this matter it seems appropriate to now simply decide the matter without further ado.
The hearing was in respect of compensation to be determined for the renewal of mining leases: 7526, 90035 and for a determination of a variation of access to mining leases: 6956, 7525, 7526, 90009, 90035.
It appears that access is over two properties, one described as Lot 2 CHL on Plan 11 which is a pastoral property in respect of which John and Geraldine Murphy of Maiden Springs Homestead have identified as the owners. The other relevant parcel of land is Lot 3 CP on Plan 846344 which again is pastoral land and owned by Great Southern Cattle Holdings Pty Ltd, a West Australian company.
There are two properties affected by the proposed access the first of those is Maiden Springs Station and there is on the file a Consent from Michael R Murphy on behalf of the Murphy Grazing Trust of Maiden Springs Hughenden consenting to the proposed access. That consent is dated 14 August 2008 and accordingly no further consideration needs to be given to access across the Maiden Springs Station property.
The MRA at s.317 provides for a variation of access to mining lease land and the applications the subject of this determination were made pursuant to that section.
Section s.317(3) provides that in respect of an application for a variation of the land used or proposed to be used as access under this section, the mining registrar is not satisfied that the owner of the land proposed to be used as access consents to the use, the mining registrar must refer the issue of consent to the Land Court for its consideration. Accordingly that part of this determination falls to this Court as a consequence of the operation of s.317(3).
Section 317(5) also imposes upon this Court an obligation to determine the amount of compensation (if any) payable by the holder of the mining lease in respect of the proposed use of land for the purpose of access.
It appears that notwithstanding extensive dialogue between the miner and the landowner and the apparent acquiescence of the landowner and his predecessor in title to variations to access and his agreement to seek nil compensation in respect of renewal of the relevant leases, no formal agreement was able to be put before the Court.
Communication in respect of the applications for renewal of leases and compensation and, as well, the issue of access, has apparently been made complicated by the fact that the predecessor in title to Mr Camm a company identified as Great Southern Cattle Holdings Pty Ltd went into liquidation and the property was sold to Mr Camm, it seems likely that occurred sometime prior to October 2009.
The Court had earlier been advised by Great Southern Cattle Holdings Pty Ltd in correspondence dated 21 April 2009 that it, as the then landholder, had no opposition to the proposed access route proposed by Mr Wieben in earlier correspondence which is the varied access route required to be determined by this Court.
With that correspondence, they sent a submission in respect of ML 7526 (file MRA 109-09) submitting that the appropriate amount of compensation was $100 per year.
They made a similar submission in respect of mining lease ML 90035.
The Court was informally advised by Mr Wieben’s representative that Mr Peter Camm was a relatively recently recorded owner of Chudleigh Park on which the mining leases are located and that Mr Wieben had had discussions with Mr Camm who had advised him that he did not have any issues with accessing the land nor did he require any compensation.
In matters such as this which involve an alienation or suspension of some of the landowners rights it is not appropriate to make orders without the Court giving the landowner an opportunity to confirm him or her self the state of play between the landowner and the miner and to give the miner an opportunity to provide acceptable evidence of any agreement which may have been reached.
By post, received on 7 December 2011, Mr Wieben filed a statutory declaration made by himself to which was attached a relatively poor copy of a compensation agreement dated 27 May 2010 between Mr Wieben and Mr Camm identifying that nil compensation was required by the landholder. That compensation agreement bore a signature of Mr Wieben as well as a signature of a party identified as the owner but which signature is unable to be easily read. I note that the signature of the landowner does not appear to have been witnessed.
The compensation agreement is expressed to be in respect of ML 6956, ML 7525, ML 7526, ML 90009 and ML 90035. Accordingly, I determine compensation in respect of those renewed mining leases as being nil payable to the landholder for the life of the extended leases.
File MRA 162-09 deals with an application of a variation of access to mining lease ML 90035.
Notwithstanding the identification of Maiden Springs as a relevant landholder it appears as though only the Great Southern Cattle Holdings Pty Ltd is affected by the access arrangements.
This Court has observed on a number of occasions, in the context of s.281 of the MRA, that while that section relevantly requires the Court to settle the amount of compensation, an owner of land is entitled as compensation for a number of aspects of the intrusion onto that land for:
“(i) deprivation of possession of the surface of land of the owner;
(ii)diminution of the value of the land of the owner or any improvements thereon;
(iii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iv)severance of any part of the land from other parts thereof or from other land of the owner;
(v)any surface rights of access;
(vi)all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease”
The Act goes on in s.281(4) to enable various additional factors be included in the compensation determination the Act does not define any particular method of assessment.
In a number of cases the Court has made observations about the absence of any prescription as to a method of valuation.
For example in Smith v Cameron [1986-1987] 11 QLCR 64 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]
[1] P. 74.

Similar observations have been made in Shaw v Heritage Holdings Pty Ltd[2], and Mitchell v Oakhill and Mitchell[3].
[2] (1992-93) 14 QLCR 139.
[3] (10 March 1998) unreported.
All of these matters were referred to this Court by the Acting Mining Registrar at Charters Towers. That referral was accompanied by a covering letter which adequately sets out the background to these matters.
The Acting Mining Registrar wrote:
“BACKGROUND
·An application to vary the access for ML 7525 was lodged on 28 August 2008.
·An application to vary the access for ML’s 6956, 7526, 90009 and 90035 was lodged on 08 December 2008.
·Consent is required from the landholder of Lot 3 CP846344 (Great Southern Cattle Holdings Pty Ltd) for the variation of access to be approved for all leases.
·The leaseholder has attempted to contact the landholder to seek consent; with no success.
·Requests for determination of compensation for ML’s 7526 and 90035 are currently with the Land Court for consideration.
·Compensation was determined by the Land Court on 31 July 2008 and 28 Jan vary ML’s 7525 and 90009 respectively. These determinations took into consideration compensation requirements for the proposed applications to vary the accesses.”
The decision with respect to compensation for ML 7525 was made by Mr FW Windridge the Judicial Registrar by decision handed down on 16 July 2008.[4] The determination in that case was:
[4] Wieben & Ors v Great Southern Cattle Holdings Pty Ltd [2008] QLC 0141.

“1. Compensation determined at $100.00 for the term of the renewal.
2.Such compensation to be paid by the miner to the landowner in the sum of $100.00 within 2 months of notification of the renewal of the mining lease.
3.The miner to pay the sum of $20.00 to the landowner for the second and subsequent years each and every year in arrears until such time as an alternate access is finalised.”

The determination with respect to ML 90009 was made by Mr BR O’Connor, Judicial Registrar on 19 December 2008.[5]
[5] Re Wieben [2008] QLC 0229.
That determination was as follows:

“1. I determine compensation under s.281 in the sum of $485.
2. I award an additional amount of $50 in accordance with s.281(4)(e).
3.I direct that the miner pay the total compensation in the sum of $535 to the current landowner within 3 months of notification of grant of the mining lease by the Mining Registrar.”

Both of those determinations referred to above were made on the papers. In respect of ML 7525 there was also supplementary submissions received from Mr Wieben by telephone and there was an appearance made by a Mr Minchinton, solicitor of Clayton Utz for the respondent, landowner on 1 July 2008.
There has never been any referral in respect of ML 6956 to this Court for compensation and that matter remains outstanding.
Pursuant to s.7 of the Land Court Act 200 this Court is not bound by the rules of evidence and may is not bound by the rules of evidence and may inform itself in the way it considers appropriate but, at the same time must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
Because of the way in which this matter has unfolded and because of the failure of the current landholder to place any material before this Court to assist it in its determinations I regard it as appropriate to have regard and reference to the previous decisions of the Judicial Registrars of this Court.
In the decision with respect to ML 7525 the then Judicial Registrar of this Court that the appropriate compensation was $100 for the term of the renewal together with a sum of $20 per year until such time as a change of access had been registered.
In that case, it is clear from reading the decision that the Judicial Registrar had the benefit of submissions including submissions from the then proprietor Great Southern Cattle Holdings Pty Ltd who had contended for an entitlement to compensation.[6] With respect to the decision relating to ML 90009 the Judicial Registrar Mr BR O’Connor determined compensation in the sum of $535.
[6] Wieben & Ors v Great Southern Cattle Holdings Pty Ltd [2008] QLC 0141.
In that case the only material provided to the Judicial Registrar was a compensation access agreement executed in 1992 for the original grant of the mining lease. He was not assisted by any formal valuation evidence.
In the course of his decision the Judicial Registrar observed:

“Prior determinations and agreements for leases and claims in the area range from about $5 per hectare per year to $15 per hectare per year.”[7]
[7] Re Wieben [2008] QLC 0229 para [9].

The Judicial Registrar also pertinently for the present case made the following observations about blot on title:

“[12]The loss of land through a mining tenure of lengthy duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v Cameron (1986-87) 11 QLCR). In this instance, the lease is over an area of 19 ha, and the term of the lease is 5 years. In the absence of any evidence, I make no allowance for any perceived blot on title. I note that a mining lease grants the right to mine on a limited area for a limited time. Other than the right to mine, the grant of a lease does not create any interest or title in the land. There is no endorsement or registration of the lease on the background title document.”

It appears from my review of the Judicial Registrar’s decision that in that earlier case he felt obliged to award some amount for compensation.
In the present case having regard to the fact that, upon my reading of the Act while there is an entitlement to claim compensation there is no obligation upon a party to seek compensation and nor is there any obligation on the Court to award any particular minimum sum for compensation and having regard to the signed but not witnessed compensation agreement which was attached to the statutory declaration of Mr Wieben (referred to above) in the present case I determine that compensation for mining lease ML 7526 and mining lease ML 90035 shall be nil.
No party has sought an order in respect of costs and, in any event, in my opinion there would be no proper basis for any award of costs.

Orders:

I determine:
1.That compensation for mining lease ML 7526 and mining lease ML 90035 shall be nil.

2.Variation of the access is granted in the terms sought in the applications made.

HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT