Wirralie Mines Pty Ltd v Saal
[2011] QLC 14
•16 February 2011 (ex tempore)
LAND COURT OF QUEENSLAND
CITATION: Wirralie Mines Pty Ltd v Saal & Anor [2011] QLC 0014 PARTIES: Wirralie Mines Pty Ltd
(applicant)v. Gregory Peter Saal and Greta Gaye Saal
(respondents)FILE NO: MRA210-10 DIVISION: Land Court of Queensland PROCEEDING: Application for the determination of compensation under the Mineral Resources Act 1989 DELIVERED ON: 16 February 2011 (ex tempore) DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: 1. I determine compensation under s.281 of the Mineral Resources Act 1989 in the total sum of One Hundred and Six Thousand Nine Hundred and Twenty Dollars ($106,920).
2. I order the miner to pay the total compensation to the landholders within 30 days of the date of this decision.
3. I order that the miner pay the landholder’s costs of and incidental to this matter assessed on the standard basis.
4. I direct that a copy of these reasons be provided to the Honourable The Minister for Employment, Skills and Mining and to the Director General of the Department of Employment, Economic Development and Innovation.
CATCHWORDS: Mining Lease – Renewal – Determination of Compensation – Mineral Resources Act 1989 – no appearance by miner – contempt by miner – renewal process – doubling up of compensation – s.363 matters not able to be compensated as part of MRA renewal compensation
APPEARANCES: No appearance for the applicant
Mr A Busch of SB Wright and Wright and Condie Solicitors, for the respondents
Background
On 21 July 2010 the A/Tenures Officer, office of the Emerald Mining Registrar, referred the determination of compensation for the renewal of Mining Lease 2312 to the Court pursuant to s.279A of the Mineral Resources Act 1989 (“the MRA”).
Wirralie Mines Pty Ltd (“the miner”) had previously lodged an application on 26 February 2010 for Mining Lease 2312, which expired on 28 February 2010 to be renewed for a period of 10 years. Mining Lease 2312 is in the Emerald Mining District and covers an area of 123.2 ha of land on a property owned by Gregory Peter Saal and Greta Gaye Saal (“the landholders”).
Mining Lease 2312, applied for in 1988, originally commenced on 1 March 1989 for a term of 21 years. It is a requirement of the MRA that compensation be agreed between the parties or determined by the Land Court prior to renewal of the mining lease.[1]
[1] See s.286 of the MRA.
The landholders were represented by Mr Andrew Busch of SB Wright and Wright and Condie Solicitors. The miner was not represented and failed to enter an appearance or respond to any correspondence or orders of the Court.
Following standard procedure, the Court wrote to the parties on 30 July 2010 requesting material in support of their view as to compensation be filed and served by given dates. A timetable was set out for submissions and evidence to be filed and delivered as between the parties. The miner failed to acknowledge the correspondence or to respond in any way to the practice direction of the Land Court. The landholders, however, did respond by way of filing of two affidavits; those were affidavits of 1 November 2010 by Andrew David Busch and an affidavit of 29 October 2010 by Greg Saal. There was also filed with the Court on 19 November 2010 a submission as to compensation which claimed the total sum of $307,500 for compensation.
A view in particular of Mr Saal’s affidavit indicates some complaint between the landholders and the miner as regards activities undertaken and failure to properly protect dangerous plant and equipment and substances such as cyanide and other rehabilitation issues on the part of the miner, which have not been satisfactorily attended to in the eyes of the landholder.
Of course, what the Court has before it is a claim for compensation for renewal of the mining lease pursuant to the MRA and not a claim under, for instance, section 363 of the MRA for issues such as those partly canvassed in Mr Saal’s affidavit that arise from time to time between landholders and miners.
In light of the material lodged by the landholders being for a considerable quantum and also including matters which it appeared fell outside of the scope of compensation for renewal of the mining lease, the matter was called on for a directions hearing on the 21st of December 2010. Formal notice was given to the miner of that directions hearing but again, the miner failed to contact the Court or appear at the directions hearing.
As has been the case in all respects, no correspondence forwarded by Australia Post to the miner at the address as set out in its application has been returned to the Court unclaimed. I am accordingly satisfied that the miner has been aware of both its requirements to meet the practice direction of the Land Court and it's requirement to attend at the directions hearing on the 21st of December 2010.
At the directions hearing I gave leave to the parties to file and serve amended submissions and additional evidence, if required. The landholder took advantage of those orders and has now provided additional evidence to the Court by way of an affidavit by Mr Andrew David Busch dated 15 February 2011 and Graham Stanley Wilkinson, also of 15 February 2011. Mr Wilkinson is a licensed real estate agent.
The landholders, through Mr Busch, have also provided the Court with a comprehensive analysis of the heads of compensation, taking into account all of the statutory requirements of the MRA.
The quantum claimed by the landholders under this new formulation is substantially less than that set out in their original claim for compensation of 19 November 2010.
In determining the compensation in this matter, I have taken into account all of the evidence provided by the landholders, together with material forwarded by the mining registrar at Emerald. I also note specifically where there are inconsistencies between the affidavit evidence provided on behalf of the landholders in their early material and the most recent material that the evidence in their later affidavits is to be preferred.
The reasons as set out in this decision refer to the salient points, but not all of the evidence that I've relied upon in making my decision.
The Principles of Compensation
The landholders' entitlement to compensation is detailed in sections 281(3) and (4) of the MRA. In determining compensation I have adopted the same approach I took in Richardson v Barrett.[2] 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 discrete treatment to arrive at an accumulated figure. The over-riding principle is equivalence ensuring that so far as money can do it, the landholders are placed in the same position as if the mining lease was not renewed. Of course, great care must also be taken to ensure that there is no doubling up of compensation.
[2] [2001] QLT 89 at paragraphs 9, 10 and 14.
Claim for Compensation
In the submissions by Mr Busch, he has provided a very useful summary of the losses at paragraph 9 of his submissions as follows: (a) lost fencing $2,500; (b) roadway $10,000; (c) loss of grazing and cultivation 48,000 per year; (d) in the alternative to (c) loss of value $84,700; (e) section 281 (4)(e) 10 per cent and costs which he has informed me today orally are sought on the standard basis.
I accept all of the evidence provided by the landholders in this matter and note, of course, that in the absence of the miner, such evidence has not been contradicted in any way. The landholders are to be commended for the detail that they have gone to in providing the Court with useful affidavit evidence and detailed submissions comprehensively viewing each of the requirements under 281 of the MRA.
Determination
The main point of contention is whether the landholders should receive an amount of $48,000 per year for loss of grazing or in the alternative, the lost value of $84,700. Of course, were the landholders to receive both heads of compensation, this would be a classic case of doubling up.
In the context of this matter, I consider the most appropriate way forward to be to accept the heads of damage under (d), that is, the lost value of the property in the sum of $84,700. As regards the question of loss of grazing and cultivation, this of course can be a difficult matter to prove to the complete satisfaction of the Court, even where there is no opposition to the claim. Various methods are used for determining such loss with one often being a cost per agistment per head of cattle unable to be used, or agistment or rental of cultivation properties, so as to return the landholder to the same position as if the impact of the mine had not occurred.
Given that the sums set out in item (c) are rather subjective, but that the sums set out in item (d) are, in my view, very well-founded, I have determined to award compensation to the landholder as follows:
. lost fencing $2,500;
. roadway $10,000;
. loss of value $84,700making a total of $97,200.
I award the additional sum under section 281 (4)(e) in the amount of 10 per cent, as claimed by the landholders, which equates to $9,720, making a total award of $106,920.
It is also appropriate that the landholder be compensated for the time and expense that they have been put to in prosecuting this matter. I accordingly have no hesitation in ordering that the miner pay the landholders' costs of and incidental to this matter assessed on the standard basis.
I further order that the miner pay to the landholders the total sum of $106,920 within 30 days of the date of this decision.
General Observations
Before closing, I would also like to make some general observations regarding the scheme of the MRA when it comes to renewal of mining leases. It is an unfortunate trend by a number of miners who seek a renewal of a mining lease that they fail to prosecute the determination of compensation in any real or meaningful way before the Court. The reasons for these failures by miners is quite simple to understand when one considers the scheme of the MRA.
Specifically, when a miner makes an application for a renewal of a mining lease under section 286 of the MRA, the MRA specifically provides in section 286C that the mining lease continues whilst the application for renewal is dealt with. The application for renewal cannot be determined until such time as compensation is either agreed to between the parties or determined by this Court. In simple terms, this means that a miner has full rights to continue mining pursuant to an expired mining lease until such time as compensation is determined with landholders.
For rather unscrupulous miners, this means, in effect, that they have no incentive to have the matter of compensation determined for a renewal as their rights are fully protected and their ability to mine continues unfettered, whilst the renewal process takes its due course.
I note from the affidavit of Mr Saal that there has not been any activity at this mining lease for about the last two years. So perhaps for this particular miner, it is not so much a matter of continuing mining operations but more land-banking the mining lease for the subsequent purposes of the miner, whatever they may be.
That, however, is not the point. The landholders are in a position where, for an unknown period of time, the issue of whether or not mining will continue on their land under a renewed mining lease hangs over their head whilst they seek to have compensation determined by the Land Court.
In matters such as the one at hand, despite the landholder doing everything that they could to have compensation determined, they have been meet by absolute silence and indeed, a contempt of Court by the miner.
I make these comments simply to draw to the attention of the officers of the Department of Employment, Economic Development & Innovation and to the Honourable The Minister for Employment, Skills and Mining so that consideration can be given, if thought appropriate, by Government to relevant amendments being made to the MRA to give some additional certainty to landholders while the renewal process is underway.[3] I, accordingly, also direct that a copy of these reasons be provided to the Honourable The Minister for Employment, Skills and Mining and to the Director General, Department of Employment, Economic Development and Innovation.
[3] For instance, in order to give an incentive to miners to progress renewal applications quickly, consideration could be given to amending the MRA so that the miner could only continue mining under an expired mining lease for a period of 6 or 12 months after expiry. This may increase certainty as between miners and landholders and, hopefully, reduce disputes.
Orders
1. I determine compensation under s.281 of the Mineral Resources Act 1989 in the total sum of One Hundred and Six Thousand Nine Hundred and Twenty Dollars ($106,920).
2. I order the miner to pay the total compensation to the landholders within 30 days of the date of this decision.
3. I order that the miner pay the landholder’s costs of and incidental to this matter assessed on the standard basis.
4. I direct that a copy of these reasons be provided to the Honourable The Minister for Employment, Skills and Mining and to the Director General of the Department of Employment, Economic Development and Innovation.
P A SMITH
MEMBER OF THE LAND COURT
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