Xstrata Coal Queensland Pty Ltd v Keys; Xstrata Coal Queensland Pty Ltd v Sky Grove Pty Ltd; Xstrata Coal Queensland Pty Ltd v Erbacher; Xstrata Coal Queensland Pty Ltd v Edmonds
[2013] QLC 34
•19 June 2013
LAND COURT OF QUEENSLAND
CITATION: Xstrata Coal Queensland Pty Ltd & Ors v Keys & Anor; Xstrata Coal Queensland Pty Ltd & Ors v Sky Grove Pty Ltd; Xstrata Coal Queensland Pty Ltd & Ors v Erbacher; Xstrata Coal Queensland Pty Ltd & Ors v Edmonds & Anor
[2013] QLC 34PARTIES: Xstrata Coal Queensland Pty Ltd, Sumisho Coal Australia Pty Ltd and ICRA Wandoan Pty Ltd
(applicants)v. Cowan William and Helen McIntyre Keys (MRA305-12)
and
Sky Grove Pty Ltd (MRA306-12)
and
John Gerard Erbacher (MRA307-12)
and
Thomas William and Janice Anne Edmonds (MRA308-12)
(respondents)FILE NOS: MRA305-12, MRA306-12, MRA307-12 and MRA308-12 DIVISION: General division PROCEEDING: Compensation for grants of mining leases DELIVERED ON: 19 June 2013 DELIVERED AT: Brisbane HEARD AT: Brisbane PRESIDENT: CAC MacDonald ORDER: 1. In MRA305-12 (Keys), compensation is determined in the sum of Two Million, Three Hundred and Seventy-Nine Thousand, Three Hundred Dollars ($2,379,300).
2. Additional compensation is awarded for
(a) the costs of stamp duty to be calculated according to the appropriate scale on the sum of $2,120,000; and
(b) reasonable legal fees for conveyance of a rural property of $2,120,000,
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c) an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
3. For MRA306-12 (Sky Grove Pty Ltd), compensation is determined in the sum of One Million, Seven Hundred and Five Thousand Dollars ($1,705,000).
4. Additional compensation is awarded for
(a) the costs of stamp duty to be calculated according to the appropriate scale on the sum of $1,507,000; and
(b) reasonable legal fees for conveyance of a rural property of $1,507,000,
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c) an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
5. In MRA307-12 (Erbacher), compensation is determined in the sum of One Million, Nine Hundred and Twenty-Two Thousand, Eight Hundred Dollars ($1,922,800) in respect of the property East Lynne.
6. Additional compensation
(a) the costs of stamp duty to be calculated according to the appropriate scale on the sum of $1,704,500; and
(b) reasonable legal fees for conveyance of a rural property of $1,704,500
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c) an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
7. Also in MRA307-12 (Erbacher), compensation is determined in the sum of One Million, Nine Hundred and Sixty-Two Thousand, Nine Hundred and Fifty Dollars ($1,962,950) in respect of the property Tamara.
8. Additional compensation is awarded for
(a) the costs of stamp duty to be calculated according to the appropriate scale on the sum of $1,741,000; and
(b) reasonable legal fees for conveyance of a rural property of $1,741,000,
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c) an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
9. In MRA308-12 (Edmonds), compensation is determined in the sum of Two Million, Nine Hundred and Ninety-Two Thousand Dollars ($2,992,000).
10. Additional compensation is awarded for
(a) the costs of stamp duty to be calculated according to the appropriate scale on the sum of $2,660,300; and
(b) reasonable legal fees for conveyance of a rural property of $2,660,300,
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c) an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
11. In all matters, compensation is to be paid within 30 days of the date of the grant of the mining leases.
CATCHWORDS: Mining Lease - compensation to landowner - valuation methodology - before and after method - highest and best use of land - based on mining lease grant for term - loss in perpetuity, - use of improved sales evidence - value of balance land with restrictions - two lots in separate ownership worked as aggregation - value as aggregation but separate awards.
Mining Lease - compensation to landowner - sales to resource companies - whether premium paid - use of such sales permissible - question of weight.
Mining Lease - compensation to landowner - application of sales evidence - apply in generous spirit - rationale - uncertainty as to when compensation to be paid and replacement property sought.
Mining Lease - compensation to landowner - meaning of "value of land of owner", MRA s.283(a)(ii) - "status and use" of land MRA s.281(4)(c) - "intended use" s.281(3)(a)(vi) - combined equate to statutory special value - claim for value to owner - disallowed - economic consequences necessary
Statutory interpretation - use of extrinsic material as aid to construction - if provision obscure - meaning of "extrinsic material" - public document related to Legislative process - affidavit of private conversation with responsible Minister - Acts Interpretation Act (Qld) s.14.
Mining Lease - determination of compensation - "additional amount" under MRA s.281(4)(e) - purpose to reflect compulsory nature of process.
Mining Lease - determination of compensation - disturbance claims allowed: stamp duty, legal fees, cost of finding replacement property, relocation costs, contingencies (20%) - owner's time not allowed unless proven.
Mining Lease - compensation to landowner - whether award should be indexed - whether award should include sunset clause - no power in Court to provide for either - Court can vary award if material change in circumstances - MRA s.283B.
Valuation - valuation of piggery - assessed separately to rest of land - valued on a Standard Pig Unit (SPU) basis - limited evidence - older sales of piggeries provide some basis.
Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Berry & Parkinson v BHP Coal Pty Ltd & Ors (No. 2); BHP Coal Pty Ltd & Ors v Berry & Parkinson (No. 2) [1998] QLC 148
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209
Bronzel v State Planning Authority of South Australia (1979) 21 SASR 513 at 524.
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Heavey Lex No 64 Pty Ltd v Chief Executive, Department of Transport (2001) 22 QLCR 177
Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547
Lowry v Coordinator-General [2012] QLC 26
Merivale Motel Investments Pty Ltd v The Brisbane Exposition and South Bank Redevelopment Authority (1987) 11 QLCR 235Pastoral Finance Ltd v The Minister [1914] AC 1083
Spencer v The Commonwealth (1908) 5 CLR 418
Wills v Minerva Coal Pty Ltd [No. 2] (1998) 19 QLCR 297
Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd [2012] QLC 013Acts Interpretation Act 1954
Environmental Protection Act 1994
Mineral Resources Act 1989APPEARANCES: Mr D Clothier SC for the applicants
Mr G Houen, agent, for the respondentsSOLICITORS: Allens for the applicants
Background
On 27 March 2012, I handed down my recommendations in relation to applications for the grant of mining leases and objections, under the provisions of the Mineral Resources Act 1989 (the Act), together with an objections decision in relation to objections to a draft environmental authority under the Environmental Protection Act 1994.[1] I recommended that the mining leases be granted subject to certain specified conditions, and that the environmental authority be issued in accordance with the draft environmental authority but with the addition of certain conditions.
[1] Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd [2012] QLC 013.
Section 279(1) of the Act provides that a mining lease shall not be granted or renewed unless, inter alia, compensation has been determined by the Land Court between the applicant and each person who is the owner of land, the surface of which is the subject of the mining lease application. Section 279(5)(c) provides that, if compensation has not been agreed upon, or the question of compensation has not been referred to the Land Court by one of the parties upon the expiration of three months from the date the Land Court recommends the grant of the mining lease, the Mining Registrar shall refer the question of the amount of compensation to the Land Court, which shall make a determination in accordance with s.281.
In July 2012, the Mining Registrar of the Dalby Mining District pursuant to s.279(5)(c) of the Act, referred four matters to the Land Court for determinations of compensation. This decision deals with those four referrals and determines compensation under s.281 of the Act.
In each case the applicants are the mining companies, Xstrata Coal Queensland Pty Ltd, Sumisho Coal Australia Pty Ltd and ICRA Wandoan Pty Ltd.
The respondents in MRA305-12 are Cowan William Keys and Helen McIntyre Keys who are the owners of Avon View, a property which lies wholly within MLA 50229. The respondent in MRA306-12 is Sky Grove Pty Ltd which is the owner of Langowan which lies wholly within MLA 50229. The properties are operated together as part of an aggregation owned and operated by the Keys Family and Sky Grove Pty Ltd.
The respondent in MRA307-12 is John Gerard Erbacher who is the owner of two adjoining properties, Tamara and East Lynne. Tamara lies wholly within MLA 50229. East Lynne is also located mainly within MLA 50229, but there is a small area of the south-east of the property which lies within MLA 50231.
The respondents in MRA308-12, Thomas William Edmonds and Janice Anne Edmonds, own Turraden which lies wholly within MLA 50229.
Statutory provisions
The Court is required to determine compensation under s.281(3) to (7) of the Act. Relevantly, those subsections provide -
"281 Determination of compensation by Land Court
(3)Upon an application made under subsection (1), the Land Court shall settle the amount of compensation an owner of land is entitled to as compensation for -
(a) in the case of compensation referred to in section 279 -
(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; and
…
(4)In assessing the amount of compensation payable under subsection (3) -
(a) where it is necessary for the owner of land to obtain replacement land of a similar productivity, nature and area or resettle himself or herself or relocate his or her livestock and other chattels on other parts of his or her land or on the replacement land, all reasonable costs incurred or likely to be incurred by the owner in obtaining replacement land, the owner’s resettlement and the relocation of the owner’s livestock or other chattels as at the date of the assessment shall be considered;
(b)no allowance shall be made for any minerals that are or may be on or under the surface of the land concerned;
(c) if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied—an appropriate amount of compensation may be determined;
(d) loss that arises may include loss of profits to the owner calculated by comparison of the usage being made of land prior to the lodgement of the relevant application for the grant of a mining lease and the usage that could be made of that land after the grant;
(e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).
(5)In any case the Land Court may determine the amounts and the terms, conditions and times when payments aggregating the total compensation payable shall be payable.
(6)An amount of compensation decided by agreement between the parties, or by the Land Court, is binding on the parties and the parties’ personal representatives, successors and assigns.
(7)The Land Court shall give written notice of its determination to all parties and may make such order as to costs between the parties to the determination as it thinks fit."
Valuation Methodology
Valuation evidence was given on behalf of the applicants by Mr Tim Cavanagh, a registered valuer of Taylor Byrne. Mr Peter Jinks, a registered valuer of PJ Jinks and Associates, gave evidence on behalf of the respondents. Both valuers also supplied written reports and response reports to the Court.
There is no dispute between the valuers that the appropriate valuation methodology to be adopted for the purposes of determining compensation is the "before and after" valuation methodology. The valuers also agree that, given the duration of the proposed mining leases, the areas which are the subject of the mining leases should be assessed as a loss in perpetuity. I have accepted the valuers' methodology as appropriate to determine compensation for the loss in value of the land. The amount thus determined will provide compensation under s.281(3)(a)(i)-(iv) of the Act.
Both valuers have analyzed the sales on a fully improved basis. Mr Cavanagh said that that is common practice in rural valuations but, he said, it is also common practice to deduct inclusions (plant and equipment) from the sale price and to apportion the added value of structural improvements. Mr Jinks had not done that.
Having considered the evidence as a whole, I have come to the conclusion that it is appropriate to analyze the sales on an improved basis and to apply the analyzed improved figures in valuing the subject properties. The only exception is East Lynne, where as discussed below, I consider it is necessary to deal with the piggery separately from the land value.
The major areas of disagreement between the valuers are as follows -
· The improved rate/ha to be used in the before valuation.
· The appropriate treatment of the so called "balance" land, that is restricted land and other land recommended by the Court to be excluded from the mining leases.
· The types and quantum of disturbance and other items to be awarded by way of compensation.
· The percentage additional amount to be awarded under s.281(4)(e) of the Act.
· Mr and Mrs Keys and Skygrove Pty Ltd have claimed an additional amount for "value to the owner". The applicants have resisted that claim.
In addition, there are some disagreements relating to specific properties.
Avon View and Langowan
There are two properties the subject of this claim, Avon View and Langowan. The landowners, Mr and Mrs Keys and Skygrove Pty Ltd, claim compensation of $6,498,161 for the two properties, as an aggregation, made up as follows: -
Value of land (devalued to zero in perpetuity) $5,172,500
Estimated costs of finding, securing and relocating to a replacement
property $428,287
$5,600,787
Additional amount under s.281(4)(e) calculated at 15% $840,118
Total $6,440,905The claim for the value of the land in the case of Avon View includes an allowance for value to the owner at 25% of market value, $1,034,500. The landowners also claim their valuation fees.
Mr Jinks apportioned the value of the land, $5,172,500, between Avon View at $2,727,500 and Langowan at $2,445,000.
Although the properties were valued separately, in their final submissions, the applicants assessed compensation for both properties as follows -
Market value of properties before grant of MLs $3,075,000
Less market value of balance land $200,000
$3,275,000
Value to owners $0
Landowners' costs of finding relevant properties $0
Relocation costs $55,109
Stamp Duty $126,362
Conveyancing fees for purchase of replacement properties $10,000
Valuer's fees (to be considered separately as costs) $0
Additional amount under s.281(4)(e) at 10% $306,646
Total $3,373,000
Before Valuation
Mr Cavanagh
Mr Cavanagh described Avon View as a freehold property located about 20 kms north-west of Wandoan in central southern Queensland. The property is used for beef cattle production and is improved with a dwelling, sheds, cattle yards and stock fencing and features an integrated stock watering system.
Mr Cavanagh considered that the highest and best use of Avon View is for beef cattle production, on a stand alone basis. He said that selling an aggregation of rural properties, in one line is difficult under current market conditions because there are a limited number of buyers in this sector of the market and longer selling periods are generally required. There is a potential for discounting to part or all of the aggregation to establish a sale. The market for individual rural markets is more active because there are more buyers in this sector of the market.
Mr Cavanagh valued Avon View (689.79 ha) in the before situation at $1,725,000 or $2,500/ha apportioned as follows -
Land (689.79 ha @ $2,247/ha) $1,549,958
Improvements $175,000The valuation was made using the direct comparison approach on both an improved basis and a treated, fenced and watered (TFW) basis.
Mr Cavanagh relied on four sales to support his valuation.
Sale No Property Area
(ha)Sale Date Sale Price $/ha Improved $/ha TFW 1 Dundas 461.9 8.8.2011 $1,141,000 $2,470/ha $2,362/ha 2 Calga 483.9 4.10.2010 $1,300,000 $2,686/ha $2,376/ha 3 Nalgar 1,193 7.4.2011 $2,949,096 $2,472/ha $2,325/ha 4 De Seda 525.4 27.8.2008 $1,450,000 $2,760/ha $2,426/ha
Mr Cavanagh said that Sale 1 is the most recent sale of a grazing parcel. This sale includes mixed scrub country which has been cleared and developed to improved pasture. Parts of the property have also been cultivated in the past. Overall the sale has a superior mix of country with inferior improvements. In comparison with the subject property the sale is slightly inferior.
Sale 2 includes developed cultivation and grazing land. The land is undulating comprising mixed scrub country. Improvements include a dwelling, sheds and yards. This sale has a better mix of country and is considered superior to the subject.
Sale 3 was purchased by a local grazier. The property comprises mixed scrub and creek flat country. Improvements include a dwelling, sheds and yards. Overall this sale is slightly inferior to the subject property.
Sale 4 is partly developed to cultivation and grazing and is improved with a standard farm house and sheds. The property was purchased by an established local grazier. This sale comprises a better mix of country and Mr Cavanagh considered it to be superior to the subject property overall.
Mr Cavanagh described Langowan as a freehold parcel of 492.4 ha located about 20 kms north-west of Wandoan in central southern Queensland. He said that the property is used for beef cattle production and includes six main paddocks, water reticulation for stock, dwelling, sheds and stock yards. Soils comprise mostly brown clay, originally vegetated with brigalow and brigalow/belah scrub, with lighter loams scattered throughout. The land has been largely cleared of vegetation and developed to pasture.
For the reasons set out above in relation to Avon, Mr Cavanagh considered that the highest and best use for Langowan is for beef cattle production on a stand alone basis.
Mr Cavanagh relied on the same sales, to value Langowan, as those he used to value Avon View. He considered that Sale 1 (Dundas), Sale 2 (Calga) and Sale 3 (Nalgar) were inferior to Langowan. Sale 4 (De Seda) provided a comparable guide to value, Mr Cavanagh said. He applied a rate of $2,750/ha to the land and buildings to reach his valuation of $1,350,000 which he apportioned between the land - $2,325/ha or $1,144,830, and the improvements at $205,000.
Mr Jinks
Mr Jinks valued Avon View and Langowan as an aggregation. He said that the Keys family owned and operated four properties in the Wandoan-Taroom area - Yurnga, the Avon View/Langowan aggregation and Trafalgar. Trafalgar is owned by a son. All of the properties are worked together as part of a business and benefit from the synergies of scale, Mr Jinks said. The Avon View/Langowan aggregation is used to fatten steers and cull females from the other properties. In Mr Jinks' opinion this was the highest and best use of the land.
Mr Jinks said that the aggregation is primarily and reliably watered by reticulated water from the Juandah Water Board bore. The allocation is licensed for intensive stock use. In addition to the bore there are four major dams and four gully dams.
Overall, Mr Jinks said, the aggregation has a sound mix of country, is well improved and extremely well watered. It is ideally suited to and is an integral part of the business operations of the owners.
Mr Jinks assessed the market value of the Avon View/Langowan aggregation of 1,182.188 ha in the before case at $3,500/ha or $4,137,658. He adopted a value of $4,138,000.
Mr Jinks relied on six sales in support of his valuation. Brief details of the sales are set out in the table below -
Sale No Property Area
(ha)Sale Date Sale Price $/ha (My Rounding) 1 Kerang 589.9 3.4.2012 $2,200,000 $3,730/ha 2 Calga 483.9 4.10.2010 $1,300,000 $2,686/ha 3. Shiralara 953.3 7.12.2010 $2,337,900 $2,348/ha 4. Gledswood 514.2 2.9.2011 $1,450,000 $2,820/ha 5. Woodroyd 1,987.007 28.5.2010 $5,550,000 $2,793/ha 6 Nalgar 1,193 7.4.2011 $2,949,096 $2,472/ha
Mr Jinks said that Sale 1 comprises undulating brigalow/belah scrub with some box influence. Areas have been contoured and cultivated in the past. The sale has good structures, sheds and cattle yards and is watered by dams. Mr Jinks said that the water supply on the subject was superior. He considered that the subject aggregation was slightly inferior overall to Kerang but has similar structures to Kerang.
Sale 2 comprises undulating brigalow/belah developed scrub merging into bauhinia country. Areas have been contoured and cultivated. Structures comprise a residence, sheds and cattle yards. The property is watered by dams. Mr Jinks considered that the subject aggregation is overall superior in country type to the sale and the subject had superior water.
Sale 3 was described by Mr Jinks as comprising about 505 ha of light soil box, belah and creek influenced country with the balance good developed scrub grazing. Structures are a cottage, shed and cattle yards. The property is watered by dams.
Mr Jinks considered the subject to be overall superior in country type to the sale and to have superior water.
Mr Jinks said that Sale 4 comprises undulating brigalow/belah country with forest influences, not fully developed. Brigalow regrowth north of the watercourse needs treatment by blade ploughing or similar treatment. The sale is watered by two dams and access in the north-east part to purchase water from the Juandah Water Board. The western road frontage needs refencing.
Mr Jinks said that the subject aggregation is overall superior in country type to the sale and has superior water to the sale.
Sale 5 comprises undulating developed scrub and forest country running down to box and sandalwood flats. Areas have been cultivated and an area of 70 ha established with leucaena. The property is well watered by five deep bores and three dams. There are good structures with two residences, sheds etc and steel cattle yards. There is an established CSG facility on the property. The north-west part of the property is severed by a road.
Mr Jinks said that the subject aggregation is overall superior in country type to the sale and has similar structures. The sale has better water than the subject.
Sale 6 comprises undulating lighter quality mixed scrub and forest with various soils, part cultivated. Structures comprise a residence, shed and stock yards. The property is watered by two bores and dams.
Mr Jinks said that the subject is overall superior in country type to the sale and has superior water. Overall, he considered that the subject aggregation is a better balanced aggregation than any of the sales.
The real estate market in the Wandoan area
There has been a great deal of activity in the real estate market in the Wandoan area since 2007, the valuers agreeing that there were some 800 sales from 2007 to 2012. The respondents produced a list providing brief details of those sales.[2] About half of the sales were resource related, that is sales to resource companies.
[2] Exhibit 11.
Mr Cavanagh included as Annexure 1 to his response to Mr Jinks' valuation report, a schedule of 21 rural property sales in the Taroom/Wandoan areas since 2006 which he believed were relevant to determining the market value of the subject properties. Without attempting to analyze the sales, it is noted the sales achieved various prices between $1,548/ha improved and $2,760/ha improved. It is also noted that the areas of land vary between approximately 462 ha and 2,021 ha. Mr Cavanagh said that these sales show that the rural property market had remained stable over the past six years and supported values demonstrated by Mr Jinks' Sales 2, 3, 5 and 6. In his opinion Mr Jinks' Sales 1 and 4 are out of line with the broader market.
Mr Jinks said that the significant number of resource related sales had influenced the market. However there had been a prolonged drought until 2010 and that, together with the Global Financial Crisis (GFC), had adversely impacted the market.
It is unnecessary to examine the state of the market in the Wandoan area since 2007, in any detail. It appears that the resource driven sales may have influenced the market positively whereas the drought and GFC may have had an adverse impact. In any event, all of the primary sales relied on by the valuers took place between May 2010 and April 2012, with the exception of Mr Cavanagh's Sale 4, De Seda, which occurred in August 2008. In my opinion there have been sufficient comparable sales between 2010 and 2012 to enable the value of the subject lands to be assessed without the need to consider the market for the previous 3 or 4 years.
The impact of mining related sales on the market
In addition to his valuation report, Mr Jinks provided a statement[3] which he said showed that mining companies pay higher than normal market value when purchasing properties by private negotiation, that are to be used for the purposes of mining operations. He identified six sales, including Orana and Weringa in the Wandoan area. Orana, according to Mr Jinks, showed a price approximately 46% higher than the expected grazing/farming value; Weringa showed a price approximately 26% above the expected farming/grazing value. The other four sales were in the Central Highlands and showed rates above the farming/grazing market value of between 20% and 82%. Mr Jinks' comment was that there did not appear to be any set percentage increase paid above what could be expected to be the market value, but all of the negotiated sale prices achieved were in excess of market expectations. Mr Jinks concluded that to value the subject properties as grazing/farming operations is to diminish the value of the land to the owner. He considered that that was an incorrect approach. He said that the landowners are not willing sellers. They are fully aware of the higher level of land values achieved by open, frank and serious negotiations by mining companies.
[3] Exhibit 15.
In Wills v Minerva Coal Pty Ltd [No 2],[4] the Land Court held that the effect of s.281(3)(a)(ii) of the Act is that the value of the land is to be ascertained in accordance with the authority of Spencer v The Commonwealth.[5] In that case Isaacs J said -
"… the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted. The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he has sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him. To arrive at the value of the land at that date, we have as I can conceive, to suppose it sold then, not by means of a forced sale but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."
[4] (1998) 19 QLCR 297 at 318
[5] (1908) 5 CLR 418 at 440, 441.
Although the landowners in this case may not be willing sellers, the Court's obligation is to ascertain the value of the subject lands in accordance with those principles.
Further, it is a fundamental valuation principle that land is to be valued for its highest and best use. While the primary purpose of Exhibit 15 appears to have been to provide support for the respondents' submissions that an additional amount of more than 10% be awarded under s.281(3) of the Act, (discussed further below), Mr Jinks' statement is also relevant to that fundamental issue. In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources,[6] Jacobs J said -
"… for the highest and best use means exactly what it says – the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first task of the valuer is to determine what that use is and then to value the land on that basis. It is not appropriate to determine the highest and best use by reference only to value."
[6] (1988) 65 LGRA 410 at 415.
There is a significant inconsistency between Mr Jinks' valuation report and his statement (Exhibit 15), both of which were filed in this Court on the same day. In his valuation report,[7] Mr Jinks said that he regarded the current usage of the Avon View/Langowan aggregation, namely, fattening steers and culling females from the other properties, as the highest and best use of the land. Despite that Mr Jinks expressed the opinion, as noted above, in Exhibit 15, that the subject properties should not be valued as grazing/farming operations.
[7] Exhibit 14.
I cannot accept that approach. The subject properties must be valued for their highest and best use. Leaving aside for the moment the difference between the valuers as to whether the properties should be valued as an aggregation or on a stand alone basis, both valuers were of the opinion that the highest and best use of the subjects was for some form of cattle grazing and Mr Jinks did not resile from that approach, despite his opinion that the subjects should not be valued on that basis. Accordingly, I consider that the subject properties should be valued on the basis that their highest and best use is for cattle grazing.
Although Mr Jinks did not appear to rely on the sales referred to in Exhibit 15 for the purpose of valuing the subject properties, there is some ambiguity as to the purpose and content of Exhibit 15. I have concluded that the sales referred to by Mr Jinks in Exhibit 15, which purport to demonstrate that sales from mining companies occur at higher than normal market values, cannot be used in this valuation. There is insufficient analysis of those sales to support Mr Jinks' valuation. Further, four of the six sales have occurred in the Central Highlands which is a considerable distance from the subject properties and there is no evidence as to the comparability of the markets in the two areas. Even if I were to accept that Exhibit 15 demonstrates that sales from mining companies do occur at a higher value than grazing/farming sales, that conclusion is only relevant in determining whether or not the Gledswood and perhaps the Kerang sales should be relied on.
Sales by private negotiation
It can be seen that the Kerang sale is the only one of Mr Jinks' sales that might support his valuation of the subject aggregation at $3,500/ha. Gledswood, Woodroyd and Calga may support higher valuations than Mr Cavanagh's valuations of each of the subject properties.
Mr Cavanagh did not agree with the use of the Kerang and Gledswood sales because in his view those sales did not reflect market value. Accordingly, he disregarded the sales.
Both Kerang and Gledswood were sold by private negotiation and not on the open market. Indeed, all the sales referred to by Mr Jinks in Exhibit 15 were also sold by private negotiation.
The question to be considered is the use that may be made of those sales in valuing the subjects. In Merivale Motel Investments Pty Ltd v The Brisbane Exposition and South Bank Redevelopment Authority,[8] the Full Court considered a similar issue, that is the use that might be made, in determining compensation for the compulsory acquisition of land, of a negotiated settlement between the resuming authority and the landowner. Matthews J (with whom Ryan J agreed) said[9] -
"It seems to me that the question is not one of admissibility but one of weight to be given to such transactions or the use which a valuation Court decides to make of them and if the Court has available to it other evidence which it considers satisfactory for its purposes, it will not act irrationally if it concludes that it will not derive assistance from the evidence of settlements."
[8] (1987) 11 QLCR 235.
[9] At 239.
It follows that the evidence concerning Kerang and Gledswood may be considered, but is to be treated carefully because of the circumstances of the sales.
Kerang
Mr Cavanagh noted that the sale of Kerang had achieved a much higher price than other sales. Accordingly, he investigated the sale to determine the circumstances surrounding it. His investigations showed that Kerang was not publicly listed for sale and that the sale was transacted offmarket between two private parties. The purchaser had recently sold a nearby property (Orana) to Cockatoo Coal Pty Ltd and MCH Surat Basin Pty Ltd (both coal mining companies) which, Mr Cavanagh said, paid above market value to secure the property. In Mr Cavanagh's opinion, the proceeds of the Orana sale allowed the vendor of that property to pay above market value to secure Kerang, which is located close by. Mr Cavanagh said that he was aware that the purchaser of Kerang was nearing retirement age and had a strong desire to remain in the area. Based on his discussions with that purchaser and partial inspection of the property, Mr Cavanagh assessed the market value of Kerang to be $2,840/ha on a fully improved basis, or $2,255/ha on a TFW basis. In his opinion, Kerang is superior overall both to Avon View and Langowan.
Mr Cavanagh's evidence that the sale of Orana took place at higher than market value was supported by Mr Jinks' evidence. In Mr Jinks' opinion, the expected grazing/farming value of Orana would be $2,965/ha and therefore the sale showed an increase of about 46% above market value for that use.
However Mr Jinks did not accept that Kerang was sold at above market value. He said that Kerang was superior to his other sale properties and that the sale reflected market value. Further, in his opinion, Kerang was closest in quality to the subject aggregation and therefore most comparable with it, although the subject was slightly inferior to Kerang.
Having considered the evidence about this sale, I have come to the conclusion that it is out of line with the market. The sale was transacted in April 2012 and is the most recent sale of those relied on as primary sales by the valuers. Mr Jinks' evidence was that values were increasing, influenced in part at least by the resource related sales. Given the number of resource related sales in the area, I consider that, even if the sales are not relied on directly, the increase in demand for land demonstrated by those sales must have affected the availability of land in the general market, and that would be a factor placing upward pressure on the market. This may account, to some extent, for the higher price paid for Kerang as compared with the prices paid in earlier sales.
However, Kerang was transacted at a rate per hectare some $900 above Gledswood, the next highest sale of those relied on by either valuer. Mr Jinks' evidence did not persuade me that the quality of Kerang was such that it justified that rate per hectare, when compared with those nine other sales, where the prices ranged in a comparatively tight band from $2,348/ha (Shiralara) to $2,820/ha (Gledswood). Given that factor and the fact that the sale of Kerang took place by private treaty, I am not persuaded that Kerang was sold at market value and accordingly, I do not consider that it should be relied on for this valuation.
Gledswood
Mr Jinks analyzed the Gledswood sale to $2,820/ha. Mr Cavanagh said that Gledswood had not been listed publicly for sale and was transacted offmarket. The purchaser was Queensland Gas Company (QGC), a large coal seam gas producer which is active in acquiring properties for gas infrastructure development. Mr Cavanagh said that properties purchased by this company throughout the western Downs region indicate that it is willing to pay premiums way above market value in a bid to secure property. In his opinion the sale of Gledswood was an example of that and therefore should be disregarded.
Mr Cavanagh had not inspected Gledswood but having reviewed the aerial photography and soil mapping he concluded that the property was improved with water infrastructure and fencing only, as indicated by Mr Jinks in his evidence. Based on that information he had assessed a desk top market value of $2,100/ha. In Mr Cavanagh's opinion Gledswood is inferior to both Avon View and Langowan.
Mr Jinks disagreed with Mr Cavanagh's opinion that QGC is willing to pay premiums above market value for some properties. Mr Jinks knew of cases where QGC had decided not to go ahead with a transaction rather than pay the price sought by the owner.
I am not prepared to disregard resource related sales simply because they are sales to resource companies. I accept the evidence that there are a number of reasons which might motivate a resource company to pay above market value in order to obtain ownership of a property, eg to avoid disputes and delay and for strategic purposes. However, at the end of the day the question that this Court must consider is whether a particular sale is or is not above market value. In the case of Gledswood, I consider that the evidence shows that the Gledswood sale is within the range of market value. While Mr Cavanagh's opinion was that the value of Gledswood was $2,100/ha, he had not inspected the property and accordingly I prefer Mr Jinks' opinion as to its comparability with market value.
Nevertheless it must be recognized that Gledswood was a sale by private treaty. As discussed above, the sale is to be treated carefully, but when considered in conjunction with the other primary sales evidence, I have come to the conclusion that the sale may be used as relevant evidence of the value of the subjects.
Determination of rate per hectare to be applied in before valuation
Mr Jinks has valued Avon View and Langowan in the before situation as an aggregation, at $3,500/ha. Mr Cavanagh valued Avon View at $2,500/ha and Langowan at $2,750/ha.
As set out above, Mr Cavanagh valued the properties separately because selling the properties in one line was difficult under current market conditions for a number of reasons. However Mr Cavanagh did not point to any sales evidence to support that proposition.
The combined area of Avon View and Langowan is 1,182.19 ha. It is noted that Nalgar is 1,193 ha, Shiralara is 953.3 ha and Woodroyd is 1,987.007 ha. Leaving aside Kerang, all of the other sales range in size from 461.9 ha to 525.9 ha. In applying the sales, neither of the valuers indicated that the size of the sales properties was a determinative relevant factor. In other words, the sales properties were regarded as sufficiently comparable, even though they varied in size. In these circumstances, I do not accept Mr Cavanagh's reasons for rejecting Mr Jinks' approach, that Avon View and Langowan should be valued as an aggregation.
However, Mr Clothier SC for the applicants submitted that it was inappropriate for a single claim to be advanced on behalf of the landowners, Mr and Mrs Keys and Sky Grove Pty Ltd which are separate entities. Mr Clothier said that it appeared that Sky Grove is the trustee of Mr Keys' discretionary family trust, but in the absence of the details of the trust there is no reason to think that the trust should be treated as, in effect, being Mr and Mrs Keys. Therefore compensation should be assessed separately.
Although the two properties are owned by separate entities, they are operated together as part of the total aggregation. There was no suggestion or evidence that that arrangement would not continue into the future, in the absence of the mine. The effect of Mr Jinks' evidence was that the value of the two properties together is higher than the value of the individual parts. I have accepted that evidence, as the combined properties have a good mix of country suitable to achieving the highest and best use of the combined areas of land. Accordingly, I consider that the value of each property may be determined as part of an aggregation as that reflects each property's highest and best use.
That is not to say that the two entities may make a single claim. The Act requires that compensation be determined for "an owner" of land (s.281(3)). Although s.32C(a) of the Acts Interpretation Act 1954 (the AIA) provides that words in the singular include the plural, there is no authority in the Mineral Resources Act enabling separate land owners to make combined claims and, accordingly, separate determinations of compensation will be made for Mr and Mrs Keys, and Sky Grove.
As decided above, I do not consider that the Kerang sale should be applied in the valuation. As there is no other evidence to support Mr Jinks' valuation of the aggregation, I do not accept his evidence of value at $3,500/ha.
Of Mr Jinks' remaining sales, Gledswood shows a value of $2,820/ha and Woodroyd a value of $2,793/ha. The other sales are lower. Mr Jinks considered the aggregation overall to be superior to all the sales. He emphasized the sound mix of country and the reliable water supply to the subject, which was superior to all of the sales, other than Woodroyd.
Mr Cavanagh did not use the Gledswood sale for the reasons discussed above. I have rejected that reasoning. Nor did Mr Cavanagh rely on the Woodroyd sale, although it appears to have been an arm's length non resource related sale, the property being sold at public auction. Mr Cavanagh said that his enquiries had revealed that plant and equipment worth $100,000 were included in the sale, but Mr Jinks said that his investigations did not show that. Mr Jinks also said that the reference to plant might include bore pumps, which he did not regard as plant. Given the uncertainty as to whether plant and equipment were included in the sale, I have decided to accept Mr Jinks' analysis, thus giving the benefit of any doubt to the landowners, as dispossessed owners.
Two of Mr Cavanagh's remaining sales were Calga and Nalgar which were also relied on by Mr Jinks. Mr Cavanagh considered Calga to be superior to Avon View and inferior to Langowan. He said that Nalgar was slightly inferior to Avon View and inferior to Langowan. Mr Jinks considered that the aggregation was superior to both Calga and Nalgar.
On balance, I have accepted Mr Jinks' evidence as to the overall comparisons between the subject and Calga and Nalgar. Mr Cavanagh did not value Avon View and Langowan as an aggregation, so that his comparisons of the sales were made with the individual properties. The basis of his comparison is therefore less accurate.
I also consider that Mr Cavanagh's assessment fails to take into account sufficiently the superior water supply to the subject. While Mr Cavanagh noted, in his original report, that there was an integrated watering system on the subject, he did not mention the water supply available, in his description of the subject, nor did he compare that with the supply on the sales properties. The availability of a reliable water supply is an important aspect to be taken into account in valuing a rural property.
Balancing all these matters, I have come to the conclusion that the Avon View/Langowan aggregation should be valued at a rate of $3,100/ha in the before case primarily because I have accepted Mr Jinks' evidence that the Avon View/Langowan aggregation is superior to both Gledswood and Woodroyd. I might add that in determining that amount I have taken into consideration the learned Member's opinion in Wills v Minerva Coal Pty Ltd[10] that, given the uncertainty as to when compensation might be paid and replacement land sought by the landholder, it is appropriate that the sales evidence available be applied in a generous, not a niggardly spirit.
[10] (1998) 19 QLCR 297 at 340.
Value to the Owner
Mr and Mrs Keys' claim includes an amount of $1,034,500 as an allowance for value to the owner.
Mr Keys' evidence was that Avon View/Langowan aggregation is used to fatten steers and cull cows from the total aggregation. The average numbers are 300 steers and 150 cull cows annually. If the property were no longer available the cattle would have to be sold as steers. Mr Jinks said that the Avon View/Langowan value had special value because it is in between the other properties forming part of the total aggregation, is safely and reliably watered, does not require day to day management and is in close proximity to another family member who can check on it. It is a very good fattening property, in a slightly different rainfall area.
Mr Jinks assessed the value to the owner on the basis of the loss of income to Mr and Mrs Keys resulting from the difference in value between selling cattle as fats and selling as stores. The average anticipated annual loss is $213,000 per annum. As an example, Mr Jinks multiplied the loss over 5 years at 20% interest. He adopted a high interest rate to allow for droughts: $213,000 x 5 = $1,065,000. Ultimately he assessed an allowance for value to the owner at 25% of the market value, or $1,034,500.
Mr Houen submitted that this part of the claim was consistent with Housing Commission of New South Wales v Falconer[11] where Mahoney JA said -
"Property is, of course, to be valued by reference to whatever potential it may have to whoever may be the owner of it … . But it has long been accepted that, in compensation cases, the value of property may go beyond this. Its value is its value to the particular owner and, in assessing that value, there is to be taken into account also a potentiality which is available only to the individual who is the owner at the relevant date or is peculiar to him … . On this basis if the land is, physically, by reason of its zoning or otherwise, particularly suited for the use to which the then owner wishes to put it or is putting it, and that makes it specially valuable to him, that which is to be assessed in money terms is not merely the value of the land generally on the market but its value having regard to that special value … ."
[11] [1981] 1 NSWLR 547 at 572-573.
Mr Houen drew a distinction between "value to the owner" being the claim made by Mr and Mrs Keys and "special value" which, he submitted, was a separate concept akin to the "status and use" factor recognized in s.281(4)(c) of the Act. Mr Houen did not cite any authority to support his submission that additional compensation is available for value to the owner as a separate concept from special value, either under the law relating to compulsory acquisition of land or that relating to compensation under s.281 of the Act. He said that the claim in this matter is based on the value of this land to these particular owners for this specific purpose at this particular time.
While it is clear from the compulsory acquisition cases that the phrase "the value of the land" means value to the owner,[12] Wills J said, in Bronzel v State Planning Authority of South Australia, that it is only in cases where there is some special value to the owner which takes compensation above market value that the owner can recover compensation higher than the market value of the land.[13] The learned judge said that, if special value exists,
"I[i]t must be something objectively ascertainable derived from the land or some attribute or property of it and cannot be recognized if it rests in mere subjective affection or emotional involvement. For the rest, whether it is prudent and capable of being evaluated depends on all the circumstances of the case.
[12] The history is traced in Hyam, AA "The Law Affecting Valuation of Land in Australia" (2009) at 362-371.
[13] (1979) 21 SASR 513 at 524.
Special value was also discussed by Callinan J in Boland v Yates Property Corporation Pty Ltd[14] -
"The special value of land is its value to the owner over and above its market value. It arises in circumstances in which there is a conjunction of some special factor relating to the land and a capacity on the part of the owner exclusively or perhaps almost exclusively to exploit it. … There will in practice be few cases in which a property does have a special value for a particular owner. Obviously neither sentiment nor a long attachment to it will suffice. The special quality must be a quality that has an economic significance to the owner. A possible case would be one in which, for example, a blacksmith operates a forge in the vicinity of a racetrack on land zoned for residential purposes as a protected non-conforming use, the right to which might be lost on a transfer of ownership or an interruption of the protected use …. Such a property will have a special value for its blacksmith owner, and perhaps another blacksmith who might be able to comply with the relevant requirements to enable him to continue the use but to no one else." (Citations omitted).
[14] (1999) 74 ALJR 209 at [292].
Housing Commission of New South Wales v Falconer, Bronzel v State Planning Authority of South Australia and Boland v Yates were cases concerning the assessment of compensation for the compulsory acquisition of land. The compensation in the present case is to be assessed under s.281 of the Act. Whether the respondents may include in the claim for compensation, a claim for value to the owner must be determined by applying s.281. The relationship between the compensation provisions in the MRA and the compensation principles developed in the law relating to compulsory acquisition of land was considered in detail by the Land Court in Wills v Minerva Coal Pty Ltd [No. 2].[15] The Court also considered the meaning of the phrases "value of land of the owner" in s.283(3)(a)(ii) and "special value".
[15] (1998) 19 QLCR 297.
The Court determined that the phrase "value of the land of the owner" in s.283(a)(ii) refers to the market value of the owner's land, determined in accordance with the well recognized principle described by Isaacs J in Spencer v The Commonwealth.[16] It is noted that s.281(3)(a)(ii) of the Act does not provide for compensation for "value of the land to the owner".
[16] Wills v Minerva Coal Pty Ltd at 322; Spencer v The Commonwealth (1908) 5 CLR 418 at 440, 441..
However, the learned Member then went on to consider s.281(4)(c) of the Act particularly, the words "status and use" -
"(4)In assessing the amount of compensation payable under subsection (3) -
…
(c) if the owner of land proves that the status and use currently being made (prior to the application for the grant of the mining lease) of certain land is such that a premium should be applied—an appropriate amount of compensation may be determined;"
The learned Member concluded that s.281(4)(c) is concerned with a current use of certain land and a status of certain land which together have an economic consequence which should sound in the addition of a premium to the market value. As such an economic consequence is not encompassed in market value, it has some of the characteristics of what is often referred to as "special value" in compulsory acquisition cases but would be confined to the current use of the land he said. Compensation for the added value that land might have for an intended use is recoverable under s.281(3)(a)(vi) which provides that compensation may be awarded for all loss as expense that arises as a consequence of the grant of the mining lease.[17] However the existence of s.281(4)(c) and s.281(3)(a)(vi), mean that compensation is available for a statutory special value which has all the appearances of being equivalent to special value as explained in the Pastoral Finance[18] case.[19]
[17] At 322 - 324.
[18] Pastoral Finance Ltd v The Minister [1947] AC 1083.
[19] Wills v Minerva Coal [No. 2] Pty Ltd (1998) 19 QLCR 297 at 318.
There is no case where compensation above market value has been awarded for value to the owner, unless the owner has established special value (in compulsory acquisition cases) or status and use within the meaning of s.281(4)(c) of the Act. Further, it can be seen from the authorities dealing with both special value in compulsory acquisition cases and compensation for status and use under s.281(4)(c) that a claim for such loss is only available where the landowner can establish that the special value or status and use has an economic consequence for the owner, above the market value of the land. I do not consider that that has been established by the landowners in this claim. As discussed above, I have accepted that the use of Avon View and Langowan together constitutes the highest and best use of the land and that that should be reflected in the rate per hectare paid as compensation. However, I heard no evidence to persuade me that the owners, having received market value for their land, could not go into the market place and acquire substitute land for that which will be lost on the grant of the mining lease. That substitute land can be used for the same purposes as the subject lands, thus obviating the necessity for cattle to be sold as stores. Accordingly, the claim for value to the owner is disallowed.
After Valuation
Value of balance land
Consistently with s.238 of the Act, in making my recommendation for the grants of the mining leases, I identified certain land as restricted land within the meaning of Schedule 2 of the Act and recommended that that land be excluded from the area over which the mining leases be granted. In addition I recommended that water pipelines and land within 50 metres laterally of them be excluded from the lease.[20]
[20] Xstrata Coal Queensland Pty Ltd v Friends of the Earth - Brisbane Co-Op Ltd [2012] QLC 013 at [155]-[157].
The parties are agreed that the areas subject to the mining leases should be treated as a loss in perpetuity, for the after valuation. However the applicants say that the areas to be excluded from the grant of the leases (the restricted land and 'pipeline' land) which they describe as the balance land, has a continuing use and, therefore, some value. The respondents disagree, saying that the balance land has no market value and therefore that the whole of their land is of no value, in the after situation.
Mr Cavanagh
Mr Cavanagh calculated the area of the balance land on Avon View to be 54.6 ha. In his opinion the end use of that land after the grant of the mining leases, is for rural home site purposes.
Mr Cavanagh said that the balance land has an irregular shape which is non-contiguous. The overall area is not a functional shape and there are areas which provide a higher level of utility than others. Further, when the lease is granted and mining operations commence, the balance land will be surrounded by an active mine. The neighbouring land will be accessible to the applicants and their staff and there will be increased traffic using nearby roads. Mr Cavanagh applied a discount of 50% to the land value of the balance land to account for these factors.
Mr Cavanagh said that most of the structural improvements on the subject were purpose built for their existing use and will not be required for a rural home site. Neighbouring operations and increased traffic in the vicinity will also impact on the overall amenity of the site. Taking those issues into account, he adopted an average rate of depreciation over the structural improvements of 75%.
Accordingly, Mr Cavanagh's after valuation of Avon View was -
635.19 ha inside MLA area @ $2,247/ha depreciated by 100% Nil
54.6 ha excluded land @ $2,247/ha depreciated by 50% $61,343
Add structures ($175,000) depreciated by 75% $43,750$105,093
Adopt $100,000Mr Cavanagh applied the same reasoning in his after valuation of Langowan where he calculated the balance area to be 44 ha. His valuation of the balance area was -
448.4 ha inside MLA area @ $2,325/ha depreciated by 100% Nil
44 ha excluded land @ $2,325/ha depreciated by 50% $51,150
Add structures ($205,000) depreciated by 75% $51,250
$102,400Adopt $100,000
Mr JinksMr Jinks did not expressly address the question of the after value of the subject properties in his written report, which calculates compensation on the basis of the full value of the properties.
Mr Houen submitted that the balance land and improvements have no market value because the restricted land is not on separate titles but is part of the underlying title for each lot, which will be rendered effectively unsaleable because of the granted mining leases and the disturbance of mining activities.
8.Additional compensation is awarded for
(a)the costs of stamp duty to be calculated according to the appropriate scale on the sum of $1,741,000; and
(b)reasonable legal fees for conveyance of a rural property of $1,741,000,
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c)an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
9.In MRA308-12 (Edmonds), compensation is determined in the sum of Two Million, Nine Hundred and Ninety-Two Thousand Dollars ($2,992,000).
10.Additional compensation is awarded for
(a)the costs of stamp duty to be calculated according to the appropriate scale on the sum of $2,660,300; and
(b)reasonable legal fees for conveyance of a rural property of $2,660,300,
such costs in (a) and (b) to be agreed between the parties or failing agreement, the amounts will be determined by this Court, on the application of either party; and
(c)an additional amount of 10% awarded under s.281(4)(e) of the Mineral Resources Act 1989 on the total amount of (a) and (b).
11.In all matters, compensation is to be paid within 30 days of the date of the grant of the mining leases.
CAC MacDonald
PRESIDENT OF THE LAND COURT
"(1) This section applies if -
(a)compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the original compensation); and
(b)there has, since the agreement or determination, been a material change in circumstances for the mining lease.
Example of a material change in circumstances -
a different mining method that changes the impact of mining operations under the lease.
(2) The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation.
(3) Sections 281(3) to (7), 282 and 282A apply, with necessary changes, to the review as if it were an application under section 281(1).
(4) The Land Court may, after conducting the review, decide to confirm the original compensation or amend it in a way the Land Court considers appropriate.
(5) However, before making the decision, the Land Court must have regard to -
(a) the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and
(b)whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and
(c)any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined.
(6) If the decision is to amend the original compensation, the original compensation, as amended under the decision, is for this Act, other than this section, taken to be the original compensation."
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