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  • Unreported Judgment

Normin Pty Ltd v DWAJ Pty Ltd

 

[2019] QLC 32

LAND COURT OF QUEENSLAND

CITATION:

Normin Pty Ltd & Anor v DWAJ Pty Ltd [2019] QLC 32

PARTIES:

Normin Pty Ltd

(first applicant)

and

Allan Glen Riley

(second applicant)

v

DWAJ Pty Ltd

(respondent)

FILE NO:

MRA413-18

DIVISION:

General division

PROCEEDING:

Determination of consent for variation of access for mining lease

DELIVERED ON:

2 August 2019

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed on 15 March 2019

HEARD AT:

Heard on the papers

MEMBER:

WL Cochrane

ORDER:

In respect of the referral for determination of whether the respondent should consent to the variation of access applied for by the applicants for ML 20225, I determine that the respondent should not consent and the application be refused.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC – where mining leaseholders apply for variation of access for mining lease – where the applicants own sixty and forty per cent of the mining lease respectively – where unclear who is the predominant or deciding leaseholder – where conflicting materials provided by the first applicant to the Court both supporting and opposing the variation of access application – where documents filed with the Court are unsigned – where the Court does not have explanation for discrepancies in material filed

Mineral Resources Act 1989 s 317

APPEARANCES:

Not applicable

  1. [1]
    This matter is a decision on a referral by the chief executive of the Department of Natural Resources, Mines and Energy (DNRME) to the Land Court pursuant to s 317(3) of the Mineral Resources Act 1989 (MRA) for the determination of owner’s consent in respect of an application for a variation of the land used or proposed to be used as access for ML 20225.

Background

  1. [2]
    On 15 April 2018, the applicant miners, Normin Pty Ltd and Mr Allan Riley, applied for a variation of access for ML 20225. At least, as is outlined below, it appears that Normin Pty Ltd was a party to the application.
  1. [3]
    The application sought a variation of the access for ML 20225 which lease is set to expire on 31 December 2019.
  1. [4]
    The subject ML 20225 is located on property owned by the respondent, DWAJ Pty Ltd. The subject property is described as Mt Gibson Station or Lot 646 on SP 113647 and Lot 3 on RP 747478. Lot 3 is exclusively used for access purposes.
  1. [5]
    The total area of the mining lease access is 27 hectares.
  1. [6]
    The variation of the access sought, extends the access past the boundaries of the lease on Lot 646. It is also noteworthy that the plans submitted with the variation application show the access crossing the mining lease proper to the boundary of Lot 646. It is not clear why the holder of a mining lease would make application for access over that mining lease.
  1. [7]
    The configuration of the lease itself is not able to be described in normal geometrical terms such as rectangular, square or the like. Rather, it can only be described as being somewhat serpentine and likely following the watercourse or the bed of a dried up river. Alternatively, it may follow the path of a gully.

Relevant legislation

  1. [8]
    This decision is made to satisfy the requirements of s 317(3) of the MRA which provides that in respect of an application for a variation of the land used or proposed to be used as access, if the chief executive is not satisfied that the owner of the land proposed to be used as access consents to the use, the chief executive must refer the issue of consent to the Land Court for determination.
  1. [9]
    In the present case, the landholder objects to the variation of access being approved by the Department.
  1. [10]
    One of the reasons presented by the landholder in this regard is that on a previous occasion, at the request of the mining leaseholders, he has abandoned his cattle trapping activities so that their mining may continue. On that previous occasion, the miners did not, and have still not, according to the respondent, commenced mining on the area which the landholder stopped using at their request.
  1. [11]
    The landholder makes complaints in his submissions of the second applicant continuously conducting activities which exceed his mining lease area resulting in water backing up. The landholder also complained of the second applicant constructing causeways without authorisation and blocking the landholder’s access to commercial interests.
  1. [12]
    The landholder lists 18 objections in a statement filed within this Court on 18 January 2019. To support his statement, the respondent also attaches a number of photographs. The numbered points of the respondent’s objection are as follows:

“1. Failure of Alan Riley (40% shareholder of ML20225) to communicate effectively with me, the landholder, on accessing his mining lease.

  1. Constant WH&S issues in regards to brining in heavy machinery on single lane dirt roads which are extremely dangerous, as we have had 3 near collisions so far, as I am constantly on this road carrying out pastoral/cattle trapping activities, and other miners with equipment accessing the same road.
  1. 11 other leases are located within the Mount Gibson boundary who all cooperate, (Alan Riley and Alan Agnew refuse to co-operate, both have removed locks from pastoral gates, several gates left open, cut locks) and provide adequate notification of access to me, the landholder, as the access road runs past my homestead on my freehold.
  1. Alan Riley continues to raise levy banks on my historical pastoral roads without any notification or authorisation, but when asked about these advises governing bodies that he is doing me a favour and maintaining roads for me, (of which he is not). He has changed 7 historical pastoral roads so far and has mined off lease 3 times that I know of.
  1. I have continuously had gate locks being completely removed and thrown away, 3 locks are still missing. Alan has a key to all these locks and continues to tamper with them, leaving locked gates unlocked and unlocked gates locked.
  1. Wilful damage to signage, my dozer, my cattle truck all of which has occurred whilst he was the only mining camp working onsite.
  1. I have been assaulted 3 times by Alan Riley, with 3 incidents being noted to the police, yet noting has come of any of them. 1 assault resulted from asking about the trashing/illegal mining of the historical grave of Jimmy Page, 2nd assault when I confronted him about playing around with my gates and this particular day he left all gates open. And the 3rd was when I questioned him about when he was going to move a 16ton dump truck that he had on my pastoral lease but neglected to ask or notify or even inform me why it had been parked there for 4 days. He then accused me of damaging his truck which he had parked on my pastoral holding without notification where one of my licks was and where a cattle pad was, I was actually assaulted when I confronted him about this and asked him when he was he going to move his truck and why was it parked there. I was only informed of his truck being damaged by the police some time after.
  1. Intentional blocking of mining access/pastoral roads by dumping approx 25tonnes of sand tailings in the middle of the road which wasn’t removed for 6 days. He stated to police after a complaint was made by me (the landholder) that the road was passable, Micheal Staencke (DNRME) viewed where the soil had been dumped and confirmed there was no passable way to get around this area, as there was a gully on either side of the road. He has also blocked access/pastoral roads on several occasions with his equipment prohibiting me from carrying on with my cattle trapping or mining activities. Photo attached.
  1. When Alan and I were on speaking terms prior to Oct 17 he was often very outspoken about the way he dealt with business people, stating that he had assaulted a person who owed him money back in Townsville, I took this as intimidation. I later found out that he had been charged and found guilty of this assault in Townsville and was placed on a bond in relation to this matter.
  1. I often have to be away from the premises overnight or am late out at night trapping and my partner feels uncomfortable being at the homestead alone, not knowing when he and his co-worker will be passing through.
  1. In late November, my partner was at the homestead and confronted by a man carrying approx 40kg pack, and he had walked 8km on the rough undulating roads and was dehydrated and exhausted. He advised my partner that Alan Riley had removed all keys from vehicles/equipment so he couldn’t use these to get to the front gate of the property, as they had had an argument regarding weights of buckets. Meanwhile Alan Riley had visited Ian Newman’s camp and stated that he had offered the guy a lift to the gate, but the worker had opted out. Ian Newman concerned about the worker then drove to out to find him and assist him.
  1. We have requested that all visitors sign a Biodiversity Log Book or email when visiting their leases however after a few months he just put a big slash through the page and refused to sign it, we did however receive an email saying that “on my property”, however this is after his has accessed the property, as he sends this from his lease. We know this because we can see and hear road traffic from the homestead when there is traffic going out to the back, the dogs also bark.
  1. The mining area he wishes to access has already been mined by him back in 2014/2015, (but yet to be rehabilitated), stating to me that it was lacking in paydirt/shallow ground, and not worth mining. He has a mobile mining plant so he can move it downstream negating the need for an extension to the lease. Mobile plant has been static for 4 years.
  1. I verily believe the reason for him wanting this access is he wishes to access Alan Agnew’s Lease downstream, however there is a gap between ML20225 and ML20342 so he would have to cross my pastoral holding as well of which I object to.
  1. Previously Alan Riley has already been fined for mining off lease on ML20225.
  1. Several pegs of ML20225 have been removed and placed on my pastoral holding without any notification, in fact these issues have arisen after authorities asked him to mine within the restraints of his boundaries, he then placed the pegs to suit himself. Photo’s attached.
  1. Hundreds of thousands of tonnes of sand/silt and rock tailings have been placed downstream from his plant which will eventually end up out at our Great Barrier Reef, breaching Condition 23 of the code of Environmental Compliance.
  1. Has vacated his lease early in Dec 18 leaving thousands of tonnes of unconsolidated silt (prior to the wet all silt must be consolidated.) Condition 24 –notes 35 & 36. Due to this two cows became stuck in the boggy areas-both with calves, I had to remove both and one died and the other survived. Photo attached.[1]             
  1. [13]
    Normin Pty Ltd, one of the applicant miners in the variation of access sought, and the 60% holder of ML 20225, despite being, apparently, a signatory to the application, submits a statement of evidence which says the following:

“I have received nil correspondence from Alan Riley or the Landcourt in regards to the application for variation of access for ML20225.

Alan Riley has applied for this variation without my knowledge or consent, and I in fact am writing this to object to the excessive traffic and equipment passing through the whole of this lease. I have been obstructed by him whilst trying to access my own leased area by him dumping approx 25tonnes of dirt in the middle of the road, being blocked by machinery being left in the middle of access roads. The area which he is trying to access has been previously mined by him back in 2014/15 when he first arrived on the lease, with no rehabilitation being observed from when he last worked the area.

The extension applied for is on my section of the lease – not his, and I am objecting to any extension or variations. I have made a decision that Alan can utilise a 3 meter [sic] access over my lease to access the bottom 20% approx of his lease, however this access is only for the purpose of access and not for the purpose of accessing other mining leases downstream as access to these other mining leases have access through Butchers Hill. This access over my lease is to be well communicated in advance of any proposed activities on an ongoing basis.

If Alan refuses or neglects to notify me of access, or uses this access to access other leases downstream then this whole access agreement is to be nullified and voided and no access allowed whatsoever.”[2]

  1. [14]
    That correspondence is over the signature of Ian Newman who declares that he is the 60% owner of the mining lease ML 20225 and the liaison officer for the lease.
  1. [15]
    The arrangement between Mr Riley and Normin Pty Ltd is somewhat unusual insofar as Mr Riley is said to own 40% of the mining lease and Normin Pty Ltd owns 60%. It appears that that 40% / 60% split is based upon some areas of the lease area but that is far from clear. What also is unclear is who has the controlling hand of the lessee. Normin Pty Ltd whose representative is Mr Ian Newman seems to have majority ownership and in the normal course of events might be thought to be in control of the overall lease.
  1. [16]
    Late in the piece, this Court received correspondence from Avoca Tenement Consulting Pty Ltd over the signature of Claire Mackney (Senior Tenement Manager) in which she informs the Court that she acts on behalf of both Normin Pty Ltd and Allan Glen Riley. Attached to that Avoca correspondence were some plans and some detailed coordinates.
  1. [17]
    That Avoca correspondence was filed on 22 February 2019. On the same day two other pieces of correspondence appear to have been filed as well. It is not clear whether they arrived with the Avoca correspondence or by separate mail.
  1. [18]
    Those letters are in identical terms. One is signed by Allan Glen Riley nominating Avoca as his authorised holder representative. The other is unsigned but reveals itself to putatively be sent by Geoffrey Andrew Clark as sole director of Normin Pty Ltd. That letter also nominates Avoca as the authorised holder representative.
  1. [19]
    The Court has received no correspondence clarifying the role of Mr Clark or informing the Court that Mr Newman has ceased to control Normin Pty Ltd. I am not prepared to act on an unsigned and unexplained letter. I am satisfied, however, that it is appropriate to describe Avoca as the authorised representative of the 40% leaseholder, Mr Riley.
  1. [20]
    It is clear from the correspondence provided by Normin Pty Ltd that the relationship between Normin and Riley is somewhat fraught. If, as appears to be the case, judging by the signature which appears on the original application for variation of access of the mining lease, Mr Newman did sign the application then clearly he no longer consents to the application for variation of access. Given his 60% ownership of the lease, on Mr Newman’s version of events, the application was made without his consent in any event. That might be thought to dispose of this matter. That may be correct but I propose to refer to other aspects of the application which lead me to the view that the appropriate course of action given that the lease will in any event expire in December 2019 is to refuse this application for variation of the access.
  1. [21]
    There also appears to be an issue as to the purpose for which the changed access is sought. Mr Newman contends that it is sought to achieve access to another mining lease not ML 20225.
  1. [22]
    The correspondence from Mr Newman contains a reference to some consent being given by him to Mr Riley to access “the bottom 20% approx of his lease”. Presumably that concession is based upon Mr Riley having one area of the total mining lease and Normin Pty Ltd another area, access to part of which seems to require Mr Riley to traverse what I should refer to as the Normin portion of the lease. That is not made clear in any way by the material available to this Court.
  1. [23]
    If, as Mr Newman contends, part of the ambition of Mr Riley is to gain access to another mining lease then that should be the subject of an application relating to that other mining lease not ML 20225.
  1. [24]
    The respondent landowner DWAJ Pty Ltd raises a number of complaints about the conduct of the second applicant Mr Riley. Those complaints relate to his failure to abide by the conditions of the lease and his apparent inclination to carry out changes to the landscape not contemplated by the mining lease. Those are not matters which are strictly applicable to an application for variation of access but do highlight the need for very great clarity in respect of whatever access might ultimately be achieved.
  1. [25]
    Nothing in the material on the Court file enables me to view the proposal with any degree of clarity.
  1. [26]
    On 15 March 2019, the Court received the following correspondence (the Avoca document) from Mr Riley’s agent addressing some of the issues raised by the landowner, DWAJ Pty Ltd.
  1. [27]
    That correspondence says:

Allan Riley has not paid compensation since purchase of mining lease.

The compensation agreement for ML 20225 is for a nominal sum of $1 per annum for the duration of grant. Given that Allan has been a 40% holder of this mining lease since 2014, we agree that an amount of $2 is outstanding to the landholder for access and mining.

Environmental Study for 20m access width.

As advised in the original submission made on behalf of the holders of ML 20225, the 20m access corridor is made for the purpose of allowing for pulling off the road in the event of breakdown or emergency. The current access width approved for this mining lease is 3m which covers the width of the existing road, it does not adequately allow for overtaking or pulling off of the road. We are aware that for a significant portion of the access track, there is no practical application of a 20m access width but DNRME systems do not provide for a variable width to suit the terrain. There was and is no intention to construct a road to a 20m width through the property.

Road Maintenance and Access

Road maintenance is part of the agreement between Lucky Strike Mining and the landholder. As access is compensable land, miners have a right to safe and steady access to their mining lease operations. The grant of tenure provides for unimpeded access to ML 20225. Allan Riley works a two week on-site, one week off-site rotation with little deviation in the working season. His comings and goings are scheduled.

Biosecurity Concerns

The property is currently subject to 15 granted mining leases, 2 applications for mining leases, 2 granted exploration permits and 1 exploration permit application with varying degrees of activity. Twelve granted mining leases (6 operators) use the same access road before branching off between Page Creek and Wallace Creek.

Both Ian Newman (on behalf of Normin Pty Ltd) and Allan Riley reside in Townsville whilst not at the mining lease. The roads between Townsville and Lakeland are sealed and in the normal course of matters, the miners would not leave the sealed roads in their travels to reach ML 20225. The risk from a biosecurity perspective is minimal. Additionally, there are no working wash down facilities available around Lakeland.

Police and Other Matters

We acknowledge that there are ongoing police reports, and other differences of opinion in relation to activities on the property, we do not believe that these matters are relevant to the matters before the Land Court at this time.”[3]

  1. [28]
    The Avoca document really reflects some of my comments above about the irrelevance of Mr Riley’s conduct in failing to comply with the terms of the mining lease. Those matters of compliance can always be the subject of complaint to the relevant authorities and, if necessary, applications be made either to that authority or this Court for enforcement proceedings.
  1. [29]
    The reference to the 20 m access width adds another element of confusion to this matter because the resource authority public report refers to the 25 m width whereas the original variation of access document refers to an access width of 40 m. Again, nothing in the material on the file clarifies that discrepancy.
  1. [30]
    In a similar vein, the Avoca document does not refer to an access width of 25 m as applied for, but contends that what is in the mind of Mr Riley involves a 20 m wide access and even then the Avoca document concedes that there is no intention to construct a road 20 m in width through the property and indeed in some parts of the property such construction would be an impossibility. Those assertions are at very least suggestive that no great thought has been applied to the application.
  1. [31]
    There is also a statement in the original application in the following terms:

“This variation of access starts from the existing access road to the ML 20225 and finishes in the ML, but veers off the ML in places. Most of the access applied for in this application is on well established existing roads. Parts of the short lengths of access off the ML were built with the full permission of the pastoral holder prior to doing so. The section at the downstream end off the ML has not yet been built but permission has been granted by the pastoralist. I’m afraid he will go back on his word which will cause work to stall, hence the request for access variation.”[4]

  1. [32]
    Mr Riley’s concerns were apparently well-founded as is evidenced by the contents of the letter sent by the landowner objecting in strenuous terms to any variation to the lease.
  1. [33]
    The following salient facts emerge from a consideration of the totality of the material contained on the Court file:
  1. (a)
    if the original application for a variation of access was made with the support of the 60% holder of the mining lease that leaseholder has resiled from that position and now objects to any variation being made to the lease
  1. (b)
    the access seems originally to have contemplated a 40 m width which was eventually changed to a 25 m width and then further diminished (according to the Avoca document) to a width of 20 m
  1. (c)
    even on a width of 20 m it is acknowledged by the second applicant’s agent that some of the access cannot actually be constructed
  1. (d)
    there is contended (by the February Avoca correspondence referred to in [17]) that there is a new controlling hand (Mr Clark) of Normin Pty Ltd in circumstances where no information has been provided to the Court clarifying that change in management
  1. (e)
    the application involves access for a leaseholder over its own lease which is at the very least confusing and problematic.
  1. [34]
    A consideration of the totality of material that appears on the Court file in relation to this matter shows that it lacks clarity, is confusing and is contradictory. In all of the circumstances the only order I feel able to make is that the respondent should not be compelled to consent to the variation of access applied for by the applicants for ML 20225. Accordingly, the application for variation of access must be refused.

Order

  1. [35]
    Therefore, the order of the Court is:

In respect of the referral for determination of whether the respondent should consent to the variation of access applied for by the applicants for ML 20225, I determine that the respondent should not consent and the application be refused.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1] Statement of Evidence by Willian Raymond Johnson, filed document 3 filed 18 January 2019.

[2] Statement of Evidence by Ian Newman, filed document 2 filed 18 January 2019.

[3] Letter from Avoca Tenement Consulting Pty Ltd Senior Tenement Management, filed document 8 filed 15 March 2019.

[4] Form MMOL – 26, Version 2 filed with referral from DNRME on 7 November 2018.

Close

Editorial Notes

  • Published Case Name:

    Normin Pty Ltd & Anor v DWAJ Pty Ltd

  • Shortened Case Name:

    Normin Pty Ltd v DWAJ Pty Ltd

  • MNC:

    [2019] QLC 32

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    02 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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