Queensland Coal P/L & Anor v Shaw & Anor
[2001] QCA 463
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Queensland Coal P/L & Anor v Shaw & Anor[2001] QCA 463
- Add to List
Queensland Coal P/L & Anor v Shaw & Anor[2001] QCA 463
Reported at [2002] 2 Qd R 288
Queensland Coal P/L & Anor v Shaw & Anor[2001] QCA 463
Reported at [2002] 2 Qd R 288
SUPREME COURT OF QUEENSLAND
CITATION: | Queensland Coal P/L & Anor v Shaw & Anor [2001] QCA 463 |
PARTIES: | QUEENSLAND COAL PTY LTD ACN 000 003 921 MITSUI KESTREL COAL INVESTMENT PTY LTD ACN 002 429 763 (applicants/respondents) v MICHAEL DAVID SHAW MARGARET ELEANOR SHAW (respondents/appellants) |
FILE NO/S: | Appeal No 3407 of 2001 LXX40070 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Land & Resources Tribunal at Brisbane |
DELIVERED ON: | 26 October 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 October 2001 |
JUDGES: | Davies and Thomas JJA, Cullinane J Separate reasons for each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | MINING LAW – MINING LEASES – APPLICATION FOR ADDITIONAL SURFACE AREA – OBJECTION – where the respondent companies had made an application for additional surface area over part of the appellants’ land – where the appellants objected on the ground that the respondents had not been granted a valid original mining lease – where the original lease did not contain a term as to depth restriction contrary to the requirement in s 114 of the Mining Act 1968 – whether the absence of this term invalidated the grant of the lease – whether the tribunal erred in implying such a term into the lease and upholding the application to strike out the appellants’ objection to the validity of the lease MINING LAW – MINING LEASES – MINING ON PRIVATE PROPERTY – QUEENSLAND – OTHER MATTERS – whether the original lease had ever been effectively granted – where there was no evidence of any Order-in-Council ever having been made granting the lease – where both parties nevertheless proceeded on the basis there was a lease granted – where s 114 provides an important source of protection for landowners – where specification of mining depth an essential requirement of a mining lease – where a formal and sufficient identification of the land the subject of a mining lease is a basic requirement under the legislation – where inconsistent with legislative scheme to say that the description of the land in a mining lease may be varied by implication – lease a nullity insofar as it purports to grant rights over appellants’ land Land and Resources Tribunal Act 1999 (Qld), s 67 Mineral Resources Act 1989 (Qld), s 216, s 275, s 297 Mineral Resources Act 1968 (Qld) (Repealed), s 7, s 21, s 21(1), s 33, s 34, s 44, s 108, s 114, s 126, s 128 Mining Regulations 1979 (Qld) (Repealed), reg 36 Lord v Commissioners for the City of Sydney (1859) 12 Moo PC 473; 14 ER 991, distinguished Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, considered Roach v Bickle (1915) 20 CLR 663, referred to |
COUNSEL: | P J Lyons QC for the appellants P D McMurdo QC for the respondents |
SOLICITORS: | Rees R & Sydney Jones for the appellants Blake Dawson Waldron for the respondents |
- DAVIES JA: I agree with the reasons for judgment of Thomas JA and with the orders he proposes.
- THOMAS JA: This is an appeal against a decision of the President of the Land and Resources Tribunal (Qld) striking out part of a Notice of Objection lodged by landowners.
- The Appeal is brought under s 67 of the Land and Resources Tribunal Act (1999) and is limited to questions of law. It is not suggested that the present appeal fails to answer that description. The ultimate question may conveniently be stated as whether the respondent mining companies, as holders of ML1978 are competent to bring an application for “additional surface area” of the appellants’ land under s 275 of the Mineral Resources Act (“MRA”). Under that section only “the holder of a mining lease” is competent to apply for such a further grant, and it is the appellants’ contention that ML1978 is invalid, at least to the extent that it asserts rights over their land.
- On 1 September 2000 the respondent companies (“the mining companies”) applied for 73.62 hectares “additional surface area” for its Mining Lease (No. NL1978). The area applied for was land owned by Mr and Mrs Shaw (“the Shaws”) described as Lot 65 on RP909055. The Shaws lodged a Notice of Objection on 20 October 2000. Paragraph 9 of their objection was in these terms –
“Mining Lease 1978 was not validly granted to the applicant and therefore the application for addition of surface area no.4 is not able to be granted pursuant to the provisions of [The Mineral Resources Act 1989].”
Supporting facts and circumstances were contained in 17 subparagraphs.
- The Mining Companies then applied to the Land and Resources Tribunal (“the Tribunal”) to strike out paragraphs 9 to 9.17, and in due course the Tribunal, having heard the application, ordered that those paragraphs be struck out. Although the formal order of the Tribunal of 15 February 2001 fails to record this, it is common ground that the order that was made struck out paragraph 9 and the supporting paragraphs 9.1 to 9.17.
Background facts
- In 1985 three companies (whose rights presumably have been assigned to the respondent mining companies) made an application in the Clermont area for a mining lease over an area exceeding 26,000 hectares, for the purpose of mining coal. Some of the land in question was owned by the Shaws or their predecessors in title. They objected to the grant of the mining lease.
- Proceedings ensued before the mining warden in 1986 under the Mining Act 1968 (“the 1968 Act”). The warden delivered his report dated 17 July 1986, recommending that the application be granted over the area applied for, with the exception of a small area, subject to various conditions. These included the following:
“6.That the mining tenement be limited to a depth below the surface of private land of 120 metres with the exception of the surface area applied for where there be no limit.”
- It is common ground that the Shaws’ land over which the report recommended the grant of a mining lease was for the purposes of the 1968 Act both private land and improved land.
Evidence of Grant of ML 1978
- The evidence presented to the Tribunal concerning the purported grant of ML1978, is in some respects unsatisfactory. No lease or purported copy thereof was produced. This is unfortunate in the context of a decision involving questions whether the lease is valid, and whether the mining companies are competent to apply for an extension. There is some evidence in the form of a letter of 18 April 1990 from The Director-General, Department of Resource Industries, which asserts that a Mining Lease was granted by the Governor-in-Council (ML1978) on 12 April 1990, and further asserts its area, duration, rental and lessee. There is also an “Annexure Mining Lease No 1978 (formerly Mining Lease No 2251 Clermont)” which contains covenants, special conditions, surface conditions and underground mining conditions. The record is, however, devoid of any map or other data that enables a clear picture to be obtained of what part of the Shaws’ property was covered by the lease in question. By a process of inference and deduction it would seem that ML1978 did not purport to make any grant of surface area of the Shaws’ land. Equally it may be inferred that whatever part of their land was included in ML1978 was for the purposes of underground mining.
- The purported grant of ML1978 on 12 April 1990, for a term of 21 years, if made at all, would have been made under the 1968 Act. The MRA was not at that stage in force, at least to the extent that any grant could be made under it. Leases and tenements made under the 1968 Act were however continued in effect by the MRA when it came into full effect, seemingly in September 1990.[1] A mining lease that was granted under the repealed Acts which was “current immediately prior to the commencement of this Act shall, upon that commencement be deemed to be a mining lease granted for the balance of its term current at that date.”[2] The MRA however did not purport to give any greater validity to such leases than they formerly possessed.
- I have used the term “purported grant” because there is no evidence of any Order-in-Council ever having been made granting the lease in question and Mr McMurdo QC for the mining companies conceded that to this point none had been found. He submitted however that the court should not proceed to any determination of invalidity based upon alleged absence of grant because the parties had proceeded below on the assumption that a grant had been made, and the Shaws’ objection was specifically limited to the absence of any condition in ML1978 that the mining tenement be limited to a depth below 120 metres. There is merit in Mr McMurdo’s submission, because the issue of invalidity on the ground that no lease was ever granted is a more fundamental ground and one that might involve further factual enquiry. It is a matter that the Shaws might of course establish on a subsequent occasion, but for present purposes, the appropriate course is, as Mr McMurdo submitted, to consider the question of invalidity on the assumption that a lease was granted and confine present argument to the question whether s 114 of the 1968 Act renders it invalid.
Validity of alleged grant
- It is common ground that the purported lease did not contain any express limitation as to depth. Section 114 of the 1968 Act, under which any relevant mining lease would have been granted, contains the following –
“114.Certain land exempt from Act. A title to a mining tenement shall not be granted in relation to private land –
- that is, at the date of an application therefor is made to the warden, improved land or is within 135 metres, or other less distance (being not less than 45 metres) as the Wardens Court determines in a particular case, laterally from any improved land; or
- that is within the limits of any city or town and is less than 2000 square metres in area
unless
- the consent in writing of every owner of the private land in question is first obtained; or
- the mining tenement is limited to such depth below the surface or the lowest part of the surface of the private land in question as the Wardens Court determines in the particular case.”
- The term “mining tenement” includes land the subject of a mining lease.[3] Section 114 clearly prohibits the grant of a mining tenement in relation to private land unless it is limited to the depth below the surface determined by the Warden. The Tribunal however rejected the Shaws’ objection because it considered that a term should be implied in the lease to the effect that the necessary limitation had been imposed. In support of that conclusion the Tribunal referred to the principle of interpretation of Crown grants, including a statement in Lord v Commissioners for the City of Sydney[4] that “if you grant anything, you are presumed to grant, to the extent of your power, that also without which the thing granted cannot be enjoyed.” With respect, I do not think that that principle has anything to say in relation to the present statutory prohibition. I do not think that there is any special principle of interpretation in relation to Crown grants that operates to defeat essential statutory requirements that are prescribed in relation to the making of such a grant or that deems things to have been done that have not been done.
- The Tribunal went on to observe that, “it can hardly be supposed that when granting ML1978, the Crown intended anything other than a valid mining lease be granted.” The Tribunal further reasoned –
“As the Crown is presumed to have granted that also without which the mining lease cannot be [validly] enjoyed, it follows, in my view, that in order to give effect to the plain and undoubted intention of the grant – namely to confer a valid mining lease in accordance with the 1968 Act, the Warden - determined depth limitation should be implied in ML1978 as a matter of necessary and unavoidable intendment.”
The Tribunal regarded cases such as Roach v Bickle,[5] which had interpreted similar statutory prohibitions as producing the result that the prohibited transaction was a nullity, as illustrative of an approach to statutory interpretation which was no longer current. The Tribunal considered that Project Blue Sky Inc v Australian Broadcasting Authority[6] had laid down a new test of invalidity, namely “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”, and that in determining purpose, “regard must be had to the language of the relevant provision and the scope and object of the whole statute.”[7] When considering the “purpose” of the 1968 Act the Tribunal stated “I do not regard it to have been a purpose of the 1968 Act (or indeed of s 114) that the grant of a mining lease without a recommended depth limitation would be invalid.” The Tribunal regarded the consequences of invalidity as “drastic”, and “clearly unnecessary for the service of any proper purpose of the legislation.”
- While it is true that courts are now more reluctant to infer the invalidity of acts done contrary to a statutory requirements than they formerly were,[8] the determination of the court is one of proper interpretation, not of convenience. Section 114 of the 1968 Act is one of the few important protections afforded to the owners of private land against mining. Where the conditions of s 114 (a) and (b) apply (as they do here) it is quite plain there is to be no grant of a mining tenement unless the owner consents, or unless the mining tenement is limited to such depth as the Warden has determined. It is a clear statutory direction that a mining tenement is not to be granted unless effect is given to the Warden’s determination. There is no similar prohibition in respect of an application for a surface area, in respect of which the mining company becomes liable to pay compensation. There is no similar provision for compensation if the application is for sub-surface mining.[9] The protection of land owners from the potentially drastic effects of underground mining is an important matter. In my view s 114 clearly says, “Don’t grant such a lease at all unless you give effect to the warden’s determination on depth.”
- Further, it should not necessarily be assumed that the granting authority did intend that the Warden’s recommendations should be accepted. I do not imply any intentional breach of the law, but there is a difference between the omission of an intended term and the absence of any intention at all. The grant that we are for present purposes to assume to have been made is one under which the mining companies’ rights extend (with respect to the prescribed area) for the entire depth of the land except for the surface.
- The legislative scheme under the 1968 Act contemplates the issue of mining leases. In my view the provisions of the Act are inconsistent with the land the subject of the mining lease being identified other than by reference to the mining lease itself. The sections of primary relevance are ss 21, 33, 34, 44, 109, 114 and 126. Under s 21(1) the Governor-in-Council is given the power to “grant and cause to be issued to the applicant a lease…” Section 106 authorises the making of regulations with respect to the procedures and manner and form of applications for relevant interests. The 1979 Regulations provide that the lease is to be in the prescribed form,[10] and the form requires a description of the land.
- The terms of s 126 reinforce the view that specification of mining depth is an essential requirement of a mining lease. It provides that where the tenement includes an area of surface, the miner may mine on or under “so much of the surface as is described in his mining title”; and to mine in the remaining area of land at such depth from the surface as was determined by the Warden’s Court “and specified in his mining title.” Further, where the mining lease does not include a surface area, the lessee is entitled to mine in the whole area subject to the lease at such depth from the surface as was determined by the Warden’s Court “and specified in his mining title.”[11]
- A mining lease granted under the above provisions is the source of important rights which may be exercised by mining companies adversely to the rights of the owner of the land. They include the right to enter private land and to mine it. But for the protection of a mining lease granted under these provisions, the miner would be liable to pay damages to the owner of the land. The legislative scheme includes provision for transferring, subletting and encumbering mining leases, entering such dealings in a register, lodging a caveat forbidding registration of dealings. I note in passing that the scheme is one in which rights and title obtained by means of grant, not by means of registration.
- A formal and sufficient identification of the land the subject of a mining lease is a basic requirement. In common with other leases, there is a need for proper identification of premises the subject of the lease. In the case of mining leases of the surface of specified land, this requires a surface or horizontal description. In the case of non-surface leases a vertical as well as a horizontal description is necessary to identify the premises the subject of the lease.
- Under s 33 of the 1968 Act the Governor-in-Council has power to correct an instrument of mining lease upon certain prescribed events, but these do not in my view touch the question of initial invalidity by reason of a provision such as s 114. I would add that this is not a case of an instrument being, in terms of s 33, “defective owing to error in its preparation.” Rather, it seems to be a case where, assuming that a decision was made to grant a lease over the land in question, the decision was made contrary to the provisions of s 114.
- Mr McMurdo submitted that despite the limitation of mining depth, ML1978 should not be treated as a nullity, and that the mining companies should be regarded as “the holder of a mining lease” for the purposes of s 275 of the MRA, sufficiently to enable them to pursue their present application for an additional an surface area of the Shaws’ land. He pointed out that the Shaws’ land is only a small part of the overall area covered by ML1978, and that the Shaws did not submit that the lease was invalid in respect of the other areas to which it relates. As I see it, it is not necessary for the Shaws to go so far. The putative lease may well be valid in respect of other areas if there is no breach of statutory provisions in relation to those areas. It is sufficient for the Shaws’ purposes to maintain that it is invalid insofar as it purports to have any effect over their land.
- Mr McMurdo attempted to support the reasoning of the Tribunal that the presumed intention of the parties to the grant of the mining lease was that it be granted according to law, and in particular according to s 114. He submitted that it must be presumed that the intended result was to have the mining tenement limited to the depth determined by the Warden. With respect, such reasoning begs the question. The question in this case is not answered by an assumption that most people do not intentionally flout the law. It is to be answered by the nature and presumed effect of a proven non-compliance.
- It was alternatively submitted that even if the mining lease fails to give present mining rights over the Shaws’ land, it might yet be rectified under s 33 to make it accord with s 114 (and that rectification was still available since the repeal of the 1968 Act by means of ss 216 and 297 of the MRA). However, for reasons earlier mentioned, I do not think that it is shown that the defect is of a kind covered by s 33. Even if I am wrong in this view, it would be incorrect for the Tribunal to strike out the Shaws’ objection (paragraph 9) unless and until the defect had indeed been corrected.
- It seems to me that it is inconsistent with the legislative scheme that has been described above to say that the description of the land in a mining lease may be varied by implication. In my view, insofar as the lease purports to grant rights over the Shaws’ land, it is a nullity, and the mining companies cannot show that they are competent applicants to pursue the present application for a surface area extension.
- It follows that the Tribunal erred in striking out paragraph 9 of the objection.
Orders
- The appeal is allowed with costs.
- The order of the Tribunal striking out paragraph 9 and subparagraphs 9.1 to 9.17 of the objection is set aside.
- CULLINANE J: I agree with the reasons of Thomas JA in this matter and the orders proposed.
Footnotes
[1] See Mineral Resources Act 1989 (Reprint No 6 as at 19 January 2001) at 432.
[2] Mineral Resources Act 1989 (Act No 110 of 1989, sessional volume, sched no 2 cl 3).
[3] s 7 and s 108 of the 1968 Act.
[4] (1859) 12 Moo PC 473, 499-500 (14 ER 991, 1001).
[5] (1915) 20 CLR 663.
[6] (1998) 194 CLR 355.
[7] Ibid at 390-391.
[8] Project Blue Sky Inc above at para [93], and the cases referred to in Note 74 thereunder.
[9] 1968 Act s 128.
[10] Reg 36.
[11] s 126 of the 1968 Act.