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Henry v ERO Georgetown Gold Operations Pty Ltd[2015] QLC 13

Henry v ERO Georgetown Gold Operations Pty Ltd[2015] QLC 13

LAND COURT OF QUEENSLAND

CITATION:

Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13

PARTIES:

Thomas Peter Henry

(applicant)

 

v

 

ERO Georgetown Gold Operations Pty Ltd

ACN 104 826 959

(respondent)

FILE NO:

MRA036-14

DIVISION:

General Division

PROCEEDING:

Application for determination of compensation pursuant to s 283B and/or s 363 of the Mineral Resources Act 1989

DELIVERED ON:

13 May 2015

DELIVERED AT:

Brisbane

HEARD ON:

15-17 July 2014

Submissions closed 1 September 2014

HEARD AT:

Georgetown

MEMBER:

PA Smith

ORDERS:

1. The additional amount of compensation awarded to Henry is the sum of Thirty Seven Thousand, Nine Hundred and Seven Dollars and Ten cents ($37,907.10) for the period up until 13 July 2014, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

2. The additional amount of compensation awarded to Henry is the further monthly sum of Three Thousand, Nine Hundred and Fifty-four Dollars and Sixty-two cents ($3,954.62), payable for the period 14 July 2014 until the re-opening of the formation, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

CATCHWORDS:

EVIDENCE – exhibits – historical evidence – road tenure history – factual background evidence not in dispute – tracks/roads – surveyor reports – unchallenged – neither expert surveyor being called to give evidence  – not required for cross examination  – topographical charts –  aerial photograph – cadastral boundaries – uncommon occurrence – cattle tracks – computer aided drafting –  inherently inconsistent evidence

MINING LEASE – right to have compensation reviewed if change in circumstances - compensation to owner – determination or agreement under s 279 MRA –  s 283B MRA

MINING LEASE – assessment – s 283B MRA – damage – injury or loss - road – loss of access by applicant due to mining activities by Respondent – MRA authority –  compensation agreement – review of compensation –  jurisdictional facts – change of circumstances

ROADS AND ACCESS – legal status – formation - dedication - notification - declaration – common law position - public right of way – Fourmile v Selpham Pty Ltd – public user – local authority maintenance  – Local Government Act 1974 – definitions s 93 Land Act1994 – s 59 Local Government Act 1989 – control of roads – s 60 Local Government Act 1989 – right of access – s 276 MRA-interference with road – s 404E MRA

MINING LEASE – compensation and agreements – which applicable – s 286 (2) MRA – nature and terms of agreement – material change in circumstances – takes effect - filing and stamping of agreement – s 282 MRA –  no grant of lease until agreement or Land Court determination – s 283A MRA – original lease – renewal - lack of agreement Benny v Vella – original agreement remains in force – operative date

MINING LEASE – compensation and assessment of elements - amendment of original compensation – additional 10% amount s 281(4)(e) MRA applies to amendment – valuation evidence – quantification – vehicle and travel –  ATO and RACQ rates – loss of income - additional expenses – associated assumptions – owners time – accepted rate – Gregcarbil Pty Ltd v Backus & Ors (No.4)- Richardson & Ors v Wharley & Ors – loss of income –  stock sales – missed sale and loss suffered – loss of income – camping and lost bookings – additional expenses and doubling up of claim

MINING LEASE – compensation – extended jurisdiction s 363 MRA – formation area is road for private use – right of access stopped – s 283B triggered – entitlement to damages pursuant to s 363 MRA – damages assessed identical to s 283B assessment save for 10% – s 281(4)(e) MRA

Mineral Resources Act 1989

Local Government Act 1974

Land Act 1994

Benney v Vella [2003] QLRT 80

Birla Mt Gordon Pty Ltd v Calton Hills Pty Ltd [2015] QLC 2

Chant v Ticknell & Ors [2015] QLC 3

ERO Georgetown Gold Operations Pty ltd v Cripps, Minister for Natural Resources and Mines & Anor [2015] QSC 1

Fourmile v Selpam Pty Ltd & Anor (1998) 152 ALR 294

Gregcarbil Pty Ltd v Backus & Ors (No.4) (2013) QLCR 458

Hicks & Anor v Graham & Anor [2004] QLRT 47

President and c of the Shire of Narracan v Leviston (1906) 6 CLR 846

Richardson & Ors v Wharley & Ors [2015] QLC 6

Turner v Walsh (1881) 6 AC 636

APPEARANCES:

Mr EJ Morzone of Counsel for the applicant

Mr SR Grant of Counsel for the respondent

SOLICITORS:

Emanate Legal for the applicant

Miller Harris for the respondent

The Application

  1. [1]
    By his further amended Third Amended Originating Application,[1] the applicant, Thomas Peter Henry (“Henry”) seeks the following orders and relief against the respondent, ERO Georgetown Gold Operations Pty Ltd ACN 104 826 959 (“ERO”):

“13. The Applicant seeks the following Orders

 e. Determination under Section 283B of the MRA for a review of compensation by the Land Court where compensation has been agreed under section 279 of the MRA for a ML (the original compensation) and there has, since the agreement or determination, been a material change in circumstances for the ML; and

 f. An assessment of compensation under Section 279 of the MRA for all compensatable effects and consequential damages as a result of the material change of circumstances of the ML; and

 g. The Compensation Agreements dated 24 November 2002 and 23 March 2012 be set aside; and

 h. The First Respondent and the Applicant enter into new Compensation Agreements.

 i. Such further or other Order as the Court deems fit.

 j. An assessment pursuant to section 363 of the MRA of damage, injury or loss arising from the loss of access to Flat Creek Station by the Applicant via Flat Creek Road (as formed and maintained) as a result of the mining activities and operations purported to have been carried out by the Respondent under the authority of the MRA.”

  1. [2]
    Henry’s application is opposed by ERO.

Background

  1. [3]
    The application relates to Mining Lease (ML) 30124. ML 30124 is held by ERO and covers land on two pastoral holdings, known as Delaney Holding, which lies to the North, and Flat Creek Station, which lies to the south. Flat Creek is owned by Henry.
  2. [4]
    In addition to the two pastoral holdings, ML 30124 also covers part of a surveyed road located on Delaney Holding. Further, a formed and maintained Council “road” (the formation) is located on both Delaney Holding and Flat Creek Station as well as ML 30124. However, at least as far as the land contained within ML 30124 is concerned, the formation and the surveyed road do not overlap in that part of Delaney Holding.
  3. [5]
    The dispute is centred on the status of the formation and the surveyed road, and certain compensation agreements entered into. The question, in short, is whether ERO was entitled to bar access to the formation within ML 30124, and whether those circumstances give rise to a claim of compensation by Henry, as either a material change of circumstances under s 283B of the Mineral Resources Act 1989 (the MRA), or as a claim under s 363 of the MRA.
  4. [6]
    Fortunately, most of the factual background evidence is not in dispute. The exception is whether tracks on Flat Creek Station and Delaney Holding are historically mining access tracks, pastoral access tracks, or public tracks, and whether those tracks became, as a matter of fact, the formation.
  5. [7]
    In my view, it is only possible to understand the history of the formation, and settle the dispute as to the origin of the tracks, by an in-depth analysis of the historical evidence.
  6. [8]
    Further, to put the historical evidence into some sort of context, it is also necessary to understand the tenure history of ML 30124.

Tenure History of ML 30124

  1. [9]
    There can be little doubt that ML 30124 is within an area that has been known as gold producing for many years. In this regard, Ex 18 tells the story of MacDonald Town, which was surveyed in 1896 following the discovery of gold. MacDonald Town, now abandoned, lies generally to the west of ML 30124, and slightly to the south.
  2. [10]
    Exhibit 25 includes a large, historical map from the Department of Mines dated 1983 which shows a mining field surrounding MacDonald Town. The evidence makes it clear that the southern part of ML 30124 extends into the north-east part of the MacDonald Town mining field.
  3. [11]
    Exhibit 24, and part of Ex 18, shows plans of MacDonald Town. The plans depict various tracks/roads leading to and from MacDonald Town. Importantly, for reasons which will become obvious later in this decision, one of these tracks/roads leaves from the northern side of MacDonald Town and proceeds in an east/north easterly direction “to Georgetown”.
  4. [12]
    As Ex 7 shows, Mr Stuart Smith (who would become the first holder of ML 30124) and Mrs Anna Smith first came to the general vicinity of ML 30124 in 1986. Part of the land that was to become ML 30124 was then ML 3411.
  5. [13]
    After holding various mining tenures, Mr Stuart Smith applied for ML 30074 in January 1992. ML 30074 was over the previous ML 3411. Due to a consent issue, Mr Stuart Smith was required to split ML 30074 into three mining leases, being a smaller ML 30074, ML 30076 and ML 30082. These MLs were subsequently granted.
  6. [14]
    On 11 November 1993, as Ex 4 reveals, Mr Stuart Smith lodged an application to consolidate MLs 30074, 30076 and 30082. The amalgamated ML became ML 30124, which commenced on 1 May 1994 with an expiry on 31 October 2002.
  7. [15]
    ML 30124 was subsequently renewed for a term from 1 November 2002 to 30 April 2011.
  8. [16]
    A further application to renew ML 30124 was lodged on 1 November 2010 and was granted on 29 May 2014 subject to certain conditions, including a condition relating to the formation. The renewal decision was subject to a Judicial Review application by ERO, which was dismissed by the Supreme Court.[2]
  9. [17]
    The Mining Lease Report shows Mr Stuart Smith as the holder of ML 30124 from initial grant until 24 September 2003, when the tenure was transferred to Douglas Resources Pty Ltd. As Ex 36 shows, Douglas Resources Pty Ltd changed its name to ERO on 25 June 2009, with the new name ERO appearing on the Mining Lease Report on 1 July 2009.
  10. [18]
    ML 30124 is quite extensive in size. On the diagram below, it can be seen to commence in two branches at its north easterly extremity (this is on Delaney Holding) which then join together just north of the property boundary (Flat Creek Station is to the south). It then meanders in a general south westerly/westerly direction through the northern part of Flat Creek Station, with another branch heading northerly back into Delaney Holding from about the midpoint of ML 30124. The ML continues in a generally westerly direction over the northern part of Flat Creek Station until it again enters Delaney Station at its western extremity. The area of concern for this matter is that part of ML 30124 which lies in the north-east. The following plan of ML 30124 has been taken from Ex 1:

Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13

History of roads in and around ML 30412, including roads open to the public, the surveyed road and the formation

  1. [19]
    In compiling this history, I am heavily reliant on Ex 32, which is itself quite reliant on Ex 30, which are expert surveyor reports. The reports are unchallenged, with neither expert surveyor being called to give evidence.
  2. [20]
    I wish to place it on record that much of this history is extracted from Ex 32.
  3. [21]
    The surveyed road on Delaney Holding dates back to 1919, when both the boundaries of the surveyed road and Delaney Holding were surveyed by Surveyor Shield.
  4. [22]
    An examination of plan GB 32, and the field notes of Surveyor Shield, both of which are contained within Ex 32, show that Surveyor Shield traversed a track and surveyed and marked the boundaries of a road centred about this track. His traverse is shown extending into what is now Flat Creek Station, by in excess of half a mile.
  5. [23]
    This would appear to be consistent with the tracks marked on Exs 14, 25 and 38, which appear to show, amongst other things, a track extending from the Georgetown Forsayth Road through Delaney Holding, terminating at approximately the point where the gazetted road begins, and then resuming at about the point where the gazetted road ends on the boundary between Delaney Holding and Flat Creek Station, then extending through to MacDonald Town.
  6. [24]
    In my opinion, this is clearly consistent with Exhibits 18 and 24 which show a track/road extending from the northern part of MacDonald Town in an east north easterly direction “to Georgetown”.
  7. [25]
    Topographic maps 7561 and 7661, also contained within Ex 32, published from 1972 photography, depict a vehicular track in a similar but not exact position to the present formation where it departs Georgetown Forsayth Road and heads towards Delaney Holding. The track that Surveyor Shield traversed to survey the boundaries of the gazetted road is not shown on the topographical charts. As Registered Surveyor Kerry Smith points out in Ex 32, this is not to suggest that it was no longer existent but it could have become indistinguishable from cattle tracks.
  8. [26]
    The application for ML 30076, referred to earlier, dated 10 March 1992, is contained both within Ex 32 and is Ex 39. The last page of Ex 39 is a map which shows a road marked as Mt Mcdonald Road extending from Western Creek Road, through what is now known as ML 30124, and continuing on to “Mt McDonald”. I have no doubt that the “Mt McDonald” referred to in Ex 39 is one and the same as the Mt McDonald pinnacle depicted on Ex 24 and located in close proximity to MacDonald Town.
  9. [27]
    I agree with Surveyor Kerry Smith’s conclusion that the track traversed by Surveyor Shield when he undertook his survey in 1919 was the forerunner of the Mt Mcdonald Road depicted on Ex 39. It is also consistent with the depiction of a road travelling from MacDonald Town to Georgetown shown on Ex 24.
  10. [28]
    Surveyor Kerry Smith has also closely examined an aerial photograph of the vicinity from 1972. This aerial photograph is also contained within Ex 32. The aerial photograph was examined by Surveyor Smith with the aid of a magnifying glass and Computer Aided Drafting package. Surveyor Smith found traces of what could potentially have been vehicular tracks intermittently, although he could not state with certainty that there was a track present at that time in that area.
  11. [29]
    The next aerial photograph, also contained within Ex 32, is dated 22 May 1998. Surveyor Smith overlaid the cadastral boundaries onto the aerial image. The existence of a formation travelling through Rose Glen and then into Delaney Holding, where it is partially within the surveyed road and partly outside of it and into Flat Creek Station, is clearly visible to Surveyor Smith. This formation correlates highly with the position of the formation visible in current google earth imagery and in Surveyor Smith’s opinion it would be fair to conclude that the location of the formation in 1998 is coincident with its present location.
  12. [30]
    The next and final series of aerial photography[3] is dated 7 August 2002. The cadastral boundaries have been overlayed onto a second copy of the imagery. The existence of a formation through Rose Glen Holding and Delaney Holding, partly within the surveyed road and partly outside of it and into Flat Creek Station, is again clearly visible. This formation correlates highly with the position of the formation visible in current google earth imagery and it would be fair to conclude, in Surveyor Smith’s opinion, that the location of the formation in 2002 is coincident with its present location. Further in Surveyor Smith’s view, an advantage of this frame is that with the exposure at a high altitude, it covers a wide area, and the full length of the formation, from the Georgetown-Forsayth Highway to Flat Creek Holding’s northern boundary is visible. It can been seen that the formation over this length lies extensively outside of any gazetted road, surveyed and unsurveyed.
  13. [31]
    As Surveyor Smith points out in Ex 32, it is not an uncommon occurrence in rural areas for local authority road formations to be outside of a gazetted corridor. After giving an example of another road falling outside of a gazetted road, Surveyor Smith goes on to state that “it can be said unequivocally that this is not an uncommon occurrence in rural Queensland”.[4]
  14. [32]
    After considering various affidavits put into evidence in this matter including correspondence passing between the local authority and ERO, Surveyor Smith drew the following conclusion:[5]

“The sketch plan appended to the application for ML 30076 at item 12 and the recollections of all three sources from items 18 to 22, suggest that the formation whether it started out as a bush track for graziers to gain access to town, or as track for miners, it has become a substantial thoroughfare by Council’s maintenance and improvement. The evidence in the form of an affidavit from Henry that he and his family and the public have accessed Georgetown via this way since the 1970s, acknowledgement in a letter from ERO that Council has graded the road since the mid-1990s, and acknowledgement from the Council that it the custodian of it and has maintained it before the Mining Lease was granted in the early 1990s, suggested that it has been used for a substantial period of time by the public.”

  1. [33]
    The evidence referred to by Surveyor Smith, read with the evidence set out in Ex 24 and Exs 14, 25 and 38, clearly support, in my view, his conclusion. Again, it must be borne in mind that Surveyor Smith’s evidence in this regard and, in particular, his conclusions, were unchallenged, he not being required for cross-examination.
  2. [34]
    The evidence supports the conclusion that the formation in and around ML 30124 traverses a route more or less consistent with the original track/road from MacDonald town to Georgetown in the 1890’s, which is also consistent with the track followed by Surveyor Shield through Delaney Holding and into Flat Creek Station in 1919. It is around this track that the survey occurred. The evidence supports the conclusion that this is the same track used by Henry since the 1970’s, and also used by various miners.
  3. [35]
    To be completely clear, I have no doubt that the track/formation has wandered from its original course over the past 120 years. This is to be expected in circumstances where formations commence as nothing more than a track through the bush, and get developed, surveyed, and/or left idle, over time. I find that the track travelled on by Surveyor Shield in 1919 traversed the surveyed road, but that the track meandered over time to its present location, being that of the formation, quite close to, but outside of, the surveyed road in and around ML 30124. The surveyed situation on and around ML 30124 is clearly depicted on Survey Plan IS 248291 prepared by Surveyor Lane and set out at pages 10 and 17 of Ex 30, and copied in Ex 32. The formation is the double dash line marked “Gravel Road”. Diagram D on the second sheet of the plan clearly shows the location of the northern fence erected across the formation by ERO.
  1. [36]
    Diagram E shows the closest point between the formation and the surveyed road, which when measured is about 3 mm. Applying the scale of 1:2000 applicable to this diagram, this equates to a distance of 6000 mm which is 6 m. A distance of 6 m between the formation and the gazetted road is consistent with what was observed on the site inspection.
  2. [37]
    Plan IS 248291 is as follows:

Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13

Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13

  1. [38]
    Both Mrs Anna Smith and Henry gave evidence regarding tracks and the formation. I find both Mrs Anna Smith and Henry to be essentially truthful witnesses.
  2. [39]
    Turning firstly to the evidence of Mrs Anna Smith, I have no doubt that the formation (more or less in its current position) was being graded and maintained by various miners in the 1980’s. However, her conclusion that this made the formation a miners’ access track and something which members of the public could only travel on with the permission of the miners is not correct. On the evidence, a public track to MacDonald Town had existed through this area for over 80 years preceding Mrs Smith’s arrival.
  3. [40]
    Likewise, there is nothing in Henry’s evidence as to his use of the formation/track since the 1970’s, and his (and his family’s) upkeep of the track, followed by upkeep by the local authority, which makes his evidence inherently inconsistent with the evidence of Mrs Smith.
  4. [41]
    Quite simply, over the last 120 years, the formation/track has been used and maintained by miners and pastoralists from time to time, with some considerable passages of time occurring when the formation/track was used sparingly or not at all, causing it to become overgrown and only accessible by 4WD ‘bush bashing’. Further, since at least 1896 the formation/track has been used by the public to travel from Georgetown to MacDonald Town, and since the early 1990’s the formation has been maintained for public use by the local authority to a good standard.
  5. [42]
    It is of course one thing for the formation to have been used, at least intermittently, by the public since 1896, and by Henry since the 1970’s, and potentially quite another to be a “right of access had by any person” for the purposes of s 276(d) of the MRA, or a “road” for the purposes of s 404E of the MRA.

Legal Status of the Formation

  1. [43]
    A good starting point as to what constitutes a road in Queensland is to be found in BOGE, Queensland State Lands Handbook, Vol 2,[6] where update 12 had this to say at [12.60]:[7]

“[12.60] …

Any dedication, notification or declaration of the area of land as a ‘road for public use’ will, unless there is an added requirement specified by statute, create the road. Nothing further needs to be done (see, eg, S 94(2) of the LA). Unlike the common law, there is no need where a dedication is made under statute for the public to accept the dedication (Bass Coast Shire Council v King [1997] 2 VR5; Permanent Trustee Co of NSW Ltd v Campbelltown Municipality Council (1960) 105 CLR 401).

Whether a road under the LA is a road under another Act, for example, the TIA or the LGA, depends on the provisions of the Act concerned. Under the TIA and the LGA, a road includes an area of land dedicated as a road as well as an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles (sch 6 TIA; sch LGA). Land that is dedicated as a road is, therefore, a road under the LA, TIA and the LGA (and the Transport Operations (Road Use Management) Act 1995). However, land that is merely opened to or used by the public (and is developed for, or has as one of its main uses, the driving or riding of motor vehicles) might not be a road under the LA. …”

  1. [44]
    Mr Morzone, in his written submissions, contends at paragraph 10 that the formation is a public right of way at common law in existence before the commencement of the Local Government Act 1974. Mr Morzone goes on to assert that an implied dedication may be inferred including long continued use of a way by the public.
  2. [45]
    Turner v Walsh[8] and President and c of the Shire of Narracan v Leviston[9] are cited by Mr Morzone as authorities in support of the proposition that long continued use of a way by the public may amount to an implied dedication. However, the facts of this case do not necessarily meet that test. The evidence at best from 1896 to the 1970’s is one of limited use, with a clear inference of periods of disuse during which time the formation became overgrown. On the evidence, continued use by the public can possibly be established from 1896 until at least 1919, and more directly from the 1970’s (particularly when miners and pastoralists are included in the broad term ‘public’) and certainly from such time as the road formation was maintained by Council.
  3. [46]
    As Drummond J said in Fourmile v Selpam Pty Ltd & Anor[10] at page 311:

“If the public has the requisite right of passage over the land, it is a highway even though passage is difficult:  see Halsbury’s Laws of Australia, vol 14, para 225-565. There was, in any event, evidence before the tribunal to which I have referred from which public user of the road as such can be inferred. This (if it were required) could well be sufficient evidence of user to show acceptance required at common law, if the area through which this road runs is as isolated as the evidence suggests it may be:  cf Attorney-General v City Bank of Sydney (1920) 20 SR(NSW) 216 at 220; Commissioner for Railways v Dangar at 104.”

  1. [47]
    At this juncture, it is appropriate to turn to the definition of ‘road’ under the Land Act 1994 (Land Act).
  2. [48]
    Section 93 of the Land Act provides as follows:

“93 Meaning of road

  1. (1)
    A road means an area of land, whether surveyed or unsurveyed—
  1. (a)
    dedicated, notified or declared to be a road for public use; or
  1. (b)
    taken under an Act, for the purpose of a road for public use.
  1. (2)
    The term includes—
  1. (a)
    a street, esplanade, reserve for esplanade, highway, pathway, thoroughfare, track or stock route; and
  1. (b)
    a bridge, causeway, culvert or other works in, on, over or under a road; and
  1. (c)
    any part of a road.”
  1. [49]
    What constitutes the dedication of a road is set out in s 94 of the Land Act. There is nothing in the evidence to show that the formation, in the vicinity of ML 30124 where it lies outside the surveyed road, has of itself been dedicated for the purposes of s 94.
  2. [50]
    In my view, given the evidence in this matter which relates specifically to the closure of the formation by ERO, it may not be necessary for me to determine the status of the surveyed road. However, I observe that it appears, given the comments by Drummond J in Fourmile at pages 306-10, that the surveyed road is a dedicated road for the purposes of s 94 of the Land Act.
  3. [51]
    Further, this means that the track/formation was originally a dedicated road from at least 1919, but that the dedicated road has wandered off the dedicated road over time, particularly in the area of the north-east part of ML 30124. It is a moot point whether the formation by meandering off the surveyed area of the road remains a ‘dedicated road’ for the purposes of ss 93 and 94 of the Land Act.
  4. [52]
    Turning to the next question:  is the formation ‘an area of land … taken under an Act, for the purposes of a road for public use’? The answer can be found in ss 59 and 60 of the Local Government Act 2009 (LG Act).
  5. [53]
    Section 59 of the LGA Act provides as follows:

“59 What this division is about

  1. (1)
    This division is about roads.
  1. (2)
    A road is—
  1. (a)
    an area of land that is dedicated to public use as a road;

or

  1. (b)
    an area of land that—
  1. (i)
    is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; and
  1. (ii)
    is open to, or used by, the public; or
  1. (c)
    a footpath or bicycle path; or
  1. (d)
    a bridge, culvert, ford, tunnel or viaduct.
  1. (3)
    However, a road does not include—
  1. (a)
    a State-controlled road; or
  1. (b)
    a public thoroughfare easement.”
  1. [54]
    Clearly, for the reasons already shown, the formation was a ‘dedicated’ road which has wandered off survey. However, does the formation meet the other requirements of s 59?
  2. [55]
    In my view, given my findings on the facts, the formation is an area of land that is developed for, or has as one of its main uses, the driving or riding of motor vehicles.
  3. [56]
    It is also my view that the formation is used by the public for the reasons already expressed.
  4. [57]
    Taking into account the quote from Fourmile already set out in this decision, I am also satisfied that the formation is open to the public due to its common law status.
  5. [58]
    Accordingly, it is my view that the formation is a road for the purposes of s 59 of the LG Act.
  6. [59]
    This finding with respect to s 60 is important, as s 60 of the LG Act supports the works that the local authority has undertaken on the formation. Section 60 relevantly provides that:

“60 Control of roads

  1. (1)
    A local government has control of all roads in its local government area.
  1. (2)
    This control includes being able to—

…

  1. (b)
    construct, maintain and improve roads; and

…

  1. (f)
    make a local law to regulate the construction, maintenance and use of—
  1. (i)
    public utilities along, in, over or under roads; and
  1. (ii)
    ancillary works and encroachments along, in, over or under roads; and

…”

Relevant MRA provisions regarding the words ‘right of access’ and ‘road’

  1. [60]
    Section 276(1)(d) currently provides, and provided at the time of the obstruction of the formation by ERO, that:

“276 General conditions of mining lease

  1. (1)
    Each mining lease shall be subject to—

…

  1. (d)
    a condition that without the prior approval of the Minister the holder shall not obstruct or interfere with any right of access had by any person in respect of the area of the mining lease;”
  1. [61]
    For completeness, s 276(1)(d) of the MRA above is in similar terms to what the MRA provided in then s 7.33(1)(f) at the time of the original grant of ML 30124. The then s 7.33(1)(f) provided that:

“7.33 Conditions of mining lease.  (1) Each mining lease shall be subject to―

…

  1. (f)
    a condition that without the prior approval of the Minister the holder shall not obstruct or interfere with any right of access had by any person in respect of land the subject of the mining lease;”
  1. [62]
    I am satisfied that the fact that the formation is a road for the purposes of the LG Act means that, without prior Ministerial approval, ERO could not obstruct or interfere with the right of access of the public to the formation.
  2. [63]
    Mr Grant for ERO has made submissions as to the dire consequences to the mining industry in Queensland that any such finding would make. Mr Grant submitted at paragraphs 101-103 of his written submissions as follows:

“[101] Finally, the Respondent also highlights that there are a number of serious public policy considerations to be made as part of the Court’s deliberation as to whether the evidence before the Court is sufficient to establish the miner’s access track has become a public road at common law.

[102] First, all miners, especially those with long term leases, would be forced to fence all tracks within the area of their lease to ensure that a public road was not created across their lease by people using an access track. Where people went around such fences, the miner would necessarily extend the fence, if not ultimately fence the entire area of the lease;

[103] Second, miners would need to register all their mining vehicles, as an access track used by a land holder and their invitees would possibly be classed a ‘public road’ – Mosely v Atherton & Ors [2005] QDC 008.”

  1. [64]
    I reject those submissions. Firstly, the factual history surrounding the formation is vastly different to that of a MRA access to a ML. If there was already a right of access existing across a ML, the MRA access would make no difference. However, the converse does not apply. A MRA access of itself does not give rise to any additional rights of access for another person. As the long history of the formation/track shows, much more is required. This aspect appears to be founded on the assumption, which I have rejected, that the formation only came into existence as an access way for various miners. It was of course more than that. From 1896, it was part of a public thoroughfare from MacDonald Town to Georgetown.
  2. [65]
    I also reject the submission regarding the necessity to register all mining vehicles. Interaction of mining vehicles and public roads requiring vehicular registration, in my experience, is an issue which the mining industry has successfully dealt with, if and when it arises, for many decades. As I have not had detailed submissions on this point, and as the point is, in reality, of little if any relevance in the circumstances of this matter, it is unnecessary for me to consider it further.
  3. [66]
    I now turn to consider s 404E(1) of the MRA, which provides that:

“404E Interference with road

  1. (1)
    A person must not perform a mining activity in a way that obstructs a road, unless the mining activity is expressly authorised under a mining tenement.

Maximum penalty—200 penalty units.”

  1. [67]
    Schedule 2 of the MRA provides that the term ‘road’ has the meaning given by the Land Act.
  2. [68]
    As already stated, in the vicinity of ML 30124, the formation is a public road that has wandered off its surveyed area, and it is a moot point whether the formation can therefore properly be classified as a ‘road’ for the purposes of the Land Act, which also means that it is a moot point whether the formation is a road for the purposes of s 404E(1) of the MRA.
  3. [69]
    On balance, and in particular as the road is open to the public and is meant to be on a surveyed area of road, the Land Act would apply. However, as s 404E(1) deals with the issues of the enforcement of a provisions where a breach is punishable by penalty units, it is not a matter for the jurisdiction of this Court.

Does the breach of s 276 (1)(d) of the MRA (or the previous s 7.33(1)(f)) by ERO amount to a material change in circumstances for ML 30124?

  1. [70]
    A core element of Henry’s claim for compensation is that there has been a material change in circumstances for ML 30124, thus triggering s 283B of the MRA. Section 283B of the MRA provides as follows:

“283B Review of compensation by Land Court

  1. (1)
    This section applies if—
  1. (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
  1. (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

  1. (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.
  1. (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).
  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.
  1. (5)
    However, before making the decision, the Land Court must have regard to—
  1. (a)
    the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and
  1. (b)
    whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and
  1. (c)
    any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined.
  1. (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.”
  1. [71]
    Kingham DP (as she then was) considered the operation of this section in the case of Hicks & Anor v Graham & Anor.[11] Her Honour had this to say:[12]

“[34] Section 283B only applies if compensation has been agreed or determined under the MRA and, subsequently, there has been a material change in circumstances for the mining lease.  If those facts are established, an application can be made to the Tribunal to review compensation.  They are jurisdictional facts that must exist for the Tribunal “to properly exercise its jurisdiction” (Black’s Law Dictionary  7th ed).  The powers invested in the Tribunal by the section are only conferred if the section applies.

[35] Once jurisdiction is conferred, the Tribunal must consider the matters relevant to determining compensation under the MRA and any change to those matters since compensation was agreed or determined.  Having had regard to those matters, the Tribunal has the discretion to confirm the original compensation or to amend it.

[36] Given those two stages of enquiry, I consider the proper interpretation is that the material change required to found jurisdiction is a change that is pertinent to what compensation should be awarded, not a change that is of substantial import to the compensation that should be awarded.  If a pertinent change has been established, the Tribunal has the opportunity to consider whether it is of such significance that any amendment to the original compensation is justified.

[37] The statutory example given of a material change in circumstances reinforces my view that this is the proper interpretation.  The change given in the example is a change in mining method “that changes the impact of mining operations under the lease”.  It is significant that the example given is of a change in impact not how substantial that change is.  Whilst a statutory example cannot limit the meaning of the section, nor is it exhaustive, the section and the example are to be read in the context of each other. (Acts Interpretation Act 1954 s 14D)   It is consistent with the example given to interpret “material” to mean “pertinent to”.

Is the change to the conditions in this case material?

[38] I consider a change to the condition that defines the area of land that can be disturbed is a material change in the sense that it is pertinent to the compensation that should be paid for the mining lease.  In certain cases the area of land that can be disturbed may be relevant to all the matters the landowner must be compensated for under s. 281(3) MRA; and, in all cases, it is relevant to compensation for deprivation of possession of surface land, diminution of the value of land and diminution of the use that may be made of the land (s. 281(3)(a)(i)(ii)&(iii)).”

  1. [72]
    I agree with the observations of Kingham DP.[13] The Land Court must clearly be satisfied of the existence of two jurisdictional facts as a pre-requisite to s 283B being operational; they being the existence of a compensation agreement or determination of compensation agreement or determination of compensation, and a material change in circumstances for the mining lease.
  2. [73]
    The first jurisdictional fact is easily dealt with. Henry and ERO have entered into two compensation agreements for ML 30124, being the 2002 agreement (between Henry and the previous owner of ML 30124, Mr Stuart Smith), and the 2012 compensation agreement.
  3. [74]
    There is dispute between the parties as to which compensation agreement applies. I will deal with that dispute, to the extent it is necessary to do so, later in these reasons. The important jurisdiction point however is that there is a compensation agreement, be it the 2002 agreement or the 2012 agreement.
  4. [75]
    I now turn to the second jurisdictional fact, which is; has there been a material change in circumstances for the ML? In my view, both Henry and ERO have missed the mark somewhat in their assessment as to whether there has been a material change in circumstances for ML 30124, particularly in light of the findings that I have made as regards the formation.
  5. [76]
    Mr Morzone for Henry approaches the question two ways, arguing that obstructing and mining the formation may actually comprise an unlawful interference with a public right of way not authorised by the ML which would give rise to a claim under s 363 of the MRA (the alternate claim of Henry). In these circumstances, Mr Morzone is of the view that such circumstances “may not constitute a ‘material change in circumstances for the mining lease’”.[14]
  6. [77]
    Alternatively, Mr Morzone submits that if the formation is not a road for the purposes of the Land Act, the respondent’s obstruction and mining of the formed road “clearly constituted a material change in circumstances for a mining lease under both the 2002 compensation agreement and the 2012 compensation agreement”.[15]
  7. [78]
    Mr Grant for ERO considers this issue at paragraphs 27 to 56 of his submissions. In short, such submissions are focused on the point that ERO had a legal right, under the terms of ML 30124, to mine the entirety of the ML, including the formation. Further, Mr Grant points to evidence from Henry which strongly suggests that Henry was aware of the intention of ERO to mine the formation at the time of entering into the 2012 compensation agreement.
  8. [79]
    The determining factor on this point is the interference by ERO with Henry’s right of access. In my view, ERO had two options before it, should it wish to mine any part of the formation. Firstly, ERO could have sought the prior approval of the Minister to obstruct or interfere with Henry’s (and the public’s) right of access in accordance with the general condition of ML 30124 as set out in s 276(1)(d) of the MRA. For completeness, had such Ministerial consent been forth coming, that would constitute a material change in circumstance for the ML. However, in this case, ERO did not seek to obtain prior Ministerial approval.
  9. [80]
    The other option which ERO had should it wish to mine the formation was to provide an alternate right of access for Henry (and the public) while the formation was being mined. Logically, the alternate right of access would of necessity be provided by ERO within the boundaries of ML 30124. I must stress that any such alternate access still would not preclude ERO from mining all available land contained within ML 30124. It would simply be a matter of mine programming by ERO to either mine the formation whilst providing alternative access, then rehabilitate the formation back to its pre-mining condition and then mine the alternate access, or vice versa.
  10. [81]
    In short, in my view the failure by ERO to provide an alternate right of access for Henry (and the public) represents a material change in circumstances for ML 30124.
  11. [82]
    Having found that there is a material change in circumstances for ML 30124, it is now necessary to turn to the remaining provisions of s 283B and decide whether to confirm the original compensation or amend same. In order to properly consider this topic, it is necessary to determine which compensation agreement applies.

Which compensation agreement applies?

  1. [83]
    Henry contends that the 2002 compensation agreement applies, at least up until 29 May 2014 when the renewal application was granted. He relies upon s 286C of the MRA which deals with the circumstances, present here, where a renewal application is still being dealt with after the date that the previous term was to end.
  2. [84]
    Section 286C(2) provides as follows:
  1. (2)
    The lease continues in force subject to the rights, entitlements and obligations in effect immediately before the end of the expiry date until the application is withdrawn, refused or granted.
  1. [85]
    Mr Morzone submits that s 286C(2) should be construed to include compensation obligations, which he says is the clear intent of the provision.
  2. [86]
    Further, Mr Morzone says that for the period during which the 2012 compensation agreement applies, the facts still support a material change in circumstances triggering a right to seek a review of compensation under s 283B.
  3. [87]
    Mr Grant for ERO contends that the 2012 compensation agreement applies, based on both the wording of the 2012 agreement, and the provisions of the MRA.
  4. [88]
    As regards the wording of the 2012 agreement, Mr Grant notes that:[16]

“a) pursuant to clause 2.1, the Agreement commences on the ‘Commencement Date’. The term ‘Commencement Date’ is defined in cl 5.1 as being the date the last party signed. This was 23 March 2012;

b) pursuant to clause 2.2, the Agreement operates until the mining lease which is yet to be renewed at the date of the Agreement (pursuant to Recital A) is surrendered or cancelled; and

c) pursuant to clause 4.9, the Agreement supersedes and excludes any prior agreement.”

  1. [89]
    There is clear tension between the provisions of the MRA and the wording of 2012 compensation agreement in particular.
  2. [90]
    As Mr Grant has submitted, the commencement date per clause 2.1 of the 2012 Agreement is 23 March 2012. However, s 280(2)(b) of the MRA states that a compensation agreement ‘shall not be effective unless and until … it is filed’. Although there is no evidence as to when the compensation agreement was filed, it was clearly some time on or after 23 April 2012 (the date it was stamped) as in accordance with s 280(3) it cannot be filed until it is stamped (assuming it is required to be stamped).
  3. [91]
    It is appropriate at this juncture to consider the compensation agreement process for MLs as set out in the MRA, and as discussed in various authorities.
  4. [92]
    When an initial application is made for a ML, the ML cannot be granted until a compensation agreement has been filed or a compensation determination is made by the Land Court.[17] Unless there is an amendment to the compensation agreement or determination,[18] the compensation as agreed or determined remains in place for the initial term of the ML. the term of the ML must not be longer than the period for which compensation has been agreed or determined.[19]
  1. [93]
    If a miner chooses to renew a ML, the miner has to make application for the renewal of the ML normally in the period between one year and six months before the initial lease expires.[20] Compensation is to be agreed or determined before the renewal of the ML.[21]
  2. [94]
    If compensation has not been agreed or determined as at the expiry date of the initial lease, the initial lease continues in force until the renewal is withdrawn, refused or granted.[22] The term of a renewed lease begins on the day after the expiry day of the initial lease even if the renewal is not approved until sometime after the expiry day.[23]
  3. [95]
    If a renewed lease is subject to new conditions, the new conditions apply for the later of either the start of the term of the renewed ML or the day the renewal is granted.[24] Rental must be paid on the renewed lease from the day after the expiry day of the initial lease.[25]
  4. [96]
    The same provisions of the MRA apply for a further renewal of a ML as apply for a renewal.
  5. [97]
    What is not clear from the legislation is at what point compensation becomes payable for the renewal of a mining lease. What is clearly however the intention of the legislature is that compensation is to be paid by the miner to affected landholders for the entire term of an initial ML and for the entire term of any renewal (unless of course the ML is abandoned earlier than the end of the term).
  6. [98]
    Caselaw gives some insight into the operation of the MRA regarding compensation to landholders. Benney v Vella[26] concerned a matter where a miner made an application within time to renew a ML, and as compensation was not agreed, he continued to mine under the initial ML even though the term of the ML had expired, as the MRA clearly allowed him to do so. Prior to compensation being agreed or determined for the renewal, the miner abandoned the renewal application. This meant that the miner had been able to continue to mine but had paid no compensation after the initial term ended. The landholders sought compensation, but such application was linked to the renewal application.
  7. [99]
    The Land and Resources Tribunal held[27] that the application as made had to fail as the renewal was abandoned, but that:[28]

“[10] … what has in effect occurred in this matter is that the original lease has continued to operate until such time as a renewal takes place.   Therefore, the term of the original lease has been extended in circumstances where the term of a lease is a most important factor to take into account when determining compensation in the first place.   This amounts in my view to a clear change in circumstances for the original mining lease and thus causes s. 283B to operate.

…

[12] I note that either the Miner or the Landholders are entitled to make a new application, in my view, to this Tribunal under s. 283B of the Act for the Tribunal to review the original compensation awarded with respect to this mining lease.”

  1. [100]
    The decision in Benney is clearly consistent with the proposition that the initial compensation agreement remains in force in circumstances where a renewal application is made but not granted as at the end of the initial term because the ‘rights, entitlements and obligations in effect immediately before the end of the expiry day’[29] apply.
  2. [101]
    Applied to the current facts, and leaving to one side the question of the operative date of the 2012 agreement, this would mean that the 2002 agreement remained in force until 29 May 2014 when the renewal was approved. However, on the facts of this matter, the 2012 agreement cannot be left to one side.
  3. [102]
    Having carefully considered all of the provisions of the MRA and various authorities regarding ML renewals, it seems to me that the intent of the legislature is that there should be a compensation agreement or determination in place for each term of a ML, be that the initial term[30] or a renewal[31] or further renewed term.
  4. [103]
    This means that, on the facts of the case at hand, once the renewal is approved (being 29 May 2014) the 2012 compensation agreement would be taken to have effect for the renewed term, being from 1 May 2012 to the date of the expiry of the renewal.
  5. [104]
    The legal fiction that exists can therefore be summarised this way. Immediately before 29 May 2014, the 2002 compensation agreement applied. However, following 29 May 2012, the 2012 agreement is taken to apply from 1 May 2011. Viewed any way, the 2012 agreement has always operated post 29 May 2014.
  6. [105]
    What this therefore means is that once 29 May 2014 was reached, the 2012 agreement then operated for the renewed term of ML 30124. This is the same outcome as sought by Mr Grant for ERO but for different reasons. Importantly, however, on my reading of the terms of both the 2002 and 2012 agreements and the facts of this case, at the end of the day it makes no difference to the outcome of this case which compensation agreement applies.
  7. [106]
    Henry has argued that the 2002 compensation agreement applies clearly because of the provision in that agreement that roads in the area of the mining operation will be maintained in good order. Having heard the evidence of Mrs Anna Smith and Henry, the ‘roads’ referred to include both mining access tracks and roads, like the formation, open to the public.
  8. [107]
    There is no like provision in the 2012 agreement. However, as the MRA clearly states, ML 30124 is subject to a condition that there shall be no obstruction to any right of access held by any person. As I have found, this applies to a public right of access to the formation and a right of access to such formation by Henry.
  9. [108]
    In so finding, I accept the submissions by ERO that Henry was aware at the time of signing the 2012 agreement that the land under the formation within ML 30124 might be mined. This however is not inconsistent with the expectation of Henry, which I find on the evidence, that he believed that he would maintain a right of access through the formation:  that is, that the miner would maintain the public right of access by detouring the formation around any mining operations on the formation.
  10. [109]
    Accordingly, under either the 2002 or 2012 agreements, Henry was operating on the knowledge that his, and the public, right of access along the formation, as it currently exists or as detoured, would remain. The fact that ERO has closed both public access and Henry’s access along the formation is a fundamental change in the circumstances for ML 30124. Therefore, both preconditions to the operations of s 283B of the MRA are met.

Should the original compensation be amended under s 283B of the MRA?

  1. [110]
    Before determining if the compensation should be amended, s 283B(5) requires that the Land Court have regard to the original compensation; whether the applicant has attempted to mediate or negotiate an amended agreement, and any change in matters mentioned in s 283(3) and (4) of the MRA.
  2. [111]
    I have had regard to the 2012 agreement. If I am wrong as to the applicably of the 2012 agreement, I have also had regard to the 2002 agreement. The ultimate outcome, under either agreement, is the same.
  3. [112]
    The applicant has attempted mediation. By Land Court orders dated 11 March 2014, the parties were ordered to private mediation. The mediation did not resolve the matter.
  1. [113]
    I have also had regard to the matters mentioned in s 283(3) and (4) of the MRA. I agree with Mr Morzone[32] that the relevant provisions given the facts are s 283(3)(a)(ii), (iii), (iv) and (vi), and s 281(4)(d) of the MRA. Any change in compensation would also give rise to a change in the additional amount under s 281(4)(e).

Valuation Evidence

  1. [114]
    Both Henry and ERO presented expert valuation evidence to the Court as to the appropriate award of compensation for the review of compensation for the material change in circumstances pursuant to s 283B of the MRA.
  2. [115]
    Mark Harrison was called as an expert valuer by Henry. He provided a report to the Court[33] and also gave oral evidence. From reading his CV[34] and listening to his oral evidence, I have no doubt as to his expertise as a valuer, which was not challenged.
  3. [116]
    By his valuation report, Mr Harrison assesses the reviewed compensation pursuant to s 281 of the MRA as $91,500 plus professional fees and consequential damage. He provided the following compensation summary:[35]

“COMPENSATION SUMMARY

➢
deprivation of possession of its surface $nil
➢
diminution of its value $TBA
➢
severance $nil
➢
loss or expense that arises from los of access to date $81,489
➢
General losses $10,000
  • TOTAL $91,489

Legal, accounting and valuation costs TBA

Total Compensation Assessment

I am of the opinion, subject to the assumptions and qualifications contained within this report, the compensation payable as at 13th July 2014 is as follows :-

$91,500

(Ninety One Thousand Five Hundred Dollars)

Excludes Professional Fees and consequential Damages – to Be advised”

  1. [117]
    Very helpfully, Mr Harrison provided a summary of his view as to the extra costs incurred by Henry due to the closure of the formation, as well as breakdown summary of the sum of $81,849, in the following terms:[36]

“For a period of about 9 months the owners have had;

  • Increased travelling distance of 15 kilometres to and from the propertry.
  • Inferior access due to road condition –
  • Dry weather access only
  • Increased travel time to Georgetown of 1 hour each way
  • Increased travel time of 1 hour each way to Northern Access road to meet supply vehicles
  • Extraordinary wear and tear on vehicles
  • Inability to transport cattle commercially
  • Additional mustering costs

The following are the costs, damages or losses assessed as being compensable under the Act.

1. Extraordinary Manager/Owners Time

 264 hours @$100/hour $26,400

2. Vehicle & Travel Expenses

 4WD 3,732km @$1.80/km $6,717

 Body Truck 500km @ $3.50 $1,750 $2,467

3. Loss of Income

 Stock sales (as per owners advice) $37,010

 Camping (as per owners advice)  $6,156

4. Additional Expenses

 Mustering and handling (as per owners advice) $8,816

 Droving cattle to neighbour’s yards to truck $1,000

Total – Cost, Loss or Damage Arising from Carrying Out of Activities

(excludes professional fees and consequential losses).   $81,849”

  1. [118]
    ERO called Maxwell George Dickinson to give expert valuation evidence. Like Mr Harrison, Mr Dickinson provided a report to the Court[37] and also gave oral evidence. It is also clear from his Expert Witness Statement[38] that Mr Dickinson holds expertise as a valuer, which again was not challenged.
  2. [119]
    Mr Dickinson in his valuation report has considered the allowances made by Mr Harrison and arrived at his own conclusions, which he has summarised as follows:[39]

“I disagree with the claim of $81,849 made by Mr Harrison under the following headings:

  1. Extraordinary Manager/Owners time claim of 264 hours at $100/hour - $26,400

 Based on my above assumptions I suggest the maximum claim is 160 hours at $20/hour - $3,200.

  1. Vehicle and Travel Expenses Claim - $8,467

 Based on the above assumptions I consider the maximum claim is

 4WD – 2,100 km @ 80 cents/km – adopt  $1,700

 Truck – 290 km @ $2/km – adopt  $   600

        $2,300

  1. Loss of Income

 I do not accept loss of stock sales without documented proof. It appears Mr Harrison has assumed a missed sale equates to loss of the total value of the stock. In my opinion any unsold stock are still available for sale at a later date. The cattle market is currently very volatile due to drought conditions across the state and all stock producers face a risk of poor results when offering stock for sale.

 I am unable to confirm losses in income from the camp grounds as not documented evidence has been presented. My inspection confirms the camp grounds appear to be operating to the approved capacity despite the limited road access. No claim under this heading.

  1. Additional Expenses

 I disagree with this claim as all stock producers risk the cost of preparing stock for market especially if whether and market conditions affect the sale process.

My estimate of Total Cost, Loss and Damages - $5,500.

‘Economic Costs’

 I agree with Mr Harrison that economic costs are difficult to quantify and on this basis I disagree with this claim. General fluctuating markets, management and seasonal conditions contribute to the items under this claim. Current access restrictions are not considered to contribute to future costs or losses. – No claim under this heading.”

  1. [120]
    Mr Dickinson’s report is very helpful to the Court in detailing his views on ‘Diminution of Value’; extra distance travelled by Henry; the appropriate rate per hour for owner’s time; and the appropriate rate per km for travel.[40] He also supplied an earlier letter as to land values and compensation agreements.[41]
  2. [121]
    Not surprisingly, Henry says that the Court should accept Mr Harrison’s assessment of compensation as giving support to Henry’s claim for compensation in the sum of “in excess of $123,731” as at 2 July 2015 as detailed in Henry’s second affidavit.[42]
  3. [122]
    ERO makes the primary submission that there should be no increase in the compensation payable as all heads of compensation are adequately covered by the 2012 compensation agreement. In the alternative, ERO submits that any compensation should be limited to the sum of $5,500 as assessed by Mr Dickinson.
  4. [123]
    It is clear from the evidence that Mr Harrison has had the benefit of a full inspection of Flat Creek Station, whilst Mr Dickinson has only had a limited inspection and a relatively brief discussion with Henry. However, as Mr Grant puts it:[43]

“77) In relation to the report of Mr Harrison, with respect the weight which might be attributed to it must be low, as the bulk of the calculations are based not on Mr Harrison’s consideration of contemporaneous records and independent information using his professional skill, but rather is based on information only provided by the Applicant to Mr Harrison or assessed from the Applicant’s affidavit (again with little or no supporting documentation). For example, the Respondent submits the Applicant contends a level of campers unsustainable on the evidence. This has simply been accepted by Mr Harrison.”

  1. [124]
    I am in general agreement with the observations of Mr Grant. Mr Harrison’s evidence as an expert assisting the Court does suffer by his over-reliance on Henry’s evidence, in particular Henry’s two affidavits.[44]
  2. [125]
    However, Mr Dickinson’s expert evidence itself suffers by his underlying assumption that the formation is not a legal access to Flat Creek Station.[45]
  3. [126]
    I will now turn to consider each element of the respective views of the valuers and explain why I prefer one over the other. Further, given the evidence of both valuers and the rest of the evidence in its totality, I reject the submissions of ERO that there should be no award of extra compensation to the 2012 agreement. Henry has clearly suffered additional loss referencable to s 281 of the MRA.

Owner’s time

  1. [127]
    At issue here is whether the owner’s time should be calculated at $20 per hour or $100 per hour, and whether the total hours should be 160 or 264.
  2. [128]
    Mr Dickinson argues for the sum of $20 per hour based on the cost of day labour. I do not agree with his assessment in that regard. Owner’s time is compensation payable for the additional time that an owner is put to, and I see no valid reason why such owner’s time should be reduced to that of day labour.
  3. [129]
    I accept the evidence of Henry that he has incurred additional work hours as an owner because of the closure of the formation.
  4. [130]
    The Land Court has recently considered the value to be attributed to owner’s time in at least two cases, those of Gregcarbil Pty Ltd v Backus & Ors (No.4),[46] and Richardson & Ors v Wharley & Ors.[47] In both cases, the Land Court accepted a rate of $100 per hour as an appropriate amount for owner’s time.[48] These authorities are consistent with Mr Harrison’s expert evidence. I accept the sum of $100 per hour for owner’s time.
  5. [131]
    I now turn to the number of hours properly claimable for owner’s time as at 13 July 2014. Mr Dickinson sets out clear reasoning for arriving at the figure of 160 hours, whereas Mr Harrison has effectively just copy and pasted Henry’s evidence. However, Henry’s evidence is itself sworn evidence which has been tested under cross-examination.
  6. [132]
    I have no reason to doubt the truthfulness of Henry’s belief as to the amount of hours for owner’s time, but I note that such hours are generally supported by general statement and not by diary or field notes. Further, I accept the evidence of Mr Dickinson that the owner’s extra time would be reduced by the relatively simple process of running a blade over Green Hill Track for 10 hours at $100 per hour.[49]
  7. [133]
    Doing the best that I can with the evidence before me, and finding that Henry could have mitigated his extra time to some extent by expending $1,000 to run a blade over Green Hills Track, I am prepared to allow 200 hours of additional owner’s time at the rate of $100 per hour, up until 31 July 2014, making a total of $20,000.

Vehicle and travel expenses

  1. [134]
    The contest here is the amount of extra kilometres travelled, and the appropriate rate per kilometre for a 4WD and a truck.
  2. [135]
    Mr Harrison has argued that the vehicle rates adopted by RACQ should be accepted, plus a 30% allowance for the poor condition of Green Hills Track (resulting in additional wear and tear on vehicles). On the other hand, Mr Dickinson sees no need to depart from the standard rates allowed as a tax deduction for various sized vehicles by the Australian Taxation Officer (ATO).
  3. [136]
    In my view, Mr Dickinson is correct in his approach. There is nothing unusual in basing a vehicle allowance on the ATO rates. Further, the applicability of the RACQ rate was not sufficiently spelt out by Mr Harrison, and his weighting factor of an additional 30% appears to be little more than educated guesswork.
  4. [137]
    I accept the rates of 80 cents per km for 4WD and $2 per km for truck.
  5. [138]
    As regards the appropriate amount of km to claim, I again find the reasoning of Mr Dickinson beneficial, as he has simply based his figures on an additional 15 km each way to Georgetown, based on two trips to Georgetown each week. Of itself, this analysis is reasonable. However, what it fails to take into account is the extra trips that Henry has been forced to take to neighbours properties because of the closure of Flat Creek Road. This is because of the arrangements he has put in place to store hay and lick, etc, on neighbouring properties. Further, the beast carrying capacity of the truck is small so multiple trips must be made when in the past on B Double would have sufficed.
  6. [139]
    I am concerned that the km assessed by Mr Harrison, not based on log books or actual journeys, may be overstated, and that the assessment by Mr Dickinson does not take into account at all the additional trips that Henry has been required to make to his neighbours’ properties. Doing the best I can on the evidence available, I am prepared to allow 3,000 additional kms for the 4WD and 400 km for the truck. The calculations then came as follows:

  4WD 3,000 km @ 80 cents/km  $2,400

  Truck 400 km @ $2/km        800

        $3,200

  1. [140]
    For completeness I should point out that there appears to be a mathematical error in Exhibit 3 at page 5. Mr Harrison’s subtotal for 4WD was $6,717 and for truck $1,750, leading to what should have been a total under that head of $8,467 whereas the report only showed a total of $2,467. This lower figure was carried forward into the total claim of $81,849 where it should have been $87,849.

Loss of income – stock sales

  1. [141]
    There is a major difference between the valuers on this point. Mr Harrison, relying on the advice of Henry, assesses the loss as $37,010, while Mr Dickinson assesses it at Nil.
  2. [142]
    As already indicated, Mr Dickinson says that he cannot account for any such loss without documented proof, and further, correctly in my view, notes that any stock which miss a sale are not a total loss of value as the stock are still available for sale at a later date.
  3. [143]
    I have carefully considered the detailed affidavit of Henry[50] regarding loss of income for stock. For the reasons mentioned above, I reject the bulk of those claims. However, Henry’s evidence satisfies me that some actual, ascertainable loss has been incurred, and I am prepared to allow the following claims:

 (a) Missing sale prior to 15 March 2014

 Henry has claimed $3,410 as a result of lower prices received for missing a sale. I am not prepared to allow the total sum due to the natural variances in the market from sale to sale. However, Henry has shown some degree of actual loss. Taking into account the vagaries of sales, I reduce the claim by 50% to $1,705

 (b) Weaner put down

 I allow the total claim in the sum of $400

  1. [144]
    Accordingly, I allow the sum of $2,105 for loss under this head.

Loss of income - camping

  1. [145]
    Mr Dickinson does not allow any claim under this head as he says the loss is not properly documented and he observed during his inspection that the camping ground appeared to be operating at the approved capacity despite the limited access. It must be noted, however, that Mr Dickinson was only present on one day as his observations cannot be said to be indicative of every day from formative closure until 13 July 2014.
  2. [146]
    I agree with Mr Harrison’s assessment that, as regards this head of claim, Henry has provided sound evidence of actual lost bookings in the sum of $6,156. In his second statement[51] he has supplied quite specific detail of how the sum of $6,156 is arrived at, making reference to individual bookings. I allow the claim of $6,156.

Additional expenses

  1. [147]
    Mr Dickinson has said little more than that this head of claim should not be allowed “as all stock producers risk the cost of preparing stock for market”.[52]
  2. [148]
    I accept Henry’s evidence that the closure of the formation increased Henry’s costs for additional mustering and droving cattle to the neighbouring yards to truck. That however does not mean that I accept the totality of Henry’s claim.
  3. [149]
    Henry’s claim $8,816, supported by Harrison, as the extra costs in mustering/handling because he could not transport cattle to market in large groups. The calculation is not further articulated or broken down. I am concerned that there may be an element of doubling up of vehicle costs and owner’s time in this claim. However, that said, I do note Henry’s evidence as to the cost of helicopter hire for mustering and the additional mustering required. I allow $2,000 for this part of the claim based primarily on the cost of helicopter hire.
  4. [150]
    The other aspect of this part of the claim relates to the costs in droving cattle to the neighbours’ yards. There is clearly no doubling up of this claim, as it refers specifically to the employment of five people for one day. I note that the claim is consistent with the evidence as to day labour costing $20/hour (or $200 for a 10 hour day).
  5. [151]
    I allow the claim of $1,000 for droving. Under this head, I accordingly allow as follows:

 Mustering and handling  $2,000

 Droving    $1,000

      $3,000

  1. [152]
    To summarise, the additional amount that I allow under s 283B for the period from closure of the formation to 13 July 2014 is as follows:

 Owner’s time    $20,000

 Vehicle expenses       3,200

 Loss of income – stock      2,105

 Loss of income – camping       6,156

 Mustering and droving     3,000

    Total  $34,461

  1. [153]
    To remove any doubt, this amount is to be added to the compensation payable to Henry under the 2012 compensation agreement.
  2. [154]
    In light of the rather unsatisfactory evidence as to diminution of value (for which I do not blame the valuers as they were attempting to determine what would occur on a long term view of closure of the formation) and also due to my presumption, in light of the Supreme Court decision on 16 January 2015 as to the imposition of special conditions on ML 30124 that the formation was reopened some time following 16 January 2015 and the closure was therefore temporary, I do not consider it appropriate to award any additional sum of diminution of value. This is consistent with Mr Harrison not claiming any sum for this head for the period up until 13 July 2014.
  3. [155]
    Pursuant to s 281(4)(e) of the MRA I award the additional amount of 10% to the award of $34,461. This makes the total amount of additional compensation as at 13 July 2014 $37,907.10, assessed as follows:

      $34,461.00

    Plus 10%     3,446.10

      $37,907.10

Compensation post 13 July 2014

  1. [156]
    As regards to losses incurred by Henry post 13 July 2014, Mr Morzone has made the following submission:[53]

“Each of the losses calculated for a period of nine months are continuing losses and (that period having spanned a wet season) can be expected to be incurred on an ongoing pro rata basis. It is appropriate for a monthly pro rata amount to be calculated and ordered to be applied, in the event the renewal of the ML takes effect with a condition obligating the Respondent to restore or remediate the road, for each month from the date of decision until the Respondent restores or remediates the road.”

  1. [157]
    I am in general agreement with Mr Morzone’s submission, save that in my view some of the costs as already assessed are referrable specifically to the period pre 13 July 2014.
  2. [158]
    The parties deserve certainty of litigation in this matter (noting of course the rights of both parties to appeal to the Land Appeal Court), and therefore I am of the view that it is appropriate, again based on the assumption that the formation has been reopened, to further assess compensation for the period from 14 July 2014 to the reopening of the formation on the basis of a monthly pro-rata amount.
  3. [159]
    Of the amounts I have allowed prior to 13 July 2014, I am of the view that the losses for Loss of Income – Stock Sales, being the sums of $1,705 for missing the sale prior to 15 March 2014, and $400 for Weaner Put Down, are ‘one-off’ events. The 10% extra amount on these items also must be removed.
  4. [160]
    To arrive at a monthly amount, it is necessary to divide the pre 13 July 2014 compensation amount (less the ‘one-off’ events) by nine, as the time period from the closure of the formation to 13 July 2014 was approximately nine months. The calculation then is as follows:

Compensation pre 13 July 2014

 

$37,907.10

Less

     Stock sales and weaner

$2,105.00

 

Less 10% on $2,105.00

      210.50

 

$2,315.50

$  2,315.50

  

$35,591.60

pro rata to monthly (% by 9)

 

$  3,954.62

  1. [161]
    I assess the monthly amount of additional compensation, again in addition to compensation payable under the 2012 agreement, payable until the re-opening of the formation in the sum of $3,954.62 per month.

Alternate claim under s 363 of the MRA

  1. [162]
    The Court has been provided with surprisingly few submissions regarding the alternate claim by Henry to compensation pursuant to s 363 of the MRA. Mr Morzone has made the following written submissions:[54]

“20. In the case of the activities being unlawful, if not payable as a material change under s 283B, compensation by way of damages may be awarded under the extended jurisdiction of s 363 of the MRA. Mr Henry would have a suit or action for interference by the Respondent of his public right of access along a road. As with any tort, the proper measure of damages is that a plaintiff has to be placed in the same position, so far as money can, as the plaintiff would be but for the loss. This may include the diminished value of land and consequential loss.

  1. In either case, it is submitted the measure of the compensation effectively will be the same, except under s 283B of the MRA the compensation would include the addition of ten percent under s 281(4)(e).”
  1. [163]
    If I am wrong in any of my conclusions that the formation is a road open for private use and that Henry has had his right of access via the formation stopped thus triggering s 283B of the MRA, I then agree with Mr Morzone that Henry is entitled to damages pursuant to s 363 of the MRA, given ERO’s actions in closing the formation.
  2. [164]
    The damages assessed under s 363 of the MRA would be identical to that assessed under s 283B, save for the additional account of 10% pursuant to s 281(4)(e) of the MRA.

Costs

  1. [165]
    I will hear from the parties with respect to costs.

Orders

 1. The additional amount of compensation awarded to Henry is the sum of Thirty Seven Thousand, Nine Hundred and Seven Dollars and Ten cents ($37,907.10) for the period up until 13 July 2014, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

 2. The additional amount of compensation awarded to Henry is the further monthly sum of Three Thousand, Nine Hundred and Fifty-four Dollars and Sixty-two cents ($3,954.62), payable for the period 14 July 2014 until the re-opening of the formation, such sum to be payable by ERO to Henry in addition to the compensation as determined in the 2012 compensation agreement.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  Filed 1 July 2014 and further amended by consent on 16 July 2014.

[2] ERO Georgetown Gold Operations Pty ltd v Cripps, Minister for Natural Resources and Mines & Anor [2015] QSC 1.

[3]  Also in Ex 32.

[4]  Ex 32, paragraph 25.

[5]  See Ex 32, conclusion following paragraph 26.

[6]  Presidian Legal Publishers.

[7]  p 4527.

[8]  (1881) 6 AC 636.

[9]  (1906) 6 CLR 846.

[10]  (1998) 152 ALR 294.

[11]  [2004] QLRT 47.

[12]  Ibid at [34] – [38].

[13]  Noting that such matters were at that time heard by the then Land and Resources Tribunal.

[14]  See submissions paragraph 12.

[15]  Mr Morzone’s submissions paragraph 13.

[16]  ERO submissions para 15.

[17]  Ss 279(1), (2) and (3) of the MRA.

[18]  S 283A of the MRA.

[19]  S 284(2) of the MRA.

[20]  MRA s 286.

[21]  MRA s 279.

[22]  MRA s 286C.

[23]  MRA s 286D.

[24]  MRA s 286E.

[25]  MRA s 286E(2).

[26]  [2003] QLRT 80.

[27]  I was the Presiding Member.

[28] Benney at [10] and [12].

[29]  Per s 286C(2) of the MRA.

[30]  As determined by the Land Court in many instances – see for example Richardson & Ors v Wharley & Ors [2015] QLC 6.

[31]  See for example Chant v Ticknell & Ors [2015] QLC 3 and Birla Mt Gordon Pty Ltd v Calton Hills Pty Ltd [2015] QLC 2.

[32]  Henry submissions para 19.

[33]  Ex 3.

[34]  Ex 3A.

[35]  Ex 3 page 7.

[36]  Ex 3 page 5.

[37]  Ex 35.

[38]  Ex 35 page 10.

[39]  Ex 35 page 8.

[40]  Ex 35 page 7.

[41]  Ex 8.

[42]  Ex 2 paragraph 46 page 18.

[43]  ERO submissions paragraph 77, page 12.

[44]  Ex 1 and 2.

[45]  See in particular T2-29 lines 7-23 and T2-30 lines 9-11.

[46]  (2013) QLCR 458.

[47]  [2015] QLC 6.

[48]  See, for example (2013) QLCR 458 at [112] and [2015] QLC 6 at [33].

[49]  T2-41 lines 26-29.

[50]  Ex 2.

[51]  Ex 2 pages 15 and 16.

[52]  Ex 35 page 8 point 4.

[53]  Henry submissions page 8, paragraph 28.

[54]  Henry submissions pages 6 and 7, paragraphs 20 and 21.

Close

Editorial Notes

  • Published Case Name:

    Henry v ERO Georgetown Gold Operations Pty Ltd

  • Shortened Case Name:

    Henry v ERO Georgetown Gold Operations Pty Ltd

  • MNC:

    [2015] QLC 13

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    13 May 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Attorney-General v City Bank of Sydney (1920) 20 SR NSW 216
1 citation
Jump To
Cite 1 - (1920) 20 SR NSW 216
Bass Coast Shire Council v King [1997] 2 VR 5
1 citation
Jump To
Cite 1 - [1997] 2 VR 5
Benney v Vella [2003] QLRT 80
3 citations
Jump To
Cite 1 - [2003] QLRT 80
Cite 2 - [2003] QLRT 80
Cite 3 - [2003] QLRT 80
Birla Mt Gordon Pty Ltd v Calton Hills Pty Ltd [2015] QLC 2
2 citations
Jump To
Cite 1 - [2015] QLC 2
Cite 2 - [2015] QLC 2
Chant v Tincknell [2015] QLC 3
2 citations
Jump To
Cite 1 - [2015] QLC 3
Cite 2 - [2015] QLC 3
ERO Georgetown Gold Operations Pty Ltd v Minister for Natural Resources and Mines [2015] QSC 1
2 citations
Jump To
Cite 1 - [2015] QSC 1
Cite 2 - [2015] QSC 1
Fourmile v Selpam Pty Ltd & Anor (1998) 152 ALR 294
2 citations
Jump To
Cite 1 - (1998) 152 ALR 294
Cite 2 - (1998) 152 ALR 294
Gregcarbil Pty Ltd v Backus & Ors (2013) QLCR 458
3 citations
Jump To
Cite 1 - (2013) QLCR 458
Cite 2 - (2013) QLCR 458
Cite 3 - (2013) QLCR 458
Hicks & Anor v Graham & Anor [2004] QLRT 47
3 citations
Jump To
Cite 1 - [2004] QLRT 47
Cite 2 - [2004] QLRT 47
Cite 3 - [2004] QLRT 47
Moseley v Atherton [2005] QDC 8
1 citation
Jump To
Cite 1 - [2005] QDC 8
Narracan v Leviston (1906) 6 CLR 846
2 citations
Jump To
Cite 1 - (1906) 6 CLR 846
Cite 2 - (1906) 6 CLR 846
Permanent Trustee Company of New South Wales v Municipality of Campbelltown (1960) 105 CLR 401
1 citation
Jump To
Cite 1 - (1960) 105 CLR 401
Richardson v Wharley [2015] QLC 6
4 citations
Jump To
Cite 1 - [2015] QLC 6
Cite 2 - [2015] QLC 6
Cite 3 - [2015] QLC 6
Cite 4 - [2015] QLC 6
Turner -v- Walsh (1881) 6 AC 636
2 citations
Jump To
Cite 1 - (1881) 6 AC 636
Cite 2 - (1881) 6 AC 636

Cases Citing

Case NameFull CitationFrequency
Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd [2015] QLC 443 citations
ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLC 221 citation
Henry v ERO Georgetown Gold Operations Pty Ltd [2016] QLC 172 citations
McClymont v Solar Silicon Resources Group Pte Ltd [2016] QLC 673 citations
Valantine v Henry [2018] QLC 215 citations
Wellington Mining & Exploration Pty Ltd v Struber [2018] QLC 502 citations
1

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