Valenti v Struber[2015] QLC 17

LAND COURT OF QUEENSLAND

1. [1]
   These proceedings concern referrals to the Land Court by the Principal Mining Registrar  pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of mining leases.

Background

2. [2]
   The applicants, M.R and J Valenti (the miners) seek the renewal of 4 leases located on land described as Lot 14 on SP250040.  This property, known as Palmerville Holding is owned by the respondents Stephen Struber and Dianne Wilson Struber (the landowners). 
3. [3]
   Palmerville Holding is located in the Cook Shire Local Government area and is currently used for grazing by the landowners. 
4. [4]
   The specific Land Court references and individual lease and tenure details are set out as follows: 

Relevant Legislation

5. [5]
   Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court.  In this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and the matter has been referred to the Land Court for determination.
6. [6]
   Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation.  In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

“(i) deprivation of possession of the surface of land of the owner;

(ii) diminution of the value of the land of the owner or any improvements thereon;

(iii) diminution of the use made or which may be made of the land of the owner or any improvements thereon;

(iv) severance of any part of the land from other parts thereof or from other land of the owner;

(v) any surface rights of access;

(vi) all loss or expense that arises; 

as a consequence of the grant or renewal of the mining lease.”

7. [7]
   Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows:

“(4)In assessing the amount of compensation payable under subsection (3) -

(e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

8. [8]
   The assessment to be undertaken in accordance with s 281 has been examined by the judgment in Wills v Minerva^[1] as follows -

“It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said:

‘The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation.’

Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.”

The Conduct of the Proceedings and Evidence

9. [9]
   On 23 September 2014, the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No 5 of 2013.  On 1 October 2014 this correspondence which had been forwarded to the landowners’ private mail bag was returned unopened to the registry marked “bag closed RTS”.  The letters RTS are understood to be an abbreviation of the words “return to sender”.
10. [10]
    On 13 October 2014 the material proposed to be relied upon by the miners was filed in the registry by post.  This material included the following:

1. (i)
   compensation agreements signed by the miners
2. (ii)
   a brief “hearing statement” requesting matters be dealt with “on the papers”
3. (iii)
   a letter to the landowners dated 16 June 2013
4. (iv)
   mapping created by the Department of Natural Resources and Mines
5. (v)
   documents headed “Notes 1” and “Notes 2” which set out the circumstances of the relevant leases
6. (vi)
   copy of a “variation of access agreement” filed in the Land Court at Cooktown  on 21 May 2009 and
7. (vii)
   copies of Land and Resources Tribunal decisions D.W.Lowe & Anor & R.Struber & Anor [2005] QLRT 27, 28 & 33.

11. [11]
    On 27 October 2014, the Land Court registry again forwarded correspondence addressed to the landowners’ private mail bag setting out the timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No 5 of 2013.  As no reply was received to this correspondence a further identical letter was forwarded to PO BOX 2500 CAIRNS QLD 4870 on 5 November 2014 in an attempt to notify the landowners.
12. [12]
    On 14 November 2014 correspondence was received from the landowners acknowledging receipt of the correspondence dated 5 November 2014 and requesting an extension to the stated timetable and also advising of a contact phone-fax number for the service of documents together with suggested times that the fax may be utilised.  Since receiving this advice all attempts by the registry to contact the landowners have been unsuccessful. 
13. [13]
    On 3 February 2015 a one page hand written submission dated 2 February 2015 and signed by Mr S Struber on behalf of both landowners was received by the registry.  On 20 May 2015 the miners advised the Court that they had not received this document and accordingly a copy of the document was forwarded to them by registry staff.  The miners have advised that they would not be providing any reply to the landowners’ material.
14. [14]
    In the circumstances I consider it is appropriate to proceed to determine the issue of compensation pursuant to s. 281 MRA.

Determination

15. [15]
    Given the amounts contended for it is understandable that the parties have not provided valuation or other expert evidence in support of their suggested compensation amounts.  In such cases the assessment undertaken can be quite challenging.  In this regard Member Jones [as he then was] in Unimin Australia Limited v Freeman,^[2] made the following observation regarding the nature of the assessment process:

“I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

16. [16]
    The material filed by the miners identifies various matters concerning the relevant leases and associated operations.  Nominal compensation is contended for by them on the basis of earlier decisions^[3] of the Land and Resources Tribunal concerning the subject leases.  The miners’ contentions in respect of each lease are numbered so as to correspond with the same numbered paragraph of the corresponding decision.  The contentions address matters such as the lack of severance, extent and intensity of mining activity, an absence of diminution in value and deprivation of possession.  In respect of access to the leases it was submitted that no loss of land in the surface right of way had occurred and that the access routes were used by others.
17. [17]
    It is quite understandable for the miners to have based their contentions on these judgments, however I am not able to adopt these conclusions for the purposes of the present determinations given the passage of time, the uncontested nature of the proceedings and the evidentiary constraints identified by the Mining Referee.^[4]
18. [18]
    Similarly, I am also unable to adopt the assessments from the recent judgment of Fitzgerald & Anor v Struber & Ors^[5] as urged by the landowners.  Although the decision concerns s 281 of the MRA in respect of the Palmerville Holding, there was no actual evidence based assessment that was required to be undertaken by the Court as the “determination reflects dollar figures agreed upon by the parties”^[6].  Consequently I am reluctant to rely on this decision for guidance in undertaking the present assessment.
19. [19]
    Despite not being able to rely on the decisions suggested by the parties, their submissions have none the less been of assistance in undertaking the assessment.
20. [20]
    In the absence of valuation or other expert evidence I consider that the most useful guidance for the assessment process is provided by several judgments which concerned contested proceedings where the assessment of compensation was determined after submissions and upon evidence that had been the subject of cross examination or where the Land Court as constituted had undertaken site inspections within the Palmerville Holding.
21. [21]
    The most helpful is the judgment in Fitzgerald & Anor v Struber & Anor^[7].  This case involved multiple miners including initially MR & J Valenti.  Member PA Smith assessed compensation in respect of mining areas at an annual rate of $10/ha and access areas at $5/ha.  In the more recent case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[8], Member PA Smith also allowed the sum of $10 per hectare per year for the area covered by mining and $5 per hectare per year for access in respect of a renewal of a mining lease in the Mareeba District.  It is apparent from numerous Land Court decisions that Member Smith, in addition to these cases, has also undertaken site inspections and made many determinations in respect of mining operations within the Palmerville Holding.

 ML 3076 and ML 3077

22. [22]
    My assessment of compensation in respect of ML 3076 is undertaken on the earlier finding^[9] that only 29 hectares of the lease is located within the Palmerville Holding and in respect of ML 3077 by rounding the area to 30 ha.  ML 3076 and ML 3077 are of similar size and from the material provided it would appear that the extent and intensity of mining activity will be similar during the 10 year renewal period.
23. [23]
    In respect of the each mining lease the following determinations are considered fair and reasonable and are set out as follows:

 ML3076

 Area covered by mining lease 29 ha @ $7.50/ha =  $217.50 per annum

 add access of approximately 20 km                 =   $  60.00 per annum

 Total                 =  $277.50 per annum

 ML3077

 Area covered by mining lease 30 ha @ $7.50/ha =  $225.00 per annum

 add access of approximately 25 km                 =   $  75.00  per annum

 Total                 =   $300.00 per annum

 These determinations are inclusive of the additional amount envisaged by s 281(4)(e) MRA.

ML 6719

24. [24]
    The mapping data provided by DNRM suggests that only a small portion of the entire lease area of ML 6719 is situated on the Palmerville Holding.  The earlier determination of the Land and Resources Tribunal^[10] concluded that the area encompassed approximately 1000 m².  I intend to round this area to the next full hectare for assessment purposes.
25. [25]
    Included with the material filed by the miners was an earlier agreement with the landholders dated 21 May 2009 recording a resolution of compensation issues and a variation of access to the subject lease ML 6719.  That agreement, by paragraph 2, provides for an annual payment of $250 by the miner to the landowner in respect of the varied access arrangements.  The paragraph also provides that the date for payment shall be on “each anniversary of that date for the term of the mining lease 6719”.  The terms of this agreement were adopted as a consent order of the Land Court on 26 May 2009 as their own individual resolution of the overall proceedings in Fitzgerald & Anor v Struber & Anor [2009] QLC 0076. 
26. [26]
    Having considered the material and submissions of the parties I consider the amount previously agreed, namely $250 per annum reflects appropriate total compensation in respect of access for the lease renewal period for ML 6719.  This amount is intended to be in substitution of and not additional to that ordered by the Land Court on 26 May 2009.
27. [27]
    I assess compensation for the mining area at $10/per annum in total. 
28. [28]
    Accordingly compensation is determined in respect of ML 6719 in the total sum of $260 per annum inclusive of the additional amount envisaged by s 281(4)(e)(e)MRA.   

ML 40079

29. [29]
    The mining lease area of ML 40079 is 21.213 hectares and will be rounded to the next full hectare for assessment purposes.  Data provided by the Department of Natural Resources and Mines indicates that the access is approximately 20 kilometres in length. 
30. [30]
    The applicant miners have again provided contentions which correspond with the earlier Land and Resources Tribunal assessment^[11].  These contentions relate largely to the limited impact and added advantages of a large dam located on ML 40079 and the fact that no active mining operations are currently undertaken on the lease.  A further point raised by the applicant miners is that access is used by a number of persons.
31. [31]
    I accept that the land is generally less impacted given that it is utilized for water storage and that no actual mining is being undertaken however on the material before me I am unable to accept that there is “no deprivation of possession” as contended. 
32. [32]
    I assess Mining Lease 40079 at a total of $7/ha per annum in respect of the mining area and access at a total of $60 per annum.  The total amount is inclusive of the additional amount envisaged by s 281(4)(e) MRA.   
33. [33]
    Accordingly in the case of ML 40079 compensation is determined as follows:

Area covered by mining lease 22 ha @ $7/ha      = $154.00 per annum

add access of approximately 20 km               = $ 60.00 per annum

Total                           = $214.00 per annum

Orders

1. In the case of ML 3076 compensation is determined in the total sum of $277.50 per annum.

2. In the case of ML 40079 compensation is determined in the total sum of $214.00 per annum.

3. In the case of ML 6719 compensation is determined in the total sum of $260.00 per annum.

4. In the case of ML 3077 compensation is determined in the total sum of $300.00 per annum.

5. The miners pay compensation to the landowners in the amounts set out in orders 1 to 4 hereof within two months from notification of the renewal of the mining lease by the DNRM and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR