Baron v Terry[2015] QLC 20

LAND COURT OF QUEENSLAND

1. [1]
   This matter involves a referral to the Land Court pursuant to s 85A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of a mining claim.

Background

2. [2]
   On the 1 October 2013, Lawrence James Barron (the applicant) applied for the renewal of Mining Claim 30027 over land located approximately 50 km south of the town of Forsayth in the Georgetown Mining District.  The land is located within the Etheridge Shire Council local government area.  Further renewal is sought for a period of 5 years. 
3. [3]
   The area of the Mining Claim 30027 is .8746 ha which I will round to 1 ha for calculation purposes.  Access comprises a track approximately 3 km in length over land owned by Peter Terry, Richard Terry and Simon Terry (the respondents).  The land is more particularly described as Lot 2 on SP 242983.

Relevant Legislation

4. [4]
   Section 85 of the MRA provides that a mining claim shall not be granted or renewed unless compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of the land subject of the application and of any surface access to that land.  In respect of this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and accordingly the matter has been referred to the Land Court for determination.
5. [5]
   The matters that must be considered by the Court are set out in s 85(7) of the MRA which provides that an owner of land is entitled to compensation for:

1. “(a)
   deprivation of possession of the surface of land of the owner;

2. (b)
   diminution of the value of the land of the owner or any improvements thereon;

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

1. (d)
   severance of any part of the land from other parts thereof or from other land of the owner;

2. (e)
   any surface rights of access;

3. (f)
   all loss or expense that arises;

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

6. [6]
   Section 85(8) of the MRA enables various additional factors to be included in the compensation assessment.  In the present case, only paragraph (e) is relevant. It provides as follows:

1. “(8)
   In assessing the amount of compensation payable under subsection (7 -

….

1. (e)
   an additional amount shall be determined to reflect the compulsory nature of action taken under this chapter which amount … shall be not less than 10% of the aggregate amount determined under subsection (7).”

The Conduct of the Proceedings and Evidence

7. [7]
   On 27 November 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.  No response or objection was received from either party.
8. [8]
   In the absence of any material from the parties, the determination of compensation can be challenging.  In Unimin Australia Limited v Freeman^[1], Member Jones [as he was then] noted as follows:

“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.”

9. [9]
   Notwithstanding this, a recent Court determination in respect of grazing land within the Etheridge Shire is of assistance in determining compensation in the present case.  In the case of Hudson & Ors v Gundersen & Pedracini^[2], Member Cochrane allowed a total sum of $110 per annum in respect of a mining area of 1 hectare with access of approximately 2 kilometres. 

Determination

10. [10]
    Having considered the limited material and the relevant Court determination cited above, and taking account of all heads of compensation set out in s 85(7) of the MRA, I assess total compensation for Mining Claim 30027 at $110 per annum inclusive of the additional amount envisaged by Section 85(8)(e) MRA. 

Orders

1. Compensation is determined in the total sum of One Hundred and Ten Dollars ($110.00) per annum

2. The applicant is to pay the respondent the amount set out in Order 1 hereof within two months from notification of the renewal of the mining claim by DNRM and thereafter on the anniversary of the renewal of mining claim.

G.J. SMITH

JUDICIAL REGISTRAR