Wallace v Bottomer[2015] QLC 23

LAND COURT OF QUEENSLAND

Background

1. [1]
   The applicants Ian Earl Wallace, Robert John Wallace and Rosemary Yvonne Wallace (the miners) currently hold Mining Lease (ML) 4878. They applied for a renewal of ML 7848 on 10 June 2011 for a period of 20 years.
2. [2]
   The ML is partly located on land which is owned by Ross Bottomer as PR, Bruce William and Douglas Trevor Rankine Farms Pty Ltd as TTE and Heather Dawn Sutton as PR (the landholders).
3. [3]
   From mapping material provided by the Mining Registrar, Mareeba, the area of ML 4878 on the landholders’ property is about 1.5 ha.
4. [4]
   As a consequence of the Supreme Court decision in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors,^[1] the decision in this matter was delayed. Following amendments to the Land Court Act 2000 (the LCA) by State Development and Public Works Organisation and Other Legislation Amendment Act 2015, and in particular amendments to s 35 of the LCA, it is now appropriate that this decision be delivered

Principles of compensation

5. [5]
   Section 279 of the Mineral Resources Act 1989 (MRA) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this matter, no agreements have been lodged with the Mining Registrar and the matter has been referred to the Court for determination.
6. [6]
   The issues which must be considered by the Court are set forth in s 281(3) and (4) of the MRA.
7. [7]
   Although s 281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron,^[2] the Land Court held:

“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. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”

8. [8]
   In Shaw v Heritage Holdings Pty Ltd,^[3] the Land Court said:

“The method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”

9. [9]
   In considering Mitchell v Oakhill and Mitchell,^[4] the then President of the Land Court, referring to s 281(3) of the MRA, found:

“the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”

10. [10]
    In determining compensation under s 281 of the MRA, I have adopted the same approach I took in Richardson v Barrett.^[5] This means that the matters set out in the section are concepts to be taken into account in determining compensation, not a notion of separate heads of compensation requiring separate and discreet treatment to arrive at an accumulated figure.
11. [11]
    The overriding principle is of equivalence, ensuring that, so far as money can do it, the landholders are placed in the same position as if the mining leases were not granted.^[6] Of course, great care must also be taken to ensure that there is no “doubling up” of compensation.

The Evidence

12. [12]
    Following the procedures set out in Practice Direction 1 of 2011, the Court wrote to the parties setting out a timetable for the delivery of material and submissions.

13. [13]
    No material has been supplied to the Court in response to the Court’s request. No valuation evidence has been provided by either party. All that has been received is various requests for extensions.
14. [14]
    As I said in McGrath v Callaghan & Ors,^[7] it is always difficult for the Court when the parties to mining compensation matters either choose to place no submissions before the Court, or only very limited submissions. Fortunately, with respect to the North Queensland area, the Court is able to obtain assistance from a number of determinations of compensation under the MRA. In particular, I rely on the Fitzgerald decision of the Land Court which followed a formal hearing in Cooktown, with both the miner in that matter and landholder providing sworn evidence to the Court.^[8]
15. [15]
    As Member Jones said in the case of Unimin Australia Limited v Maurice and Tricia Freeman:^[9]

“I realise that my determination of compensation in this case is a 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 than the Court can do.”

Determination

16. [16]
    Having considered the limited evidence in this matter, and taking into account my decision in Fitzgerald where I allowed the sum of $10 per hectare per year for the area of land covered by the mining lease as well as the decision of Judicial Registrar Smith in Burtenshaw v Mudge,^[10] it is appropriate that I make a like award for ML 4878.
17. [17]
    Allowing $10 per hectare per year for the mining land amounts to $15 per year.
18. [18]
    Taking into account the 20 year renewal term of ML 4878, this amounts to compensation of $300, to which I award the additional sum of $30 under s 281(4)(e) of the MRA to reflect the compulsory nature of the grant of the mining lease. This results in total compensation under all heads in the sum of $330.
19. [19]
    Due to the small amount of compensation involved, I order that the miners pay the total compensation of $330 to the landowners within a period of two months of the renewal of ML 4878.

Orders

1. Compensation is determined in the total sum of Three Hundred and Thirty Dollars ($330.00).

2. Ian Earl Wallace, Robert John Wallace and Rosemary Yvonne Wallace pay the total compensation of $330.00 to Ross Bottomer as PR, Bruce William and Douglas Trevor Rankine Farms Pty Ltd as TTE and Heather Dawn Sutton as PR within two months of the renewal of ML 4878.

PA SMITH

MEMBER OF THE LAND COURT