Chant v Tincknell[2015] QLC 3

LAND COURT OF QUEENSLAND

1. [1]
   This matter involves a referral to the Land Court pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of a mining lease.

Background

2. [2]
   On 30 June 2014, David James Chant (the applicant) applied for the renewal of Mining Lease 20198 over land located approximately 40 km north north-west of Dimbulah in the Mareeba District. The land is within the Tableland Regional Council local government area. Further renewal is sought for a period of 5 years.  The purpose of the proposed renewal is for the mining of gold.
3. [3]
   Access to the mining lease area is over land owned by Paul Edmund Tincknell, Jane Louise Tincknell, Gordon John Pringle and Nella Marie Pringle (the respondents).
4. [4]
   The land is more particularly described as Lot 20 on HG725 Mount Mulligan Holding.  The access comprises a 0.76 km track with an area of 1.14 hectares. 

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 in determining the compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

1. (i)
   deprivation of possession of the surface of land of the owner;
2. (ii)
   diminution of the value of the land of the owner or any improvements thereon;
3. (iii)
   diminution of the use made or which may be made of the land of the owner or any improvements thereon;
4. (iv)
   severance of any part of the land from other parts thereof or from other land of the owner;
5. (v)
   any surface rights of access;
6. (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:

1. “(4)
   In assessing the amount of compensation payable under subsection (3)—

….

2. (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).”

The Conduct of the Proceedings and Evidence

8. [8]
   On 29 October 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. Neither party responded or submitted any material to the Court.
9. [9]
   In the absence of any material from the parties, the determination of compensation can be quite challenging.  In Unimin Australia Limited v Freeman,^[1] Member Jones [as he then was] 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.”

10. [10]
    Notwithstanding this, several Court judgments in the North Queensland area will assist with determining compensation in the present case, with such determinations in the Mareeba District ranging from $5 per hectare per year to $15 per hectare per year^[2].  In the recent case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[3], Member Smith 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. 

Determination

11. [11]
    The information provided by DNRM confirms that the access track across the subject land is 0.76 km in length and 15.0 m wide which equates to an area 1.14 hectares.
12. [12]
    Having considered the limited material and the relevant Court determinations cited above, and taking into account all heads of compensation set out in s 281(3) of the MRA, I assess compensation for Mining Lease 20198 at $5 per hectare per year for access. This results in a compensation amount of $5.70 per year for access. Applying this amount over the term of the mining lease (i.e. 5 years) amounts to a total compensation of $28.50.
13. [13]
    Pursuant to Section 281(4)(e) of the MRA, I will add an additional sum of $3.50 to reflect the compulsory nature of the grant of the mining lease.
14. [14]
    This results in total compensation for the entire period of the mining lease of $32.00.

Terms of Payment

15. [15]
    I order that the applicant pay total compensation of $32.00 to the respondents within two (2) months of the renewal of the mining lease by DNRM.

Orders

1. Compensation is determined in the total sum of Thirty-Two Dollars ($32.00).
2. The applicant is to pay the respondents the total compensation amount of Thirty-Two Dollars ($32.00) within two (2) months of the renewal of Mining Lease 20198 by DNRM.

G.J. SMITH

ACTING JUDICIAL REGISTRAR