Burtenshaw v Burtenshaw[2015] QLC 31

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 31 January 2013, Garry Frederick Burtenshaw and Rosemary Anne Burtenshaw (the miners) applied for the renewal of Mining Lease 20034 over land located approximately 4 km north of Mount Garnett in the Mareeba District.  The land is within the Tableland Regional Council local government area.  Further renewal is sought for a period of 3 years and 7 months.  The purpose of the proposed renewal is for the mining of tin.
3. [3]
   Mapping data supplied by the Department of Natural Resources and Mines (DNRM) indicates that ML 20034 is approximately 1 ha in area with access being via a track approximately 3 kilometres in length across land owned by the respondents and more particularly described as Lot 43 on SP 219915 and Lot 219 on SP219914.
4. [4]
   No specific details regarding the width of the access track have been provided so I will adopt a figure of 10 m, which will result in an access area of 3 ha.  I consider this to be a realistic assessment which also accords with other Land Court determinations in the Mareeba district.^[1] 

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 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:

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

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

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

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

1. (v)
   any surface rights of access;

1. (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) -

….

1. (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 4 March 2015, 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.
9. [9]
   On 1 April 2015 correspondence dated 10 March 2015 forwarded by the miners to the “Mining Registrar”, Mareeba was received by the Land Court registry via email from the Mineral Assessment Hub, DNRM.   This letter from the miners is in response to letter from the registry dated 4 March 2015 and the first paragraph relevantly provides:

“Further to your letter of the 4^th March, we wish to advise that we propose an amount of $50 as compensation for the above ML based on the Land Courts ruling last month on access for MC1900 & MC 1913.”

10. [10]
    Although I have not been able to locate any determinations by the Land Court in respect of compensation for access in respect of MC 1900 the miners’ reference to MC 1913 is none the less helpful as I undertook that determination in the proceedings Burtenshaw v Mudge [2015] QLC 1.  The determination was necessarily based on relevant judgements from the Mareeba area as no material or submission regarding compensation was provided by either party. 
11. [11]
    Undertaking the determination in such circumstances was considered by Member Jones [as he then was] in Unimin Australia Limited v Freeman^[2]:

“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.”

12. [12]
    The recent case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[3]  in which Member Smith allowed the sum of $10 per hectare per annum for the area covered by mining and $5 per hectare per annum for access is of significant assistance in respect of the determination in the current proceedings and was also relied upon in the aforementioned determination in respect of MC 1913.

Determination

13. [13]
    After considering 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 20034 at $10 per hectare per annum in respect of the relevant mining area and $5 per hectare per annum is respect of access.  This results in a total annual amount of $10 per annum in respect of the mining area and $15 per annum in respect of access.
14. [14]
    Applying these amounts over the term of the mining lease (i.e. 3 years and 7 months) amounts to $89.60 for the entire period of the lease.
15. [15]
    Pursuant to Section 281(4)(e) of the MRA, I will add an additional sum of $10.40 to reflect the compulsory nature of the grant of the mining lease.
16. [16]
    This results in total compensation for the entire period of the mining lease of $100.00.

Orders

1. Compensation is determined in the total sum of One Hundred dollars ($100.00).
2. The miner is to pay compensation to the respondent in the amount set out 1n Order 1 hereof within three (3) months of the issue of Mining Lease 20034 by the Department of Natural Resources and Mines.

G.J. SMITH

JUDICIAL REGISTRAR