Tully v Colac Cable Harvesting Pty Ltd
[2015] QLC 35
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- Unreported Judgment
- Tully v Colac Cable Harvesting Pty Ltd[2015] QLC 35
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Tully v Colac Cable Harvesting Pty Ltd[2015] QLC 35
Tully v Colac Cable Harvesting Pty Ltd[2015] QLC 35
LAND COURT OF QUEENSLAND
CITATION: | Tully v Colac Cable Harvesting Pty Ltd [2015] QLC 35 |
PARTIES: | Bruce Cameron Tully (applicant) v Colac Cable Harvesting Pty Ltd (respondent) |
FILE NO: | MRA 076-15 |
DIVISION: | General Division |
PROCEEDING: | Determination of compensation for renewal of mining lease |
DELIVERED ON: | 28 August 2015 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed on 29 May 2015 |
HEARD AT: | Heard on the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDERS: |
|
CATCHWORDS: | MINING LEASE – determination of compensation – renewal – factors to be considered – no material provided by either party. Mineral Resources Act 1989, ss 279, 279A, 281. Land Court Rules 2000, Rule 36A Unimin Australia Limited v Freeman [2007] QLC 0076 Kaljevic v Mills & Anor [2010] QLC 124 |
APPEARANCES: | Not applicable |
- [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]On 30 August 2012, Bruce Cameron Tully (the miner) applied for the renewal of Mining Lease 7308 over land located approximately 23 kilometres south-east of Highland Holdings in the Winton District. The land is within the Longreach Regional Council local government area. Further renewal is sought for a period of 10 years. The purpose of the proposed renewal is for the mining of opal.
- [3]The mining lease area of 14.9578 hectares and access track of 1.53 km is situated over land owned by Colac Cable Harvesting Pty Ltd (the respondent). The land is more particularly described as Lot 1 on CJ10 Gooyea Holding and is used for grazing by the respondent.
Relevant Legislation
- [4]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.
- [5]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.
- [6]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).”
The Conduct of the Proceedings and Evidence
- [7]On 25 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. No correspondence, submissions or material has been received from either party subsequent to the aforementioned letter.
- [8]In the absence of any cogent evidence or substantive material from the parties, the determination of compensation can be an exacting exercise. 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.”
- [9]In circumstances where there is no valuation or other expert evidence and no material submitted by the parties I consider it appropriate to be have regard to a previous determination of this Court for guidance when undertaking the present determination. In the matter of Kaljevic v Mills & Anor,[2] Member Isdale determined compensation at a rate of $180 per annum. The Kaljevic case, like the present determination, concerned a 10 year lease for the purpose of opal mining over grazing land situated in the Winton District.
Determination
- [10]Having considered the limited material provided in light of the previous Land Court determination cited above, and taking into account all heads of compensation set out in s 281(3) of the MRA, I assess the total compensation for Mining Lease 7308 at $1,800 for the entire 10 year renewal period. Pursuant to s 281(4)(e) of the MRA I order an additional sum of $180 to reflect the compulsory nature of the renewal of the mining lease. This results in total compensation under all heads in the sum of $1,980.
Orders
- Compensation is determined in the total sum of One Thousand and Nine Hundred and Eighty Dollars ($1980.00).
- The miner is to pay compensation to the respondent in the amount set out in Order 1 hereof within three (3) months of the renewal of Mining Lease 7308 by the Department of Natural Resources and Mines.
G.J. SMITH
JUDICIAL REGISTRAR