Pryce v Struber[2016] QLC 1

LAND COURT OF QUEENSLAND

1. [1]
   These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining lease 20719.  The referral was filed in the Land Court on 20 January 2015.

Background

2. [2]
   The applicant, Malcolm Scott Pryce, (the miner) seeks the grant of mining lease ML 20719.  The Mining Lease Area of 94.3914 ha and a 28 km access track is situated on land described as Lot 14 on SP250040.  This property, known as the Palmerville Station, is owned by the respondents Stephen Struber and Dianne Wilson Struber (the landowners). 
3. [3]
   The property is located in the Cook Shire Local Government area and is used for grazing purposes. 
4. [4]
   The specific Land Court references and individual lease and tenure details are set out as follows: 

5. [5]
   On 29 September 2014 a Certificate of Application for Mining Lease 20719 was issued by the Mining Registrar at Mareeba.

Relevant Legislation

6. [6]
   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.
7. [7]
   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.”

8. [8]
   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).”

9. [9]
   The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd^[1] as follows -

“It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said:

‘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.’

Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.”

The Conduct of the Proceedings and Evidence

10. [10]
    On 20, 21 and 24 November 2014, registry staff attempted to make contact with the landowners by telephone regarding several unrelated referrals that were then before the Land Court pursuant to the MRA.  The calls were to request the landowners to activate their facsimile machine in order to enable documentation to be transmitted.  The landowners had earlier suggested that this approach be adopted for the provision of documents to them.  On each date the phone was not answered so messages were left requesting the landowners to contact the Land Court.  No phone calls were subsequently received by the Land Court from either landowner. 
11. [11]
    On 22 January 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. 
12. [12]
    On 18 February 2015 a document headed “Compensation Statement” was filed by the miner.
13. [13]
    No material was received by the Land Court from the landowners in accordance with the timetable set out in the correspondence from the Court dated 22 January 2015.
14. [14]
    Further attempts during the first half of 2015 to contact the landowners were not successful.  Registry staff also attempted, unsuccessfully, to arrange for the provision of documents via a legal representative who was at that time representing Mr Struber in respect of other matters.
15. [15]
    During the latter part of July 2015 the Land Court became aware that the landowners had been sentenced to life imprisonment by the Supreme Court at Cairns.  The Registrar of the Land Court wrote to the Public Trustee of Queensland^[2] on 4 August 2015 to notify of the present litigation.
16. [16]
    On 25 August 2015 email correspondence from the Official Solicitor, to the Public Trustee (the Official Solicitor) advised the Land Court that documentation in relation to these proceedings could be served upon the Official Solicitor. 
17. [17]
    On 26 August 2015 registry staff forwarded to the Official Solicitor all material that had been received by the Land Court subsequent to the referral by DNRM.
18. [18]
    On 25 September 2015, following a request by the Official Solicitor an extension for the filing of additional material was granted until 30 October 2015.  This date was extended to 30 November 2015 after a further request by the Official Solicitor.
19. [19]
    In late November 2015 a hand written submission was filed by the landowners.  The four page document addressed a variety of issues in addition to the determination of compensation pursuant to s 281 MRA.  These issues mostly concerned service/provision of documents and alleged non-compliance with processes associated with the Environmental Protection Act 1994 (EPA) and the MRA.
20. [20]
    The referral by DNRM to the Land Court pursuant to s 279(5) MRA relates only to the determination of compensation and consequently the jurisdiction of the Court is limited to that determination pursuant to s 281 MRA.
21. [21]
    Issues associated with alleged non-compliance are not matters that the Court can consider as part of this referral. Concerns held by the landowners may be referred to the Department of Natural Resources and Mines or the Department of Environment and Heritage Protection for further action if necessary.
22. [22]
    No additional material or submission has been received from the Miner and in the circumstances I consider it is appropriate to proceed to determine the issue of compensation pursuant to s 281 of the MRA.

Determination

23. [23]
    Given the costs likely to be incurred, it is understandable that neither party has sought to rely upon valuation or other expert evidence.  In such cases the observations of Member Jones [as he then was] regarding the nature of the assessment process in Unimin Australia Limited v Freeman^[3], are relevant:

“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.”

24. [24]
    With respect to the determination of compensation for ML 20719 the landowners contend that “compensation for mining leases and access remain the same as determined by the Member of the Land Court for Mrs K Fitzgerald”.  Although no judgment reference was provided, the suggested amounts of $50 per kilometre for access, $20 per hectare in respect of the area of the mining lease and a one-off $500 fee correspond with orders made by the Land Court in PC & KF Fitzgerald v Struber & Ors^[4].  As I am not aware of similar orders being made in any other judgment involving Palmerville Station, I can only conclude that this is the case to which the submission refers.
25. [25]
    I am unable to accept this submission by the landowners, as the judgment indicates that the orders made did not require an evidence based assessment to be undertaken by the Court as “the determination reflects dollar figures agreed between the parties”^[5].
26. [26]
    A further contention by the landowners was that a “one off” $500 fee in respect of “checking numerous documents and other issues” should be included in the determination on the basis that “native title have a fee of $500 minimum fee for areas up to 50 ha…”.  In the absence of more specific particulars I am unable to include this amount in the current determination. 
27. [27]
    The following points regarding the proposed mining lease and access areas have been extracted from the submission provided by the Miner:

1. (a)
   mining activity will temporarily disturb the alluvial river wash
2. (b)
   the lowest part of the riverbed is the only viable and minable area
3. (c)
   there are no pastoral grasses in the mining area and therefore no stock feed losses
4. (d)
   banks of the river will not be disturbed by excavation or haulage roads due to small footprint and environmentally friendly way of mining
5. (e)
   mining lease area is larger than what is physically possible to mine and where no alluvial deposits lay.
6. (f)
   the proposed access road has been used for decades and can be seen on maps and GPS systems and no extra disturbance will occur as the wheel ruts/tracks are well set into the ground.
7. (g)
   compensation is already paid by the miner for one third of the proposed road at a rate of $2.50/ha for ML 20682.  The road is also used for access to four other mining leases and also recreational users who pay no compensation.
8. (h)
   loss of potential grazing land and income for the proposed ML 20719 would be zero and for this reason compensation for the access road should be zero or at best $2.50/ha for the remaining two thirds that I don’t already pay for.

28. [28]
    The following decisions were suggested by the Miner to support a contended compensation amount of $5/ha over the mining lease areas and zero or $2.50/ha in respect of access areas:

• Pryce v Struber [2013] QLC 32
• Palmer River Pty Ltd v Kingsley [2011] QLC 0019
• Vaughan v Struber [2007] QLC 0080
• Aurelius v Terry [2010] QLC 0010
• Saxby v Struber [2012] QLC 0049

29. [29]
    I appreciate the Miner’s effort in alerting the Court to the preceding judgments, however none of the determinations appear to have been based on contested evidence and several involved determinations that were required to be undertaken following the non-appearance of the respondents.  I am reluctant to rely on these cases in the circumstances.
30. [30]
    I am also unable to accept that the decision in Saxby v Struber^[6] generally requires that a $Nil determination be made in cases where the relevant access area is also utilised to access other mining leases on a landholding.  The fact that an access track may be used by persons other than the applicant may be a relevant factor in the determination undertaken, but this alone does not automatically require that compensation be reduced or determined at $Nil.  An analogous contention was made, but not accepted in Kelly v Struber^[7]. 
31. [31]
    In the absence of valuation or other expert evidence I consider that the most instructive guidance for this determination is provided by judgments which have had the benefit of evidence tested by cross examination, full submissions and where the Land Court as constituted had significant familiarity with or had undertaken an inspection of Palmerville Station. 
32. [32]
    The most informative decision for this purpose is C.M. Fitzgerald & Anor v Struber & Anor^[8], which involved multiple applicants and the current landowners as respondents.  Member PA Smith determined compensation in respect of mining areas at an annual rate of $10/ha per year and access areas at $5/ha per year.  In a later case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[9], Member Smith allowed the sum of $10/ha per year for the area covered by mining and $5/ha per year for access in respect of the renewal of a mining lease in the Mareeba District.  In the more recent decision, Wallace & Ors v Bottomer & Ors^[10], Member Smith determined compensation district for the mining area of a renewed lease in the Mareeba district at $10/ha per year.  It is apparent that Member Smith, in addition to these cases, has also undertaken site inspections and many compensation determinations in relation to Palmerville Station.
33. [33]
    Based on the preceding judicial determinations of compensation I consider that $10/ ha per year in respect of the mining area and $5/ha per year in respect of the access area are appropriate amounts for the determination of compensation in this matter.

ML 20719

34. [34]
    The determination of compensation in respect of proposed ML 20719 concerns both mining and access areas.  Data provided by the Department of Natural Resources and Mines confirms that the area of the mining lease is 94.3914 ha.  Access across the subject property is approximately 28 km in length and 5 m in width giving an area of 14 ha.  For the purposes of this determination the mining lease area will be rounded to 95 ha.
35. [35]
    The relevant dimensions and areas and final determination in respect of ML 20719 are set out as follows:

Area covered by mining lease – 95 ha @ $10/ha   =   $950.00 per annum

Area covered by access – 14 ha @ $5/ha   =   $70.00 per annum

add s 281(4)(e) re: compulsory nature of grant   =   $110.00 per annum

Total       =  $1130.00 per annum

36. [36]
    In view of the landholders present circumstances, I intend to order that the compensation determined be paid to the Public Trustee of Queensland. 

Orders

1. In respect of ML 20719 compensation is determined in the total sum of $ 1130.00 per annum.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within two months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR