McDonnell v Warner[2016] QLC 14

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 (DNRM) pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease 60411. 

Background

2. [2]
   The applicant, Peter Robert McDonnell as Executor of the Estate of Audrey Ericea Randall Helsham (deceased), (the miner), seeks the grant of a mining lease located on land described as Lot 9 on Plan CP854480.  The Mining Lease comprises a mining area of 4644 m² and a 564 m access track within Bingara Holding which is owned by the respondents Shane William Joseph Warner and Peta Warner (the landowners).
3. [3]
   The property is located in the Paroo Shire Council local government area and is used for pastoral purposes. 
4. [4]
   The specific Land Court reference and tenure details are set out as follows: 

Relevant Legislation

5. [5]
   Section 279 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 DNRM and the matter has been referred to the Land Court for determination.
6. [6]
   Section 281 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) -

2. (e)
   tan 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).”

8. [8]
   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

9. [9]
   On 1 April 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. 
10. [10]
    On 16 April 2015 a submission was received from Mr Peter McDonnell on behalf of the miner.  The Miner’s submission is that a stamped compensation agreement was finalised with the landowner on 10 April 2006 on the basis that the related Mining Lease application would be approved for a period of 20 years.  The compensation agreement contained a single operative clause as follows:

“The applicant agrees to pay the owner who agrees to accept the sum of $1393.20 as full and complete compensation in respect of the mining lease for a term of 20 years which term shall be the term for which the mining lease is granted”

11. [11]
    Despite a recommendation by the Land and Resources Tribunal^[2] dated 28 July 2006 recommending an approval for 20 years, ML 60411 was only granted for an initial period of 5 years. 
12. [12]
    The Miner’s contention is that the compensation agreement already in place between the parties, in effect covers the current extension sought of 15 years, and overall, this outcome is consistent with the original agreement and the Land and Resources Tribunal recommendation i.e. 20 years.  This contention is supported by relevant documents provided with the referral and is not disputed by the landowner.

Determination

13. [13]
    In the absence of any other evidence or submission I consider it is appropriate to determine the issue of compensation in accordance with the Miner’s contention regarding the compensation agreement.  The orders made will attempt to reflect the reality of the initial agreement in light of the quite novel circumstances^[3] the parties find themselves in.  The orders are not intended to impose any obligation on the Miner to pay additional compensation beyond that already agreed.

14. [14]
    Compensation in respect of ML 60411 is determined in the total amount of $1393.20.

ORDERS

1. In respect of ML 60411 compensation is determined in the total sum of $1393.20.

2. The miner pay compensation to the landowners the amount set out in order 1, less any amount already paid, within two months from notification of the renewal of the mining lease by the Department of Natural Resources and Mines.

GJ SMITH

JUDICIAL REGISTRAR