Zinaback Pty Ltd v Allingham Holdings Pty Ltd
[2016] QLC 19
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- Unreported Judgment
- Zinaback Pty Ltd v Allingham Holdings Pty Ltd[2016] QLC 19
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Zinaback Pty Ltd v Allingham Holdings Pty Ltd[2016] QLC 19
Zinaback Pty Ltd v Allingham Holdings Pty Ltd[2016] QLC 19
LAND COURT OF QUEENSLAND
CITATION: | Zinaback Pty Ltd v Allingham Holdings Pty Ltd [2016] QLC 19 |
PARTIES: | Zinaback Pty Ltd (applicant) v Allingham Holdings Pty Ltd (respondent) |
FILE NO: | MRA181-15 |
PROCEEDINGS: | Determination of compensation payable for renewal of mining lease. |
DELIVERED ON: | 10 March 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 2 September 2015 |
HEARD AT: | Heard on the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDERS: |
|
CATCHWORDS: | MINING LEASE – renewal – access – determination of compensation – use of Court judgments for determination purposes. Mineral Resources Act 1989 ss 279A, 281 Schultz v Allingham Holdings [2012] QLC 0004 Unimin Australia Limited v Freeman [2007] QLC 0076 Wills v Minerva Coal Pty Ltd [no. 2] (1998) 19 QLCR 297 |
- [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 grant of Mining Lease 10181.
Background
- [2]The applicant, Zinaback Pty Ltd (the miner) seeks the renewal of a mining lease located on land described as Lot 2 on DP47. The Mining Lease comprises an approximate 38 ha mining area and a 1.7 km access track. This referral relates specifically to a 323m segment of the access track across land owned by the respondent Allingham Holdings Pty Ltd (the landowner), namely Lot 1 DAL1243.
- [3]The property is located in the Charters Towers Regional Council local government area and is used for grazing purposes.
- [4]The specific Land Court reference and tenure details are set out as follows:
Court Reference | Tenure ID | Area | Term | Lease Purpose |
MRA181-15 | 10181 | 38 ha | 5 years | Dolomite, Lime, Magnesite. |
Relevant Legislation
- [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]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:
- “(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.”
- [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:
- “(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).”
- [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]On 1 July 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]On 11 August 2015 the Court received correspondence from Mr MJ Wilkins, a director of the miner. The letter advised that a signed compensation agreement in respect of access had been forwarded to the background landholder and that he was “still awaiting reply”. In respect of compensation the letter stated:
“As with all our compensation agreements with other landholders, unless the tenement is to be mined, then no compensation is to be paid. Compensation will be paid to the background landholder when the land is affected i.e. when mining commences.
At the present time we have no intention of mining on the above tenement within the next 5 years and the tenement will remain on our books as a reserve. Should the situation change, then we will begin negotiations with the background landholder to reach an amicable compensation agreement”.
- [11]To date the Court has not received any confirmation concerning the finalisation of a compensation agreement. No material has been received on behalf of the landholder.
Determination
- [12]Neither party has sought to rely upon expert or other evidence regarding the assessment of compensation. In such cases the observations of Member Jones [as he then was] in Unimin Australia Limited v Freeman[2] regarding the nature of the assessment process, 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.”
- [13]In such cases an appropriate approach to adopt in assessing compensation is to consider any relevant Court judgments within the local area that might assist with the determination of compensation.
- [14]In the 2012 Land Court judgment of Schultz v Allingham Holdings [2012] QLC 0004, Mr BR O'Connor, the former Judicial Registrar, determined compensation for access at $100 for a renewal period of 10 years in respect of a mining lease area of 14 ha over grazing land in the Charters Towers district. The respondent in that case was the current landowner.
- [15]Based on this earlier judicial determination, I consider that $50 compensation in respect of the access area for the 5 year renewal period is appropriate compensation. This amount is inclusive of the additional sum envisaged by s 281(4)(e) MRA.
ORDERS
- In respect of ML 10181 compensation is determined in the total sum of Fifty Dollars ($50.00).
- The miner pay compensation to the landowner the amount set out in order 1 within one month from notification of the renewal of the mining lease by the Department of Natural Resources and Mines.
GJ SMITH
JUDICIAL REGISTRAR