Hammonds Mining Pty Ltd v Nicholls
[2016] QLC 41
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hammonds Mining Pty Ltd v Nicholls[2016] QLC 41
- Add to List
Hammonds Mining Pty Ltd v Nicholls[2016] QLC 41
Hammonds Mining Pty Ltd v Nicholls[2016] QLC 41
LAND COURT OF QUEENSLAND
CITATION: | Hammonds Mining Pty Ltd v Nicholls & Anor [2016] QLC 41 |
PARTIES: | Hammond’s Mining Pty Ltd (applicant) |
| v |
| Vincent George Nicholls and Mervall Arthur Nicholls (respondents) |
FILE NO: | MRA538-15 MRA540-15 |
DIVISION: | General Division |
PROCEEDINGS: | Determination of compensation payable for grant of mining lease |
DELIVERED ON: | 8 July 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 25 January 2016 |
HEARD AT: | Heard on the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDER: |
|
CATCHWORDS: | MINING LEASE – grant – determination of compensation – claim area – term of grant – mining district – use of Court judgments for determination purposes. Mineral Resources Act 1989 s 279, s 281 Deimel v Cochrane & Anor [2014] QLC 8 Mitchell v Oakhill and Mitchell (Unreported, Land Court of Queensland, JJ Trickett, President, 10 March 1998) Unimin Australia Limited v Freeman [2007] QLC 0076 Wills v Minerva Coal Pty Ltd [No. 2] (1998) 19 QCLR 297 |
APPEARANCES: | Not applicable |
- [1]These matters involve referrals to the Land Court pursuant to s 279 (5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining leases ML 50289 and ML 50290.
Background
- [2]The applicant, Hammond’s Mining Pty Ltd (the applicant) applied for the grant of mining leases ML 50289 and ML 50290 on 7 April 2014. The land upon which the proposed mining leases are located is approximately 25 km north-west of Warwick, within the Brisbane mining district. The land is within the Southern Downs Regional Council local government area. The purpose of the proposed grant is for the mining of Gold.
- [3]The land upon which the mining leases are situated is owned by Vincent George Nicholls and Mervall Arthur Nicholls (the respondents). The land is more particularly described as Lot 100 on Crown Plan ML1177, has an area of approximately 664 hectares and is used for grazing purposes.
- [4]The specific Land Court reference and tenure details are set out as follows:
Court Reference | Tenure ID | Tenure Area | Purpose | Term |
MRA538-15 | ML 50289 | 72.32 ha | Gold | 20 years |
MRA540-15 | ML 50290 | 81.27 ha | Gold | 20 years |
Relevant Legislation
- [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 DNRM and the matter has been referred to the Land Court for determination.
- [6]Section 281 of the MRA identifies the matters which must be considered by the Court in determining the 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 process to be undertaken in accordance with s 281 has been addressed in the judgment of Wills v Minerva Coal Pty Ltd [No. 2][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.”
- [9]Furthermore, in Mitchell v Oakhill and Mitchell[2], the then President of the Land Court observed in relation to s 281 of the MRA:
“…..the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”
- [10]The principles from these judgments have been applied in determining compensation under s 281 of the MRA.
The Conduct of Proceedings
- [11]On 23 November 2015, the Land Court registry forwarded correspondence 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]No materials or submissions have been filed on behalf of either party in respect of the assessment for the determination of compensation for ML 50289 or ML 50290. Notwithstanding this the referral materials provided by DNRM included comprehensive details regarding the mining operations planned to be undertaken on ML 50289 and ML 50290. These materials included:
- (i)Resource authority public report
- (ii)Mapping and imagery
- (iii)Current State Tenure Search re background tenures
- (iv)Reports – Gold Exploration Australia re ML 50289 and ML 50290
- (v)Application for Mining Lease – ML 50289 and ML 50290
- (vi)Application for Environmental Authority
- (vii)Certificate of Application – ML 50289 and ML 50290
Consideration of Evidence and Materials
- [13]As neither party has filed any expert or other evidence the preceding documents are the only materials before me for consideration. In the circumstances the views expressed by Member Jones [as he then was] in Unimin Australia Limited v Freeman[3], regarding the nature of the assessment process are noteworthy:
“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.”
- [14]I consider it appropriate, given the lack of material from the parties, to examine relevant Court judgements from within the local district for guidance with the assessment and determination of compensation.
- [15]The decision in Deimel v Cochrane [2014] QLC 8 (Deimel) is the most recent determination within the district which I considered to be of assistance. Deimel concerned the renewal of a gold mining lease over grazing land approximately 45 km west of Warwick. The area of the mining lease was 59 ha, with a proposed reduction in area to 5.6 ha. The Court in Deimel determined compensation in an amount of $2000 per annum for a renewal period of 5 years.
Compensation
- [16]I consider that the assessment of compensation for ML 50289 and ML 50290 should reflect that the leases comprise a greater area and a longer period of initial grant than in Deimel. Accordingly I consider an allowance should be made to reflect these factors. The determination in respect of each mining claim will be as follows:
MC 10034 $ 2500.00 per annum
add 281(4)(e) re compulsory nature of grant = $ 250.00 per annum
Total = $ 2750.00 per annum
MC 10035 $ 2500.00 per annum
add 281(4)(e) re compulsory nature of grant = $ 250.00 per annum
Total = $ 2750.00 per annum
- [17]Given the duration of the initial grant I consider that a CPI adjustment should apply in the second and subsequent years of each mining lease.
ORDERS
- In respect of ML 20589 compensation is determined in an amount of $2750 per annum for the first year and that sum as adjusted in accordance with the Consumer Price Index in each subsequent year of the tenure.
- In respect of ML 20590 compensation is determined in an amount of $2750 per annum for the first year and that sum as adjusted in accordance with the Consumer Price Index in each subsequent year of the tenure.
- That the applicant pay compensation to the respondents the amounts set out in Orders 1 and 2 within three months of the date of grant of the mining leases by Department of Natural Resources and Mines and in each subsequent year on the anniversary of the date of grant.
GJ SMITH
JUDICIAL REGISTRAR