Herberton Tin Pty Ltd v Gundersen
[2016] QLC 47
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- Unreported Judgment
- Herberton Tin Pty Ltd v Gundersen[2016] QLC 47
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Herberton Tin Pty Ltd v Gundersen[2016] QLC 47
Herberton Tin Pty Ltd v Gundersen[2016] QLC 47
LAND COURT OF QUEENSLAND
CITATION: | Herberton Tin Pty Ltd v Gundersen & Anor [2016] QLC 47 |
PARTIES: | Herberton Tin Pty Ltd (applicant) v Laurelle Ursula Lorna Gundersen & Grant Henrik Gundersen (respondents) |
FILE NO: | MRA076-16 |
DIVISION: | General Division |
PROCEEDING: | Determination of compensation for renewal of a mining lease |
DELIVERED ON: | 16 August 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 27 April 2016 |
HEARD AT: | Heard on the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDER: |
|
CATCHWORDS: | MINING LEASE – renewal – access – determination of compensation – referral documents – use of Court judgments for determination purposes. Mineral Resources Act 1989 ss 279A, 281 Re Fitzgerald & Anor [2009] QLC 15 Re Fitzgerald and Hughes [2009] QLC 73 Donovan v Struber & Anor [2009] QLC 160 Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38 Kimmoth & Poole [2009] QLC 117 Unimin Australia Limited v Freeman [2007] QLC 76 Wallace & Ors v Bottomer & Ors [2015] QLC 23 Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297 |
APPEARANCES: | Not applicable |
- [1]This proceeding concerns 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 3881 (ML 3881).
Background
- [2]The applicant, Herberton Tin Pty Ltd (the miner) seeks the renewal of a mining lease located on land described as Lot 598 on OL064. The mining lease comprises a mining area of approximately 2.83 ha and a 1.63 km access track across land owned by the respondents Laurelle Ursula Lorna Gundersen and Grant Henrik Gundersen (the landowners).
- [3]The land is used for grazing purposes and is located approximately 15 kilometres north of Irvinebank in the Mareeba mining district and within the Mareeba Shire Council local government area.
- [4]The specific Land Court reference and tenure details are set out as follows:
Court Reference | Tenure ID | Area | Term | Lease Purpose |
MRA076-16 | 3881 | 2.83 ha | 15 years | Various minerals |
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 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 24 February 2016, 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. 6 of 2015. Since this date neither the miner nor the landowners have not filed any material in relation to the determination of compensation in respect of ML 3881.
- [10]In the absence of expert or other evidence the referral documents from DNRM are the only materials before me for consideration. In the circumstances the observations by Member Jones [as he then was] in Unimin Australia Limited v Freeman[2], regarding the assessment process are worth noting:
“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.”
- [11]In the circumstances I propose to be guided by relevant determinations from the Mareeba district in undertaking this determination. Determinations from within the Mareeba district range from $5 per hectare per annum to $15 per hectare per annum[3]. In an earlier case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor[4] Member PA Smith allowed the sum of $10 per hectare per year for mining areas and $5 per hectare per year for access areas. The landowners in that case are the same landowners as in this determination.
Determination
- [12]The referral material provided by DNRM confirms that an access track across the subject land is approximately 1.63 km in length and 10 m in width. For the determination purposes I propose to round the access and mining areas to 2 ha and 3 ha respectively.
- [13]On the basis of the earlier Court judgments my determination in respect of ML 3881 is set out as follows:
Area covered by mining lease – 3 ha @ $10 per ha per annum = $ 30 per annum
Area covered by access – 2 ha @ $ 5 per ha per annum = $ 10 per annum
add s 281(4)(e) re: compulsory nature of grant = $ 4 per annum
Total = $ 44 per annum
- [14]In light of the annual amount determined and the duration of the renewal period I propose to order that compensation for the renewal period be paid on a one off up front basis.
ORDERS
- In respect of ML 3881 compensation is determined in the total sum of $660 for the renewal period of 15 years.
- The miner pay compensation to the landowners the amount set out in order 1 within three months from notification of the renewal of the mining lease by the Department of Natural Resources and Mines.
GJ SMITH
JUDICIAL REGISTRAR
Footnotes
[1]Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297 at 315.
[2] [2007] QLC 76
[3] Re Fitzgerald & Anor [2009] QLC 15; Re Fitzgerald and Hughes [2009] QLC 73; Re Kimmoth & Poole [2009] QLC 117; Donovan v Struber & Anor [2009] QLC 160; Wallace & Ors v Bottomer & Ors [2015] QLC 23.
[4] [2014] QLC 38.