Fitzgerald v Struber[2016] QLC 48

LAND COURT OF QUEENSLAND

1. [1]
   This proceeding concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease 100034. The referral documents list the address for the respondents as:

 ANDREW RUSHTON

 PRINCIPAL PUBLIC TRUST OFFICER

 PUBLIC TRUST OFFICE

 PO BOX 656

 CAIRNS QLD 4870

Background

2. [2]
   The applicant, Cheryl May Fitzgerald (the miner) seeks the grant of a mining lease located on land described as Lot 14 on SP 250040.  The Mining Lease Area comprises of 4.6 ha within Palmerville Station which 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 reference and tenure details are set out as follows: 

5. [5]
   On 15 December 2015 a Certificate of Application for Mining Lease 100034 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 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:

“(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.”

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:

“(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).”

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 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 2016.  As the landowners are currently serving a period of imprisonment a copy of this correspondence was also emailed to the Official Solicitor, Public Trustee of Queensland^[2].

11. [11]
    On 30 March 2016 correspondence and submissions on behalf of the miner were received from Mining and Resource Permit Services of Mt Sheridan, Queensland. The correspondence indicated that the materials had been forwarded to the landowners c/- the Public Trust Office, Cairns and the Lotus Glen Correctional Centre, Mareeba. “Registered Post” lodgement receipts were also provided. A compensation statement within this correspondence detailed the following points regarding the assessment of compensation:

1. Mining operations will comprise a small scale mining operation.
2. The mining area will be an extension of the miner’s ongoing operations.
3. Contended a compensation amount of $10 per hectare per year.
4.   Court references for earlier determinations upon Palmerville Station including    Fitzgerald & Anor v Struber & Anor [2009] QLC 76 and Kayes v Struber & Anor [2016] QLC 3.

12. [12]
    On 5 May 2016 correspondence dated 20 April 2016 was received by the Land Court registry from Mr Stephen Struber.  The correspondence asserts that the miner has not provided details concerning the mining tenure in breach of Practice Direction No.6 of 2015 and also vaguely alleges illegal use of the land by the miner.
13. [13]
    While noting the landowners’ suggestion of non-compliance with Land Court Practice Direction No. 6 of 2015, it none the less appears that the referral documents have been provided to the Public Trust office by DNRM and that the miner’s submissions have been forwarded to the Lotus Glen Correctional Centre by Mining and Resource Permit Services. Accordingly, in light of the Certificate of Application dated 15 December 2015 and Public Trustee’s acknowledgement of the proceedings I intend to complete this determination of compensation on the material before me.
14. [14]
    Issues associated with the merit or desirability of ML 100034 unrelated to the determination of compensation are not matters that the Court can resolve as part of this referral.  Any concerns held by the landowners may, however, be referred to DNRM or the Department of Environment and Heritage Protection for consideration and response if necessary.

Determination

15. [15]
    As neither party has sought to rely upon valuation or other expert evidence in respect of this determination the following 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.”

16. [16]
    Given the absence of expert or valuation evidence in these proceedings I consider that Land Court judgments from the Mareeba district that have been based on evidence tested by cross examination, full submissions and an inspection of Palmerville Station will be of most assistance. One such judgment is Fitzgerald & Anor v Struber & Anor^[4].  This determination involved multiple applicants, Mr and Mrs Struber as respondents and resulted in a determination of compensation of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas.  In the later case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[5], the Court determined compensation at $10 per ha per annum for the relevant mining areas and $5 per ha per annum for access areas.  More recently in Wallace & Ors v Bottomer & Ors^[6], the Court also determined compensation for the mining area of a renewed lease at $10 per ha per annum.
17. [17]
    Based on these judicial determinations of compensation from within the Mareeba District I consider that $10/ha per annum in respect of the mining area of ML 10034 to be appropriate compensation.

ML 100034

18. [18]
    As there is no associated access across Palmerville Station this determination of compensation concerns only the mining area of 4.6 ha.  For the purposes of this assessment the area of the mining lease will be rounded to 5 ha.
19. [19]
    The final determination in respect of ML 100034 is set out as follows:

Area covered by mining lease – 5 ha @ $10 per ha =  $50.00 per annum

            add s 281(4)(e) re: compulsory nature of grant        =  $  5.00 per annum

Total                       =  $55.00 per annum

20. [20]
    In light of the duration of the term of the mining lease and the amounts assessed I intend to order that the compensation be paid as a single lump sum of $550 for the duration of the initial grant period of 10 years.

21. [21]
    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 10034 compensation is determined in the total sum of $550 for the initial grant period of 10 years.
2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines.

GJ SMITH

JUDICIAL REGISTRAR