Taylor v Allen[2016] QLC 52

LAND COURT OF QUEENSLAND

1. [1]
   This matter involves a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 85(12) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of mining claim 300019 (MC 300019).

Background

2. [2]
   The applicant, Andrew John Taylor (the miner) has applied for the grant of MC 300019 over land located approximately 90 kilometres south of Isisford in the Winton District. The land is within the Longreach Regional Council local government area. The grant is sought for a period of 10 years.  The purpose of the claim is for the mining of opal.
3. [3]
   The relevant area concerns an access track approximately 4.88 ha in area across land owned by Ian John Allen (the landowner). The land is more particularly described as Lot 1934 on PH848 and is used for grazing by the respondent.

Relevant Legislation

4. [4]
   Section 85 of the MRA provides that a mining claim shall not be granted or renewed unless compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the subject of the application and of any surface access to that land.  In respect of this matter, no agreement has been lodged with DNRM and accordingly the matter has been referred to the Land Court for determination.
5. [5]
   The matters that must be considered by the Court are set out in s 85(7) of the MRA which provides that an owner of land is entitled to compensation for:

1. (a)
   deprivation of possession of the surface of land of the owner;

2. (b)
   diminution of the value of the land of the owner or any improvements thereon;

3. (c)
   diminution of the use made or which may be made of the land of the owner or any improvements thereon;

4. (d)
   severance of any part of the land from other parts thereof or from other land of the owner;

5. (e)
   any surface rights of access;

6. (f)
   all loss or expense that arises;

as a consequence of the grant or renewal of the mining claim.

6. [6]
   Section 85(8) of the MRA enables various additional factors to be included in the compensation assessment.  In the present case, only paragraph (e) is relevant. It provides as follows:

1. “(8)
   In assessing the amount of compensation payable under subsection (7) -

…

5. (e)
   an additional amount shall be determined to reflect the compulsory nature of action taken under this chapter which amount … shall be not less than 10% of the aggregate amount determined under subsection (7).”

7. [7]
   In Wills v Minerva Coal Pty Ltd [No. 2]^[1], when considering a provision effectively identical to s 85 of the MRA this Court observed 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.”

8. [8]
   Similarly 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.”

9. [9]
   The principles from these judgments have been applied in undertaking the present determination of compensation pursuant to s 85 of the MRA.

The Conduct of the Proceedings and Evidence

10. [10]
    On 11 March 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. No correspondence, submissions or material has been received from either party subsequent to this correspondence.

11. [11]
    In the absence of any material from the parties, the determination of compensation can be a challenging assessment.  In Unimin Australia Limited v Freeman,^[3] this Court noted as follows:

“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.”

12. [12]
    In circumstances where there is no evidence submitted by the parties it is considered appropriate to be have regard to relevant earlier judgments of the Court for guidance when undertaking the current determination.   In the matter of Kaljevic v Mills & Anor (Kaljevic),^[4] Member Isdale determined compensation at a rate of $180 per annum. Kaljevic like the present determination, concerned a 10 year lease for the purpose of opal mining over grazing land situated in the Winton District.  The current assessment unlike Kaljevic concerns only an area used for access.  A similar approach was adopted by the Court in Tully v Colac Cable Harvesting Pty Ltd [2015] QLC 35 which concerned a mining lease renewal for a period of 10 years over grazing land within the Winton District.

Determination

13. [13]
    I have considered the referral materials in light of the preceding Court determinations and taking into account all heads of compensation set out in s 85(7) of the MRA, I assess the total compensation for MC 300019 at $300 for the initial 10 year grant period.  Pursuant to s 85(8)(e) of the MRA I order an additional sum of $30 to reflect the compulsory nature of the grant of the mining claim.  This results in total compensation under all heads in the sum of $330.

ORDERS

1. Compensation is determined in the total sum of Three Hundred and Thirty Dollars ($330).

2. The miner is to pay compensation to the respondent in the amount set out in Order 1 hereof within three (3) months of the grant of Mining Claim 300019 by the Department of Natural Resources and Mines.

GJ SMITH

JUDICIAL REGISTRAR