Brown v Struber[2016] QLC 54

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 renewal of Mining Lease 20243 (ML 20243). The referral documents list the address for the respondents as:

PRINCIPAL PUBLIC TRUST OFFICER

PUBLIC TRUST OFFICE

PO BOX 656

CAIRNS QLD 4870

Background

2. [2]
   The applicant, Stephen John Brown (the miner) seeks the renewal of a mining lease located on land described as Lot 14 on SP 250040.  The Mining Lease Area comprises of 7.00 ha and a 7.6 km access track across land owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). 
3. [3]
   The subject land, known as Palmerville Station is located in the Mareeba 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: 

Relevant Legislation

5. [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. [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:

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

1. (ii)
   diminution of the value of the land of the owner or any improvements thereon;

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

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

1. (v)
   any surface rights of access;

1. (vi)
   all loss or expense that arises; as a consequence of the grant or renewal of the mining lease.”

7. [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:

1. “(4)
   In assessing the amount of compensation payable under subsection (3) -

2. (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. [8]
   The assessment to be undertaken in accordance with s 281 was discussed in 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.”

The Conduct of the Proceedings and Evidence

9. [9]
   On 16 June 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 the correspondence was forwarded to the landowner’s c/- Stephen R Struber Private Bag 1 Mareeba Qld 4880.

10. [10]
    On 6 July 2016 a compensation statement was received from the miner and filed in the registry together with a hearing statement and associated mapping.  The materials included submissions which set out the following matters for consideration in relation to the assessment of compensation for the purpose of this determination:

1. The area of ML 20243 will be utilised for camp accommodation, tank water and solar power.
2. Previous use of the land was low intensity grazing.
3. Limited diminution of land due to minimal stock carrying capacity.
4. The miner is aware of not interfering with the operational business of the station and understands the need to respect the movement of any cattle within the mining and access areas.

11. [11]
    Although the miner has not relied upon any valuation or other expert evidence he has contended that compensation be resolved at a rate of $10 per ha per annum in respect of mining areas and $5 per ha per annum in respect of access areas.  The miner has detailed several Court judgments^[2] involving compensation determinations undertaken concerning the mining operations on Palmerville Station.
12. [12]
    The landowners have not filed any material in response to the submissions made by the miner.

Determination

13. [13]
    As there has been no expert evidence filed by either party or any contrary submission from the landowners I consider it appropriate to seek guidance from the Court judgments that the miner has identified in support of the contended amounts of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas. One judgment referred to by the miner, namely Fitzgerald & Anor v Struber & Anor^[3] involved contested proceedings where the evidence was tested by cross-examination, the parties had made full submissions and an inspection of the subject land had been undertaken. More recently in Wallace & Ors v Bottomer & Ors^[4], this Court determined compensation for the mining area of a renewed lease at $10 per ha per annum.
14. [14]
    On the basis of these earlier judicial determinations of compensation from within the Mareeba District I consider that $10 per ha per annum in respect of the mining area and $5 per ha per annum for access areas to be fair and reasonable compensation in respect of ML 20243. The access area of 2.28 ha will be rounded to the next full hectare for the calculation purposes.
15. [15]
    The final determination in respect of ML 20243 is set out as follows:

Area covered by mining lease – 7 ha @ $10 per ha = $70.00 per annum

Area covered by access –  3 ha @ $  5 per ha = $15.00 per annum

            add s 281(4)(e) re: compulsory nature of grant        = $10.00 per annum

Total                               = $95.00 per annum

16. [16]
    In view of the landholders’ present incarceration, I intend to order that the compensation determined be paid to the Public Trustee of Queensland.

ORDERS

1. In respect of ML 20243 compensation is determined in the total sum of $95 per annum.
2. The applicant pay compensation to the Public Trustee of Queensland in the amount set out in order 1 within one month from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR