Valantine v Etheridge Shire Council
[2016] QLC 55
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- Unreported Judgment
- Valantine v Etheridge Shire Council[2016] QLC 55
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Valantine v Etheridge Shire Council[2016] QLC 55
Valantine v Etheridge Shire Council[2016] QLC 55
LAND COURT OF QUEENSLAND
CITATION: | Valantine v Etheridge Shire Council [2016] QLC 55* |
PARTIES: | Lois Maree Valantine (applicant) |
| v |
| Etheridge Shire Council (respondent) |
FILE NO: | MRA567-15 |
DIVISION: | General Division |
PROCEEDING: | Hearing of application for grant of mining lease under s 268 of the Mineral Resources Act 1989 |
DELIVERED ON: | 28 September 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Matter heard on the written material at the request of the parties. |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
RECOMMENDATION: | In accordance with section 269(1)(d) and 2(a) of the Mineral Resources Act 1989, the Court recommends to the Minister that the application for Mining Lease 100020 be granted in whole. The road reserve is not sought and must be excluded. |
CATCHWORDS: | Energy and resources — Minerals — Mining for minerals — Titles: rights, permits, licences and leases etc — Extraction titles — Other matters — where the Applicant applied for mining lease — where respondent Council objected — where Applicant confirmed grounds for objection excluded — where the Court recommended to Minister application be granted. Mineral Resources Act 1989 ss 268, 269 |
APPEARANCES: | The parties made written submissions. |
The application
- [1]The applicant has applied for Mining Lease (ML) 100020. It is sought to be for a period of 20 years and the purpose is for mining of gold and tin as well as lead, diamonds, silver and tantalum / tantalite. There is proposed to be a processing plant, living quarters and a workshop. There will be machinery and storage, a water pipeline, vehicles and a haul road. The area is about 28 km south, south-west of Georgetown. The mining is intended to be by alluvial means. The surface area will need to be accessed so that mining can be carried out and the associated machinery and structures put in place. There will be soil dumps and mining and rehabilitation will be carried out progressively. Grazing on the land will be interrupted as the mining and rehabilitation proceed. The land is presently used for grazing and, the applicant says, for illegal fossicking by people with metal detectors. The area is 58.16 ha.
The objection
- [2]The Etheridge Shire Council is the sole objector to the ML sought being granted. The respondent Council objects on the basis that the applicant’s material was not clear about whether the tenure was sought to be granted over Flat Creek Road. The relevant section of the road is maintained by the respondent. The objection was to the grant of the ML and the surface area of the road and the road reserve abutting it.
The process
- [3]As required by the Mineral Resources Act 1989 (Act) the objection was referred to the Court. The parties have provided written submissions to the Court and asked that the matter be determined without an oral hearing.
- [4]The written submissions have focused on the area of concern to the respondent. It is understandably concerned to ensure that the ML does not include the road reserve upon which is Flat Creek Road. The respondent maintains that road which is used for access to properties in the locality. It quite properly is concerned to ensure that the holder of the ML not be able to disturb the surface of the road and block access along it to road users. It is submitted by the respondent that Flat Creek Road is the most convenient means of access to Georgetown for persons who live in the area.
- [5]This matter was being handled by another Court Member who has been heavily committed to a lengthy case. In order to more speedily consider this case it has recently been reallocated to the present Court Member.
- [6]
- [7]In the Statutory Declaration declared and filed on 29 January, 2016, William John Attwood, Mayor of the respondent, states that as the respondent “has no objection to the mining lease being granted provided that the surface area of the Road is excluded from the area of the mining lease”. If that were not the case, the respondent would object. It refers in this regard to section 271A(2) of the Act which would require its consent in relation to the Road Reserve. It is clear that it would not consent.
- [8]The respondent’s Mayor, in the Statutory Declaration declared and filed on 12 February, 2016 refers to the Statutory Declaration declared on 29 January, 2016 and reconfirms that the respondent is satisfied that Flat Creek Road “has now been clearly excluded from the Mining Lease area …”. This Statutory Declaration repeats that the respondent has no objection to the ML being granted provided that the surface area of the road is excluded from the mining lease. Also repeated is the cautionary statement that if this road area is not excluded then the objection remains.
- [9]The material referred to shows that there is no longer an objection to the grant of the ML. As it is still before the Court is may be most expeditious to simply consider it as required by the Act. The Act, in section 269(4), sets out the matters which the Court shall take into account and consider. The relevant provisions will be considered seriatim.
(4) The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
(a) the provisions of this Act have been complied with; and
The material indicates that the provisions of the Act have been complied with.
- [10](b) the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
This is not in dispute and the material indicates that this is so.
- [11](c) if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
This is not in dispute and the material indicates that this is so.
- [12](d) the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to –
(i) the matters mentioned in paragraphs (b) and (c);
and
(ii) the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
This is not in dispute and the material indicates that this is so.
- [13](e) the term sought is appropriate; and
This is not in dispute and the material indicates that this is so. The period sought is 20 years and it is intended that there be progressive mining and rehabilitation. This time period is sought to allow for planning, preparation, mining and then rehabilitation.
- [14](f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
This is not in dispute. The applicant states that start-up costs will be approximately $30,000 for site preparation and $15,000 to mobilise the plant. Once mining commences, the estimated expenses will be around $12,000 per operating week. It is anticipated that mining will take place for 30 weeks per annum, subject to weather conditions and the availability of water. None of this was contested.
- [15](g) the past performance of the applicant has been satisfactory; and
This was not disputed.
- [16](h) any disadvantage may result to the rights of –
(i) holders of existing exploration permits or mineral development licences, or
(ii) existing applicants for exploration permits or mineral development licences; and
The material indicates that the necessary consents have been obtained from those who would be affected by the grant of the ML.
- [17](i) the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
There is no objection to the environmental authority which would be in place to regulate the proposed mining activity – on the basis of this, the answer to this question is “Yes”.
- [18](j) there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
The mining would be expected to cause adverse environmental impact. The extent will be regulated by the environmental authority. As has been noted, there is no objection in relation to environmental matters.
- [19](k) the public right and interest will be prejudiced; and
The public right and interest will not be prejudiced as the ML will not extend over the road. While the material refers in different places to the road and to the road reserve, the Court recommends that the ML clearly exclude the road reserve as the respondent may have need to move the actual roadway anywhere within the road reserve for the purpose of maintaining or repairing it.
- [20](l) any good reason has been shown for a refusal to grant the mining lease; and
There is no objection to the grant of the ML and the material does not show the presence of any good reason for refusal to grant the ML.
- [21](m) taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.
The current and prospective uses of the land are for grazing. The Court is not concerned to maintain any illegal fossicking. The road reserve is excluded from the ML sought. Taking these things into account, the proposed mining operation is an appropriate land use.
The Land Court’s recommendation under section 269 of the Mineral Resources Act 1989
- [22]The Court recommends to the Minister that the application for Mining Lease 100020 be granted in whole. The road reserve is not sought and must be excluded.
Recommendation:
In accordance with section 269(1)(d) and 2(a) of the Mineral Resources Act 1989, the Court recommends to the Minister that the application for Mining Lease 100020 be granted in whole. The road reserve is not sought and must be excluded.
WA ISDALE
MEMBER OF THE LAND COURT