Burtenshaw v Tablelands Regional Council
[2016] QLC 68
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- Unreported Judgment
- Burtenshaw v Tablelands Regional Council[2016] QLC 68
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Burtenshaw v Tablelands Regional Council[2016] QLC 68
Burtenshaw v Tablelands Regional Council[2016] QLC 68
LAND COURT OF QUEENSLAND
CITATION: | Burtenshaw & Anor v Tablelands Regional Council [2016] QLC 68 |
PARTIES: | Garry Frederick Burtenshaw & Rosemary Anne Burtenshaw (applicants) v Tablelands Regional Council (respondent) |
FILE NO: | MRA238-16 |
DIVISION: | General Division |
PROCEEDING: | Determination of compensation for renewal of mining lease. |
DELIVERED ON: | 10 November 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 5 September 2016 |
HEARD AT: | Heard on the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDERS: |
|
CATCHWORDS: | MINING LEASE – renewal – referral – access – determination of compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes. |
| Mineral Resources Act 1989, s 279A Unimin Australia Limited v Freeman [2007] QLC 76 Burtenshaw v Mudge [2015] QLC 1 Burtenshaw & Anor v Burtenshaw & Ors [2015] QLC 31 |
APPEARANCES: | Not applicable |
Background
- [1]This matter involves a referral to the Land Court pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease 4342 (ML 4342).
- [2]On 8 May 2015, Garry Frederick Burtenshaw and Rosemary Anne Burtenshaw (the miners) applied for the renewal of ML 4342 over land located approximately 10 km north of Mount Garnett in the Mareeba Mining District. The land is within the Tableland Regional Council local government area. Further renewal is sought for a period of 21 years. The purpose of the proposed renewal is for the mining of tin.
- [3]Mapping data supplied by the Department of Natural Resources and Mines (DNRM) indicates that approximately 0.8 ha of ML 4342 is situated upon a road reserve under the control of the Tablelands Regional Council (the respondent). The area of 0.8 ha will be rounded to 1 ha for calculation purposes.
Relevant Legislation
- [4]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 the DNRM and the matter has been referred to the Land Court for determination.
- [5]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.
- [6]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).”
The Conduct of the Proceedings and Evidence
- [7]On 1 July 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.
- [8]On 25 October 2016, the miners emailed the Land Court registry and the respondent advising that they “are prepared to rely upon the Land Court determination in relation to the road access crossing mining lease 4342”. Other than this email no other material has been filed or sought to be relied upon by either party.
- [9]The nature of the determination process in such circumstances was addressed by Member Jones [as he then was] in Unimin Australia Limited v Freeman[1]:
“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.”
- [10]Given that the referral documents provided by DNRM are the only material before the Court I consider that the best guidance for this determination can be gleaned from recent Court judgments from within the Mareeba Mining District.
- [11]In the recent cases of Burtenshaw v Mudge[2] and Burtenshaw & Anor v Burtenshaw & Ors[3] I determined compensation of $10 per hectare per annum for mining areas and $5 per hectare per annum for access areas. Each of these determinations involved tin mining operations undertaken by the miners within the Mareeba Mining District and the Tablelands Regional Council.
Determination
- [12]After considering the referral materials provided by DNRM and the relevant Court determinations cited above I determine compensation for ML 4342 at $10 per hectare per annum. This results in a total annual amount of $210 for the 21 year renewal period. Pursuant to Section 281(4)(e) of the MRA, I will add an additional sum of $30 to reflect the compulsory nature of the renewal of ML 4342 giving a total of $240.00 for the renewal period. Given this amount and the duration of the renewal period I intend to order that the total amount of compensation be paid in one lump sum within two months from the notification of the renewal of ML 4342 by the Department of Natural Resources and Mines.
Orders
- Compensation is determined in the total sum of Two Hundred and Forty Dollars ($240.00).
- The applicants are to pay compensation to the respondent the amount set out in Order 1 hereof within two (2) months of the renewal of Mining Lease 4342 by the Department of Natural Resources and Mines.
GJ SMITH
JUDICIAL REGISTRAR