Kelly v Struber[2016] QLC 7

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 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease 20175.  The referral was filed in the Land Court on 6 August 2015.

Background

2. [2]
   The applicant, Gilbert Errol Kelly (the miner), seeks the renewal of ML 20175.  The Mining Lease Area of 166 ha is situated on land described as Lot 14 on SP250040.  This property, known as Palmerville Station, 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: 

Relevant Legislation

5. [5]
   Section 279 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 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;

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

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

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

5. (v)
   any surface rights of access;

6. (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 ^[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]
   During the latter part of July 2015 the Land Court became aware that the landowners had been sentenced to life imprisonment by the Supreme Court at Cairns.  The Registrar of the Land Court wrote to the Public Trustee of Queensland^[2] on 4 August 2015 to notify of all litigation involving the landowners that was before the Court as at that date. The present referral in respect of ML 20175 was filed in the Court two days later on 6 August 2015.
10. [10]
    On 17 August 2015, 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.5 of 2013. 
11. [11]
    On 25 August 2015 email correspondence from the Official Solicitor to the Public Trustee (the Official Solicitor) advised the Land Court that documentation in relation to these proceedings could be served upon the Official Solicitor. 
12. [12]
    On 26 August 2015 registry staff forwarded to the Official Solicitor all material that had been received by the Land Court subsequent to the referral by DNRM.
13. [13]
    On 14 September 2015 an email was received on behalf of the miner headed “MRA337-15 G E Kelly ML20175”.  Attached to the email was an unsigned submission with the miners name typed at the foot of the final page.
14. [14]
    No material was received by the Land Court from the landowners in accordance with the timetable set out in the correspondence from the Court dated 17 August 2015. 

15. [15]
    On 25 September 2015, following a request by the Official Solicitor an extension for the filing of additional material was granted until 30 October 2015.  This date was extended to 30 November 2015 after a further request by the Official Solicitor.
16. [16]
    On 26 November 2015 a hand written submission was filed by the landowners.  The one page document addressed a range of issues but did not include any specific contention or suggest any resolution in respect of the determination of compensation pursuant to s 281 MRA.  The submission listed information that had been provided to them and a further list of additional details of information that was still required by them.  The submission also includes the following comment:

“This is an unacceptable situation for the landowners to attempt to be involved with this compensation determination.  This is a total violation of the Mineral Resource[s] Act (1989) requirements”. 

17. [17]
    It should be noted that the referral by DNRM to the Land Court pursuant to s 279A MRA relates only to the determination of compensation, and consequently the jurisdiction of the Court is limited to that determination pursuant to s 281 MRA.
18. [18]
    Issues associated with alleged non-compliance are not matters that the Court can consider as part of this referral.  Concerns held by the landowners may be referred to DNRM or the Department of Environment and Heritage Protection for further action if necessary or pursued via some other appropriate avenue.
19. [19]
    No additional material or submission was received from the miner. I therefore consider it is appropriate to proceed to determine the issue of compensation pursuant to s 281 MRA.

Determination

20. [20]
    It is common for parties not to rely upon valuation or other expert evidence given the potential costs involved.  In such cases the 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.”

21. [21]
    The miner provided a two page submission which usefully referred to two judgments involving the determination of compensation on Palmerville Station, namely Valenti v Struber and Anor^[4] and Kelly v Struber and Anor^[5].   The following additional points were also included in the miners submission:

• a proposal to pay an amount of  $7/ha per annum if Mr Struber agreed
• minimal diminution of land use due to minimal stock carrying capacity
• relevant area on Palmerville Station classified as pastoral where low intensity grazing is conducted
• small scale mining operation with only two employees at any given time plus family over school holidays
• absence of interference with business of station including being mindful of behaviour relative to livestock
• relevant mining lease area within Palmerville Station of 166 ha

22. [22]
    The earlier Court determinations of Kelly and Valenti referred to in the miner’s submission both concern the Palmerville Station and are quite recent, Valenti having been handed down by me on 22 June 2015.   I consider the Valenti particularly helpful as that determination was guided by Fitzgerald & Anor v Struber & Anor^[6] , a decision which followed a full hearing in Cooktown, involved Mr and Mrs Struber and had the benefit of evidence tested by cross examination and submissions.    Member PA Smith determined compensation in respect of the mining lease area on Palmerville Station at an annual rate of $10/ha per annum and the access area at $5/ha per annum.  In the absence of valuation or other expert evidence I consider Court determinations of this nature the most useful guide in determining compensation. 
23. [23]
    Subsequent determinations are also supportive of the compensation ordered in Fitzgerald & Anor v Struber & Anor, e.g. in Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[7], Member Smith allowed the sum of $10/ha per annum for the area covered by the mining lease and $5/ha per annum for access in respect of the renewal of a mining lease in the Mareeba District.  In a more recent decision, Wallace & Ors v Bottomer & Ors^[8], Member Smith determined compensation for the mining area of a renewed lease in the Mareeba District at $10/ha per annum.  It is apparent that Member Smith, in addition to these cases, has also undertaken site inspections and many compensation determinations in relation to Palmerville Station.
24. [24]
    Based on these earlier judicial determinations of compensation and the relevant material before me I consider that $10/ha per annum in respect of the mining lease area is appropriate compensation.

ML 20175

25. [25]
    The determination of compensation in respect of proposed ML 20175 relates to mining lease areas only.  Mapping provided by DNRM confirms that the area of the mining lease within the Palmerville Station is 166 ha. 
26. [26]
    The final determination in respect of ML 20175 is set out as follows:

Area covered by mining lease – 166 ha @ $10/ha  =  $1660.00 per annum

add s 281(4)(e) re: compulsory nature of grant  =  $  170.00 per annum

Total       =  $ 1830.00 per annum

27. [27]
    In view of the landowners’ present circumstances, I intend to order that the compensation determined be paid to the Public Trustee of Queensland. 

ORDERS

1. In respect of ML 20175 compensation is determined in the total sum of $1830.00 per annum.

2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within two months 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