O'Shane v Cook Shire Council[2016] QLC 77

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 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease 100068 (ML 100068).  

Background

2. [2]
   The applicants, Patrick Daniel Michael O'Shane and Hamish William Bergerson (the miners) seek the grant of ML 100068 which is located approximately 9 km south-east of Laura within the Cook Shire local government area. Mapping data provided by DNRM indicates that 2.2 ha of ML 100068 is located within road reserve under the control of the Cook Shire Council (the respondent). The road reserve is more particularly described seg 8505025.

3. [3]
   The specific Land Court reference and tenure details are set out as follows: 

4. [4]
   On 15 February 2016 a Certificate of Application for ML 100068 was issued by the Mineral Assessment Hub.

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:

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:

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 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. 
10. [10]
    No material or submission has been filed by either party regarding the assessment of compensation for the grant of ML 100068. Accordingly, I consider it is appropriate to proceed to determine the issue of compensation pursuant to s 281 of the MRA.

Determination

11. [11]
    Given the absence of any materials or valuation or other expert evidence the views of Member Jones [as he then was] in Unimin Australia Limited v Freeman,^[2]regarding the assessment process 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.”

12. [12]
    In the circumstances, I consider the most helpful guide for determining compensation are Land Court judgments from within the local mining district which have been based on evidence tested by cross examination, full submissions and where an inspection of the relevant lease area has been undertaken as part of the assessment.
13. [13]
    The decision of Fitzgerald & Anor v Struber & Anor^[3] (Fitzgerald) provides helpful   guidance for the assessment of compensation in respect of a mining lease from within the Mareeba mining district.  The case involved multiple applicants and resulted in a determination of $10 per ha per annum in respect of the mining lease areas and $5 per ha per annum for access areas. 
14. [14]
    In two later decisions, namely Walker v Cook Shire Council^[4] and Tinpitch Pty Ltd v Cook Shire Council^[5] the Court determined compensation at the rate of $10 per ha per annum for mining lease areas within a road reserve under the control of the Cook Shire Council.
15. [15]
    On the basis of these earlier judicial determinations, I consider that $10 per ha per annum in respect of the area of ML 100068 situated within the road reserve to be an appropriate amount of compensation. 
16. [16]
    Given the duration of initial grant, namely 15 years and the relatively modest amount of compensation, I intend to order that the total amount of compensation be paid as one lump sum amount.
17. [17]
    The final determination in respect of ML 100068 is as follows: