Kelly v Struber[2016] QLC 78

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 3009 (ML 3009). 

Background

2. [2]
   The applicant, Gilbert Errol Kelly (the miner), seeks the renewal of ML 3009, which comprises a mining lease area of 27.06 ha and an access track area of 11.9 ha and is located within the Cook Shire local government area on land more particularly described as Lot 14 on SP250040. The property, more commonly known as Palmerville Station, is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners) and is used for grazing purposes. 
3. [3]
   The specific Land Court reference and tenure details are set out as follows: 

Relevant Legislation

4. [4]
   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.
5. [5]
   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:

“(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.”

6. [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).”

7. [7]
   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

8. [8]
   On 11 October 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. 
9. [9]
   On 9 November 2016, written submissions and a compensation statement were received from the Miner in accordance with the timetable set out in the correspondence dated 11 October 2016. No material or compensation statement has been received from or on behalf of the landowners. 
10. [10]
    A summary of the points raised in the miner’s submission is set out as follows:

    1. Compensation be resolved at $10 per hectare per annum if Mr Struber were agreeable or $1 per hectare per annum if not agreeable.
    2. Minimal diminution of use of the land will occur as the stock carrying capacity of the land is minimal.
    3. The land is considered pastoral land upon which low intensity grazing is conducted.
    4. Small scale alluvial mining operations will be conducted with only one employee at any one time with no interference with station business or stock. Behaviour toward livestock will be appropriate.
    5. Relevant determinations include Valenti v Struber & Anor [2015] QLC 17 (Valenti) and Kelly v Struber & Anor [2016] QLC 7 (Kelly).

Determination

11. [11]
    The Court judgments of Valenti and Kelly identified in the miner’s submission concern mining tenures on Palmerville Station and are quite recent, having been determined in 2015 and 2016 respectively.  The decision in Valenti is helpful having been guided by Fitzgerald & Ors v Struber & Anor^[2] (Fitzgerald), a decision which followed a full hearing in Cooktown, involved Mr and Mrs Struber and was based on evidence tested by cross examination and submissions.
12. [12]
    The Court in Fitzgerald determined compensation in respect of the mining lease area on Palmerville Station at an annual rate of $10 per ha per annum and the access area at $5 per ha per annum.  The determination in Kelly also concerned a determination of compensation on Palmerville Station and involved the same parties to the current proceeding. The Court in Kelly determined compensation at $10 per ha per annum in respect of the relevant mining areas.
13. [13]
    Further, in the recent decision of Wallace & Ors v Bottomer & Ors^[3] (Wallace) Member Smith determined compensation for the mining area of a renewed lease in the Mareeba District at $10 per ha per annum. Court judgments indicate that Member Smith, in addition to Wallace, has also undertaken site inspections and numerous compensation determinations concerning Palmerville Station.
14. [14]
    In the absence of valuation or other expert evidence I consider the preceding Court determinations provide the most useful guide for determining compensation.  On the basis of these judicial determinations and the relevant material before me I consider that $10 per ha per annum in respect of the mining lease areas and $5 per ha per annum for access areas is appropriate compensation.  The specific areas in each case have been rounded to the next full hectare for calculation purposes.

ML 3009

15. [15]
    The final determination in respect of ML3009 is set out as follows:

Area covered by mining lease – 28 ha @ $10/ha = $280.00 per annum

Area covered by access – 12 ha @ $5/ha  = $  60.00 per annum

 add s 281(4)(e) re: compulsory nature of grant = $  34.00 per annum

 Total               = $374.00 per annum

16. [16]
    In view of the landowners’ present incarceration, I intend to order that the compensation determined be paid to the Public Trustee of Queensland.^[4] 

Orders

1. In respect of ML 3009 compensation is determined in the sum of $ 374.00 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 three 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