Pavey v Struber[2016] QLC 79

LAND COURT OF QUEENSLAND

1. [1]
   These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Leases  ML 100086, ML 100093 and ML 100095.

Background

2. [2]
   The applicants, Ashley Owen Pavey and Darrell Warren Skennar (the miners) seek the grant of mining leases and access upon land described as Lot 14 on SP250040.  This land in more commonly known as Palmerville Station and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). 
3. [3]
   Palmerville Station 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: 

5. [5]
   The landowners are currently serving a period of imprisonment and consequently the referral documents list the address for the respondents as:

 QUEENSLAND PUBLIC TRUSTEE

 PO BOX 656

 CAIRNS QLD 4870

Relevant Legislation

6. [6]
   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 DNRM and the matter has been referred to the Land Court for determination.
7. [7]
   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:

8. [8]
   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:

9. [9]
   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

10. [10]
    On 12 October 2016, a Deputy Registrar of the Land Court wrote to the parties in respect of each mining lease setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No. 6 of 2015. 
11. [11]
    On 2 November 2016 correspondence and submissions on behalf of the miners were received from Mining and Resource Permit Services of Mt Sheridan, Queensland. A summary of the contentions on behalf of the miners is set out below:

1. Mining will consist of small scale alluvial operations.
2. The miner is already undertaking mining in the area and these leases will be an extension of those operations.
3. Compensation should be determined at $10 per hectare per annum for mining areas and $5 per hectare per annum for access.
4. Detailed Court determinations said to support the amounts of compensation contended i.e. Fitzgerald & Ors v Struber & Anor [2009] QLC 76, Kayes v Struber & Anor [2016] QLC 3, Northeast Mining Co Pty Ltd v Struber & Anor [2016] QLC 5, Munro & Anor v Struber & Anor [2016] QLC 49.

12. [12]
    No submission or material in reply to the miner’s material has been filed by or on behalf of the landowners.

Determination

13. [13]
    In circumstances where there is no valuation or other expert evidence before the Court and no material at all from the landowners, I consider that the assessment of compensation is most accurately informed by relevant Land Court judgments from the Mareeba mining district that have been based on expert evidence tested by cross examination, full submissions and an inspection of Palmerville Station.  One such judgment is Fitzgerald & Ors v Struber & Anor^[2] (Fitzgerald), which involved  the current landowners, Mr Struber and Mrs Wilson-Struber as respondents and resulted in the determination of compensation of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas. 
14. [14]
    As the determinations cited^[3] in the miners’ submission have also been guided by Fitzgerald, I accept the submission that similar rates of compensation should be assessed for ML 100095, ML 100086 and ML 100093. Accordingly, I consider that $10 per ha per annum in respect of the mining areas of each lease and $5 per ha per annum in respect of access areas are appropriate compensation.
15. [15]
    The relevant areas of each mining lease have been rounded to the next full hectare for calculation purposes. The final determination in each case is set out as follows:

16. [16]
    As the landholders are presently incarcerated, I intend to order that the compensation determined be paid on their behalf to the Public Trustee of Queensland.^[4]

Orders

1. In respect of ML 100095 compensation is determined in an amount of $171.00 per annum.
2. In respect of ML 100086 compensation is determined in an amount of $374.00 per annum.
3. In respect of ML 100093 compensation is determined in an amount of $187.00 per annum.
4. The miners pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1, 2 and 3 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and on the anniversary of the grant of each lease.

GJ SMITH

JUDICIAL REGISTRAR