Fitzgerald v Struber[2017] QLC 28

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 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease ML 20244.

Background

2. [2]
   The applicants, Kay Frances Fitzgerald and Patrick Charles Fitzgerald (the miners), seek the grant of a mining lease located on land described as Lot 14 on SP 250040. The mining lease area comprises of 43.67 hectares within Palmerville Station which is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). There is no relevant access track utilised by the miners within ML 20244.

3. [3]
   Palmerville Station is used for grazing purposes and is located within the Cook Shire local government area.

4. [4]
   The specific Land Court reference and tenure details are set out as follows:

Relevant Legislation

5. [5]
   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.

6. [6]
   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:

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:

3. (4)
   In assessing the amount of compensation payable under subsection (3)—

…

5. (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 (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 6 December 2016 a Deputy Registrar of the Land Court, Chris De Marco, forwarded correspondence to the parties setting out a timetable for the delivery of materials and submissions in respect of their respective positions in accordance with Land Court Practice Direction No. 6 of 2015.

10. [10]
    The landowners are and were at that time serving a period of imprisonment and consequently this correspondence was forwarded to Mr Struber c/ Lotus Glen Correctional Centre Mareeba Qld 4880. Mrs Wilson-Struber had earlier requested that correspondence be forwarded to Mr Struber only on behalf of both landowners.

11. [11]
    No materials or submissions have been received by the Court from or on behalf of the landowners in response to the aforementioned correspondence from Deputy Registrar De Marco.

12. [12]
    On 11 January 2017 correspondence was received from Avoca Tenement Consulting and Administrative Management enclosing a written submission on behalf of the miners. The submission set out the following points regarding the determination of compensation for ML 20244:

5. i.
   The operations will be on a part-time basis given the seasonal nature of alluvial mining.

5. ii.
   Fences will not be placed around the boundary of the mining leases so that cattle may wander and graze on the leases.

5. iii.
   Recent Land Court determinations MRA078-16 & MRA079-16 indicate an amount of $10.00 per hectare per annum with an additional amount of 10% for the compulsory nature of the grant.  This amount would be fair and reasonable amount of compensation.

5. iv.
   ML 20244 covers an area of 45.2496 hectares^[2] which could be rounded to 46 hectares for compensation purposes. Compensation for access is not required as access to ML 20244 is obtained via a creek on a nearby mining lease.

5. v.
   An amount of compensation of $506 per annum is proposed for the renewal period of 10 years.

13. [13]
    No submissions or materials have been filed or otherwise provided by the landowners in reply to the miner’s position.

Determination

14. [14]
    In the absence of any expert evidence from either party, it is proposed to rely on earlier Court determinations from within the Mareeba mining district. A useful Court judgment for this purpose is Fitzgerald & Ors v Struber & Anor.^[3] This determination was based on expert evidence given during a contested hearing and site inspection and provided the basis upon which compensation was decided in the judgments referenced^[4] by the miners. In the circumstances I am prepared to accept the rate of compensation contended for by the applicants i.e. $10.00 per hectare per annum in respect of the area of ML 20244.

15. [15]
    The determination involves no associated access area and the relevant mining area will be rounded to the next full hectare for assessment purposes. The calculations for ML 20244 are set out:

MRA1146-16 re ML 20244

Area covered by mining lease – 44 ha @ $10 per ha = $440.00 per annum

add s 281(4)(e) re: compulsory nature of grant= $44.00 per annum

Total = $484.00 per annum

16. [16]
    As the landowners are presently serving a period of imprisonment I intend to order that the compensation determined be paid on their behalf to the Public Trustee of Queensland.^[5]

ORDERS

1. In respect of ML 20244 compensation is determined in the sum of $484.00 per annum.
2. The miners 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 renewal 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 OF THE LAND COURT