Wellington v Struber[2017] QLC 31

LAND COURT OF QUEENSLAND

1. [1]
   On 10 January 2017 the Chief Executive, Department of Natural Resources and Mines (DNRM) referred these proceedings to the Land Court pursuant to s 281(1) Mineral Resources Act 1989 (MRA) for the purpose of determining compensation in respect of ML 100081 and ML 100082.

Background

2. [2]
   The applicant, Owen Reginald Wellington (the miner) seeks the grant of two mining leases and related access tracks across land more particularly described as Lot 14 on SP250040. The subject land is commonly known as Palmerville Station and is situated within the Cook Shire local government area and the Mareeba mining district.

3. [3]
   The relevant Land Court references and details are set out below:

Relevant Legislation

4. [4]
   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.

5. [5]
   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.

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:

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).

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

7. [7]
   On 6 February 2017 a Deputy Registrar of the Land Court wrote to the parties advising of directions and dates for the delivery of materials and submissions pursuant to Practice Direction No. 6 of 2015.

8. [8]
   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 to enable him to respond on her behalf.

9. [9]
   On 6 March 2017 correspondence was received from Ms Michelle Mobbs of Mining Tenure Management on behalf of the miner enclosing a compensation statement and submission regarding the determination of compensation for ML 100081 and ML 100082. A summary of the main points made on behalf of the miner are set out:

5. (i)
   The miner will build four dams at a conservative value of $10,000 each to provide water for processing.  The miner proposes to offer these dams to the landowners for the term of the lease and beyond.

5. (ii)
   The landowner’s cattle will be able to access the dams during the term of lease and will also be permitted to graze the surface area of the lease for the duration of the leases. The miner will not restrict the use of the area for cattle watering and grazing.

5. (iii)
   Compensation to be assessed at $10.00 per hectare per annum for the mining areas and $5.00 per hectare per annum in respect of access areas on the basis of the Land Court judgment in Pavey & Anor v Struber & Anor [2016] QLC 79.

Determination

10. [10]
    The landowners have not filed any material or submissions in reply to that filed on behalf of the miner. As there has been no expert evidence placed before the Court by either party, and no materials at all from the landowners, I intend to be guided by earlier Court judgments concerning Palmerville Station. The Pavey judgment referred to in the submissions of the miner is based on the earlier judgment in Fitzgerald & Ors v Struber & Anor [2009] QLC 76, a determination which involved expert evidence tested by cross examination and submissions presented during a contested hearing.

11. [11]
    Accordingly, I accept the basis for assessment as contended by the miner i.e. $10.00 per hectare per annum for the mining areas and $5.00 per hectare per annum in respect of the access areas as appropriate compensation.

12. [12]
    The mining and access areas have been rounded to the next full hectare for the purposes of assessing compensation. The calculation of compensation for the relevant areas of ML 100081 and ML 100082 are set out below:

MRA004-17 re ML 100082

Area covered by mining lease – 42 ha @ $10 per ha = $420.00 per annum

Area covered by mining access – 2 ha @ $5 per ha = $10.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $43.00 per annum

Total = $473.00 per annum

MRA005-17 re ML 100081

Area covered by mining lease – 47 ha @ $10 per ha= $470.00 per annum

Area covered by mining access – 2 ha @ $5 per ha= $10.00 per annum

add s 281(4)(e) re: compulsory nature of grant= $48.00 per annum

Total= $528.00 per annum

13. [13]
    The landowners are presently serving a period of imprisonment and as a consequence I will order that the compensation for each lease be paid on their behalf to the Public Trustee of Queensland.^[2]

ORDERS

1. In respect of ML 100082 compensation is determined in the sum of $473.00 per annum.
2. In respect of ML 100081 compensation is determined in the sum of $528.00 per annum.
3. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1 and 2 within three months from notification of the issue of the mining leases by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining leases.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT