Thomsen v Struber[2017] QLC 33

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 Lease ML 100118.

Background

2. [2]
   The grant of mining lease ML 100118 is sought by the applicant, Mr Luke Roy James Thomsen, (the miner). The subject land is commonly known as Palmerville Station and is used for grazing. The land is more particularly described as Lot 14 on SP250040, is situated within the Cook Shire local government area and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).

3. [3]
   This assessment of compensation relates only to an access track approximately 11.9 km in length across Palmerville Station. The relevant Land Court references and individual lease and tenure 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 the Department of Natural Resources and Mines (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

8. [8]
   A Deputy Registrar of the Land Court wrote to the parties on 6 April 2017 to confirm the timetable for the filing of evidence and submissions and subsequently, on 2 May 2017, a compensation statement and related submissions was received from Mining Tenure Management on behalf of the miner. No evidence of submissions were received from or on behalf of the landowners.

9. [9]
   The main contention on behalf of the miner is that compensation should be assessed $5.00 per hectare per annum only in respect of an access area on the basis of the recent determination in Pavey v Struber [2016] QLC 79.

Determination

10. [10]
    The determination in Pavey was guided by Fitzgerald & Ors v Struber & Anor^[2], an assessment which involved expert evidence given in the course of a contested hearing concerning mining activities on Palmerville Station.  Accordingly I am prepared to accept the miner’s contended rate per hectare on the basis of Pavey. In my view recent Court judgments concerning compensation for mining activities on the subject land are an appropriate basis to assess compensation in the absence of expert evidence or material from the landowners.

11. [11]
    The relevant access area has been rounded to the next full hectare for assessment purposes and the calculation is set out below:

MRA068-17 re ML 100118

Area covered by mining access – 8 ha @ $ 5 per ha= $40.00 per annum

add s 281(4)(e) re: compulsory nature of grant= $4.00 per annum

Total = $44.00 per annum

12. [12]
    As the landowners are presently serving a period of imprisonment the compensation as assessed is ordered to be paid on their behalf to the Public Trustee of Queensland.^[3]

ORDERS

1. In respect of ML 100118 compensation is determined in the sum of $44.00 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 one month of notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT