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Queensland Industrial Minerals Pty Ltd v Younger[2017] QLC 39

Queensland Industrial Minerals Pty Ltd v Younger[2017] QLC 39

LAND COURT OF QUEENSLAND

CITATION:

Queensland Industrial Minerals Pty Ltd v Younger & Ors; Queensland Industrial Minerals Pty Ltd v Ryan [2017] QLC 39

PARTIES:

In application No. MRA432-15:

 

Queensland Industrial Minerals Pty Ltd

(applicant)

 

v

 

James Younger

Fay Dorelle Younger

Christopher Younger

(respondents)

 

In application No. MRA434-15:

 

Queensland Industrial Minerals Pty Ltd

(applicant)

 

v

 

Edith Elizabeth Ryan

(respondent)

FILE NO/s:

MRA432-15

MRA434-15

DIVISION:

General division

PROCEEDING:

Determination of compensation payable for grant of Mining Lease Application 80116

DELIVERED ON:

4 August 2017

DELIVERED AT:

Brisbane

HEARD ON:

12, 13, 14, 15 December 2016 and 15 May 2017

Final submissions 14 June 2017

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER/S:

In MRA432-15 I order:

QIM must pay James Younger, Fay Dorelle Younger and Christopher Younger the sum of $2,008,700 prior to undertaking any activities authorised by ML 80116 on their property.

In MRA434-15 I order:

QIM must pay Edith Elizabeth Ryan the sum of $224,780 prior to undertaking any activities authorised by ML 80116 on her property.

CATCHWORDS:

ENERGY AND RESOURCES – MINING FOR MINERALS – COMPENSATION – Where the miner and the affected landholders could not agree on compensation for the effect of mining on their properties – where the valuers agreed on a before and after assessment – where the valuers agreed on the before value – where the valuers agreed there were no comparable sales for assessment of the after value – whether a 15 year mining lease amounts to a loss in perpetuity – whether a Net Present Value (NPV) calculation should be accepted – whether that calculation should be adjusted for various contingencies – whether the discount rate of 3.5% is appropriate – whether an amount claimed for accommodation costs during the term of the mining lease is doubling up

ENERGY AND RESOURCES – MINING FOR MINERALS – COMPENSATION – where the landholders owned freehold land and held a license to flood margin land adjoining Paradise Dam – where the landholders worked them as an aggregation – where the mining lease will restrict access to the flood margin land – whether the landholders can be compensated for loss of access during the term of the mining lease – whether the landholders can be compensated for uncertainty about resuming access to the flood margin land when the mining lease ends

Environmental Protection Act 1994, s 187, s 188, s 189, s 288(1)(c), s 288(4), s 289, s 290, s 291, s 292, s 295

Government Owned Corporations Act 1993, s 16(a)

Mineral Resources Act 1989, s 279(4)(e), s 281(3)(a)(i), s 281(3)(a)(ii), s 281(3)(a)(iii), s 283B

Carabella Resources Limited v Goondiwindi [2016] QLC 32, considered

Fischer v Valuer General (1983) 9 QLCR 44, applied

Horn v Sunderland Corporation [1941] 2 KB 26, followed

McBarnon v Traffic Authority New South Wales (1995) 87 LGERA 238, followed

McKay v Commissioner for Main Roads (No 7) [2011] WASC 233, followed

R v Land Court; ex part Kennecott Exploration (1988) 65 LGRA 103, applied

Smith v Cameron (1986) 11 QLCR 64, followed

Spencer v Cameron (1907) 5 CLR 418, applied

Western Aluminium Pty Ltd v Environmental Protection Authority (2007) 82 ALJR 74, referred to

Wills v Minerva Coal Pty Ltd [No 2] (1998) 19 QLCR 297, followed

Zimmerebner v Hawkins & Ors (1999) 20 QLCR 71, followed

APPEARANCES:

RE Laidely of Counsel, instructed by Websters Solicitors, for the applicant in both matters

E Morzone of Counsel, instructed by Hede Byrne Hall, for the respondent in both matters

Introduction

  1. [1]
    Queensland Industrial Minerals Pty Ltd has applied for a mining lease to mine ilmenite and other minerals on properties located to the north of the Burnett River approximately 30km southwest of Bundaberg. It expects to mine at a rate of approximately 1.8 million tonnes per year, resulting in 60,000 to 80,000 tonnes of ilmenite product per year. Before the ML can be granted, the Court must determine compensation payable to the owners of the land within the area applied for.[1]
  1. [2]
    The ML affects two cattle properties. The first known as “Mungham”, is held by James, Fay and Christopher Younger under a number of freehold, easement and licence tenures. Loss of access to the area held under licence is a significant aspect of the Youngers’ claim.
  1. [3]
    The Youngers run a cattle grazing enterprise of primarily Brahman based breeders. The property, overall, is 1,677.4685 ha with a carrying capacity of approximately 855 AE cattle.[2] 1,234.771 ha of the property is within the ML area. That includes 94.2% of the freehold land and 59.3% of the licensed land.
  1. [4]
    The second property, known as “Bullock Paddock” is an adjacent freehold property owned by Mrs Ryan. It is used for growing and fattening bullocks. It has an overall carrying capacity of approximately 74 cattle. 57ha (or 37.1%) of the 153.52ha property, is within the ML area.
  1. [5]
    Although there are separate proceedings for each of the properties, the two were heard together. The landholders engaged the same representatives and expert witnesses. Much of the evidence was common to both proceedings. Broadly speaking, the same issues arose, although some of these applied differently because of the particular features of each property. It is convenient to deliver a single set of reasons, drawing distinctions between the proceedings where necessary. Separate orders have been made for each.
  1. [6]
    The parties engaged valuers to provide expert evidence. Mr Matson, engaged by QIM, and Mr Osbourne, engaged by the landholders, ultimately agreed on a number of important matters. They agreed the before and after method was the appropriate approach to compensation for both properties. Ultimately, they also agreed on the before value for both: $2,850,000[3] for the Youngers’ property and $325,000[4] for Mrs Ryans’, including, in both cases, structural improvements.
  1. [7]
    As for the after value, they accepted the ML will render the current grazing enterprises unviable because the ML area includes the most productive areas, destroys water sources and will sever or render unviable the productive use of the balance of the properties. The valuers both assessed compensation assuming the landholders could not productively use the properties for the 15 year term of the ML.[5]
  1. [8]
    The valuers also agreed there were no comparable sales to assist in fixing the after value of the properties.[6] At that point, they parted company.
  1. [9]
    For the Youngers’ property, Mr Matson assessed its after value at $1,700,000,[7] while Mr Osbourne assessed it at $125,000.[8] For the Ryan property, Mr Matson’s after value was $194,000 and Mr Osbourne’s $50,000.[9] The difference between those assessments is explained partly by valuation methodology and partly by the valuers’ assumptions about the likely condition of the properties when the ML ends.
  1. [10]
    In the absence of comparable sales, Mr Matson conducted a Net Present Value (NPV) calculation to arrive at a reversionary value for the properties. This represented the value of each property assuming the owner could not access it for 15 years. He discounted the before value of the land over 15 years at the rate of 3.5%, which he described as the “gilt edged security rate”. In doing so, he assumed the land would be rehabilitated and the water sources restored at the end of the ML term.
  1. [11]
    The landholders did not accept either the methodology or Mr Matson’s assumptions. They argued Mr Matson’s NPV calculation did not account for risks about rehabilitation, ground and surface water and, for the Youngers, the risk they would lose access to the flood margin land.
  1. [12]
    Mr Osbourne attributed only a nominal after value to both properties. He considered 15 year exclusion equated to perpetuity in the market place.[10] He relied on expert opinions to the effect the land could not be rehabilitated by the end of the ML term and groundwater bores could not be re-established.
  1. [13]
    QIM disputed those opinions. It argued this ignored QIM’s mining plans and assumed QIM would not comply with its legal requirements. Further, QIM offered “voluntary conditions” about how it would conduct its activities during the ML and about the infrastructure it would restore when the ML ends. The parties agreed the Court should identify the factual basis upon which compensation is determined.
  1. [14]
    Finally, for the Youngers’ case only, there is a dispute about compensation for the impact of the ML on a large area of land between the property boundary and the adjacent Paradise Dam (the flood margin land). The Youngers graze that land under licence from SunWater Limited, the freehold owner.
  1. [15]
    When the ML is granted, any flood margin land within the ML area will be excised from the licence. This will greatly reduce the area under licence and make it difficult for the Youngers to access the remaining licenced areas. Counsel for the Youngers argued there is no certainty the landholders will secure access to the flood margin land after mining ends and they should be compensated for that loss.
  1. [16]
    Against that background, the issues raised by the parties will be dealt with under the following headings:
  1. What is the factual basis for determining compensation?
  1. Will the land be rehabilitated when the ML ends?
  1. Will the landowners have access to equivalent water supply when the ML ends?
  1. Will the Youngers lose access to the flood margin land and can they be compensated for that loss?
  1. Should the Court adopt Mr Matson’s NPV assessment?
  1. If Mr Matson’s approach is accepted, does his calculation need to be adjusted?
  1. [17]
    I will address each of those issues in turn before determining compensation in relation to each property.

What is the factual basis for determining compensation?

  1. [18]
    The factual basis for determining compensation is important for two reasons. Firstly, it may affect the amount of compensation. Secondly, the parties can apply to review compensation if there is a material change in the circumstances for the ML.[11] This requires the Court to be clear about those circumstances.
  1. [19]
    The Court must determine compensation on the basis that QIM will comply with its legal obligations, including the conditions of the ML and the Environmental Authority. However, QIM also argued the Court should determine compensation on the following factual assumptions:
  1. (a)
    QIM will comply with “conditions” volunteered to the landowners which it undertook to the Court to comply with;[12] and
  1. (b)
    QIM will undertake its mining and rehabilitation activities in accordance with mining and rehabilitation plans in the Environmental Management Plan provided with its application for the EA.[13]
  1. [20]
    The landholders disputed compensation being determined on either assumption.

Voluntary conditions

  1. [21]
    QIM offered an undertaking to voluntarily adhere to conditions about the way in which it will conduct its activities under the ML.[14]  The Court does not have the power to impose the volunteered conditions when determining compensation, although it could determine compensation on the assumption that QIM will honour them. If QIM did not do so, the landholders could apply to review compensation because of a material change of circumstances for the ML.[15]
  1. [22]
    Given the agreed approach to compensation, many of the proposed conditions are irrelevant. The assumption made by both valuers is that the landholders will be excluded from their properties (not just the ML area) for the full 15 year term of the lease. On that assumption, the Court does not need to consider the landholders’ circumstances with the ML in place. Therefore, the voluntary conditions dealing with matters such as noise, access to equivalent power and water supply, and physical access during the term of the ML could not affect the amount awarded.
  1. [23]
    Proposed voluntary conditions that affect the circumstances for the landholders after the ML ends are in a different category. QIM has offered to restore certain infrastructure that will be lost to mining. The Court could act on that assumption, rather than including the value of that infrastructure in the compensation award.
  1. [24]
    However, that is not what the landholders want. They did not accept QIM’s offer to adhere to voluntary conditions. They say they cannot enforce an undertaking against QIM, except by proceedings to review compensation and the undertaking would not bind a transferee of the ML. Further, the landowners have concerns about QIM’s capacity to meet its commitments.
  1. [25]
    QIM did not give evidence through a director or officer at the hearing. This meant the landholders had no opportunity to question QIM about its mining plans or their proposed voluntary conditions.
  1. [26]
    Given that, I consider it would be inappropriate to determine compensation assuming QIM will adhere to conditions volunteered at the hearing.

The Environmental Management Plan

  1. [27]
    Regulation of the environmental impacts of mining are governed by the EA. QIM applied for an EA in October 2012. At that time, an applicant for an EA for a mining activity had to provide an Environmental Management Plan which described:
  1. (a)
    All relevant mining activities;
  1. (b)
    The environmental values likely to be affected by the mining activities; and
  1. (c)
    The potential adverse and beneficial impacts of the mining activities on the environmental values.[16]
  1. [28]
    QIM submitted the Court should assume QIM will comply with or act consistently with mining and rehabilitation programs detailed in its EMP.[17] Particular emphasis was placed on maps which illustrate QIM’s overall and staged plan for mining and rehabilitation at years 4, 7, 10 and 13.[18]
  1. [29]
    Counsel for QIM submitted the EMP plays a part in setting the boundaries of the consent.[19] As far as that goes, that proposition is correct. The EMP forms part of the application material and provides information about the applicant’s proposals. The purpose of the EMP was to propose environmental protection commitments to help the administering authority decide the conditions of the EA.[20] 
  1. [30]
    That does not mean compensation should be determined on the assumption that mining must proceed in accordance with the plans detailed in the EMP. QIM’s activities will be governed by the EA granted on 15 June 2015.
  1. [31]
    An important aspect of the EMP has been adopted in the EA. Figure 1 to the EA appeared in Chapter 5 of the EMP.[21] Figure 1 assigns land within the ML area into “A” and “B” areas.[22] The EA authorises disturbance in A areas only and that disturbance cannot impact adversely on B areas.[23] The maps showing the mine and rehabilitation at various stages, however, were not included in the EA.
  1. [32]
    Before undertaking any activities under the EA, QIM will have to provide detailed mine and rehabilitation plans. It cannot undertake any activities authorised by the EA until it has submitted a plan of operations[24] which must include the following information:

“…

  1. (i)
    a plan showing where all activities are to be carried out on the land;
  1. (ii)
    an action program for complying with the conditions of the environmental authority;
  1. (iii)
    a rehabilitation program for land disturbed or proposed to be disturbed under each relevant lease;
  1. (iv)
    another matter prescribed under an environmental protection policy or a regulation; …”[25]
  1. [33]
    QIM must comply with its plan of operations[26] although the EA prevails to the extent of any inconsistency.[27] The maximum term for a plan of operations is five years.[28] QIM may amend or replace a plan of operations before the planned period ends.[29]
  1. [34]
    The mine program in the EMP is not a plan of operations. Counsel for QIM advised the Court the company intends to mine in accordance with the EMP.[30] However, there is some uncertainty about that, given the following evidence.
  1. [35]
    On 2 December 2014, Greencap Environmental and Licensing Professionals Pty Ltd wrote a letter to the Mining Registrar at Townsville, on behalf of QIM. Under the heading ‘mine plan’ the letter stated:

“The mine plan submitted with the application needed revision to coincide with changes as a result of a new mining methodology, new mining locations, new buffer zones and other conditions negotiated with the DEHP as part of the draft environmental authority”.[31]

  1. [36]
    That letter postdates the EMP and the dates on the maps relied upon at the hearing.
  1. [37]
    Further, Dr Loch, who provided a report about rehabilitation issues to QIM on 28 April 2016, was provided with two different sets of mining schedules and plans.[32] He considered the documentation inadequate and recommended QIM develop a plan of operations and a rehabilitation management plan.[33]
  1. [38]
    On 21 September 2016, Ardent Group Pty Ltd wrote on behalf of QIM to NRM and advised it wanted to reduce its proposed lease term from 25 to 15 years and had reviewed its proposed work program.[34] It is not clear whether that work program is before the Court or whether QIM acted on Dr Loch’s recommendation to develop a plan of operations and rehabilitation plan.
  1. [39]
    QIM could have clarified these matters by calling an officer to give evidence.[35] It chose not to do so. I was asked to draw an adverse inference about that.[36] Whether I do or not, the evidence is uncertain about the company’s mining and rehabilitation plans. I could not confidently assume QIM will proceed in accordance with the mining and rehabilitation plans detailed in the EMP.
  1. [40]
    That does not mean information contained in the EMP is irrelevant in determining compensation. The EMP contains important information used by experts in providing their opinions. However, compensation will be determined on the factual basis that QIM’s legal obligations are those imposed by the EA.

Will the land be rehabilitated when the ML ends?

  1. [41]
    A prudent purchaser, assessing the value of a rural property they cannot use productively during the term of the ML, must make a prospective judgment about the productivity of the property when the ML ends. The valuers have made conflicting assumptions about that when assessing the after value of the properties. Mr Matson assumed full rehabilitation at the end of the ML term. Mr Osborne assumed rehabilitation would take some 25 to 30 years after mining ceases.
  1. [42]
    In order to decide what valuation to accept, it is necessary to make some findings about rehabilitation and the likely productivity of the properties post-mining. The starting point is the land’s pre-mined status.
  1. [43]
    Although the experts appeared to differ about the current land capability of the properties, this was largely because they used different points of reference. Dr Loch, who was engaged by QIM, referred to the soil classification derived from sampling conducted for the EIS. Those results determined the predominant soil type is class 2A, which has a very low fertility.[37]
  1. [44]
    Mr Thomson, who was engaged by the landholders, accepted that. However, he looked to the use of the land rather than soil type. He used a report prepared for NRM which classified land types in this region by its suitability for different uses. In that report, the area A land was classified as C3, which is grazing land suitable for improved pasture. Dr Loch accepted that land use classification.[38]
  1. [45]
    The two classification systems have different purposes, but they are not in conflict. A rehabilitation program requires reconstitution of the soil profile. For that purpose, the soil classification provides technical information necessary to design a program to restore the soil’s productivity. The land classification used by Mr Thomson provides a land use outcome for rehabilitation; i.e. to restore the land to its current capability.
  1. [46]
    QIM argued compensation must be determined on the assumption of full rehabilitation. The landholders argued compensation should be determined on the assumption the mined land will not be suitable for grazing purposes when the ML ends. In support of that contention, Mr Younger led some evidence about the condition of mined land on other properties.[39] The circumstances of those properties and the conditions they were required to meet were not in evidence. Neither of the experts relied on it and I have placed no weight on that evidence.
  1. [47]
    The experts differed about the prospects of rehabilitation. Dr Loch assessed the feasibility of re-establishing pasture that meets the EA requirements. He said this is not a complex form of rehabilitation and the properties could be fully rehabilitated by the end of the mine life.[40]
  1. [48]
    Mr Thompson was less focused on the EA conditions and more concerned about the productivity of the rehabilitated pasture.[41] He did not believe it could be returned to its current productivity by the time the ML ends.[42]
  1. [49]
    Mr Loch did not inspect the properties.[43] Mr Thompson did. His evidence focused on the Youngers’ property. Although it had not been a good year when he did his field inspection, Mr Thompson was genuinely impressed by the standard of the property.[44]  It was a very well-managed property, despite the relatively high stocking rates. He put it right at the top end of productivity for that class of country, in that region.[45]
  1. [50]
    At best, Mr Thompson believes the property post mining will be a “low quality breeding property” on naked pastures. That would mean the landholders would be forced to turn cattle off the property at younger ages and lower weights.[46] He said it might take 20 to 25 years or many decades to fully rehabilitate the pasture to its current condition. Although initial results might be good, he thought it likely to settle at a lower grazing capacity than the current pasture on the property.[47]
  1. [51]
    Mr Thompson’s evidence raised a number of concerns about rehabilitation: restoring the soil profile and its functionality; restoring resilience of the pasture to adverse conditions; and re-establishing the current mix of legumes and grasses.

Restoring the soil profile

  1. [52]
    The experts agree rehabilitation relies on reconstructing the soil profile. The topsoil will be stripped and the resource will be excavated to a depth of 10 metres. The excavated soil will be run through a ball mill which will completely destroy the existing soil profile. The milled soil (or tailings) will be homogenous and fine, generally 0.2mm in diameter. It will be returned to the mined cells for rehabilitation.
  1. [53]
    Mr Thompson was concerned about the “Plant Available Water Capacity” (PAWC) of the reconstituted soil.[48] The PAWC is an indicator of the soil’s ability to retain water and to make it available for plant use. Mr Thompson estimated the PAWC of the tailings will be reduced by 50%.[49] That can be improved by fertiliser, but is very difficult to change except in the very long term. For this type of soil, there would need to be new clay in the subsoil materials.
  1. [54]
    Dr Loch agreed the reconstructed soil must have sustainable characteristics. That will require additives, mixing different soils, and paying attention to the way in which specific layers of soil are placed.[50]
  1. [55]
    In its rehabilitation plan QIM acknowledged that failing to reconstitute the soil profile is an “extreme risk”. Dr Loch explained the risk rating is a combination of the consequence of the risk being realised (in this case major) and the likelihood of it being realised (in this case possible).[51]
  1. [56]
    The EA sets performance based parameters for soil properties which are both physical and chemical. The physical properties relate to the depth of topsoil, water infiltration, crusting and slope. The chemical properties relate to pH, salinity, nutrients and trace elements. QIM must demonstrate those properties are comparable with reference sites and rehabilitation trials.
  1. [57]
    Mr Thompson’s concerns are legitimate, but I accept Dr Loch’s evidence the PAWC of the soil can be restored by adding clay and carefully designing how the soils are layered. Further, Mr Thompson and Dr Loch agree the EA sets performance parameters which, if met, will ensure the functional properties of the soil are restored so as to sustain pre-mined land use.[52]

Resilience of the pasture

  1. [58]
    Mr Thompson’s second concern was about the resilience of the rehabilitated pasture to extreme events such as drought. Dr Loch did not consider this an issue: if the PAWC of the soil is roughly the same, its resilience should be equivalent.[53]
  1. [59]
    Mr Thompson disagreed. He said high rainfall onto a soil with a relatively high PAWC results in a spring flush of grass which will burn off in dry conditions. Dr Loch said this can be compensated for by the plants rooting more deeply in the post-mining landscape. Mr Thompson disagreed. He said performance is driven by what happens in the top 60 to 80 cm of the root zone.[54] This reinforces the importance of reconstructing the existing soil profile.

Restoring the pasture mix

  1. [60]
    Mr Thompson’s third concern related to the pasture mix. He observed a wide variety of both native and introduced pasture species in a stable mix with some annual legumes.[55] The spear grass region of Southern Queensland, in which these properties are located, is a weak area for improved pasture legumes. As such, he considered there were not many legumes that could be introduced and maintained.
  1. [61]
    He did not think a topsoil management plan could ensure significant components of the seed bank were preserved during short-term stockpiling. This is more of a problem for grass seeds than legumes, however. Legumes will maintain their viability from one season to the next, but grass seeds will not.[56]
  1. [62]
    Dr Loch said the risk of loss of the seed bank would be mitigated by strategies such as direct transfer of the topsoil. This technique greatly reduces the potential loss of organic carbon and nitrogen which occurs when topsoil is stockpiled.[57] Mr Thompson had more confidence in a rehabilitation program that used direct transfer of topsoil, but said the process is not as straight forward as some engineers suggest.[58]
  1. [63]
    It seems direct transfer of topsoil would enhance preservation of the seed bank and restoration of the current pasture mix. Although the EA does not mandate direct transfer of topsoil, it does impose performance based rehabilitation conditions for the rehabilitated pasture.

The productivity of rehabilitated pasture

  1. [64]
    By and large Dr Loch accepted Mr Thompson raised legitimate issues for a rehabilitation plan. As much is acknowledged in QIM’s own risk assessment in the rehabilitation plan in the EMP. QIM identified the possibility that rehabilitated land will be poor grazing land is a high risk. For that risk, the report assessed the consequence as major but the prospect of the risk being realised as unlikely.[59]
  1. [65]
    Dr Loch was confident a self-sustaining pasture could be re-established and that it was not technically difficult. He has substantial experience in rehabilitation projects and I accept his confidence is based in experience.
  1. [66]
    Further, as I have already observed, the Court must assess compensation on the assumption QIM will comply with the EA. It provides there must be evidence (in progressive and final rehabilitation reports) that the overall condition of the grazing land is good.[60] This means:
  1. (a)
    Good coverage of preferred species;
  1. (b)
    3P (perennial, productive and palatable) grasses make up 60%-80% of the yield;
  1. (c)
    Organic ground cover of more than 50% at end of the dry season;
  1. (d)
    No erosion and good soil surface condition; and
  1. (e)
    Few weeds and no significant infestations.
  1. [67]
    An overall good grazing condition is not necessarily as productive as the current pasture. Mr Thompson’s evidence the Youngers’ property is at the top of the range for land of this type in this region was not challenged.[61]
  1. [68]
    There are other EA conditions that are directed to restoring pre-mined capability. QIM must demonstrate that, within two years of rehabilitation, the pasture is indicating the desired trajectory to ensure similarity with grazing reference sites. What is the desired trajectory will be defined during rehabilitation trials. This will include desirable plant species succession and assessment of biomass volume, indicating development of comparable ecosystem structure and function to grazing reference sites on the properties.
  1. [69]
    Demonstrating the trajectory is not the same as demonstrating the end goal (restoration to former productivity) has been achieved. However, rehabilitation must be undertaken progressively in accordance with the plan of operations.[62]
  1. [70]
    Dr Loch said progressive rehabilitation will give confidence about rehabilitation outcomes. QIM may have to add fertiliser for two to three years post re-establishment of the pasture. By the end of the first growing season, QIM will know whether vegetation has seeded and is growing to the point where a sustainable, good quality grazing capacity can be achieved. By the end of year 2, QIM will be able to determine, with a reasonable degree of certainty, whether the rehabilitation is on track to be successful.[63] As mining and rehabilitation proceeds, QIM will have greater certainty by reference to more extensive monitoring of the earlier rehabilitation sites.[64]
  1. [71]
    QIM has a financial incentive to commence progressive rehabilitation as early as possible. It must pay an annual fee for the EA and cannot surrender it until the conditions have been complied with. More significantly, QIM must maintain a financial assurance to secure its rehabilitation commitments until they have been met.[65] As the financial assurance is set by reference to the likely costs and expense of rehabilitation,[66] there is an impetus for demonstrating rehabilitation of disturbed land as soon as possible.

Findings about rehabilitation of the pasture

  1. [72]
    Drawing this discussion of the evidence about rehabilitation to a close, it is relevant to the assessment of compensation in two respects.
  1. [73]
    Firstly, the primary measure of the value of agricultural land is its productivity. The before value of the land agreed to by the valuers is based on its current carrying capacity, which is a measure of its productivity. A hypothetical prudent purchaser of the properties with the ML in place would have to make a prospective assessment of the likely productivity of the land when the ML ends. In determining compensation the Court must consider how a prudent purchaser would view the risk that a compliant rehabilitation will have a lower productivity and that the current productivity may never be restored.
  1. [74]
    Secondly, depending on the sequence, timing and success of rehabilitation, it is possible QIM may not have met all the EA rehabilitation conditions when the ML ends. If so, the EA will remain in force.
  1. [75]
    This is unlikely to be an issue on Mrs Ryan’s property. QIM plans on a five year mining program for her property. Assuming it is mined early, there should be plenty of time to demonstrate compliance by the end of the 15 year term.
  1. [76]
    The situation is different for the Youngers. The EMP plans indicate active mining on some part of the ML until a few years before the ML ends. It is possible that the Youngers will not be able to use some areas still under rehabilitation after the ML ends.
  1. [77]
    In determining compensation the Court will take into account two risks: firstly, that the land will be rehabilitated to a lower productivity and, secondly, for the Youngers, that some of the land may still be under rehabilitation when the ML ends.

Will the landowners have access to equivalent water sources post mining?

  1. [78]
    The experts engaged by the parties on water issues are Mr Gimber, for QIM, and Dr Johnson, for the landholders. They gave evidence about the prospects of restoring water infrastructure lost to mining and equivalent water supply post mining.

Dams

  1. [79]
    The mining process will destroy four surface dams on the Youngers’ property and two on Mrs Ryan’s. The EA does not require QIM to re-establish them, although QIM and the landholders can agree to retain water storages constructed for the mining activity, as long as they are stable and safe.[67] These may not be in convenient locations for grazing purposes.
  1. [80]
    The EA requires physical restoration of drainage lines to accommodate base flows and flood/fresh flow events.[68] This would facilitate dams being re-established, although QIM did not provide any calculations or modelling to demonstrate that.[69] Dr Johnson considered the existing surface dams are not permanent, reliable sources of water and that the existing ground water bores would be considered to be the only reliable permanent source of water available on site.[70]
  1. [81]
    Although there was some disagreement between them, ultimately Dr Johnson accepted there was no engineering reason the dams could not be re-established.[71]

Ground water

  1. [82]
    Turning to groundwater, the landholders are concerned about restoring both the infrastructure and an equivalent groundwater supply post-mining. They argued QIM had not shown it could re-establish bores which will provide an equivalent supply, whether the bores are in their current locations or elsewhere on the property.
  1. [83]
    The EA has some conditions about the impact of mining on groundwater. It requires QIM to monitor groundwater levels at compliance sites. If a drawdown of 2 metres is reached, QIM must investigate the impact of mining on groundwater.[72] Although not explicit in the EA, the parties accepted QIM would be required to respond if the drawdown could not be attributed to natural causes. This is because neither the ML nor the EA authorise QIM’s activities to have a detrimental impact on groundwater.
  1. [84]
    Nevertheless, the conditions do not require bores lost to mining to be re-established and does not require QIM to provide an equivalent ground water supply post mining.

Re-establishing the current bores

  1. [85]
    The permeability of the subsoil (or tailings) after processing is a key issue for re-establishing bores in their current locations. Permeability affects the recharge of the aquifer, at least in the affected areas. On this issue, there was a fundamental conflict between Mr Gimber and Dr Johnson.
  1. [86]
    Mr Gimber said there would be a change in the soils from loamy light clay to a predominately fine sand with slimes and a small percentage of clay. He described this as “a silty fine sand with higher hydraulic connectivity”.[73] He believed that, if anything, the affected area would have an increased permeability post-processing. Assuming QIM adopts the process detailed in the EMP, tailings will be discharged at a spigot and particles will separate with coarser materials at the spigot site, and the finer slimes moving away from the spigot. Mr Gimber observed there would be zones that were more permeable and less permeable in each mining cell. Water would run off the impermeable areas covered by the slimes and recharge the aquifer where the coarser materials lay.[74]
  1. [87]
    Dr Johnson accepted there would be a mix of coarser and finer materials but asserted the existing structure of the subsoil would be completely destroyed.[75] He did not agree the subsoils would be more permeable after processing. Ball-mill processing will structurally alter the soil, making soil material finer. The outcome of finer soil is to make it less permeable.[76]
  1. [88]
    Dr Johnson observed QIM’s assertions about permeability were entirely theoretical. It had not tested the permeability of the existing subsoil. Nor did it attempt to assess the soil’s permeability after processing, although it could have done so. He said there was a plant nearby which adopted an identical process to the one QIM proposes. QIM could have processed some of the material from this site at the plant and then it would have data to test its assertions about how the soil will perform.[77]
  1. [89]
    The EA conditions about the soil profile do include water infiltration as one performance measure. However, that relates to land rehabilitation. It was not suggested compliance with that condition would ensure an equivalent supply from a bore re-established in its current location. There is scant information about the permeability of the existing soil and no assessment of its post-processing quality. On the evidence before the Court, I am not satisfied bores could be re-established in their current locations and perform to their pre-mining level.

Establishing bores elsewhere on the properties

  1. [90]
    There is also some uncertainty about the prospects of sourcing an equivalent groundwater supply at other locations on the properties. Mr Gimber was confident this could be done, although QIM had not investigated alternative sites. He thought a mine of this scale in proximity to Paradise Dam, called only for a desktop assessment, using information obtained from government drilling, previous site investigations, and compiled into a ‘sound’ impact assessment.[78]
  1. [91]
    Mr Gimber observed the five existing bores produce water “and if those bores were not tapped, then that water surely would be available elsewhere within the groundwater system”.[79] He also referred to exploration drilling across the site in 2012. Seven of ninteen bores identified water, although he accepted there was no information about yield.[80]
  1. [92]
    Although Dr Johnson accepted it is likely there are other sources of groundwater on the property, he was not persuaded the aquifer is homogenous. He noted the 19 exploration bores were all drilled in area A, the area to be mined.[81]
  1. [93]
    He referred to Mr Younger’s uncontested evidence he had tried to draw bores at other locations on their property without success.[82] Dr Johnson considered the EMP is deficient because there is insufficient investigation to determine matters such as the permeability of the aquifer or its likely yield.[83]

Findings about groundwater

  1. [94]
    There is little evidence about the qualities and the parameters of the aquifer or aquifers underlying these properties. There is no evidence about the impact of processing on the permeability of the mined soils. Although the EA requires QIM to monitor the impact of mining on groundwater, it is uncertain if and where equivalent ground water supply can be established.
  1. [95]
    The risk of not establishing equivalent groundwater supply has to be weighed against the evidence that only 20% of the site will be mined, leaving the balance to perform exactly as it does now.[84] However, the landholders may incur additional costs in sinking unproductive bores before a reliable supply is restored.
  1. [96]
    The properties are well located near Paradise Dam, although Mrs Ryan does not have access to the flood margin land. Her stock currently rely on the dams and groundwater. The Youngers’ stock have access to the dam and can follow the water down. QIM did not suggest, though, that this would adequately water their property.
  1. [97]
    If equivalent groundwater supply is not restored in appropriate locations on their properties, the landholders may need to buy water from the dam and pipe it to where it is needed.
  1. [98]
    In determining compensation, the Court will take into account the risk the landholders cannot establish an equivalent ground water supply and may incur costs beyond the value of the groundwater infrastructure destroyed by mining.

Will the Youngers lose access to the flood margin land and can they be compensated for that loss?

  1. [99]
    Loss of access to the flood margin land is only relevant to the Youngers’ compensation claim. Their Compensation Statement includes claims for loss of possession of 582.8ha and injurious affection to the balance land of 402.3ha. That assumes that the Youngers have or will suffer a loss of access to that land and that they are entitled to be compensated for the loss.
  1. [100]
    A number of questions arise in relation to this aspect of their claim:
  1. What is the Younger’s tenure over the flood margin land?
  1. Will the Youngers lose access to the flood margin land when the ML is granted?
  1. Have the Youngers suffered a reduction in rights over licensed land because of the ML?
  1. Will the Youngers resume access to the flood margin land when the ML ends?
  1. Can the Youngers be compensated for loss of or uncertainty about access to the flood margin land? 

What is the Youngers’ tenure over the flood margin land?

  1. [101]
    The flood margin land is significant in both its size and its contribution to the high stocking rates on the Youngers’ property. It is a 985.1ha area of land adjacent to their freehold land and above the full supply level of Paradise Dam. Mr Osbourne identified the flood margin land by the following titles:[85]
  1. Lots 1, 6, 7, 10, 16 & 18 on SP160099;
  1. Lots 6, 10 & 15 on BN37319;
  1. Lot 54 on BON603.
  1. [102]
    The Youngers owned the land until Burnett Water Pty Ltd (now a subsidiary of SunWater Limited) acquired it to construct the Paradise Dam.[86]There is some conflict in the evidence about when that occurred. Mr Younger said it was in “about 2004”.[87] Mr Osbourne, said that it was in 2003.[88] In a letter to the Youngers’ solicitors, SunWater said the land was acquired in “about 2008”.[89]
  1. [103]
    The confusion about the date is probably explained by a process that occurred over time. Some of the flood margin land was acquired in early 2004. Mr Osbourne’s report includes title searches for lots 6 & 18 on SP160099.[90] They show Burnett Water as the owner from 08/03/2004. Presumably the same would apply to the remaining lots on SP160099 (Lots 1, 7, 10 and 16). It is not clear when the other lots were purchased as there are no title searches for lots 6, 10 and 15 on BN37319 and lot 54 on BON603.
  1. [104]
    On 8 February 2004, before any land appears to have been transferred, Burnett Water and the Youngers executed a Form 7 for a lease.[91]  The details were apparently added much later, as the lease term is stated to be from 1 July 2009 to 30 June 2012. The form refers to all the titles identified by Mr Osbourne, except lot 54 on BON603. Instead, it refers to Lot 55 on BON574.
  1. [105]
    That change in title may be explained by an earlier lease. On 19 November 2008, Burnett Water and the Youngers entered into a flood margin lease over part of Lot 54 on BON603. The area was identified as the shaded area on an attached plan. The lease expired on 30 June 2009, with an option for the Youngers to renew it for 3 years.[92]
  1. [106]
    That suggests that sometime after 19 November 2008, and before 30 June 2009, the shaded area of Lot 54 on BON603 was created as a separate lot: Lot 55 on BON574.
  1. [107]
    If that is right, that could explain the discrepancy in the evidence about when the land was acquired: Mr Younger dating it to the execution of the first lease; SunWater identifying the date by reference to the creation of Lot 55 on BON574.[93]
  1. [108]
    Doing the best I can on the incomplete and somewhat conflicting evidence, I infer the acquisition occurred between 2004 and 2008 and involved a number of parcels. From 2004, the Youngers had leasehold tenure over some (perhaps all) of the flood margin land. Lot 55 on BON974 was created after November 2008 and was formerly part of Lot 54 on BON603.
  1. [109]
    From June 2012, the Youngers’ tenure appeared to be a monthly tenancy over the entire flood margin land under the holding over provision of the lease (cl 2.2). On 29 January 2016, SunWater gave notice terminating the flood margin lease effective 29 February 2016 and offered a flood margin licence with a term of 10 years.

Will the Youngers lose access to flood margin land when the ML is granted?

  1. [110]
    Mr Younger signed the Licence Agreement offered by SunWater on 13 February 2016.[94] It includes a special condition to exclude the ML area from the licensed area from the date the ML is granted. That means the Youngers will retain a licence to the balance (approximately 402.3 ha) under a license which will expire in 2026.
  1. [111]
    The Youngers’ solicitors instructed Mr Osbourne that the application for the ML was the “sole reason that SunWater was terminating our client’s leases over that land, and that without QIM’s application for the ML over that land, our client’s leases would have continued”.[95]
  1. [112]
    QIM disputed the Youngers’ cannot access the flood margin land within the ML area. It submitted SunWater could allow access, despite the ML. Collin Bendall, Executive General Manager of Operations for SunWater, agreed. He said there is no legal impediment to SunWater granting the Youngers a licence to the area of the ML but, as a matter of policy, SunWater does not want overlapping and conflicting tenures on its land.[96]
  1. [113]
    QIM argued the decision was not for SunWater alone. As the holder of the ML, QIM could authorise the Youngers to graze cattle to assist QIM to manage undisturbed areas and to promote rehabilitation of mined land.[97] Even if SunWater did not consent, NRM would have to be involved. SunWater is a government owned corporation and must transfer to a department “…any activities of a Governmental policy formulation or regulatory nature.” [98]
  1. [114]
    Given the agreed assumption the Youngers will be excluded from the entire property for the 15 year term of the ML, these arguments are not relevant. The agreed before value fully, indeed generously, allows for the benefit of access to all of the flood margin land. Mr Osbourne assumes a total loss of value, including the flood margin land within the ML area. In undertaking his NPV calculation, Mr Matson started with the agreed before value, which includes the full benefit of access to the flood margin land. His NPV assessment assumes the Youngers have no access to any flood margin land for 15 years.
  1. [115]
    Therefore, both valuers have assumed loss of the flood margin land within the ML area: Mr Osbourne assumes a complete loss and Mr Matson a loss during the ML term. That is consistent with the terms of the flood margin licence and it was not argued that compensation should be determined on any other basis. There is no need to address QIM’s arguments that it or NRM could authorise access by the Youngers without a SunWater licence.

Have the Youngers suffered a reduction in rights over the licensed land because of the ML?

  1. [116]
    The Youngers’ claim in relation to the flood margin land has been differently formulated at various stages of the proceeding. As well as a loss of access, the material refers to a reduction in rights.
  1. [117]
    In his summary of the impacts of the ML, Mr Osbourne included a “reduction in rights and security over new licence agreement area”.[99] That reflected his instructions from the Youngers’ solicitors that “the terms of that licence are significantly different from the terms of the leases”.[100] One of many examples given in that letter of instructions was that SunWater can terminate the lease if it reasonably required the area for purposes associated with their water infrastructure facilities.[101]
  1. [118]
    That may be so, but the Youngers have not established they are subject to a licence, rather than a lease, solely because of the grant of the ML. During his evidence, Mr Bendall observed SunWater now uses licences rather than leases.[102] That is consistent with his advice by letter:

“We further confirm Burnett Water (now a subsidiary of SunWater Limited) will shortly replace its flood margin leases in Queensland with flood margin licences with a term of 30 years with an additional 30 year option term.”[103]

  1. [119]
    Mr Bendall was not asked the reason for this transition. The only evidence on that point is a hearsay account in the letter of instructions by the Youngers’ solicitors to Mr Osbourne.[104] It was uncontested, does not conflict with other evidence about this issue and, in the absence of direct evidence, I accept it accurately presents the situation when that letter was written.
  1. [120]
    In summary, the letter conveys the following information.
  1. [121]
    In about 2010, SunWater wanted to move to licences because it did not want to grant exclusive possession of flood margin land. Agforce approached SunWater to negotiate a standard flood margin licence and sought a standard term of 30 years with a 30 year option. Past practice was to grant shorter terms of about 3 years with a three year option.
  1. [122]
    For SunWater to be able grant a term longer than 10 years, some planning legislation had to be amended. Whether the government was willing to make that change was then a live issue. SunWater and Agforce had agreed on most other conditions. SunWater was willing to offer terms of 10 years and, if the law allowed, 30 years. In the interim, SunWater advised flood margin land held under expired leases would be held over until remaining issues were resolved.[105]
  1. [123]
    None of that was put to Mr Bendall. He was not asked whether the change from a lease to a licence in the Youngers’ case was attributable solely to QIM’s application.[106] 
  1. [124]
    It is reasonable to infer that without the application for the ML the Youngers’ lease would have been held over too. The Youngers could have expected a licence for 30 years with a 30 year option, not the 10 years they now have.[107] Nevertheless it would have been a licence, not a lease. Any reduction in rights under the licence, save for the shorter term of 10 years, is not attributable to the prospect of the ML being granted. It would have occurred anyway.

Will the Youngers resume access to the flood margin land when the ML ends?

  1. [125]
    The Youngers argue there is no certainty when the ML ends that they will be able to resume access to the 582.8ha of the flood margin land excised from the licence. That prospect is not consistent with the lengthy licence terms now offered by SunWater. They extend well beyond the ML term. Further, SunWater benefits from the land being managed by the adjoining landowner.[108] Unless it needs the area for some reason related to the dam, it is unlikely to deprive the Youngers of access once the ML ends. Under the current licence, SunWater can terminate for that reason without compensating the landholder.
  1. [126]
    I accept there is a risk that in 15 years SunWater might offer access on less favourable conditions than those under the current licence. However, the risk the Youngers would have no access to graze that area of the flood margin land is remote.

Can the Youngers be compensated for loss of or uncertainty about access to the flood margin land? 

  1. [127]
    The basis upon which the Youngers’ claimed compensation in relation to the flood margin land was unclear and shifted during the course of the proceedings. Initially, it was presented as a claim for loss of possession of and diminution in the value of the flood margin land itself. That appears from both Mr Osbourne’s report and the Youngers’ compensation statement. That initial formulation affected the valuers’ assessments and the submissions made by counsel for the Youngers when proposing adjustments to Mr Matson’s NPV calculations.
  1. [128]
    In a resumed hearing, counsel for the Youngers clarified their position and abandoned some aspects of the claim. Later, the valuers provided further statements. The flood margin land significantly contributes to the productivity of the Youngers’ property. The loss claimed is a sizeable part of the overall claim for compensation. The basis for and formulation of the claim deserves close scrutiny.

Access to the flood margin land contributes to the value of the freehold land

  1. [129]
    The Youngers do not qualify as owners of land in relation to the flood margin land within the MLA.[109] Without ownership of the adjoining freehold, the Youngers would not be qualified to seek compensation as either lessees or licensees of the flood margin land.[110] They recognised that when they abandoned their claims for compensation for deprivation of possession of and diminution in value of the flood margin land itself.[111]
  1. [130]
    However, they maintained their claim for compensation for the loss of value in the freehold land arising from change in access to the flood margin land. I accept a claim of that nature is open.
  1. [131]
    The restriction in definition of owner of land determines whether the Youngers can make a claim for compensation, but it does not determine the scope of compensation. Once the Youngers established they qualify as persons entitled to be compensated, the focus shifts to the loss they suffered as a result of the grant of the ML. Provided the loss is sufficiently connected to the grant of the ML, as owners of land within the ML area, they are entitled to be properly compensated for that loss.[112]
  1. [132]
    The Youngers say they should be compensated because the effect of losing access to the flood margin land is to reduce the use they can make (and therefore the value) of the freehold land.[113]
  1. [133]
    Both valuers included the flood margin land in arriving at the before value of the Youngers’ property. Mr Matson applied a flat rate of $1,500/ha across the entire property.[114] He considered a willing buyer would know the ownership of the freehold would almost certainly enable access to the flood margin land for equivalent grazing purposes, if it is not affected by an ML.
  1. [134]
    On the other hand, Mr Osbourne made an allowance for the insecurity of what he described as “leasehold” in his before assessment. He assessed the freehold land value at the rate of $1,725/ha and the flood margin land at $1,145/ha.[115] However, he accepted Mr Matson’s difficulty in drawing a distinction between the two tenures.[116]
  1. [135]
    Ultimately, it seems, the agreed before value of $2,850,000, overtook any disagreement between the valuers about the difference between the freehold and what they understood to be leasehold. Both assessed the productivity of the property overall.
  1. [136]
    Mr Osbourne considers carrying capacity is one of the most important factors in deciding the value of the freehold as this is the vehicle to achieving a return on the capital invested.[117] He explained how he used a Beast Area Value (BAV) in analysing comparable sales. The BAV is calculated by taking the sale price of a comparable sale on a Treated Fenced and Watered basis and dividing that by its carrying capacity. I accept that is a sound indicator of value.
  1. [137]
    The utility (and therefore value) of a rural property depends primarily on its productivity and earning capacity. The freehold and flood margin land are conducted as an aggregation. Access to the flood margin land increases the Youngers’ stocking rates and earning capacity as owners of the freehold land. I accept that, in this way, access to the flood margin land contributes to the value of the freehold land.

Compensation for future uncertainty about access to the flood margin land when the ML ends

  1. [138]
    I have already observed that the assessments of both valuers account for the loss of access to the area of flood margin land excised from the licence when the ML is granted. However, the valuers take a different approach to the flood margin land after the ML ends.
  1. [139]
    Mr Osbourne initially assumed a total loss of value for that area upon grant of the ML. In oral evidence, he said a hypothetical purchaser might attribute a nominal value, say $50,000, to the possibility of being able to secure a licence to the flood margin land after the ML expired.[118]  In a later statement, he appeared to revert to his earlier opinion. He said the grant of the ML extinguishes the benefits to the owner of access to the flood margin land, and the opportunity use and benefit of the capital tied in the value of the land for an undefined period.[119]
  1. [140]
    I do not accept either of Mr Osbourne’s propositions: total loss of value or only a nominal value. Both pre-suppose a hypothetical prudent purchaser would think the prospect of gaining access to graze the flood margin land was too speculative to have real value.
  1. [141]
    In undertaking his NPV calculation, Mr Matson assumed the current access to the flood margin land will be fully restored. That does not account for the remote risk the Youngers will have no access to it or the less remote risk that access will be on less favourable terms. That raises the possibility his assessment should be adjusted to account for those risks.
  1. [142]
    Assuming an NPV calculation, counsel for the Youngers submitted Mr Matson’s after value should be reduced by the per/ha rate for most of flood margin land.[120] That submission is unattractive. It results in an inconsistent approach to uncertainty. It assumes secure access in the before case and certainty there will be no access in the after case.
  1. [143]
    In the before case, it minimises the impact of insecurity of access on the value attributed to the freehold land. It makes no material allowance for the insecurity of their access under licence conditions. Mr Matson acknowledged that was generous. A willing buyer may seek to pay something less than a dollar for dollar equivalent for the flood margin land to account for the access being less secure.[121]The agreed before value favours the Youngers.
  1. [144]
    In the after case, counsel’s submission applies the worst case scenario and assumes as a certainty the Youngers will have no access to most of the flood margin land. That is a remote risk, not a certainty.
  1. [145]
    The licence terms now offered allow termination for purposes associated with SunWater’s use of its infrastructure. The evidence suggests that would be the only reason that SunWater would not licence the Youngers to access the land after the ML ends.
  1. [146]
    It is possible the Youngers will have access on different terms to those now offered. However, the landholders have not put forward any methodology for reflecting that uncertainty in a loss of value. Mr Osbourne did not address the issue in his after case.
  1. [147]
    Mr Matson said he was not aware of any market evidence that would enable him to assess the premium (if any) to apply to the adjoining freehold on the basis that continued access is likely but not certain.[122]
  1. [148]
    The fundamental principle in determining compensation is the principle of equivalence. The Youngers have the right to be put, so far as money can do it, in the same position they would have been in if the ML were not granted. They are entitled to a money payment no less than the loss imposed, but, on the other hand, no greater.[123]
  1. [149]
    I am not persuaded that Mr Matson’s NPV calculation would have to be adjusted: either for loss of access during the term of the ML or because of future uncertainty about access to that land when the ML ends.

Should the Court accept Mr Matson’s NPV assessment?

  1. [150]
    The following principles guide the Court in determining compensation.
  1. [151]
    The use of land for mining purposes is akin to compulsory acquisition of land for the purpose of an easement. The principles and practices of valuation for determining compensation for taking limited rights over land for public purposes can be applied to determining compensation for mining.[124]
  1. [152]
    Section 281 sets out the matters to be considered but does not define the method of assessment. The most appropriate method of assessment will depend on the facts and circumstances of each case.[125] As long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in s 281, it is not necessary to quantify an amount in respect of each of them.[126]
  1. [153]
    The overriding principle is of equivalence; ensuring, so far as money can do it, that the landholders are placed in the same position as if the mining leases were not granted. There should be no doubling up of compensation.[127]
  1. [154]
    Although Mr Matson had initially conducted a piecemeal assessment for the Ryan property, by the time of the hearing, both valuers considered compensation for both properties should be determined using a before and after method.[128]
  1. [155]
    The before and after method provides for a holistic assessment of the cumulative effect of the loss of the surface area of the ML as well as damage by way or severance or injurious affection to the balance lands of the landholder. It mitigates the risk of doubling up, because it captures all items except for disturbance.[129]It approaches compensation by comparing the value of the entire land of the owner before the grant of the lease and the value of the land with the ML in place. It assesses what a hypothetical prudent purchaser would pay for the land with the ML in place and subject to the ML and environmental conditions that apply.
  1. [156]
    It is well established the best basis for assessing unimproved value is comparable sales of vacant or lightly improved parcels of land.[130] While they had a comparable sale basis for the agreed before value, the valuers agreed there were no comparable sales to assist in arriving at the after value for the properties.[131]
  1. [157]
    In his report, Mr Osbourne assessed the after value of the Youngers’ property as $125,000.[132] That assumed no value at all for the freehold (nearly all of which is subject to the ML) but he attributed a value of $100,575 for the flood margin land outside the ML area, although at a greatly reduced value/ha. The balance was the house removal value. For Mrs Ryan’s property, he attributed $50,000 to the land outside the ML area.[133]
  1. [158]
    At times, though, Mr Osbourne said there was a total loss of value for the entire property, at least for the Youngers. Whether it was a total loss of value for the entire properties or just the areas subject to or rendered inaccessible by the ML, his view that the ML totally destroyed that land’s value meant the lack of sales evidence had little relevance to his approach.
  1. [159]
    When he wrote his report, the term QIM had applied for was 25 years. It was later reduced to 15 years. Mr Osbourne maintained the effect of a 15 year ML was a loss in perpetuity.[134]
  1. [160]
    There are other matters which could indicate the grant of a ML for that term constitutes a permanent loss of value. Mr Osbourne relied on the opinions of others about the prospects of rehabilitating the land, of restoring the groundwater. For the Youngers, he also relied on instructions about terms of access to the flood margin land after the ML term ends. I have already indicated the view I take on those issues. Here it is sufficient to observe that my findings do not support all the assumptions Mr Osbourne has made in arriving at his assessment.
  1. [161]
    Mr Osbourne appeared to find it difficult to consider how his assessment would be affected by different assumptions to the ones he made. For example, he would make no adjustment on the assumption that QIM would comply with the rehabilitation conditions of the EA and would restore the land to good grazing quality at the end of the ML.[135] It seemed that he maintained scepticism about the prospects of that occurring and attributed that to the hypothetical prudent purchaser.[136]
  1. [162]
    However, the Court must assume the hypothetical prudent purchaser will be aware of all the relevant information about market price which a prudent purchaser would require.[137] That would include advice about the miner’s legal and financial obligations about rehabilitation. The hypothetical purchaser would have such expert advice as a prudent purchaser would, in the circumstances, have obtained.[138]
  1. [163]
    Ultimately, though, the primary factor for Mr Osbourne seemed to be the term of the ML. He agreed that, regardless of the scenario about issues such as access to equivalent water post mining, he considered a 15 year term represented a total loss.[139]
  1. [164]
    I am not satisfied the term of the ML is so long a period as to amount to a loss in perpetuity, in itself. As Mr Osbourne provided me with no assistance if I rejected his view about the effective of the lease, I am left with Mr Matson’s approach to determining value.
  1. [165]
    His choice of the NPV discount method is somewhat unusual in land valuations, but he was transparent about his reason for adopting that method and how he applied it. He drew an analogy between land burdened by a ML which effectively prevents its productive use and a reversionary interest such as an interest upon termination of a life tenancy.
  1. [166]
    Careful thought must be given to an interest expectant on the termination of a life tenancy. Issues include uncertainty about the condition, state of repairs and value of the freehold when a life tenant dies.[140] In some cases a reversionary interest might be too speculative an investment to have value.
  1. [167]
    Mr Matson demonstrated his ability to give careful thought to such factors. He was able to explain how he would adjust his calculations to deal with alternative hypotheses which involve uncertainty. For example, he identified how he would deal with an assumed rehabilitation outcome that resulted in a diminished carrying capacity.
  1. [168]
    Mr Matson assessed the reversionary value of $2,850,000 for 15 years, using a gilt edged security rate of 3.5%. Starting with a before value of $2,850,000 (which includes structural improvements of $330,000) he ended with an after value of $1,700,000. That resulted in compensation of $1,150,000, without allowing for restoration of affected infrastructure. This represents an annual net income of $99,849, a return of approximately 3.5% without the risk of a primary production operation.[141]
  1. [169]
    At the hearing there was a lengthy exchange between the Youngers’ counsel and Mr Matson about his use of 3.5% as the rate for discounting the value of the Youngers’ property. In his report, Mr Matson said the range for returns on invested capital for rural properties was traditionally 0-4%.[142] Counsel put to Mr Matson that the Youngers had earned a net income of $180,000 in the previous year from this property alone. That represented a rate of return of about 5%.
  1. [170]
    Mr Matson was not shown any figures to support that rate of return. He questioned whether it related to one property or more. He said he would want to know how the figure accounted for the assets used in earning that income. He was also concerned about a figure for only one year of income. He would want to look over a period of four years or so. He maintained 3.5% was an appropriate rate.[143]
  1. [171]
    The evidence does not establish the proposed return that counsel for the Youngers put to Mr Matson.
  1. [172]
    The only evidence of income came from Mr Younger and it was a bare statement unsupported by any business or financial records. Mr Younger said they operate the subject property, “Mungham” in conjunction with a small rural property, “Glenloch”, located near Monto. They purchased Glenloch to replace the flood margin land resumed by Burnett Water to build Paradise Dam. Glenloch rotates cropping with both winter and summer crops and fattens progeny breed on Mungham prior to sale. Glenloch’s purpose and value to the Youngers is to enhance the value and use of Mungham. Mr Younger said that, in the last financial year, they made a net profit of $180,000 across the two properties, Mungham and Glenloch.[144]
  1. [173]
    Given the state of the evidence, I accept 3.5% is an appropriate discount rate.

If Mr Matson’s approach is accepted, does his calculation need to be adjusted?

  1. [174]
    Mr Matson’s approach allows for adjustments to take into account findings about matters assumed in his assessment. Counsel for the landholders submitted various adjustments were necessary. In brief, counsel suggested reductions to the land values before discounting; a longer discount period; and additional or different amounts for infrastructure and disturbance items.
  1. [175]
    It is an established principle of compensation that doubts are to be resolved in favour of the more liberal estimate.[145] That is the approach I have taken in determining compensation for the landholders.

Reductions to value prior to discounting

  1. [176]
    Counsel submitted adjustments should be made for both properties to deal with rehabilitation and water risks, as well as for the loss of flexibility in the use and marketability of the land. For the Youngers’ land, counsel also submitted for a reduced value to reflect the loss of access to the flood margin land.

Adjustment for rehabilitation

  1. [177]
    I accept Mr Matson’s assessment should be adjusted to account for some risk about the timing for, and final outcome, of land rehabilitation. Counsel for the landholders suggested the reduction in the value of areas A after rehabilitation might be as much as 50%, taking into account Mr Thompson’s view that it could take up to 20 to 25 years to rehabilitate. On that evidence, counsel said it would be conservative to reduce the value of the areas to be mined by 25%. But those percentages were not put to either valuer and I saw no basis in the evidence for counsel’s submission.
  1. [178]
    When Mr Matson was asked how he would deal with the uncertainty about rehabilitation, he said he would reduce the before value by 10% before discounting it.[146] I note that is slightly more generous to the landholders than that suggested by counsel for the Youngers. Although Mr Matson conceded it was a rough analysis, it was derived from the carrying capacity and I accept his approach.

Adjustment for water

  1. [179]
    The next adjustment sought by counsel relates to the uncertainty about re-establishing a groundwater supply post mining. I accept it is possible that bores might not be re-established in their current locations. The landholders may waste costs in sinking bores which are unproductive. If groundwater cannot be re-established, they may have to purchase water from SunWater to properly water their properties for grazing purposes.
  1. [180]
    Counsel suggested the value of the Youngers’ property is reduced by $300,000 and the Ryan’s by $40,000 before discounting. That is a mid-way point between two figures for each property. The higher figure is a 20% loss of value and the lower is the replacement cost of bores and dams. Although Mr Matson was questioned about the replacement cost for bores and dams, he was not asked how he would account for uncertainty about re-establishing ground water supply.[147] It is not clear where counsel derived the figure of 20%. I could find no basis for it in the evidence.
  1. [181]
    I accept a well-watered property is worth more than one without a reliable water supply. The proximity of these properties to the Paradise Dam cannot be ignored. As Mr Matson observed, taking water from the dam is the easy way to remedy lack of access to groundwater.[148]
  1. [182]
    The Youngers have easements over the flood margin land which would allow them to construct pipelines to take water from the dam, although there is no evidence they currently have a pumping licence. I was not pointed to any evidence about the cost of establishing such infrastructure, or of supply charges. On the limited evidence before the Court, given the location of the properties, I do not think a reduction in their value before discounting is called for.
  1. [183]
    I will, however, make a greater allowance on both properties for the costs of re-establishing the groundwater infrastructure. That acknowledges there may be some wasted costs in sinking unproductive bores or the landholders may prefer to establish infrastructure to reticulate water from Paradise Dam.

Adjustment for loss of flexibility in use

  1. [184]
    Counsel for the landholders sought to reduce the value before discounting by a further 1% to reflect a loss of flexibility in use and “sell-ability” of the properties.[149] Mr Matson’s assessment is already generous in its assumption the landholders will be excluded from their entire properties for the entire term of 15 years. Further, the MRA already provides for a 10% premium to be applied. I am satisfied that adequately accounts for this type of impact on the landholders.

Adjustment for the flood margin land

  1. [185]
    Finally, counsel argued the Youngers’ property value should be reduced by $1,145/ha for the flood margin land that is either subject to the ML or rendered inaccessible by it. Counsel’s submissions were confusing in this respect. He used a figure of 650ha, although it seems it should have been 737ha: 583ha subject to the ML and 154ha rendered inaccessible by the ML.
  1. [186]
    The loss of access to any flood margin land affected by the ML during the term of the ML is accounted for by Mr Matson’s assessment. The Youngers get the full per/ha value of that land for their exclusion in his assessment.
  1. [187]
    The adjustment sought by counsel assumes the Youngers have no prospect of securing that land when the ML expires. I have already explained why I consider that prospect is so remote that no adjustment is called for, let alone a total loss of value.
  1. [188]
    Given the generous assessment of the contribution the flood margin land makes to the before value of the land, I will make no adjustment for the uncertainty about the terms on which the Youngers would be able to access the flood margin land after the ML ends.
  1. [189]
    The effect of my findings is to reduce the before value of the properties by 10% before undertaking the NVP assessment.

A longer discount period

  1. [190]
    Another adjustment sought by the landholders relates to the period over which the value of the properties are discounted. Mr Matson discounted them over 15 years, representing the term of the lease. The landholders submitted it should be discounted over 18 years to allow for a delay of one year to account for general land repair resulting from 15 years of non-use and another two to five years for delays in re-establishing the breeding cycle.
  1. [191]
    I consider there is sufficient evidence to allow an additional three years on the Youngers’ property for some delay in re-establishing the herds, returning their breeding cycles to normal and breeding back the lost genetic poll Brahman line.[150] An extra three years for the discount period also allows for the possibility that some of the mined areas may still be under the EA when the ML ends.
  1. [192]
    I have already explained why it is unlikely Mrs Ryan’s property will still be under an EA when the ML expires. There is no other evidence to justify a longer discount period for her property.

Infrastructure and disturbance

  1. [193]
    The submissions made by the Youngers’ counsel about these items were confusing. It was not always possible to determine how he arrived at the figures he used. As best I can make out, he seeks compensation for the following:
  1. On both properties – reinstatement of water infrastructure and yards;
  1. On the Youngers’ property only – reinstatement of fencing, and access road and compensation for alternative accommodation and restoration of the home.

Water infrastructure

  1. [194]
    Both properties have surface water dams and groundwater bores which will be destroyed by mining: three bores and four dams on the Youngers’ property and one bore and two dams on Mrs Ryan’s property.[151]
  1. [195]
    The valuers agreed on $25,000 as the replacement cost for each bore equipped with tank and trough.[152] They also agreed on the cost of re-establishing the two dams on the Ryan property at $6,000, but disagreed about the cost of replacing the four dams on the Younger’s property, their estimates varying between $3,000 and $5,000 a dam.[153] I accept the submission by counsel for the Youngers that the Court should adopt the figure of $4,000 a dam for that property.
  1. [196]
    The compensation determination for the Youngers’ property will include $91,000 for water infrastructure comprised of the following allowances:
  1. 3 bores x $25,000 each = $75,000
  1. 4 dams x $4,000 each = $16,000
  1. [197]
    The compensation determination for Mrs Ryan’s property will include $31,000 for water infrastructure comprised of the following allowances:
  1. 1 bore = $25,000
  1. 2 dams = $6,000
  1. [198]
    I indicated earlier in these reasons that I would make an additional allowance for wasted costs for sinking unproductive bores. This is to compensate for the uncertainty about re-establishing the groundwater supply in current locations. I will account for that by assuming for every bore re-established there will be one abandoned drill hole. Mr Matson estimated the cost of an abandoned drill hole at $3,000.[154] Adopting that approach, I will award an additional $9,000 for the Youngers and an additional $3,000 for Mrs Ryan.

Yards

  1. [199]
    For the Youngers’ property, I will allow the amount agreed by the valuers of $70,000 for the main yards and $30,000 for the new yards.[155] The valuers disagreed about the replacement cost for Mrs Ryan’s yards. Mr Osbourne valued them at $10,000[156]and Mr Matson said he would not argue with $40,000.[157] Given Mr Osbourne’s report, the basis for suggesting $40,000 to Mr Matson is not clear.[158] However, adopting a liberal approach to Mrs Ryan’s case, I will allow $20,000.

Fencing

  1. [200]
    QIM accepts approximately 10km of fencing will be destroyed. The valuers disagreed about the replacement cost: Mr Osbourne thought $9,000/km[159] and Mr Matson said $4,000/km.[160] Mr Osbourne’s opinion was based on Dr Flynn’s evidence. Although I agree with Mr Matson that $9,000 seems a little high, adopting a liberal approach I will adopt Counsel’s suggestion of $8,750/km. That amounts to $87,500.

Road

  1. [201]
    About 4 km of road, including eight culverts and three grids will be mined. Mr Matson said $15,000 would be an adequate allowance for the road.[161] He accepted the need to re-establish the culverts and grids but he did not accept the full cost of re-establishing the road.[162] Mr Osbourne’s estimate of the cost to establish the road was $115,000.[163]However, he appears to have relied upon some evidence of the cost of roads in very different circumstances and worked back from that.[164] I prefer the evidence of Mr Matson on this point, but adopting a generous approach I will allow $20,000 for the cost of re-establishing the road.

Alternative accommodation and reinstatement of the home

  1. [202]
    Counsel for the Youngers submitted they should be compensated for loss of occupation of their home. In the absence of an obligation for QIM to provide access to the house, it cannot be assumed they will have access. For at least one phase of mining, noise impacts will prevent the Youngers occupying this home without significant work to attenuate noise.[165]
  1. [203]
    Counsel suggested two ways to compensate the Youngers. The first is to allow $205,000 which is the value of the house and sheds in the assessment of the before value. The second is to allow $216,000 representing accommodation for 15 years at $300/wk ($166,000) plus $50,000 repair costs to the house, accepting it will fall into disrepair if unoccupied for that period.
  1. [204]
    The value of the house and sheds are already incorporated in the assessment of the before value of the property. It would be doubling up to allow an amount for loss of use of that asset when its value is already included in the NPV assessment. There is no evidence the before and after assessment does not adequately account for its value.
  1. [205]
    However, on the assumption the house will be unoccupied for 15 years, I will make an allowance for refurbishing it, adopting the figure of $50,000 suggested by Mr Matson during evidence.[166]

Calculation of compensation – Youngers

  1. [206]
    Applying the findings set out above total compensation for the Youngers is:

Loss of value

The agreed before value is $2,850,000. Reduced by 10% in accordance with my findings about rehabilitation, the figure for discounting is $2,565,000. When discounted by 3.5% over 18 years, compounded annually, the NPV is $1,381,408.26. Compensation for loss of value of the land, therefore, is $1,468,591.74 ($2,850,000 – $1,381,408.26).

$1,468,591.74

Infrastructure

Water = $100,000

Yards = $100,000

Fencing = $87,500

Road = $20,000

Total infrastructure                                                                                         $307,500

Additional allowance for dwelling                                                                             $50,000

Sub-total                                                                                                  1,826,091.74

Add 10 %[167] x $1,826,091.74 =                                                                 $182,609.17

Total                                                                                                        $2,008,700.91

say $2,008,700

Calculation of compensation – Mrs Ryan

  1. [207]
    Applying the findings set out above total compensation for Mrs Ryan is:

Loss of value

The agreed before value is $325,000. Reduced by 10% in accordance with my findings about rehabilitation, the figure for discounting is $292,500. When discounted by 3.5% over 15 years, compounded annually, the NPV is $174,655.23. Compensation for loss of value of the land, therefore, is $150,344.77 ($325,000 – $174,655.23).

$150,344.77

Infrastructure

Water = $34,000

Yards = $20,000

Total infrastructure                                                                                         $54,000

Sub-total                                                                                                  $204,344.77

Add 10 %[168] of $204,344.77                                                                      $20,434.47

Total                                                                                                          $224,779.24

say $224,780

Conclusion

  1. [208]
    Counsel for the Youngers compared Mr Matson’s NPV assessment (adjusted as he submitted it should be) with Mr Osbourne’s assessment and with what he described as an agistment check.[169] As I have not accepted many of the proposed adjustments, counsel’s comparison to either is not helpful. Also, the source of the figures used in counsel’s agistment check was not referenced and it was not clear on the face of the submissions how counsel arrived at the final figures he used for the comparison.
  1. [209]
    A better measure to check compensation is how it relates in percentage terms to the agreed before value. For comparison purposes, I will use the compensation figure before the additional 10% is allowed for. The compensation determined for the Youngers represents 64% of the before value of their property. The compensation determined for Mrs Ryan represents 62.8% of the before value of hers. I am satisfied that is appropriate compensation for the impacts of the ML.
  1. [210]
    Counsel for QIM requested I order compensation be paid by five equal instalments; the first within a month of the ML being granted and the remaining four at the end of each of the first 4 years of the ML.
  1. [211]
    Mr Younger questioned QIM’s financial capacity. I note the criticisms made about that evidence by counsel for QIM. However, had an executive of QIM called an executive officer to give evidence, its financial standing could have been established. Instead, the only evidence comes from Mr Younger.[170]
  1. [212]
    It is not necessary to make any findings about QIM’s financial capacity. A single up-front payment prior to any actual disturbance of the ML area is consistent with the assumption the landholders will be excluded for the full term of the lease.
  1. [213]
    If any party wishes to be heard in relation to costs, they must advise the Court in writing within 14 days, failing which I will make no order as to costs.

Orders

  1. [214]
    I make the following orders:
  1. In MRA432-15 I order:

QIM must pay James Younger, Fay Dorelle Younger and Christopher Younger the sum of $2,008,700 prior to undertaking any activities authorised by ML 80116 on their property.

  1. In MRA434-15 I order:

QIM must pay Edith Elizabeth Ryan the sum of $224,780 prior to undertaking any activities authorised by ML 80116 on her property.

FY KINGHAM

PRESIDENT OF THE LAND COURT

Footnotes

[1] Mineral Resources Act 1989, s 279.

[2]  Adult Equivalent.

[3]  T 4-10, lines 7-10.

[4]  T 4-10, lines 12-14.

[5]  T 4-10, lines 28-40.

[6]  T 4-10, lines 22-26.

[7]  T 4-27, lines 12-14.

[8]  T 4-128, line 30.

[9]  T 4-17, lines 40-47.

[10]  T 4-27, lines 24-31.

[11] Mineral Resources Act 1989, s 283B.

[12]  Applicant’s submissions filed 2 February 2017, at pp 19 and 20.

[13]  Ibid pp 17-18.

[14]  Exhibit 8A, Younger consent conditions; Exhibit A15, Ryan consent conditions.

[15] Mineral Resources Act 1989 s 283B. This is consistent with the approach adopted to the mining program as known at the time compensation was determined in the case of Carabella Resources Limited v Goodwin [2016] QLC 32 at [204].

[16] Environmental Protection Act 1994 (reprint 11A), ss 187, 189.

[17]  Chapter 3 - Description of Proposed Mining Activities and Chapter 9 – Rehabilitation and Decommissioning.

[18]  Figures 3-1; 3-7; 9-5; 3-8; 9-6; 3-9; 9-7; and 9-8.

[19] Western Aluminium Pty Ltd v Environmental Protection Authority (2007) 82 ALJR 74 at [14].

[20] Environmental Protection Act 1994 (reprint 111A), s 188.

[21]  Figure 5-1.

[22]  EA Figure 1.

[23]  EA condition A3.

[24] Environmental Protection Act 1994, s 287.

[25]  Ibid s 288(1)(c).

[26]  Ibid s 290.

[27]  Ibid s 291.

[28]  Ibid s 288(4).

[29]  Ibid s 289.

[30]  Applicant’s opening outline, at para [18].

[31]  Referral of mining compensation materials, filed 17 September 2015, attachment 2. 

[32]  Ex A13, Report of Dr Loch, at para [4].

[33]  Ibid p 12.

[34]  Letter Ardent Group Pty Ltd to Minerals Hub, Department of Natural Resources and Mines dated 21 September 2016 (attached to QIM’s compensation Statement filed 18 October 2016).

[35]  That is what happened in the case in which the company’s undertakings were accepted for the purposes of formulating compensation Carabella Resources Limited v Goodwin (2016) QLC 32 at [19].

[36]  Respondents’ reply submissions, filed 10 February 2017, at [27].

[37]  T 3-10, lines 35-40.

[38]  T 3-12, lines 5-45.

[39]  Ex R16, Affidavit of Mr Younger sworn 7 November 2016, at para [102].

[40]  T 3-20, lines 40-44.

[41]  T 3-80 lines 5-15.

[42]  T 3-31 1ine 42 to T 3-32 line 5.

[43]  T 3-75, lines 40-45.

[44]  T 3-75, lines 25-30.

[45]  T 3-75, line 34.

[46]  T 3-80, line 11.

[47]  T 3-23, lines 15-35.

[48]  T 3-25, line 30 to 3-26 line 10.

[49]  T 3-26, line 3.

[50]  T 3-26, line 21-47.

[51]  T 3-36 lines 20-25.

[52]  T 3-15, line 1 to 3-16, line 10.

[53]  T 3-73, lines 15-45.

[54]  T 3-74, lines 1-10.

[55]  T 3-56, lines 30-45.

[56]  T 3-57, lines 5-45.

[57]  T 3-31 lines 5-10.

[58] T 3-58 lines 15-20.

[59]  T 3-35 line 1 to T 3-36 line 10.

[60]  Environmental Authority, condition H1, at p 20.

[61]  Ibid at p 19-24.

[62]  Environmental Authority, condition H2, at p 24.

[63]  T 3-63, lines 20-25.

[64]  T 3-63 line 25.

[65] Environmental Protection Act 1994, s 292; Environmental Authority, condition A6 at p 3.

[66] Environmental Protection Act 1994, s 295.

[67]  Environmental Authority, condition H1, at p 24.

[68]  Ibid at p 20.

[69]  T 2-27- line 30 to 2-28, line 41.

[70]  T 2-31 lines 30-45; Mr Johnsons Expert Report filed 9 February 2016, at p 41.

[71]  T 2-26, line 30 to 2-27, line 5.

[72]  Environmental Authority, conditions E3 to E5, at pp 8 and 9.

[73]  T 2-37 line 13.

[74]  T 2-36, line 35 to 2-37, line 45.

[75]  T 2-38, lines 5-10; T 2-26, lines 30-40.

[76]  T 2-39, lines 5-10.

[77]  T 2-54, lines 30 to 45.

[78]  T 2-55, lines 35-40.

[79]  T 2-19, lines 8-to 10.

[80]  T 2-19, line 15 to T 2-20, line 13.

[81]  T 2-19, lines 15 to 30.

[82]  T 2-56, lines 3 to 5.

[83]  T 2-16, line 39 to T2-17, line 25.

[84]  T 2-41, lines 20 to 25.

[85]  Ex R14, Report of Mr Osbourne, at p 12.

[86]  Ex R16, Affidavit of Mr Younger sworn 7 November 2016, at paras [104] and [105].

[87]  Ibid at paras [104].

[88]  Ex R14, Report of Mr Osbourne, at p 22.

[89]  Ex R30, Letter from SunWater to Hede Byrne & Hall dated 6 December 2016; although only one of the lots is specifically referred to in that letter.

[90]  Ex R14, Report of Mr Osbourne, Appendix 6.

[91]  Ibid Appendix 4.

[92]  Ibid.

[93]  Ibid.

[94]  Ex R14, Report of Mr Osbourne, Appendix 3.

[95]  Ex R14, Report of Mr Osbourne, Appendix 8; Letter from Hede Byrne & Hall dated 16 February 2016, at p 2.

[96]  T 2-72, line 45 to T 2-73, line 7.

[97]  Applicant’s submissions, filed 2 February 2017, at paras [37]-[41].

[98] Government Owned Corporations Act 1993, s 16(a).

[99]  Ex R14, Report of Mr Osbourne, at p 26.

[100]  Ex R14, Report of Mr Osbourne, Appendix 8; Letter from Hede Byrne & Hall dated 16 February 2016, at pp 4-14.

[101]  Ibid.

[102]   T 2-72 lines, 6-7.

[103]  Ex R30, letter from Colin Bendall, Sunwater dated 06 December 2016.

[104]  Ex R14, Report of Mr Osbourne, Appendix 8; Letter from Hede Byrne & Hall dated 16 February 2016, at pp 206-202.

[105]  Ibid at pp 2-4.

[106]  T 2-71, lines 1-8.

[107]  Ex R30, letter from Colin Bendall, Sunwater dated 06 December 2016.

[108]   T 2-72, lines 10-14 and 25-33.

[109]  T1-2, lines 31-40; Mineral Resources Act 1989, s 279.

[110] Mineral Resources Act 1989, s 279; Schedule definition of owner of land at (g); SunWater does not represent the State see Government Owned Corporations Act 1993, s 154.

[111] Mineral Resources Act 1989, s 281(3)(a)(i); The owner of that land is SunWater, with whom QIM has a compensation agreement; See Ex R38.

[112]  This is consistent with the reasoning of Thomas J, as he then was, in the decision of the Full Court of the Supreme Court of Queensland in R v Land Court; ex part Kennecott Exploration (1988) 65 LGRA 103 at p 106.

[113] Mineral Resources Act 1989, s 281(3)(a)(ii)(iii); T1-2, line 44 to T 1-3, line 5.

[114]  Affidavit of Mr Matson filed 18 October 2016, at p 17.

[115]  Ex ARO1, affidavit of Mr Osbourne filed 29 February 2016, at p 32.

[116]  T 4-11, line 1 to T 4-12, line 5.

[117]  Statement by Mr Osbourne dated 9 June 2017, at para [1].

[118]  T 2-128, line 20.

[119]  Statement by Mr Osbourne dated 9 June 2017, at para [2].

[120]  Respondent’s submissions dated 23 December 2016 at [84(d)] Counsel proposed a reduction of value of $744,250, being Mr Osbourne’s rate of $1,145 for the flood margin land for 650ha being the area under the ML (582ha) and the area inaccessible because of the Ml (154ha). The figure of 650ha appears to be an error.

[121]  Ex AM1, affidavit of Mr Matson sworn on 13 June 2017, at p 2.

[122]  Ex AM1, affidavit of Mr Matson sworn on 13 June 2017, at p 1.

[123] Horn v Sunderland Corporation [1941] 2 KB 26 at p 42.

[124] Smith v Cameron (1986) 11 QLCR 64 at p 73; Zimmerebner v Hawkins & Ors (1999) 20 QLCR 71 at p 24.

[125] Smith v Cameron (1986) 11 QLCR 64 at pp 74-75. 

[126] Zimmerebner v Hawkins & Ors (1999) 20 QLCR 71 at p 23.

[127] Horn v Sunderland Corporation [1941] 2 KB 26 at 43 per Jacobs J; Boiadjieff v Minister (1962) 8 LGRA 68 at p 73.

[128]  T 4-9, lines 35-40.

[129] Wills and Minerva Coal Pty Ltd [No 2] (1998) 19 QLCR 297 at p 26.

[130] Fischer v Valuer-General (1983) 9 QLCR 44 at p 46; Barnwell v Valuer-General (1989) 13 QLCR 13 at p 17. 

[131]  T 4-10, lines 20-25.

[132]  Ex R40, at p 27.

[133]  Ex R40, at p 27.

[134]  T 4-27, lines 24-35.

[135]  T 4-26, line 38 to T 4-27, line 35.

[136]  T 4-45, line 30 to T 4-46, line 8.

[137] Spencer v Commonwealth (1907) 5 CLR 418 at p 441.

[138] McKay v Commissioner for Main Roads (No 7) [2011] WASC 233 at [162].

[139]  T 4-105, line 39 to T 4-106, line 5.

[140]  Land valuations and compensation in Australia Ro Ros and HG Collins, Australian Institute of Valuers and Land Economics (Inc) 1996, at pp 267-268.

[141]  Affidavit of Mr Matson, filed 18 October 2016, at p 18.

[142]  Ibid.

[143]  T 4-112, line 21 to T 4-117, line 27.

[144]  Ex R16, affidavit of Mr Younger, at para [9].

[145] McBarnon v Traffic Authority New South Wales (1995) 87 LGERA 238 at pp 244-246.

[146]  T 4-22, lines 14-43.

[147]  T 4-60, line 37 to T 4-64 line 4.

[148]  T 4-55, lines 1-3.

[149]  T 4-27, lines 27-28.

[150]  T 4-71, lines 37-44; T 4-77, lines 23-30.

[151]  T 2-14, lines 35-42.

[152]  T 4-63, line 27.

[153]  T 4-63 line 42 to 47; T4-64 lines 1 to 5; T4-92 line 45.

[154]  T 4-109, lines 7-9.

[155]  Ex R40.

[156]  Ex R41.

[157]  T 4-63, lines 8-11.

[158]  Ex R40.

[159]  T 4-68, line 45.

[160]  T 4-64, line 18.

[161]  T 4-65, line 45.

[162]  T 4-67, line 45 to T 4-69, line 2.

[163]  Ex R40; T4-68, line 30; T 4-69, lines 8-12.

[164]  T 4-69, line 5; T4-95, line 22.

[165]  T 1-174, line 45 to T 1-175, line 30.

[166]  T 4-70, lines 19-23.

[167] Mineral Resources Act 1989, s 279(4)(e).

[168] Mineral Resources Act 1989, s 279(4)(e).

[169]  Respondent’s submissions, filed 23 December 2016, at pp 29-32.

[170]  Ex R16, affidavit of Mr Younger sworn 7 November 2016, at [46]-[58] and [63]-[64].

Close

Editorial Notes

  • Published Case Name:

    Queensland Industrial Minerals Pty Ltd v Younger & Ors; Queensland Industrial Minerals Pty Ltd v Ryan

  • Shortened Case Name:

    Queensland Industrial Minerals Pty Ltd v Younger

  • MNC:

    [2017] QLC 39

  • Court:

    QLC

  • Judge(s):

    Kingham P

  • Date:

    04 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Carabella Resources Limited v Goodwin [2016] QLC 32
3 citations
Jump To
Cite 1 - [2016] QLC 32
Cite 2 - [2016] QLC 32
Cite 3 - [2016] QLC 32
Horn v Sunderland Corporation (1941) 2 KB 26
3 citations
Jump To
Cite 1 - (1941) 2 KB 26
Cite 2 - (1941) 2 KB 26
Cite 3 - (1941) 2 KB 26
Jacobs J; Boiadjieff v Minister (1962) 8 LGRA 68
1 citation
Jump To
Cite 1 - (1962) 8 LGRA 68
McBarnon v Traffic Authority New South Wales (1995) 87 LGERA 238
2 citations
Jump To
Cite 1 - (1995) 87 LGERA 238
Cite 2 - (1995) 87 LGERA 238
McKay v Commissioner for Main Roads [2011] WASC 233
2 citations
Jump To
Cite 1 - [2011] WASC 233
Cite 2 - [2011] WASC 233
R and MM Barnwell v The Valuer-General (1989) 13 QLCR 13
1 citation
Jump To
Cite 1 - (1989) 13 QLCR 13
R v Land Court; ex part Kennecott Exploration (1988) 65 LGRA 103
2 citations
Jump To
Cite 1 - (1988) 65 LGRA 103
Cite 2 - (1988) 65 LGRA 103
Smith v Cameron (1986) 11 QLCR 64
3 citations
Jump To
Cite 1 - (1986) 11 QLCR 64
Cite 2 - (1986) 11 QLCR 64
Cite 3 - (1986) 11 QLCR 64
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74
2 citations
Jump To
Cite 1 - (2007) 82 ALJR 74
Cite 2 - (2007) 82 ALJR 74
Wills v Minerva Coal Pty Ltd (No 2) (1998) 19 QLCR 297
2 citations
Jump To
Cite 1 - (1998) 19 QLCR 297
Cite 2 - (1998) 19 QLCR 297
WM and TJ Fischer v The Valuer-General (1983) 9 QLCR 44
2 citations
Jump To
Cite 1 - (1983) 9 QLCR 44
Cite 2 - (1983) 9 QLCR 44
Zimmerebner v Hawkins & Ors (1999) 20 QLCR 71
3 citations
Jump To
Cite 1 - (1999) 20 QLCR 71
Cite 2 - (1999) 20 QLCR 71
Cite 3 - (1999) 20 QLCR 71

Cases Citing

Case NameFull CitationFrequency
MGT Minerals Pty Ltd v Dunn [2020] QLC 52 citations
Queensland Industrial Minerals Pty Ltd v Younger [2017] QLC 544 citations
1

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