Markert v Struber[2017] QLC 62

LAND COURT OF QUEENSLAND

1. [1]
   This matter relates to a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease 20238 (ML 20238) for a period of 5 years.

Background

2. [2]
   The applicant, Frank Josef Markert (the miner) seeks the renewal of ML 20238, which is situated on land described as Lot 14 on SP 250040 (the subject land). The relevant areas comprise a mining area of 34.40 ha and an access track of 5.15 ha. The subject land is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).

3. [3]
   The subject land is used for grazing purposes and is located within the Cook Shire Local Government area.

Relevant legislation

4. [4]
   Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In respect to the present referral concerning ML 20238, no agreement has been lodged with DNRM.

5. [5]
   Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

“(i) deprivation of possession of the surface of land of the owner;

10. (ii)
    diminution of the value of the land of the owner or any improvements thereon;

10. (iii)
    diminution of the use made or which may be made of the land of the owner or any improvements thereon;

10. (iv)
    severance of any part of the land from other parts thereof or from other land of the owner;

10. (v)
    any surface rights of access;

10. (vi)
    all loss or expense that arises; as a consequence of the grant or renewal of the mining lease.”

6. [6]
   Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows:

“(4)In assessing the amount of compensation payable under subsection (3) –

10. (e)
    an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

7. [7]
   The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd [No.2]^[1] as follows -

“It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said:

‘The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation.’

Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.”

The conduct of the proceedings

8. [8]
   On 21 July 2017 the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions. As both landowners are presently serving a period of imprisonment that correspondence was forwarded to the landowner’s c/- Stephen Roy Struber, Lotus Glen Correctional Centre, Private Bag 1, Mareeba QLD 4880.

9. [9]
   No materials or submissions have been received by the Court in response to the letter from the registry dated 21 July 2017 and therefore the only material before the Court is the referral documents forwarded by DNRM. Included with the referral material is a proposed compensation agreement signed by the miner suggesting that compensation be paid to the landowners at the rate of $10 per ha per annum in respect of the mining area and $5 per ha per annum in respect of access area.

Determination

10. [10]
    Given no evidence or submissions has been placed before the Court by either party I consider that it is necessary to seek guidance from earlier Court judgments from within the Mareeba mining district. In my view the most helpful and informative judgments are those based on expert evidence tested by cross examination and where an inspection of the subject land has been carried out by the Court as part of the assessment. The judgment in Fitzgerald & Anor v Struber & Anor^[2] is one such determination and resulted in an assessment at the rates of $10 per ha per annum for mining areas and $5 per ha per annum for access areas.  In the later Court judgment in Wallace & Ors v Bottomer & Ors^[3] compensation was determined at $10 per ha per annum in respect of the mining area of a renewed lease.

11. [11]
    On the basis of these earlier judgments I am of the view that $10 per ha per annum in respect of the mining area and $5 per ha per annum for access area of ML 20238 is appropriate compensation in the circumstances. The relevant areas will be rounded to the next full hectare for the purpose of calculation. Further, I intend to add an additional 10% to the assessed amount pursuant to s 281(4)(e) of the MRA.

12. [12]
    The determination in respect of ML 20238 is set out below:

Area covered by mining lease –35 ha @ $10 per ha = $ 350.00 per annum

Area covered by access – 6 ha @ $  5 per ha = $30.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $38.00 per annum

Total = $418.00 per annum

13. [13]
    Given that the respondents are presently serving a period of incarceration^[4], I intend to order that the compensation determined be paid to the Public Trustee of Queensland.

Orders

1. In respect of ML 20238 compensation is determined in the total sum of $418 per annum.

2. The applicant pay compensation to the Public Trustee of Queensland the amount set out in order 1 within one month from notification of the renewal of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR