Pavey v Struber[2017] QLC 63

LAND COURT OF QUEENSLAND

1. [1]
   These proceedings require the Court to determine compensation in respect of the grant of Mining Leases, namely ML 100136 and ML 100139. The matters were referred to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA).

Background

2. [2]
   The applicants, Ashley Owen Pavey and Darrell Warren Skennar (the miners) seek the grant of ML 100136 and ML 100139 upon grazing land situated approximately 27.5 km south of Maytown within the Cook Shire local government area. The land, known as Palmerville Station is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners) and is more particularly described as Lot 14 on SP 250040. 

3. [3]
   The relevant Land Court references and details regarding each tenure are included in the following table:

4. [4]
   The landowners are currently serving a period of imprisonment and consequently the referral documents list their address as:

QUEENSLAND PUBLIC TRUSTEE

PO BOX 656

CAIRNS QLD 4870

Relevant legislation

5. [5]
   Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court.

6. [6]
   Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

“(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.”

7. [7]
   Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows:

“(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).”

8. [8]
   The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd [No.2] 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.”^[1]

The conduct of the proceedings and evidence

9. [9]
   A Deputy Registrar wrote to the parties on 15 September 2017 to advise of a timetable for the filing of materials and submissions in relation to the assessment of compensation for the granting of ML 100136 and ML 100139. 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.

10. [10]
    On 10 October 2017 the Court received correspondence from Mining and Resource Permit Services of Mt Sheridan, Queensland. This correspondence included a compensation statement which suggested that compensation be resolved at $10 per hectare per annum for mining area and $5 per hectare per annum for access on the basis of earlier Court judgments concerning the determination of compensation in respect of mining leases within Palmerville Station namely Fitzgerald & Ors v Struber & Anor [2009] QLC 76, Kayes v Struber & Anor [2016] QLC 3, Northeast Mining Co Pty Ltd v Struber & Anor [2016] QLC 5, Munro & Anor v Struber & Anor [2016] QLC 49.

11. [11]
    No submissions or evidence has been received by the Court from or on behalf of the landowners.

Determination

12. [12]
    No valuation or other expert evidence has been placed before the Court by either party in support of a suggested approach or contended amount of compensation. In the absence of expert evidence I consider that the most appropriate approach is to be guided by Court determinations from within the local Mareeba mining district. The judgments suggested on behalf of the miner at [10], in my view provide the necessary guidance for the current determinations, in particular Fitzgerald & Ors v Struber & Anor [2009] QLC 76 which involved contested expert evidence and a site inspection of Palmerville Station. 

13. [13]
    The more recent determination in Wallace & Ors v Bottomer & Ors^[2] also assessed compensation in respect of mining areas at a rate of $10 per hectare per annum and in my view provides further support for the adoption of Court determinations in the absence of expert evidence.  Accordingly on the basis of theses Court judgments compensation is determined at $10 per hectare per annum in respect of the mining area of each lease and at $5 per hectare per annum in respect of access area of each lease.

14. [14]
    The relevant areas of each lease will be rounded to the next full hectare for calculation purposes and the following additional amounts added to each mining lease pursuant to s 281(4)(e) of the MRA i.e. $22 per annum in respect of ML 100139 and $35 per annum for ML 100136.

15. [15]
    The determinations for each mining lease are set out below:

MRA647-17 – ML 100139

Area covered by mining lease –14 ha @ $10 per ha = $140.00 per annum

Area covered by access –15 ha @ $5 per ha = $75.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $ 22.00 per annum

Total = $237.00 per annum

MRA648-17 – ML 100136

Area covered by mining lease –28 ha @ $10 per ha = $280.00 per annum

Area covered by access – 13 ha @ $ 5 per ha = $65.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $35.00 per annum

Total = $380.00 per annum

16. [16]
    As each landowner is presently serving a period of imprisonment I will order in each case that the compensation determined be paid to the Public Trustee of Queensland^[3].

Orders

1. In respect of ML 100139 compensation is determined in the total sum of $237 per annum.

2. In respect of ML 100136 compensation is determined in the total sum of $380 per annum.

3. The applicants pay compensation to the Public Trustee of Queensland the amounts set out in orders 1 and 2 within one month from notification of the grant of each mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of each mining lease.

GJ SMITH

JUDICIAL REGISTRAR