Wellington v Struber[2017] QLC 64

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 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease ML 100112 (ML 100112).

Background

2. [2]
   The grant of ML 100112 is sought by the applicant, Mr Owen Reginald Wellington (the miner). The land is more particularly described as Lot 14 on SP250040, is situated within the Cook Shire local government area. The subject land is commonly known as Palmerville Station, is used for grazing purposes and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). 

3. [3]
   The relevant Land Court reference and individual lease and tenure areas are set out below:

Relevant Legislation

4. [4]
   Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and the matter has been referred to the Land Court for determination.

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

1. (i)
   deprivation of possession of the surface of land of the owner;

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

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

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

5. (v)
   any surface rights of access;

6. (vi)
   all loss or expense that arises;

as a consequence of the grant  or renewal of the mining lease.

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

3. (4)
   In assessing the amount of compensation payable under subsection (3)—

…

5. (e)
   an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount,

…

shall be not less than 10% of the aggregate amount determined under subsection (3).

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

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

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

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

The conduct of the proceedings and evidence

8. [8]
   On 6 February 2017 a Deputy Registrar of the Land Court wrote to the landowners and the miner’s representative, Ms Michelle Mobbs of Mining Tenure Management. It is noted that at this date that although Mr Edward John Saxby is recorded as applicant on the referral document, Mr Owen Reginald Wellington appears to be the pending transferee, having applied to DNRM to have ML 100112 transferred to him.  Ms Mobbs was also the Authorized Holder Representative in respect of the pending transfer.

9. [9]
   Correspondence was received from Ms Mobbs on 6 March 2017 which enclosed a compensation statement and submissions regarding the assessment of compensation for ML 100112 on behalf of Mr Owen Reginald Wellington.  The matters adressed by Ms. Mobbs are set out below:

1. The miner will be building two dams at a conservative value of $10,000 each, to provide water for processing.  The miner proposes to offer the dams to the landowner as compensation for the term of the lease and beyond.
2. The landowner’s cattle will be able to access the dams during the term of lease and will also be permitted to graze the surface area of the lease for the duration of the leases. The miner will not restrict the use of the area for cattle watering and grazing.
3. Recent determination have assessed compensation at $10.00 per hectare per annum for the mining areas and $5.00 per hectare per annum in respect of access areas e.g. Pavey & Anor v Struber & Anor [2016] QLC 79.  The dollar value of the dams would far exceed the amount of compensation, if assessed on the basis of this recent determination.

10. [10]
    No materials or submissions have been received from or on behalf of the landowners.

11. [11]
    On 18 December 2017 an updated resources authority public report was provided to the Land Court by the Mineral Assessment Hub, DNRM. That report now confirms the transfer to Mr Owen Reginald Wellington on 4 September 2017 of the application for ML 100112.  As a consequnnce of that transfer this determination is now be undertaken on the basis that Mr Wellington is now the applicant/miner in place of Mr Edward John Saxby.

Determination

12. [12]
    The material and submissions filed by Ms Hobbs on behalf of Mr Wellington is the only material before the Court, apart from the referral documents from DNRM. No expert evidence has been placed before the Court by either party.

13. [13]
    I have considered the submissions by Ms Hobbs and note the preparedness of the miner, Mr Wellington to construct dams on the subject land and for these dams to be offered to the landowners for the duration of the mining lease and beyond. Although offers of this nature may be incorporated into a compensation agreement between the parties, the Courts jurisdiction pursuant to the MRA is limited to the determination of a monetary sum and therefore has no jurisdiction pursuant to the MRA to include other matters.^[2]

14. [14]
    On the basis of the limited materials and evidence before the Court I am of the view that the most appropriate approach is to be guided by recent judgments of the Court from within the mining district of Mareeba. In this regard I consider the more recent judgment of Wallace v Bottomer^[3] and the earlier contested determination in Fitzgerald & Ors v Struber & Anor^[4] (Fitzgerald) provide the most useful guidance for the present assessment of compensation for ML 100112.  In each case Member PA Smith determined compensation at $10.00 per hectare per annum for mining areas and in Fitzgerald also determined compensation for access areas at $5.00 per hectare per annum.  Member Smith has a long association with Palmerville Station, having inspected the property and undertaken quite a number of contested determinations within the Mareeba mining district.

15. [15]
    Adopting this approach, compensation is determined in respect of ML 100112 at $10.00 per hectare per annum for mining areas and $5.00 per hectare per annum for access areas.  The relevant areas are rounded to the next full hectare for calculation purposes.  An amount of $85.00 per annum in respect of the compulsory nature of grant has been added pursuant to s 281(4)(e) of the MRA.

16. [16]
    As each of the landowners is presently serving a period of imprisonment the assessed compensation will be ordered to be paid to the Public Trustee of Queensland.^[5]

17. [17]
    The basis of the determination is set out as follows:

MRA006-17 re ML 100112

Area covered by mining lease – 82.00 ha @ $ 10 per ha = $820.00 per annum

Area covered by access  5 ha @ $   5 per ha = $  25.00 per annum

add s 281(4)(e) re: compulsory nature of grant  = $  85.00 per annum

Total                                                                               = $930.00 per annum

Orders

1. In respect of ML 100112 compensation is determined in the sum of $930.00 per annum.

2. The miner pay compensation to the Public Trustee of Queensland the amount set out in order 1 within three months of notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR