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Mt Moran Gold Pty Ltd v Hoolihan[2018] QLC 13

Mt Moran Gold Pty Ltd v Hoolihan[2018] QLC 13

LAND COURT OF QUEENSLAND

CITATION:

Mt Moran Gold Pty Ltd v Hoolihan [2018] QLC 13

PARTIES:

Mt Moran Gold Pty Ltd

ACN 163 324 749

(applicant)

 

v

 

Edward John Hoolihan

(respondent)

FILE NOs:

MRA216-17 (ML 3333)

MRA234-17 (ML 3434)

DIVISION:

General division

PROCEEDING:

Determination of compensation for renewal of mining lease

DELIVERED ON:

13 June 2018

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 2 January 2018

HEARD AT:

Heard on the papers

MEMBER:

WL Cochrane

ORDERS:

  1. In respect of the application for renewal of ML 3333, compensation is determined in the amount of Five Dollars and Fifty Cents ($5.50) per annum, which is Thirty-Eight Dollars and Fifty Cents ($38.50) for the life of the lease.
  2. In respect of the application for renewal of ML 3434, compensation is determined in the amount of Seventy-One Dollars and Fifty Cents ($71.50) per annum or Five Hundred Dollars and Fifty Cents ($500.50) for the life of the lease.
  3. Mt Moran Gold Pty Ltd is to pay to Edward John Hoolihan compensation in the amount set out in Orders 1 and 2, namely Five Hundred and Thirty-Nine Dollars ($539), within thirty (30) days from the notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where no material provided by either party – factors to be considered

Land Court Rules 2000 r 36A

Mineral Resources Act 1989 s 85(12), s 279, s 279A, s 281

Alphadale Pty Ltd v Dore & Ors [2016] QLC 15, considered

Hoolihan v Prichard [2009] QLC 172, considered

Keyse v Phillipson & Ors [2016] QLC 40, considered

Wills v Minerva Coal Pty Ltd (No. 2) (1998) 19 QLCR 297, considered

Thomsen v Struber [2017] QLC 33, considered

Pavey & Anor v Struber & Anor [2017] QLC 63, considered

Skrzypczynski & Ors v Hutchinson [2017] QLC 4, considered

APPEARANCES:

Not applicable

  1. [1]
    This matter is a decision on a referral by the Chief Executive of the Department of Natural Resources and Mines (DNRM) to the Land Court pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of a renewal of two mining leases, ML 3333 and ML 3434 respectively.

Background

  1. [2]
    The applicant miner, Mt Moran Pty Ltd, applied on 23 October 2015 to renew ML 3333.
  1. [3]
    The application sought a renewal of ML 3333 for a term of seven years set to expire on 31 July 2023; the current lease expiring on 31 July 2016.
  1. [4]
    The applicant miner also applied on 23 October 2015 to renew ML 3434.
  1. [5]
    The application to renew ML 3434 sought a renewal term of seven years due to expire on 30 April 2023; the current lease expiring on 30 April 2016.
  1. [6]
    The subject ML 3434 is partially located on Ortona Station near Georgetown, the owner of which (leasehold land) is Edward John Hoolihan. The mining lease areas of ML 3434 are required for both mining and access.
  1. [7]
    The applications to renew both ML 3333 and ML 3434 identified elluvial, colluvial and alluvial gold and elluvial, colluvial and alluvial tin as the minerals sought pursuant to the leases.
  1. [8]
    The lease held by Mr Hoolihan is described as Lot 5101 on PH 492 County of Victor, Parish of Ortona. The leasehold area is 17,094 ha.
  1. [9]
    Lot 5101 on PH 492 adjoins the mining leases held on what appears to be State-owned land.
  1. [10]
    ML 3333 shows that the access way across Lot 5101 is to a mining lease in which the mined area is located on Lot 2 on SP 275179 but part of the access to that mining site is achieved over Lot 5101 for a distance of 0.2 km resulting in an area for access for ML 3333 on Lot 5101 of 0.1 ha.
  1. [11]
    A map which accompanied the application for renewal shows that ML 3434 is a generally rectangular area which seems to achieve access off Rungulla Road over Lot 1 on SP 275179 which is State owned land. Then, presumably (because it is not clear from the material) achieves access into the mined area proposed to be the subject of a mining lease on Lot 5101 over the leased area on Lot 2 of SP 275179.
  1. [12]
    The mining area located on Mr Hoolihan’s land is indicated as being 5.3 ha. The area of proposed access through Lot 5101 is 0.19 km in length and 5 m in width or 0.095 ha.
  1. [13]
    The resource authority public report shows that until 12 March 2014 the lease areas of ML 3333 and ML 3434 were held by Mr Hoolihan and then transferred to Mt Moran Gold Pty Ltd.
  1. [14]
    That explains a compensation agreement lodged with the Mining Registrar on 22 May 2009 evidencing an agreement Mr Hoolihan apparently made with himself to satisfy the legal requirements that a compensation agreement be entered into before a lease can issue.
  1. [15]
    That compensation agreement provides for a sum of $100 to be paid as full and complete compensation for the seven year term of the lease, i.e. about $14.30 per year.
  1. [16]
    Also included on the file for this matter is a decision in the matter of Hoolihan v Prichard.[1] That was a decision of the then Judicial Registrar, Mr BR O'Connor, in respect of ML 3434. In that case Mr Hoolihan was the miner and Mr Prichard the landholder, with 8 ha of the mining lease affecting Mr Prichard’s land.
  1. [17]
    That decision involved a renewal of the lease for a period of seven years in circumstances where neither party filed any material or submissions with respect to the appropriate quantum of compensation.
  1. [18]
    In that case Mr O'Connor awarded a total compensation for the seven year term of $350.[2]

Relevant legislation

  1. [19]
    This decision is made to satisfy the requirements of s 279 of the MRA which 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.
  1. [20]
    In the present case, no agreement has been lodged with the relevant Department and consequently the matter has been referred to the Land Court for determination.
  1. [21]
    Section 281 of the MRA sets out those matters which must be considered by this Court when determining the compensation.
  1. [22]
    Section 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;
  1. (ii)
    diminution of the value of the land of the owner or any improvements thereon;
  1. (iii)
    diminution of the use made or which may be made of the land of the owner or any improvements thereon;
  1. (iv)
    severance of any part of the land from other parts thereof or from other land of the owner;
  1. (v)
    any surface rights of access;
  1. (vi)
    all loss or expense that arises;

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

  1. [23]
    Further s 281(4)(e) provides that in assessing the amount of compensation payable under s 281(3):
  1. (e)
    an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).
  1. [24]
    How the assessment of compensation is to be determined is not fully explained in the MRA itself. The MRA identifies matters to be taken into account but it does not prescribe any particular method of valuation.[3]
  1. [25]
    The usual process reflected in a number of decisions of this Court is that the parties to a determination for compensation provide evidence, often expert evidence, which seeks to demonstrate what the appropriate amount of compensation should be. This is done often by reflecting the productivity of the land lost to the mining lease, the likely revenue to be gleaned from uninhibited use of that land, stocking rates for livestock or yield rates for cultivation and various items of disamenity caused by the inevitable intrusion into a landholder’s property by machinery and vehicles. In some cases valuers and agronomists are engaged.
  1. [26]
    It must be recognised, however, that the cost of such an exercise often results in a cost which far exceeds the revenue to which the dispossessed landowner may be entitled.

The conduct of these proceedings 

  1. [27]
    This Court gave notice to the parties that a directions hearing was proposed to be heard by Member PG Stilgoe.
  1. [28]
    Eventually, on 7 November 2017, a preliminary conference was conducted at the Mareeba Courthouse by Member Stilgoe.
  1. [29]
    At that time no material had been filed by either party setting out their approach or their preferred options for the determination of compensation.
  1. [30]
    Accordingly, Member Stilgoe made orders for the filing of material.
  1. [31]
    Those orders, made on 7 November 2017, were as follows:
  1. By 4:00pm on Tuesday 5 December 2017 the Respondent/Landowner file in the Land Court Registry and serve the Applicant/Miner material to be relied upon.
  1. By 4:00pm on Tuesday 2 January 2018 the Applicant/Miner file in the Land Court Registry and serve the Respondent/Landowner material to be relied upon.
  1. A determination on compensation will be made on the papers not before 2 January 2018.
  1. [32]
    The respondent/land owner filed in the Court on 17 January 2018 correspondence dated 8 January 2018, setting out what they say is the appropriate amount of compensation and the reasons for that amount.
  1. [33]
    It is appropriate to set out in full the contents of that letter (which is only short in any event) because it demonstrates the confusion which often lies in the minds of landowners on whose property mining activities are proposed to be carried out. That is so to the extent that they often blend what they see as past misconduct, anticipated misconduct and the true impacts of the mining activity on their property.
  1. [34]
    In their letter Mr and Mrs Hoolihan state as follows:

“We would like $3,000.00 for the period 2015 to 2022 with the full amount paid at the time of the renewal of the lease – if the Land Court allows the renewal. The lease should have been renewed in 2015.

Our concerns:

  • Since July 2017 graziers are required to have a Biosecurity Plan which includes the washdown of vehicles before entering grazing land to prevent the introduction and spread of new weeds. We feel certain we will not have compliance with MT.Moran people.
  • Dirt on roads which covers grass.
  • Fire which can destroy the whole property.
  • Noise from machinery which can be heard from our house.
  • We have had a great deal of mental anguish over the behaviour of MT.Moran people including two Land Courts by phone. The first, a Mr Burnett, who said he didn’t know what was going on and was only told about the Court a week previously. There was no outcome and took up our time for preparation and from our work.

For the record Land Court, we waited on the phone for about 20 minutes and no Mt Moran person called in.

  • We phoned Andrew Woodhouse, Queensland Heritage, about removal of old mining equipment from MT.Moran which we put under Heritage many years ago. (MT.Moran people knew this.) Mr Woodhouse said he phoned Mr Burnett who said nothing had been removed, but he wanted us to check. We cannot go on the lease as we write we have just thought perhaps we can because the lease has not been renewed!
  • Mrs Stilgoe was told the following in order to explain behaviour of MT.Moran people. MT.Moran has an Exploration Permit Mineral on almost half of our property, another group Rappolt and Fersterer also have an E.P.M. They do everything correctly. Notification of EPM, notification of entry each time, number of people (limited), which area exploring, how many vehicles, how long a period – all required by the Mines Department.

We only learned that MT.Moran had an E.P.M through Rappolt & Fersterer, MT.Moran people have, for almost 3 years, used our land as if they owned it all. We have found them and their tracks including on the other E.P.M disturbing us and our cattle.

Out of fear and just hoping they would go away we have never reported them to the Mines Department or police.

As we said to Judge Stilgoe

‘We want them to do the right thing by the Mines Department and by us.’

Money will not give us peace or safety or protection of our land.

Yours truly.”[4]

  1. [35]
    I should begin by observing that the letter does not make clear whether the figure of $3,000 for the period 2015 to 2022 is in respect of each mining lease or in respect of both leases. It might be surmised, given the very small area sought in accordance with and in conjunction with ML 3333, that the figure refers to both leases.
  1. [36]
    If the figure of $3,000 is intended to cover both ML 3434 and ML 3333 which seek 5.3 ha for the mining lease activity and a total of 0.195 ha (0.1 plus 0.095 ha) for the purpose of access, then that involves a total area of 5.495 ha (mining and access) so that the compensation sought is about $546 ($545.95) per hectare overall.
  1. [37]
    The consequence of the paucity of detail is that the landowner has not told this Court, in any way, what it considers to be a reasonable calculated amount to compensate it for the presence of the mining activity on its land. Similarly, for its part, the miner has not advanced any particular figure at all which it regards appropriate.
  1. [38]
    The Court has not been made aware of the primary activity which is carried out on the property and has not been given any details of how intrusive the proposed mining activity will be on the property. It might be surmised from the correspondence of Mr and Mrs Hoolihan, however, that it is a grazing property.
  1. [39]
    The proposed mining lease area as indicated above, is 5.495 ha. The renewal term requested is for seven years so that on a simple mathematical basis the Court is being asked to determine compensation for a period of 38.465 hectare/years (rounded to 38 ha).
  1. [40]
    As unsatisfactory as it may be, and in lieu of simply declining to determine any compensation whatsoever, the Court, on previous occasions has resorted to other decisions from throughout Queensland as offering guidance to the figure that should be settled upon.
  1. [41]
    In this case the mining district is the Georgetown District located in the Etheridge Shire Council local government area. That is to say it is in far North Queensland.
  1. [42]
    There have been recent decisions made in respect of land in the Charters Towers mining district in which the Court has settled upon a figure of $4 per ha per annum and $5 per ha per annum for access,[5] and $8 per annum and $10 per annum respectively for mining lease areas.[6]
  1. [43]
    In the present case I am inclined to determine compensation at the rate of $5 per ha per annum in respect of the access area, and $10 per ha per annum in respect of the mining lease area with those areas to be rounded up to the next full hectare for assessment purposes.
  1. [44]
    In this case the determination in respect of ML 3333 is as follows:
  1. Area covered by access – 1 ha (rounded from 0.1 ha) at $5 per ha = $5 per annum;
  1. Section 281(4)(e) of the MRA regarding compulsory nature of grant – $0.50 per annum/ha i.e. $5.50 per annum. This calculates to $38.50 for the life of the lease (i.e. $5.50*7 years).
  1. [45]
    In this case the determination in respect of ML 3434 is as follows:
  1. Area covered by the mining lease – 6 ha (rounded up from 5.3 ha) at $10 per ha = $60 per annum plus the s 281(4)(e) component of $6 making $66 per annum or $462 for the life of the lease.
  1. Area covered by access 1 ha (rounded up from 0.095 ha) at $5 per ha = $5 per annum plus the s 281(4)(e) component of $0.50 making $5.50 per annum or $38.50 for the life of the lease.
  1. [46]
    Due to the relatively modest amount of compensation ordered to be paid, and in order to relieve the landowners of the burden and expense associated with annual claims for compensation, I direct that the totality of the compensation for the lease period of seven years for both leases be paid as a lump sum within 30 days of notification by the Mining Registrar of the issue of the mining lease. Accordingly, the miner is to pay to the land owners the total sum of $539.

Orders

  1. [47]
    Therefore, the orders of the Court are:
  1. In respect of the application for renewal of ML 3333, compensation is determined in the amount of Five Dollars and Fifty Cents ($5.50) per annum, which is Thirty-Eight Dollars and Fifty Cents ($38.50) for the life of the lease.
  2. In respect of the application for renewal of ML 3434, compensation is determined in the amount of Seventy-One Dollars and Fifty Cents ($71.50) per annum or Five Hundred Dollars and Fifty Cents ($500.50) for the life of the lease.
  3. Mt Moran Gold Pty Ltd is to pay to Edward John Hoolihan compensation in the amount set out in Orders 1 and 2, namely Five Hundred and Thirty-Nine Dollars ($539), within thirty (30) days from the notification of the renewal of the mining lease by the Department of Natural Resources, Mines and Energy.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1]  [2009] QLC 172.

[2]  Ibid [6].

[3]  See Wills v Minerva Coal Pty Ltd (No.2) (1998) 19 QLCR 297, 305-16 (particularly at 315).

[4]  Mr Hoolihan, letter to the Land Court filed 17 January 2018.

[5]  See Alphadale Pty Ltd v Dore & Ors [2016] QLC 15; Keyse v Phillipson & Ors [2016] QLC 40.

[6]  See Thomsen v Struber [2017] QLC 33; Pavey & Anor v Struber & Anor [2017] QLC 63; Skrzypczynski & Ors v Hutchinson [2017] QLC 4.

Close

Editorial Notes

  • Published Case Name:

    Mt Moran Gold Pty Ltd v Hoolihan

  • Shortened Case Name:

    Mt Moran Gold Pty Ltd v Hoolihan

  • MNC:

    [2018] QLC 13

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    13 Jun 2018

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
Alphadale Pty Ltd v Dore [2016] QLC 15
2 citations
Jump To
Cite 1 - [2016] QLC 15
Cite 2 - [2016] QLC 15
Hoolihan v Prichard [2009] QLC 172
3 citations
Jump To
Cite 1 - [2009] QLC 172
Cite 2 - [2009] QLC 172
Cite 3 - [2009] QLC 172
Keyse v Phillipson [2016] QLC 40
2 citations
Jump To
Cite 1 - [2016] QLC 40
Cite 2 - [2016] QLC 40
Pavey v Struber [2017] QLC 63
2 citations
Jump To
Cite 1 - [2017] QLC 63
Cite 2 - [2017] QLC 63
Skrzypczynski v Hutchinson [2017] QLC 4
2 citations
Jump To
Cite 1 - [2017] QLC 4
Cite 2 - [2017] QLC 4
Thomsen v Struber [2017] QLC 33
2 citations
Jump To
Cite 1 - [2017] QLC 33
Cite 2 - [2017] QLC 33
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

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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