Fitzgerald v Struber[2018] QLC 18

LAND COURT OF QUEENSLAND

1. [1]
   This case concerns 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 100133 (ML 100133).

2. [2]
   As both respondents are currently serving a period of imprisonment^[1] the referral documents have been addressed to them care of the Public Trustee as follows:

C/- PUBLIC TRUSTEE

PO BOX 656

CAIRNS QLD 4871

3. [3]
   The applicant, Patrick Charles Fitzgerald (the miner), seeks the grant of a mining lease on land described as Lot 14 on SP 250040. The mining lease area comprises of 9.44ha and a 5km access track across land owned by the respondents, Stephen Struber and Dianne Wilson-Struber (the landowners). The subject land is known as Palmerville Station is situated within the Mareeba Shire local government area and is used for grazing purposes.

4. [4]
   The Land Court reference and tenure details are set out below:

5. [5]
   Section 279(1) of the MRA requires that compensation be settled before grant or renewal of a mining lease is set out as follows:

279 Compensation to be settled before grant or renewal of mining lease

3. (1)
   A mining lease shall not be granted or renewed unless—

1. (a)
   compensation has been determined (whether by agreement or by determination of the Land Court) between the applicant and each person who is the owner of land the surface of which is the subject of the application and of any surface access to the mining lease land; or

2. (b)
   there is no person (other than the applicant) who is the owner of any of the land referred to in paragraph (a);

and the conditions of the agreement or determination have been or are being complied with by the applicant.

…

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:

…

1. (a)
   in the case of compensation referred to in section 279 —

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.

…

7. [7]
   Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only s 281(4)(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).

…

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

The conduct of the proceedings and evidence

9. [9]
   On 9 March 2018, the Court made the following orders regarding the further conduct of this matter:

1. The parties are not required to comply with Practice Direction 1 of 2017.
2. Stephen Roy Struber and Dianne Rose Wilson-Struber must file and serve a response to the Compensation Agreement within 21 days from 12 March 2018.
3. Unless the parties otherwise request in writing, the case will be determined on the filed material, without an oral hearing.

10. [10]
    A copy of this order was forwarded to the respondents on 9 March 2018.

11. [11]
    Neither party has filed any material or submission in support of a contended amount of compensation that might be assessed by the Court. The only materials before the Court are the referral documents filed by DNRM. The documents included information regarding the method of operations and mining program to be undertaken during the 15 year term of ML 100133.

12. [12]
    The difficulty faced by the Court where neither party has filed any material was considered in Unimin Australia Limited v Freeman^[3] where Member RS Jones (as he then was) noted:^[4]

“I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

13. [13]
    In the circumstances, I consider it necessary and appropriate for the Court to be guided in determining compensation by recent Court judgments from within the local mining district. In this regard, the decision by Member PA Smith in Wallace & Ors v Bottomer & Ors,^[5] determined compensation for the mining area of a renewed lease at $10 per ha per annum, while other more recent decisions^[6] have determined compensation for similar mining activities on Palmerville Station at $10 per ha per annum in respect of mining areas and $5 per ha per annum for access areas. 

14. [14]
    In my view, these earlier Court judgments from within the Mareeba mining district provide an appropriate basis for the present compensation determination, given the state of the evidence before the Court. Accordingly, I consider that $10 per ha per annum for the mining area and $5 per ha per annum for access area to be a fair and reasonable determination for ML 100133. The mining lease area of 9.44ha and the access area of 2.5ha will be rounded to the next full hectare for calculation purposes.  Pursuant to s 281(4)(e) of the MRA I intend to order a further $12 per annum in respect of the compulsory nature of the grant.

15. [15]
    The final determination in respect of ML 100133 is set out below:

Area covered by mining lease – 10ha @ $10 per ha = $100.00 per annum

Area covered by access – 3ha @ $5 per ha = $15.00 per annum

Add s 281(4)(e) for compulsory nature of grant = $12.00 per annum

Total$127.00 per annum

16. [16]
    As the landholders are presently serving a period of imprisonment, the compensation will be ordered to be paid to the Public Trustee of Queensland.^[7]

Orders

17. [17]
    Therefore, the orders of the Court are:

1. In respect of ML 100133 compensation is determined in the total sum of $127.00 per annum.
2. The miner pay compensation to the Public Trustee of Queensland in the amount set out in order 1 within one month from notification of the issue of the mining lease by the Department of Natural Resources, Mines and Energy and thereafter on the anniversary of the renewal of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT