International Parts & Equipment Pty Ltd v Struber
[2018] QLC 23
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- Unreported Judgment
- International Parts & Equipment Pty Ltd v Struber[2018] QLC 23
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International Parts & Equipment Pty Ltd v Struber[2018] QLC 23
International Parts & Equipment Pty Ltd v Struber[2018] QLC 23
LAND COURT OF QUEENSLAND
CITATION: | International Parts & Equipment Pty Ltd v Struber & Anor [2018] QLC 23 |
PARTIES: | International Parts & Equipment Pty Ltd (applicant) |
v | |
Stephen Roy Struber Dianne Rose Wilson-Struber (respondents) | |
FILE NOs: | MRA187-18 MRA188-18 |
DIVISION: | General Division |
PROCEEDING: | Determination of compensation for grant of mining lease |
DELIVERED ON: | 4 September 2018 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed on 22 June 2018 |
HEARD AT: | On the papers |
JUDICIAL REGISTRAR: | GJ Smith |
ORDERS: |
|
CATCHWORDS: | MINING LEASE – grant – referral – determination of compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes. Mineral Resources Act 1989 s 279(1), s 281, s 281(1), s 281(3)(a), s 281(4) Public Trustee Act 1978 Part 7 Fitzgerald & Ors v Struber & Anor [2009] QLC 76 – followed Wallace v Bottomer [2015] QLC 23 – followed Wills v Minerva Coal Pty Ltd (1998) 19 QLCR 297 at 315 – applied |
APPEARANCES: | Not applicable |
- [1]These proceedings concern referrals to the Land Court by the Chief Executive, Department of Natural Resources, Mines and Energy (DNRME) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Leases 100168 and 100169 (ML 100168 & ML 100169).
Background
- [2]The applicant, International Parts and Equipment Pty Ltd (the miner) seeks the grant of mining leases and access upon land described as Lot 14 on SP250040. This land in more commonly known as Palmerville Station and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).
- [3]Palmerville Station is located in the Cook Shire Local Government area and is used for grazing purposes.
- [4]The specific Land Court reference and tenure details are set out as follows:
Court Reference | Tenure ID | Mining Area | Access Area | Term | Lease Purpose |
MRA187-18 | ML 100168 | Nil | 1.1 ha | 15 years | Access |
MRA188-18 | ML 100169 | 12.57 ha | 1.9 ha | 15 years | Camp, workshop and plant. |
- [5]The listed business address for the miner is c/- Mining and Resources Permit Services PO Box 14202, Mt Sheridan Qld 4868.
- [6]The landowners are currently serving a period of imprisonment and consequently the referral documents list the address for the respondents as:
THE QUEENSLAND PUBLIC TRUSTEE
PO BOX 656
CAIRNS QLD 4870
Relevant legislation
- [7]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 DNRM and the matter has been referred to the Land Court for determination.
- [8]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;
- (ii)diminution of the value of the land of the owner or any improvements thereon;
- (iii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;
- (iv)severance of any part of the land from other parts thereof or from other land of the owner;
- (v)any surface rights of access;
- (vi)all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease.”
- [9]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:
…
- (4)In assessing the amount of compensation payable under subsection (3) –
…
- (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).
- [10]The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd (1998) 19 QLCR 297 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 ofthe 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
- [11]On 17 May 2018 the Court made the following Orders regarding the further conduct of these matters:
- By Friday 1 June 2018, International Parts & Equipment Pty Ltd must file in the Land Court Registry and serve on Mr Struber a compensation statement in accordance with Land Court Practice Direction 1 of 2017.
- By Friday 15 June 2018, Mr Struber must file in the Land Court Registry and serve on International Parts & Equipment Pty Ltd a statement of facts, matters and contentions in response to the compensation statement.
- By Friday 22 June 2018, International Parts & Equipment Pty Ltd must file in the Land Court Registry and serve on Mr Struber a statement of facts, matters and contentions in reply, if any.
- Unless the parties otherwise request in writing, compensation will be determined on the filed material, without an oral hearing not before Friday 22 June 2018.
- [12]On 1 June 2018, correspondence was received by the Court from Mining and Resource Permit Services on behalf of the miner. This correspondence, which also included mapping, imagery and draft compensation agreements contended that on the basis of earlier Court judgments[1] a determination at $10 per hectare per annum in respect of mining areas and $5 per hectare per annum in respect of access areas would be reasonable compensation.
- [13]No submission or evidence in reply to the miner’s material has been filed by or on behalf of the landowners.
Determination
- [14]In both assessments there is no valuation or other expert evidence before the Court, the only additional materials before the Court are the referral documents provided by DNRME. In the circumstances I consider the most appropriate approach for the Court to adopt in assessing compensation is to be guided by earlier Court determinations from within the local mining district.
- [15]The judgment in Fitzgerald & Ors v Struber & Anor [2009] QLC 76 is in my view useful for this purpose as it was based on expert valuation evidence given during a contested hearing before Member PA Smith and concerned mining activity within Palmerville Station. In Fitzgerald the Court had undertaken an inspection of the land prior to ultimately determining compensation at an annual rate of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas. In the more recent judgment (from the Mareeba mining district) of Wallace v Bottomer[2], Member PA Smith also determined compensation at an annual rate of $10 per ha per annum for mining lease areas.
- [16]Using the preceding Court judgments as a guide, I consider that the amounts of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas to be reasonable to apply when assessing compensation for ML100168 and ML100169. For calculation purposes the relevant areas will be rounded to the next full hectare.
- [17]The final determination and calculations for each mining lease are set out below.
ML 100168
Area covered by access – 2ha @ $5 per ha = $10.00 per annum
Add s 281(4)(e) for compulsory nature of grant = $1.00 per annum
Total = $ 11.00 per annum
ML 100169
Area covered by access – 13 ha @ $10 per ha = $130.00 per annum
Area covered by access – 2ha @ $5 per ha = $ 10.00 per annum
Add s 281(4)(e) for compulsory nature of grant = $14.00 per annum
Total = $154.00 per annum
- [18]Given that both landowners are presently serving a period of imprisonment I intend to order that the compensation as determined, be paid to the Public Trustee of Queensland[3].
Orders
- [19]Therefore, the orders of the Court are:
- In respect of ML 100168 compensation is determined in the total sum of $11.00 per annum.
- In respect of ML 100169 compensation is determined in the total sum of $154.00 per annum.
- The miner pay compensation to the Public Trustee of Queensland the amount set out in orders 1 and 2 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
Footnotes
[1]Fitzgerald & Anor v Struber and Anor [2009] QLC 76, Kayes v Struber & Anor [2016] QLC 3, Northeast Mining Co Pty Ltd v Struber & Anor [2016] QLC 5, Munro v Struber [2016] QLC 49, Pavey & Anor v Struber & Anor [2016] QLC 79 and Pavey & Anor v Struber & Anor [2017] QLC 63.
[2] [2015] QLC 23.
[3]Public Trustee Act 1978, Part 7.