Pavey v Struber[2018] QLC 24

LAND COURT OF QUEENSLAND

1. [1]
   These matters arise from a referral 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).

2. [2]
   For each referral the Court is required to determine compensation for the grant of Mining Leases 100170, 100171 and 100173 (ML 100170, ML 100171 and ML 100173).

Background

3. [3]
   The applicants Ashley Owen Pavey and Darrell Warren Skennar (the miners) have applied for the grant of mining leases on land more particularly described as Lot 14 on SP 250040. The land more commonly known as Palmerville Station is located within Cook and Mareeba Shire local government areas and is used for grazing by the landowners Stephen Roy Struber and Dianne Rose Wilson-Struber.

4. [4]
   The referral document lists the address for the respondents as c/- The Queensland Public Trustee, PO 656, CAIRNS QLD 4870. The listed business address for the miners is c/- Mining and Resources Permit Services, PO Box 14202, Mt Sheridan Qld 4868.

5. [5]
   The Court reference and relevant tenure details for each lease are set out as follows:

Relevant legislation

6. [6]
   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 DNRME and the matter has been referred to the Land Court for determination.

7. [7]
   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;

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.”

8. [8]
   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) -

1. (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).”

9. [9]
   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 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.”

Conduct of proceedings and evidence

10. [10]
    On 17 May 2018 the following Orders were made by the Court for the further conduct of these matters:

1. By Friday 1 June 2018, Pavey and Skennar 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.

2. By Friday 15 June 2018, Mr Struber must file in the Land Court Registry and serve on Plethora Pty Ltd a statement of facts, matters and contentions in response to the compensation statement.

3. By Friday 22 June 2018, Pavey and Skennar must file in the Land Court Registry and serve on Mr Struber a statement of facts, matters and contentions in reply, if any.

4. 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.

11. [11]
    By letter dated 31 May 2018, Mining and Resource Permit Services on behalf of the miners contend that compensation in respect of each lease should be resolved at $10 per hectare per annum in respect of mining areas and $5 per hectare per annum in respect of areas for access. This correspondence also included a draft agreement and an assortment of mapping and imagery relating to the proposed mining leases.

12. [12]
    A further contention on behalf of the miners is that the proposed compensation is in line with earlier determinations by the Court made in respect of mining activities on Palmerville Station. The determinations referred to included 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.

13. [13]
    No statements of evidence or other materials have been filed in the Court by or on behalf of the landowners. The only other materials to assist the Court with the assessment of compensation are the referral documents provided by DNRME.

Determination

14. [14]
    In these matters there is no valuation or other expert evidence to assist the Court determine compensation in accordance with the considerations set out in s 281 of the MRA. The only materials before the Court are the referral documents provided by DNRME and the correspondence on behalf of the miners dated 31 May 2018 and filed on 1 June 2018.

15. [15]
    In the circumstances, the Court has no alternative but to be guided by relevant Court determinations from within the local Mareeba mining district. Fortunately there are a number of judgments that have been handed down that specifically concern mining and associated activities undertaken upon Palmerville Station.

16. [16]
    I consider the decision in Fitzgerald & Anor v Struber & Anor [2009] QLC 76 to be particularly helpful as it followed a contested hearing in respect of compensation for mining activity upon Palmerville Station. The hearing of Fitzgerald included a site inspection, was based on expert evidence tested by cross examination and submissions and ultimately resolved compensation at the rate of $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas.

17. [17]
    Later determinations in the cases of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[1] and Wallace & Ors v Bottomer & Ors^[2], have also determined compensation for the mining areas at $10 per ha per annum and access areas at $5 per ha per annum. 

18. [18]
    Being guided by these judicial determinations from within the Mareeba mining district I intend to adopt these rates in respect of the mining and access areas of the leases the subject of the current referrals.

19. [19]
    The areas in each case have been rounded to the next full hectare for calculation purposes.

20. [20]
    The final determination in respect of ML 100170 concern an access area only and is set out as follows:

Area covered by access – 2 ha @ $5 per ha = $10 per annum

Add s 281(4)(e) re compulsory nature of grant = $1 per annum

Total = $11 per annum

ML 100171

21. [21]
    The final determination for ML 100171 is set out below:

Area covered by access – 4 ha @ $5 per ha = $20 per annum

Area covered by mining – 25 ha @ $10 per ha= $250 per annum

Add s 281(4)(e) re compulsory nature of grant = $30 per annum

Total = $300 per annum

ML 100173

22. [22]
    In respect of ML 100173 the final determination is:

Area covered by access – 3 ha @ $5 per ha = $15 per annum

Area covered by mining – 37 ha @ $10 per ha= $370 per annum

Add s 281(4)(e) re compulsory nature of grant = $40 per annum

Total = $425 per annum

23. [23]
    As the landowners are presently serving a period of imprisonment I propose to order the compensation assessed for each mining lease be paid to the Public Trustee of Queensland^[3].

Orders

1. In respect of ML 100170 (MRA189-18) compensation is determined in the total sum of $11.00 per annum.
2. In respect of ML 100171 (MRA190-18) compensation is determined in the total sum of $300.00 per annum.
3. In respect of ML 100173 (MRA191-18) compensation is determined in the total sum of $425.00 per annum.
4. The miner pay compensation to the Public Trustee of Queensland the amounts set out in orders 1, 2 and 3 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