Plethora Pty Ltd v Struber[2018] QLC 26

LAND COURT OF QUEENSLAND

1. [1]
   The following table records four 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):

2. [2]
   In each matter the Court is required to determine compensation in respect of the grant of each mining lease. The applicant, Plethora Pty Ltd (the miner) has applied for the grant and the referral document lists the business address as C/- Mining and Resources Permit Services, PO Box 14202, Mt Sheridan Qld 4868.

Background

3. [3]
   The subject land, known as Palmerville Station is situated approximately 9.5 km west south-west of Maytown within the Cook Shire local government area and the Mareeba mining district. The land more particularly described as Lot 14 on SP250040 has been historically used for grazing purposes by the respondents Stephen Roy Struber and Dianne Rose Wilson-Struber (the landowners).

4. [4]
   The following are listed in the resource authority public report as purposes for each lease: living quarters/camp, processing plant, tailings/settling dam, transport-vehicular haul road, water supply, workshop/machinery/storage.

5. [5]
   As both landowners are presently imprisoned their address for service is listed on the referral documents as C/- The Queensland Public Trustee, PO Box 656, Cairns Qld 4870.

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.

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;

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.”

8. [8]
   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:

…

10. (4)
    In assessing the amount of compensation payable under subsection (3) –

…

10. (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.”

The Conduct of proceedings and evidence

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

1. By Friday 1 June 2018, Plethora 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.

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, Plethora 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.

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]
    In correspondence dated 31 May 2018 to the both the Court and the landowners, Mining and Resources Permit Services on behalf of the miner confirmed the following:

• That correspondence had been forwarded to the landowners on 9 January 2018 enclosing a suggested compensation agreement which provided for a resolution of compensation on the basis of $10 per ha per annum in respect of mining areas and $5 per ha per annum for access areas. A copy of the earlier correspondence and draft agreements together with relevant mapping was also provided on behalf of the miner.
• That no response to the correspondence had been received from the landowners.
• The resolution proposed on behalf of the miner was in line with earlier determinations by the Court 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.

12. [12]
    As no material was filed by or on behalf of the landowners, the only other evidence for the Court to consider are the referral documents provided by DNRME. The documents have been helpful for obtaining the shape and dimensions of the mining and access areas as well as details of the nature of the activities to be undertaken on the lease areas.

Determination

13. [13]
    In the absence of expert evidence and in view of the limited material filed, the assessment of compensation to be undertaken by the Court in my view is best guided by earlier Court judgments concerning compensation for mining activities undertaken upon Palmerville Station.

14. [14]
    The cases referred to in the miners submission and noted at [11] are in my view supportive of the contended level of assessment at $10 per ha per annum in respect of mining areas and $5 per ha per annum for access areas. It should be noted that the decision in Fitzgerald concerned a determination of compensation following a contested hearing of expert evidence and a site inspection by the Court.  This case provides an appropriate basis upon which the Court can be guided given the limited material available.

15. [15]
    On the basis of the abovementioned Court determinations, particularly Fitzgerald I propose to determine compensation at $10 per ha per annum for the mining areas and $5 per ha per annum for access areas.  Each relevant area will be rounded up to the next hectare for the purpose of calculation.

ML 100163

16. [16]
    For ML 100163 the determination concerns areas of both mining and access. The basis of the determination is set out below:

Area covered by access – 5 ha @ $5 per ha = $25 per annum

Area covered by mining – 74 ha @ $10 per ha= $740 per annum

Add s 281(4)(e) re compulsory nature of grant = $80 per annum

Total = $845 per annum

ML 100164

17. [17]
    The areas for ML 100164 also include mining and access and the determination is set out as follows:

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

Area covered by mining – 43 ha @ $10 per ha= $430 per annum

Add s 281(4)(e) re compulsory nature of grant = $45 per annum

Total= $495 per annum

ML 100165

18. [18]
    The details for the assessment of the determination for ML 100165 are:

Area covered by access – 5 ha @ $5 per ha = $25 per annum

Area covered by mining – 53 ha @ $10 per ha= $530 per annum

Add s 281(4)(e) re compulsory nature of grant = $60 per annum

Total =$615 per annum

ML 100166

19. [19]
    For ML 100166 the details of the assessment and calculations for the determination are set out below:

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

Area covered by mining – 47 ha @ $10 per ha= $470 per annum

Add s 281(4)(e) re compulsory nature of grant = $50 per annum

Total = $540 per annum

20. [20]
    The landowners are currently imprisoned and as a result the amounts of compensation determined in respect of each lease will be ordered to be paid to the Public Trustee of Queensland^[1].

Orders

1. In respect of ML 100163 (MRA183-18) compensation is determined in the amount of $845.00 per annum.
2. In respect of ML 100164 (MRA184-18) compensation is determined in the amount of $495.00 per annum.
3. In respect of ML 100165 (MRA185-18) compensation is determined in the amount of $615.00 per annum.
4. In respect of ML 100166 (MRA186-18) compensation is determined in the amount of $540.00 per annum.
5. The miner pay compensation to the Public Trustee of Queensland the amounts set out in orders 1, 2, 3 and 4 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