Markert v Struber[2018] QLC 44

LAND COURT OF QUEENSLAND

1. [1]
   This matter involves a referral to the Land Court by the Chief Executive, Department of Natural Resources, Mines and Energy (DNRME) pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of Mining Lease (ML) 20314.
2. [2]
   The address for service for the respondents is listed on the coversheet of the referral document as:

C/- The Queensland Public Trustee

PO BOX 656

CAIRNS QLD 4870

Background

3. [3]
   The applicant, Frank Joseph Markert (the miner) seeks the renewal of ML 20314 on land commonly known as Palmerville Station which is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). The land which is more particularly described as Lot 14 on SP250040 is located within the Cook Shire local government area and is used for grazing purposes.
4. [4]
   The specific Land Court reference and tenure details are set out as follows: 

Relevant legislation

5. [5]
   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.

6. [6]
   Section 281 of the MRA identifies the factors which must be considered by the Court when determining compensation. Specifically, s 281(3)(a) provides that an owner of land is entitled to compensation for the following:

“(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.”

7. [7]
   Section 281(4) allows assorted 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).”

8. [8]
   The determination to be undertaken pursuant to 281 was discussed in Wills v Minerva Coal Pty Ltd [No.2]^[2] :

“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 4 October 2018 the Court made the following Orders regarding the further conduct of this matter:

   1. By 4.00 pm on Friday 26 October 2018, Frank Markert must file in the Land Court Registry and serve on Stephen Struber a compensation statement in accordance with Land Court Practice Direction 1 of 2017 together with any supporting documentation including witness statements and expert reports.

2. By 4.00 pm on Friday 9 November 2018, Mr Struber must file in the Land Court Registry and serve on Frank Markert a statement of facts, matters and contentions in response to the compensation statement together with any supporting documentation including witness statements and expert reports.

3. By 4.00 pm on Friday 16 November 2018, Frank Markert must file in the Land Court Registry and serve on Stephen 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 16 November 2018.

10. [10]
    On 22 October 2018 the material relied upon by the miner was received by the Court registry. This material included a compensation statement, draft compensation agreement, mapping, a resources authority public report and payment confirmation of the annual fee for the relevant environmental authority for ML 20314.
11. [11]
    The material provided by the miner proposes that compensation be determined at an amount of $10 per ha per annum in respect of mining areas, and $5 per ha per annum for access areas.
12. [12]
    In support of these amounts the miner contends that the amounts are similar to the Court determination of compensation made on 22 December 2017 in respect an adjoining lease ML 20238.^[3]  A further submission by the miner is that the Court had also considered earlier judgments when undertaking the determination in respect of ML 20238.^[4]
13. [13]
    No materials have been filed in the Court by or on behalf of the landowners and consequently the only other evidence before the Court are the referral documents provided by the DNRME. 

Determination

14. [14]
    The Miner has contended that compensation should be assessed at $10 per ha per annum for mining lease areas and $5 per ha per annum for access areas on the basis of several earlier determinations concerning mining activities upon Palmerville Station^[5] and a further local determination from the Mareeba mining district, namely Wallace & Ors v Bottomer.^[6]
15. [15]
    In the absence of any expert or valuation evidence from either party or a contrary submission from the landowners, it is in my view necessary to seek guidance from the earlier judgments referred to in the Miner’s submissions. Each of these judgments are supportive of the amounts contended for by the Miner and concern either the subject land or land from within the local mining district. 
16. [16]
    On the basis of these earlier judicial determinations regarding mining compensation, I consider that $10 per ha per annum in respect of the mining areas and $5 per ha per annum for access areas of ML 20314 to be fair and reasonable compensation in the circumstances. For assessment purposes it is intended to round up the relevant areas to the next hectare for the purposes of assessing compensation. A further $60 will be added to the amount assessed pursuant to s 281(4)(e) of the MRA.
17. [17]
    Given that both landowners are currently serving a period of imprisonment, it is intended to order that the compensation determined be paid to the Public Trustee of Queensland.^[7]
18. [18]
    The determination of compensation in respect of ML 20314 is set out below:

Area covered by mining lease –48 ha @ $10 per ha = $480.00 per annum

Area covered by access –10 ha @ $  5 per ha = $50.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $60.00 per annum

Total = $590.00 per annum

Orders

1. In respect of ML 20314 compensation is determined in the total sum of $590 per annum.
2. The applicant pay compensation to the Public Trustee of Queensland the amount set out in order 1 within one month from notification of the renewal 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