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Gosper & Ors v Struber & Anor[2019] QLC 11

Gosper & Ors v Struber & Anor[2019] QLC 11

LAND COURT OF QUEENSLAND

CITATION:

Gosper & Ors v Struber & Anor [2019] QLC 11

PARTIES:

Terrence Robert Gosper, Louis Bray Gosper, Deborah Anne Gosper and Tomas Ryan Gosper

(applicants)

v

Stephen Roy Struber and Dianne Rose Wilson-Struber

(respondents)

FILE NO:

MRA002-19

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of mining lease

DELIVERED ON:

26 February 2019

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 23 February 2019

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

  1. In respect of ML 100195 compensation is determined in the total sum of $220.00 per annum.
  2. The applicants pay compensation to the Public Trustee of Queensland the amount set out in order 1 within one month from grant of the mining lease by the Department of Natural Resources, Mines and Energy and thereafter annually on the anniversary of the grant of the mining lease.

CATCHWORDS:

MINING LEASE – grant – determination of compensation – absence of evidence or submissions – referral documents – mining district – use of Court judgments for determination purposes.

Mineral Resources Act 1989, s 279, s 279A, s 281(1),s 281(3)(a)

Public Trustee Act 1978 part 7

Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2015] QLC 30, applied

Fitzgerald & Anor v Struber & Anor [2009] QLC 76, applied

Wallace & Ors v Bottomer & Ors [2015] QLC 23, applied

Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297, applied

APPEARANCES:

Not applicable

  1. [1]
    This matter arises 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) for the determination of compensation in respect of the grant of Mining Lease 100195 (ML 100195). The referral was filed in the Land Court on 21 December 2018.

Background

  1. [2]
    The applicants, Terrence Robert Gosper, Louis Bray Gosper, Deborah Anne Gosper and Tomas Ryan Gosper (the miners) seek the grant of a mining lease located on land commonly known as Palmerville Station (the subject land) and more particularly described as Lot 14 on SP 250040. Palmerville Station is owned by the respondents, Stephen Roy Struber and Dianne Rose Wilson-Struber (the landowners), is located within the Cook Shire local government area and is used for grazing purposes.
  1. [3]
    The landowners are currently serving a period of imprisonment and their address for service is listed on the referral documents as C/ Public Trustee PO BOX 564 CAIRNS QLD 4870.
  1. [4]
    The specific Land Court reference and tenure details are set out as follows:

Court File Ref

Tenure ID

Mining Area

Access

Term

Lease Purpose

MRA002-19

ML 100195

17.56 ha

3.44 ha

10 years

Gold

  1. [5]
    On 3 January 2019 a Mining Lease Notice for ML 100195 was issued by the Mineral Assessment Hub.

Relevant legislation

  1. [6]
    Section 279 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.
  1. [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:
  1. (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.
  1. [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:
  1. (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).
  1. [9]
    The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd[1] 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 of the 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

  1. [10]
    On 8 January 2019 the following Orders were made by the Court regarding the ongoing conduct of this case:
  1. By 4:00pm on Tuesday 5 February 2019, Gosper must file in the Land Court Registry and serve on 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.
  1. By 4:00pm on Tuesday 19 February 2019, Struber must file in the Land Court Registry and serve on Gosper a statement of facts, matters and contentions in response to the compensation statement together with any supporting documentation including witness statements and expert reports.
  1. By 4:00pm on Friday 23 February 2019, Gosper must file in the Land Court Registry and serve on Struber a statement of facts, matters and contentions in reply, if any.
  1. Unless the parties otherwise request in writing, compensation will be determined on the filed material, without an oral hearing not before Friday 23 February 2019.
  1. [11]
    On 6 February 2019 a compensation statement and related documents including the mining lease notice and application, a proposed mining program, an area and term justification statement, background tenure and adjoining land details, the environmental authority application and a locality map were filed by the miners.
  1. [12]
    On behalf of the miners it is submitted that the activity on ML 100195 comprises a small scale alluvial mining operation that would not interfere with the cattle or the business carried out on Palmerville Station and on this basis compensation should be determined at $10 per ha per annum for mining areas and $5 per hectare per annum for access areas. An additional submission on behalf of the miners is that earlier determinations of compensation for mining leases on the subject land align with the amounts of compensation suggested for ML 100195.
  1. [13]
    No evidence or submissions were received from or on behalf of the miners and therefore the referral documents filed by DNRME were the only other materials before the Court.

Conclusion

  1. [14]
    As no valuation or other expert evidence has been placed before the Court there is a very limited basis for an assessment by the Court of the impacts of the proposed mining activities on the subject land in light of the factors set out s 281 of the MRA. In these circumstances the Court has little choice other than to be guided by earlier Court judgments undertaken within the local Mareeba mining district. Fortunately, given the extent of the mining activity undertaken on the subject land there are several recent Court judgments that will provide some guidance for the current determination of compensation for ML 100195.
  1. [15]
    In Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor[2], Member Smith determined mining lease compensation at $10 per ha per annum for the mining area and $5 per ha per annum for the access area. More recently in Wallace & Ors v Bottomer & Ors,[3] Member Smith also determined compensation at $10 per ha per annum in respect of the mining area for the renewal of a mining lease within the Mareeba mining district.  In addition to these determinations Member Smith has also presided over contested hearings[4] regarding compensation for mining activities within Palmerville Station and is familiar with the subject land, having also inspected mining leases in the course of undertaking compensation determinations. 
  1. [16]
    On the basis of these earlier judicial determinations I consider that $10 per ha per annum for the mining area and $5 per ha per annum for the access area is appropriate compensation for ML 100195 in the circumstances. The relevant mining and access areas will be rounded up to the next full hectare for calculation purposes and given that each landowner is currently incarcerated, the compensation determined will be ordered to be paid to the Public Trustee of Queensland.[5]
  1. [17]
    The determination of compensation for ML 100195 is set out below:

Area covered by mining lease –18 ha @ $10 per ha = $ 180.00 per annum

Area covered by access – 4 ha @ $ 5 per ha    = $   20.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $20.00 per annum

Total = $ 220.00 per annum

Orders

  1. In respect of ML 100195 compensation is determined in the total sum of $220.00 per annum.
  1. The applicants pay compensation to the Public Trustee of Queensland the amount set out in order 1 within one month from grant of the mining lease by the Department of Natural Resources, Mines and Energy and thereafter annually on the anniversary of the grant of the mining lease.

GJ SMITH

JUDICIAL REGISTRAR OF THE LAND COURT

Footnotes

[1]  Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297

[2]  [2014] QLC 38

[3]  [2015] QLC 23

[4]  Fitzgerald & Anor v Struber & Anor [2009] QLC 0076

[5]  Public Trustee Act 1978 part 7

 

Close

Editorial Notes

  • Published Case Name:

    Gosper & Ors v Struber & Anor

  • Shortened Case Name:

    Gosper & Ors v Struber & Anor

  • MNC:

    [2019] QLC 11

  • Court:

    QLC

  • Judge(s):

    Smith J

  • Date:

    26 Feb 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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