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Haines v Smith & Anor[2019] QLC 36

LAND COURT OF QUEENSLAND

CITATION:

Haines v Smith & Anor [2019] QLC 36

PARTIES:

Norman Graham Haines

(applicant)

v

Kenneth Noel Smith

(first respondent)

and

Deborah Allison Smith

(second respondent)

FILE NO:

MRA011-19

DIVISION:

General division

PROCEEDING:

Determination of consent for variation of access for mining lease

DELIVERED ON:

­­6 September 2019

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 10 May 2019

Matter allocated on 7 May 2019

HEARD AT:

Heard on the papers

MEMBER:

WL Cochrane

ORDER:

In respect of the referral for determination of whether the respondents should consent to the variation of access applied for by the applicant for ML 10331, I determine that the respondents should consent. 

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC – where mining leaseholder applies for variation of access for mining lease

Land Court Rules 2000 r 36A

Mineral Resources Act 1989 s 317

Haines v Smith & Anor [2019] QLC 35, cited

APPEARANCES:

Not applicable

  1. [1]
    This matter is a referral by the chief executive of the Department of Natural Resources, Mines and Energy (DNRME) to the Land Court pursuant to s 317(3) of the Mineral Resources Act 1989 (MRA) for the determination of owner’s consent in respect of an application for a variation of the land used or proposed to be used as access for ML 10331 in circumstances where the chief executive cannot be satisfied that the owner of the land proposed to be used as access consents to the use.

Background

  1. [2]
    On 15 August 2018, a person named Kathy Hughes, who labelled herself as the “AHR” (authorised holder representative) for ML 10331, applied on behalf of the applicant miner, Mr Norman Haines, for a variation of access for ML 10331. Ms Hughes appears to be the principal of Hughes Consulting.
  1. [3]
    The application sought a variation of the access for ML 10331 which lease is set to expire on 31 December 2018.
  1. [4]
    As was enunciated in my recent decision for renewal of ML 10331,[1] the subject ML 10331 is located on property owned by the respondents, Mr Kenneth Smith and Mrs Deborah Smith, which property is described as Lot 4 on GF 194 (or “Oakvale Station”).
  1. [5]
    The total area of the mining lease is 25.6269 hectares of which is entirely located on the respondents’ land known as Oakvale Station.
  1. [6]
    The total proposed access affecting the subject land is 0.534 ha (1 kilometre in length and 5.34 metres in width).
  1. [7]
    The application provides the following relevant information about the proposed access:

“Access is along the south eastern boundary of the old air field associated with the leasehold property.  It provides all weather access and has been used as the access for the mining site for the last few years.  The approved access creates environmental issues being prone to erosion during the wet season if disturbed by traffic and presents potential safety issues with respect to wash outs.  The current approved access is also longer and more convoluted.  The proposed access variation is along land previously disturbed for the station air field and would not prevent use of this land for grazing by the lease holder or cause interruption to lease holder activities. The mining lease holder has provided gates and improved access for the lease holder to this area. The proposed access originates at -20.40090, 145. 18906 from Gregory Springs Road and terminates at the mining lease boundary at -20.39736, 145. 19871.”

  1. [8]
    Notwithstanding what is said in the application about the difference between the length of the existing access, aerial photographs filed by the applicant show fairly clearly to the naked eye that the existing access is in fact shorter in length than what has been proposed. Both accesses come off the Gregory Springs Road. Doing the best I can by using the scale on the aerial photographs filed and a protractor, I estimate the length of the proposed access to be 1,300 metres long and the existing access to be about 800 metres long. The difference in area (i.e. 500m x 5.34m = 0.267 ha) is, in the overall scheme of things, immaterial because in coming to a decision about compensation in the associated matter (MRA237-18),[2] I have rounded the area up by about half a hectare. On that basis, I do not propose to make any change pursuant to s 317(5)(b) to the amount of compensation ordered to be paid.
  1. [9]
    In the material filed by the miner in respect of proposed compensation he says that the access to the site is 1,089.68 m in length. The variation application says it is 1,090 m long. Nothing turns upon the discrepancy which is caused by “rounding”.
  1. [10]
    In the material filed by Mr and Mrs Smith they do not specifically object to the proposed new access way but they do say “[t]he new revised access road for the mine site is along the Royal Flying Doctor Registered Airstrip, which is suffering from bad erosion from the mine traffic.”
  1. [11]
    Photographs attached to the material filed by Mr and Mrs Smith do show the airstrip and one photo reports to show erosion on part of the airstrip but it is not possible to tell whether that erosion is such as to preclude use of the land as an airstrip or whether the erosion is along one edge of the airstrip.
  1. [12]
    One potential advantage of the proposed new access is that it would take vehicle traffic further away from the homestead and farm buildings utilised by Mr and Mrs Smith.

Relevant legislation

  1. [13]
    This decision is made to satisfy the requirements of s 317 of the MRA which relevantly provides:
  1. The holder of a mining lease may apply to the chief executive in the approved form for a variation of the land used or proposed to be used as access in relation to the area of the mining lease.
  2. An application for a variation of the land used or to be used as access under this section shall be accompanied by—
  1. such particulars as are, by section 245, required to accompany an application for the grant of a mining lease in so far as those particulars relate to the land use or proposed to be used as access in relation to surface area of the land the subject of the mining lease;
  2. the prescribed application fee.
  1. Where, in respect of an application for a variation of the land used or proposed to be used as access under this section, the chief executive is not satisfied that the owner of the land proposed to be used as access consents to the use, the chief executive must refer the issue of consent to the Land Court for its consideration.
  2. The Land Court must fix a date for the hearing and immediately give written notice of the date to each of the following—
  1. the chief executive;
  2. the applicant;
  3. the land owner.

(4A)  The date must be at least 20 business days after the date the Land Court fixes the hearing date.

  1. The Land Court shall hear and determine the matter by determining—
  1. that consent to the proposed variation should or should not be given; and
  2. if consent should be given—the amount (if any) of compensation payable by the holder in respect of the proposed use of that land as access.

(5A) Without limiting subsection (5), the Land Court may determine that consent to the proposed variation should not be given if the court considers the variation is not in the public interest.

  1. Subject to subsection (7), the provisions of section 281(3) to (7) apply in respect of a matter referred to the Land Court under this section as if the matter were an application referred to the Land Court under section 281(1).
  2. In determining compensation payable under subsection (5), allowance shall be made for compensation agreed or determined to be payable in respect of the current land used as access in respect of the mining lease.
  3. The determination of the Land Court of a matter under this section shall be final and conclusive.
  4. In respect of an application made under this section, upon—
  1. where the proposed access is over land of which there is an owner—
  1. lodgement with the chief executive of the consent in writing of the owner or owners of that land; or
  2. where the Land Court determines that consent should be granted, whether with or without compensation, compliance with any terms and conditions imposed by the Land Court to be complied with before consent is given; and
  1. where the proposed access is over land of which there is no owner, the chief executive determining that the variation is, in the circumstances, appropriate;

the chief executive shall record the variation of that access in the register and advise the holder and the owner accordingly.

(9A) Without limiting subsection (9)(a)(ii), the Land Court may impose terms and conditions to be complied with before consent is given if the court considers the condition is in the public interest.

  1. An agreement made between a holder and an owner of land regarding compensation payable in respect of the proposed use of the land as access in respect of a mining lease as a result of a variation under this section shall not be effective unless and until—
  1. it is in writing signed by or on behalf of the parties; and
  2. it is filed.
  1. [14]
    Section 281 of the MRA sets out those matters which must be considered by this Court when determining compensation for a mining lease.
  1. [15]
    Section 281(3)(a) provides that an owner of land is entitled to compensation for:
  1. deprivation of possession of the surface of land of the owner;
  2. diminution of the value of the land of the owner or any improvements thereon;
  3. diminution of the use made or which may be made of the land of the owner or any improvements thereon;
  4. severance of any part of the land from other parts thereof or from other land of the owner;
  5. any surface rights of access;
  6. all loss or expense that arises;

as a consequence of the grant or renewal of the mining lease…

  1. [16]
    Further s 281(4)(e) provides that in assessing the amount of compensation payable under s 281(3):
  1. an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).

The conduct of these proceedings 

  1. [17]
    This Court gave notice to the parties that a directions hearing proposed to be heard by Member Stilgoe would take place on 29 March 2019.
  1. [18]
    The mentioned directions hearing actually took place on 27 March 2019 and on that day her Honour Member Stilgoe made orders which made the evidence in this file (MRA011-19) the evidence in another Land Court matter relating to this ML, MRA237-18, to the extent relevant and vice versa.
  1. [19]
    My decision for the compensation for the renewal of ML 10331 for MRA237-18 is Haines v Smith & Anor [2019] QLC 35.
  1. [20]
    I have made this decision relating to the variation of access for ML 10331 separately but, as explained above, the change in the area proposed to be used for access is relatively minor so that I do not propose to make any adjustment to the amount ordered by me in respect of compensation.
  1. [21]
    In light of my findings, I determine that the respondents should consent to the proposed access variation to ML 10331.

Orders 

  1. [22]
    Therefore, the order of the Court is:

In respect of the referral for determination of whether the respondents should consent to the variation of access applied for by the applicant for ML 10331, I determine that the respondents should consent. 

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1] Haines v Smith & Anor [2019] QLC 35.

[2] Haines v Smith & Anor [2019] QLC 35.

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Editorial Notes

  • Published Case Name:

    Haines v Smith & Anor

  • Shortened Case Name:

    Haines v Smith & Anor

  • MNC:

    [2019] QLC 36

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    06 Sep 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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