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Fitzgerald v Struber[2019] QLC 6

LAND COURT OF QUEENSLAND

CITATION:

Fitzgerald v Struber & Anor [2019] QLC 6

PARTIES:

Patrick Charles Fitzgerald

(applicant)

v

Stephen Roy Struber

(respondent)

Dianne Rose Wilson-Struber

(respondent)

FILE NO:

MRA400-18

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of mining lease

DELIVERED ON:

14 February 2019

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 12 February 2019

HEARD AT:

On the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

  1. In respect of ML 100189 compensation is determined in the total sum of $303 per annum.
  2. The applicant 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

Fitzgerald v Struber [2013] QLC 44 applied

Fitzgerald & Anor v Struber & Ors [2014] QLC 29 applied

Fitzgerald v Struber & Anor [2018] QLC 18 applied

Markert v Struber & Anor [2018] QLC 44 applied

Pavey & Anor v Struber & Anor [2018] QLC 24 applied

Plethora Pty Ltd v Struber & Anor [2018] QLC 26 applied

Unimin Australia Limited v Freeman [2007] QLC 76 noted

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

APPEARANCES:

Not applicable

  1. [1]
    This matter concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources, Mines and Energy pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation for the grant of Mining Lease 100189 (ML 100189) to Mr Patrick Charles Fitzgerald (the miner)

Background

  1. [2]
    The subject land is commonly known as Palmerville Station, is more particularly described as Lot 4 on SP 250040 and is located within the Mareeba Shire local government area. The land which has historically been used for grazing purposes is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners).
  1. [3]
    The landowners are currently serving a period of imprisonment and as a consequence their address for service is recorded as C/- Public Trustee of Queensland PO Box 565 Cairns QLD 4871.
  1. [4]
    Details of the relevant Land Court reference and specific lease and tenure areas are set out as follows:

Reference

Tenure ID

Mining Area

Access Area

Term

Purpose

MRA400-18

ML 100189

26.24 ha

.15 ha

15 years

Colluvial-Alluvial-Gold/Tin

Relevant Legislation

  1. [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. In this matter, no agreement has been lodged with the Department of Natural Resources, Mines and Energy (DNRME) and consequently the matter has been referred to the Land Court.
  1. [6]
    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. [7]
    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. [8]
    The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd (No.2)[1]:

“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

  1. [9]
    On 13 November 2018 this Court made the following Orders in relation to the further conduct of this matter:
  1. By 4:00pm on Tuesday 18 December 2018, Patrick Fitzgerald 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.
  1. By 4:00pm on Tuesday 29 January 2019, Stephen Struber must file in the Land Court Registry and serve on Patrick Fitzgerald 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 Tuesday 12 February 2019, Patrick Fitzgerald must file in the Land Court Registry and serve on Stephen 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.
  1. [10]
    On 18 December 2018 materials to be relied upon by the miner were filed in this registry by Avoca Tenement Consulting. These materials included a covering submission, application documents, environmental authority and mapping associated with the proposed tenure and access.
  1. [11]
    The main contention on behalf of the miner is that appropriate compensation for ML 100189 would be $10 per hectare per annum in respect of the mining lease area and at $ 5per hectare per annum in respect of the access area. It is also submitted that as ML 100189 will be located toward the south-eastern boundary of the land and that as the proposed tenure will not be fenced the movement and grazing of cattle will not be impeded and as a consequence there will be a minimal loss of grazing area as a result of the grant of the proposed tenure
  1. [12]
    A related submission by the miner is that the suggested amount of compensation is in keeping with previous Court determinations[2] concerning similar mining activities undertaken by the applicant on Palmerville Station. 
  1. [13]
    No evidence, related materials or submissions have been filed in the Court by the landowners and consequently the referral documents provided by DNRME and the materials filed on behalf of the miner represent the totality of the evidence before the Court.

Conclusion

  1. [14]
    In the present case neither party has submitted any expert or other evidence for the Court to consider in the course of assessing the matters specified in s.281 of the MRA, to be taken into account. In Unimin Australia Limited v Freeman,[3] Member Jones [as he was then] made the following observation regarding the determination process in such cases:

“I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

  1. [15]
    In my view the best the Court can do when faced with such limited material is to seek guidance from recent determinations of the Court from within the Mareeba mining district, fortunately for this assessment there are a number of such determinations which concern similar mining activities undertaken upon Palmerville Station[4].
  1. [16]
    These judicial determinations reflect a rate of compensation for mining areas of $10 per hectare per annum and access areas of $ 5 per hectare per annum, rates which accord with the compensation contended for in the submission filed on behalf of the miner.
  1. [17]
    As both landowners are currently imprisoned the compensation as determined will be ordered to be paid to the Public Trustee of Queensland[5].

Determination

  1. [18]
    The referral materials from DNRME confirm a mining area of 26.24 ha and an access area of .15 ha. These areas will be rounded to the next full hectare for calculation purposes. The determination of compensation for Ml 100189 is set out below:

Area covered by mining lease – 27 ha @ $10 per ha = $270.00 per annum

Area covered by access – 1 ha @ $ 5 per ha =$5.00 per annum

add s 281(4)(e) re: compulsory nature of grant = $28.00 per annum

Total = $ 303.00 per annum

Orders

  1. In respect of ML 100189 compensation is determined in the total sum of $303 per annum.
  2. The applicant 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] (1998) 19 QLCR 297, 315. 

[2] Fitzgerald v Struber [2013] QLC 44; Fitzgerald & Anor v Struber & Ors [2014 QLC 29]; Fitzgerald v Struber & Anor [2018] QLC 18.

[3]  [2007] QLC 76 at [14]. 

[4] Pavey & Anor v Struber & Anor [2018] QLC 24; Markert v Struber & Anor [2018] QLC 44; Plethora Pty Ltd v Struber & Anor [2018] QLC 26.

[5]Public Trustee Act 1978 Part 7. 

Close

Editorial Notes

  • Published Case Name:

    Fitzgerald v Struber & Anor

  • Shortened Case Name:

    Fitzgerald v Struber

  • MNC:

    [2019] QLC 6

  • Court:

    QLC

  • Judge(s):

    GJ Smith, Judicial Registrar

  • Date:

    14 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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