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Fuller v Grabbe[2021] QLC 35

LAND COURT OF QUEENSLAND

CITATION:

Fuller v Grabbe & Anor [2021] QLC 35

PARTIES:

Janelle Ann Fuller

(applicant)

v

Anthony Grabbe

(respondent)

Lynette Grabbe

(respondent)

FILE NO:

DIVISION:

MRA036-21

General Division

PROCEEDING:

Determination of compensation payable for grant of mining claim

DELIVERED ON:

29 September 2021

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed on 27 August 2021

Matter allocated on 10 September 2021

HEARD AT:

Heard on the papers

MEMBER:

JR McNamara

ORDERS:

  1. I determine that Janelle Ann Fuller must pay Anthony Grabbe and Lynette Grabbe compensation in respect of MC 60325 as follows:
  1. (a)
    One hundred and ten dollars and zero cents ($110); plus
  1. (b)
    One hundred and sixty-five dollars and zero cents ($165) per year for the term of the renewal, indexed to CPI.
  1. The applicant must pay the amount set out in order 1 within 1 month of the grant of the renewal of MC 60325 by the Department of Resources, and then annually on the anniversary of the grant of the renewal of MC 60325 by the Department of Resources.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the Land Court recently determined compensation for small mining grants in Australian Asiatic Gems Pty Ltd v Grabbe & Anor [2021] QLC 25, Land & Anor v Grabbe & Anor [2021] QLC 1 and Sawyer v Grabbe & Anor [2021] QLC 27 – where the valuation report from the Land matter was ‘recycled’ – where the Court considered valuation evidence – where compensation for deprivation of possession of the surface of the land of the owner was agreed between the parties – whether there should be compensation for management of the land – where there are no access issues – where the landholders’ management duties will be less burdensome compared to other tenure holders

Mineral Resources Act 1989 s 85(5), s 85(6)

Australian Asiatic Gems Pty Ltd v Grabbe & Anor [2021] QLC 25, applied

Land & Anor v Grabbe & Anor [2021] QLC 1, applied

Sawyer v Grabbe & Anor [2021] QLC 27, applied

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; (2001) 25 NSWCCR 218, cited

APPEARANCES:

Not applicable

Introduction

  1. [1]
    Anthony Grabbe and Lynette Grabbe (respondents) are the registered owners of a property known as “Nooralaba” (the Land), which is an aggregation of three lots. Mining Claim (MC) 60325 is partly located on Lot 11 on the Land near Cunnamulla.[1] The tenement was originally granted as a mining lease. The mining lease was transferred to Ms Fuller in 2007, and in or around 2015 it was converted to a mining claim and subsequently renewed. The term ended on 28 February 2021. Ms Fuller has applied to renew for a further period of 10 years. Because compensation for the renewal has not been agreed between Ms Fuller and the Grabbe’s, an application was made to the Land Court to have compensation decided.
  1. [2]
    This decision is the fourth recent Land Court decision (the Decisions) concerning small mining activity on the Land.[2]

Applicable legislation

  1. [3]
    The mining claim is subject to the Small-Scale Mining Code (Code) made under regulation[3] to manage the impacts of small-scale mining activities carried out under a mining claim. The Mineral Resources Act 1989 (Qld) (MRA) outlines the administrative steps required for the grant of mining claims and requires the miner to make land care management arrangements alongside other legislative frameworks such as the Environmental Protection Act 1994 (Qld).[4]
  1. [4]
    The criteria I must consider to determine compensation for the grant of a mining claim is s 85(5) of the MRA.

The tenement

  1. [5]
    The applicant in their compensation statement at page 1 say:

“The permit covers a surface area of 9 hectares, 2.89 hectares of which are located on Nooralaba Station with the remainder being located on road reserve managed by the Paroo Shire Council. The claim is undertaken for the purposes of living quarters/camp, stockpile and opal mineralisation. The camp is located on Nooralaba Station and old workings. The new work proposed will be carried out in the portion of the mining claim on the adjacent property…Access to the permit is via Cocklarina Station and the Council Road reserve…The operation is part-time with seasonal access between April and October. The entry and exit times are largely dependent on temperatures on site allowing for safe work conditions.”[5]

  1. [6]
    Further, the applicant says that existing workings on the portion of the respondents’ land are yet to have rehabilitation finalised. The satellite imagery provided by the applicant would appear to confirm that roughly 50% of the portion of the respondents’ land is disturbed as a result of mining or associated activities.
  1. [7]
    The respondents in their compensation statement note that the camp is constructed of a large iron sheet, water tanks, storage sheds and dongas and radio antennas.[6]
  1. [8]
    Finally, the applicant says that vegetation is sparse on this area of the property, and that no clearing of vegetation is expected in the course of rehabilitation and continued use of the existing camp facilities.

The parties’ basis for claimed compensation

  1. [9]
    In their compensation statement,[7] the applicant submits that compensation should be awarded only in respect of s 85(5)(a) of the MRA for deprivation of possession of the surface of the land, together with 10% uplift due to the compulsory nature of the grant per s 85(6)(e).
  1. [10]
    The respondents in their compensation statement also submit that compensation is payable under s 85(5)(a), but also claim compensation for loss or expense (management time) under s 85(5)(f), together with 10% uplift per s 85(6)(e).
  1. [11]
    Material from other recent compensation applications involving the Grabbe’s was submitted including the valuation report of Mr Denis Cupitt provided to the Court in the Decisions.[8] Mr Cupitt’s report was discussed in Sawyer v Grabbe & Anor[9]  (Sawyer decision) where I was of the view that while not qualifying as expert evidence,[10] it was of assistance in considering the key components of compensation to be assessed.

Deprivation of possession of the surface of the land of the owner - s 85(5)(a)

  1. [12]
    Like the circumstances in the Decisions, this is a renewal application. For the reasons articulated by Member Stilgoe in Land & Anor v Grabbe & Anor[11] (Land decision), I accept that the appropriate liability for the applicant would be one third of the value of the land, and that the value of the land was $100/ha in circumstances of total loss.
  1. [13]
    As noted already the applicant states the new work proposed on MC 60325 will be carried out in the portion of the mining claim on the road reserve for the renewal period. The applicant says that she is yet to finalise rehabilitation on the existing work – which suggests that rehabilitation work will be conducted on the Grabbe’s land during the term of the renewal.
  1. [14]
    The applicant has a mine site “Biosecurity Policy” to meet their General Biosecurity Obligations under the Biosecurity Act 2014 (Qld)[12] and to ensure that the “holding and operation of a mining tenure does not provide additional risk to any personnel, flora and fauna during active periods of production and long after closure of operations.”[13] The applicant provided photos of the site in their compensation statement, showing the buildings located on the property.
  1. [15]
    The respondents submit that the site itself “contains significant infrastructure and disturbance as demonstrated by the photos.”[14] The respondents note the impact of the existing activities on livestock and the potential for noise emissions from the mining activities to spook cattle.[15]
  1. [16]
    Further, the respondents state that the management of the Emissions Reduction Fund (ERF) project and management of the current and future harvests will be impacted by dust and particulate matter distribution created by the mining activities.[16]
  1. [17]
    While the applicant has provided a vegetation management report for Lot 11 with their compensation statement, the respondents state that the applicant lacks sufficient weed management protocols which poses an increased risk of weed spread and outbreaks.[17] Further, the respondents note there will be an increased risk of fire due to fuel loads.
  1. [18]
    The applicant submits that MC 60325 has been kept free of declared weed species and that “the control measures of the Miners Plan exceed that of the Landholders plan.”[18] The impact of mining and mining related activities on the land can be seen in the satellite imagery and photos provided by the applicant. The work program, when completed, and implementation of the applicant’s “Biosecurity Policy” means the conduct of operations on the mining claim are not likely to further significantly impact the production potential of the area as all mining activities during the renewal term will be on the road reserve, not on the respondents’ land. Rehabilitation will continue on areas of the respondents land, and use and access will continue while equipment and buildings are housed on that area. Taking all this into account, I will apply a one third discount for deprivation of the surface of the land, consistent with the Decisions.[19]
  1. [19]
    The respondents only wish to claim $100. The applicant agrees to this calculation in their reply. As it is accepted and there is nothing in the material which would require me to reach a different conclusion, I accept this amount to reflect deprivation of possession of the surface of the land of the owner, calculated as $100/ha/3 x 3 ha = $100.

Loss and expense that arises including management time – s 85(5)(f)

  1. [20]
    The applicant asserts there is no additional expense to the landowners by way of upkeep or monitoring of the land as the biosecurity management plan addresses the “comings and goings of himself, contractors and agents relating to the operation.” They state the mining operations have no impact on the ERF project relating to vegetation, very little vegetation will be disturbed by the operations, and the disturbed areas will be attended to.[20] The applicant submits that the biosecurity management plan in place to monitor weeds and pests in the area is sufficient.
  1. [21]
    The respondents state that increased disturbance of the land will require more frequent routine monitoring of timbers as well as livestock. They submit that:

“While there is a presumption that the Applicant will comply with their obligations under the relevant legislation, it is also reasonable for the Respondent to inspect the area on a routine basis to ensure that the Respondent is in compliance with their own obligations under the carbon contract, their biosecurity requirements and also general obligations at law…”[21]

  1. [22]
    The applicant says that the “control measures of the Miners Plan exceed that of the Landholders (biosecurity) plan”.[22] I do not accept that statement. The applicant says that the respondents pose a greater risk to their own property by the nature of their entry and exit point (which does not traverse MC 60325). That may or may not be the case, but it is of little relevance to my consideration.
  1. [23]
    The applicant distinguishes the conclusions of the Decisions concerning management time. There are no Nooralaba access issues. The respondents have direct access to the property which they say eliminates the need to use the respondents’ property to access the mining lease.
  1. [24]
    The respondents’ claim for management costs and owner’s time is framed around a more frequent routine monitoring of livestock, noise, dust, pest, weed and fire mitigation measures.[23] The respondents will therefore expend some administrative time relevant to their ERF project and pastoral business as a result of the mining claim on the land.[24] I accept that. However, I also accept the applicant’s submission that the landholders’ management duties will be less burdensome compared to other tenure holders on the Grabbe’s land.[25]
  1. [25]
    Consistent with the decision of Member Stilgoe in the Land decision, I will allow compensation for loss or expense pursuant to s 85(5)(f) in respect of the tenement on the basis of an hourly rate of $78.12 together with a 10% uplift.[26] Noting the mine only operates between 6 and 7 months per year,[27] and that the mine is not burdened by access issues or shared tracks, I consider the landholders’ administration responsibilities would be minor. I conclude two hours per year at a rate of $78.12 would be appropriate, rounded to $150 per annum with a 10% uplift.

Conclusion

  1. [26]
    In respect of MC 60325:

Head of compensation

Calculation

Amount

Deprivation of possession

s 85(5)(a)

$100/ha/3 x 3 ha

$100

Amount to reflect compulsory acquisition

s 85(6)(e)

10% x $100

$10

Compensation

$110

Loss or expense

s 85(5)(f)

($78.12 x 2) + $15 uplift

$165

Annualised compensation

$165

Orders

  1. I determine that Janelle Ann Fuller must pay Anthony Grabbe and Lynette Grabbe compensation in respect of MC 60325 as follows:
  1. (a)
    One hundred and ten dollars and zero cents ($110); plus
  1. (b)
    One hundred and sixty-five dollars and zero cents ($165) per year for the term of the renewal, indexed to CPI.
  1. The applicant must pay the amount set out in order 1 within 1 month of the grant of the renewal of MC 60325 by the Department of Resources, and then annually on the anniversary of the grant of the renewal of MC 60325 by the Department of Resources.

Footnotes

[1]  90 km north west of Cunnamulla.

[2]Sawyer v Grabbe & Anor [2021] QLC 27; Australian Asiatic Gems Pty Ltd v Grabbe & Anor [2021] QLC 25; Land & Anor v Grabbe & Anor [2021] QLC 1.

[3]Mineral Resources Act 1989 (Qld) s 391C.

[4]  Including the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld); Mining and Quarrying Safety and Health Act 1999 (Qld); Local Government Act 2009 (Qld); Fire and Emergency Services Act 1990 (Qld). 

[5]  Applicant’s compensation statement filed 6 August 2021, page 1.

[6]  Respondents’ response to compensation statement filed 27 August 2021 [21].

[7]  Applicant’s compensation statement filed 6 August 2021.

[8]Sawyer v Grabbe & Anor [2021] QLC 27; Australian Asiatic Gems Pty Ltd v Grabbe & Anor [2021] QLC 25; Land & Anor v Grabbe & Anor [2021] QLC 1.

[9]  [2021] QLC 27 [4].

[10]  As described in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.

[11]  [2021] QLC 1.

[12]  Applicant’s compensation statement filed 6 August 2021, attachment 3.

[13]  Ibid.

[14]  Respondents’ response to compensation statement filed 27 August 2021 [31].

[15]  Ibid [36]-[38].

[16]  Ibid [34].

[17]  Applicant’s compensation statement filed 6 August 2021, attachment 2; Respondents’ response to compensation statement filed 27 August 2021 [40].

[18]  Applicant’s reply to the respondents’ compensation statement filed 27 August 2021, page 3.

[19]Sawyer v Grabbe & Anor [2021] QLC 27; Australian Asiatic Gems Pty Ltd v Grabbe & Anor [2021] QLC 25; Land & Anor v Grabbe & Anor [2021] QLC 1.

[20]  Applicant’s compensation statement filed 6 August 2021, page 3.

[21]  Respondents’ response to compensation statement filed 27 August 2021 [49](c).

[22]  Applicant’s reply to the respondents’ compensation statement filed 27 August 2021, page 3.

[23]  Respondents’ response to compensation statement filed 27 August 2021 [44].

[24]  Ibid.

[25]Sawyer v Grabbe & Anor [2021] QLC 27; Australian Asiatic Gems Pty Ltd v Grabbe & Anor [2021] QLC 25; Land & Anor v Grabbe & Anor [2021] QLC 1.

[26]Land & Anor v Grabbe & Anor [2021] QLC 1 [27].

[27]  Applicant’s compensation statement filed 6 August 2021, page 2.

Close

Editorial Notes

  • Published Case Name:

    Fuller v Grabbe & Anor

  • Shortened Case Name:

    Fuller v Grabbe

  • MNC:

    [2021] QLC 35

  • Court:

    QLC

  • Judge(s):

    Member JR McNamara

  • Date:

    29 Sep 2021

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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