GOTAP Pty Ltd v Skelton[2022] QLC 16

LAND COURT OF QUEENSLAND

1. [1]
   Raymond Jackson is an opal miner. He holds two mining leases through his company, GOTAP Pty Ltd, on Elvo Station, a pastoral station owned by Christopher Skelton. ML 95585 (the ML) was first granted in 2009 and was due to expire on 31 May 2019. Mr Jackson has applied to renew the ML for a further 10 years.

2. [2]
   Before the renewal can be granted, compensation with the landowner of Elvo Station must be agreed or determined by the Land Court.^[1] The parties were unable to agree compensation.  For the reasons that follow I have determined that compensation is payable for the diminished use that Mr Skelton will have in the ML area, and some associated expenses. 

The Lease

3. [3]
   The area of the ML is 13.91 ha. It is. located towards the eastern part of Elvo Station about 128km south of Winton. To the north is ML 95305, which is also held by GOTAP Pty Ltd. There is a 3 km access track which runs south-east from the ML to Jundah Road.

4. [4]
   There is little information of assistance concerning the operation of the ML. In his compensation statement Mr Jackson says:

“Except for the immediate excavation, Mr Skelton’s cattle have access to all other areas of the lease including two large excavations filled with water and left open at the written permission of the previous owner …

Regular maintenance and upkeep of the 3 kilometres of access road to the lease from the government gazetted road which, due to flooding events, has already been graded on two separate occasions this year. Management of the property do not appear to use this road.”

Issues

5. [5]
   I must decide compensation based on the criteria in s 281 of the Mineral Resources Act 1989 (MRA).  The criteria are directed at any or all loss the landowner might suffer if they are deprived of the land, if their land is devalued, if their use of the land is diminished, if their land is severed, and for any loss and expense suffered as a result of the mining lease.

6. [6]
   Prior to commencing proceedings constructive efforts were made to reach agreement. Ongoing difficulties in arranging a direct discussion between Mr Jackson and Mr Skelton seemingly prevented the matter being resolved by agreement.

7. [7]
   The compensation agreement presented by Mr Jackson proposed an annual ‘flat fee’ compensation payment, and an undertaking to maintain and upkeep the 3 km access track to the ML.

8. [8]
   After all material had been filed, Mr Skelton’s agent, Len Coyte, requested that a review of the matter be listed. In support of the request for the review, Mr Coyte filed a document that ostensibly sought to respond to issues regarding compensation for biosecurity checks.

9. [9]
   At the review, held on 8 September 2022, there was discussion about the biosecurity issues. Mr Jackson asked for a further period of time to meet directly with Mr Skelton and attempt to resolve the outstanding issues with respect to compensation for biosecurity checks. From correspondence received by the Court, it appears that Mr Jackson was unable to contact Mr Skelton.^[2]

10. [10]
    The issues therefore are: what compensation is payable for the diminished use of the land?^[3] And what, if any, compensation is payable in respect of biosecurity inspections?^[4]

What compensation is payable for the diminished use of the land?

11. [11]
    The amount of compensation offered was not linked to the area diminished or disturbed or to the scale of disturbance.

12. [12]
    It is evident that Mr Skelton operates a cattle enterprise on Elvo Station. The only evidence of impact the ML might have on the enterprise is the statement of Mr Jackson noted at [4] above that: “Except for the immediate excavation, Mr Skelton’s cattle have access to all other areas of the lease including two large excavations filled with water and left open at the written permission of the previous owner …”.

13. [13]
    In the absence of evidence to contradict this statement it appears that there will be minimal diminished use. In his response statement Mr Skelton accepts the compensation offered by Mr Jackson of $50 pa for the ten year term. The amount offered and the amount accepted is not disproportionate to other mining compensation decisions on Elvo Station, which were assessed on the basis of an estimate of an amount per hectare impact. On that basis I accept that that is the compensation payable pursuant to s 281(3)(a)(iii) of the MRA.

What, if any, compensation is payable in respect of biosecurity inspections?

14. [14]
    Mr Jackson does not offer compensation for biosecurity inspections. He says:

“In terms of biosecurity observance, our mining machinery has not left the mining district since it arrived. So in terms of any invasive weed species, the risk is virtually nil. My light vehicle is always pressure cleaned upon every trip to and from Townsville where I reside.”

15. [15]
    In response, and in proposing an annual 2 hour inspection by two people of the access track and Lease area, Mr Skelton says:

• The inspection is necessary to ensure that Mr Skelton can satisfy the requirements of the Meat and Livestock Corporation’s Pastoral Assurance Program;
• the inspection needs to occur on the ML itself, in addition to the 3km stretch of access track;
• Mr Skelton will have to travel several hundred kilometres to undertake the inspection, although no travel costs are claimed; and
• Mr Skelton usually undertakes such inspections alongside the foreman of the relevant station.

16. [16]
    The need for biosecurity inspections is not explained other than by a general reference to the Meat and Livestock Corporation Pastoral Assurance Program. I have not been provided with either the landholder or the miner’s biosecurity management plan, if any.

17. [17]
    In his response Mr Jackson says that in relation to biosecurity inspections: “… we are only addressing a 3 km access to the mining lease.” He suggests that for two people to drive for 2 hours to inspect a 3 km section of track would appear to be excessive.

18. [18]
    In other matters^[5] I have concluded that in the absence of evidence explaining the need and the basis for the need for biosecurity inspections I am unable to determine compensation.  However, I also noted that the very existence of a mining interest and mining activities warrant observation and checking from the landowner from time to time.^[6]  Taking account of the small-scale operation and noting the evidence of Mr Jackson concerning the precautions he takes and the area where inspection might be warranted, I would allow compensation for a one hour inspection by one person annually at the rate of $50 per hour, which was the hourly rate identified in Mr Skelton’s reply.

Additional amount to reflect compulsory nature of action taken

19. [19]
    Pursuant to s 281(4)(e) of the MRA, landowners are entitled to an additional amount to reflect the compulsory nature of action taken, which shall not be less than 10% of the aggregate amount determined under s 281(3) of the MRA.

Conclusion

Orders

In respect of the application for renewal of ML 95585, compensation is determined as follows:

1. Fifty-Five Dollars ($55) per annum representing the diminution of the use made or which may be made of the land ($50 plus 10%);

2. Fifty-Five Dollars ($55) per annum in biosecurity inspection costs, indexed annually to CPI ($50 plus 10%); and

3. The applicant must pay the amount set out in order 1 and 2 to the respondent within one (1) month of the date of the grant of the renewal of ML 95585by the Department of Resources, and then annually on the date of the grant of the renewal of ML 95585 by the Department of Resources.