Theuerkauf v Usher Pastoral Company
[2024] QLC 17
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- Unreported Judgment
- Theuerkauf v Usher Pastoral Company[2024] QLC 17
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Theuerkauf v Usher Pastoral Company[2024] QLC 17
Theuerkauf v Usher Pastoral Company[2024] QLC 17
LAND COURT OF QUEENSLAND
CITATION: | Theuerkauf v Usher Pastoral Company [2024] QLC 17 |
PARTIES: | Ashleigh Wayne Theuerkauf (applicant) v Usher Pastoral Company Pty Ltd (respondent) |
FILE NO: | MRA122-24 |
PROCEEDING: | Application for compensation for mining claim renewal |
DELIVERED ON: | 24 September 2024 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 19 July 2024 |
HEARD AT: | On the papers |
MEMBER: | JR McNamara |
ORDERS: |
|
CATCHWORDS: | ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicant has applied for a mining claim renewal situated on the respondent’s land – where the mining claim would be used for opal mining – whether and if so, what compensation is payable under s 85 of the Mineral Resources Act 1989 Mineral Resources Act 1989 s 85 Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23 Daunis v Usher Pastoral Company Pty Ltd [2023] QLC 24 |
APPEARANCES: | Not applicable |
Background
- [1]A mining claim cannot be granted or renewed unless compensation between the miner and any affected landholder is agreed or determined by the Land Court.[1]
- [2]Mr Ashleigh Theuerkauf is the applicant for the renewal of MC300081 and the Usher Pastoral Company Pty Ltd is the affected landholder. Mr Theuerkauf applied to the Land Court to determine compensation because he has been unable to negotiate compensation with the respondent.
- [3]On 17 May 2024 I made orders for the filing of compensation statements. The applicant filed their compensation statement in compliance with those orders. On 8 July 2024, the respondent advised the Court by way of email that they would not be filing a response compensation statement and confirmed this again on 9 August 2024. The filed material therefore is comprised solely of the applicant’s statement.
- [4]I am satisfied that it is appropriate to decide the application without an oral hearing and the parties, after receiving notice of the proposal to decide the application on the papers, have not requested an oral hearing.[2]
- [5]MC300081 is the subject of this application. It is in the ‘Bush Paddock’ portion of Mount Margaret Station (Lot 447 on SP196201), an area of approximately 70,000 hectares located 50km west of Eromanga. Mount Margaret Station was acquired by Usher Pastoral Company in 2017. The local regional council is the Quilpie Shire Council.
- [6]I made a determination of compensation last year over applications for a mining lease (ML60649) and a mining claim (MC300080) filed by Mr Theuerkauf over Mount Margaret Station.[3]
The Mining Claim
- [7]MC300081 was first granted in 1994 and most recently expired on 31 January 2024. Mr Theuerkauf filed a renewal application on 25 September 2023.[4]
- [8]
- [9]The applicant says that there is a 7m x 10m shed constructed on the mining claim for the purposes of temporary accommodation.[7] The shed is built from concrete footings, metal posts and colourbond steel and it is not a permanent structure. In Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23, I noted at paragraph [7] that Mr Theuerkauf referred to MC300081 as their ‘infrastructure base’ for their other tenements, including ML60649.
- [10]The applicant filed a mining claim work program with the originating application. The work program states that in year 1 of the mining claim, the applicant will undertake mining preparation and rehabilitation.[8] In year 2, mining preparation, mining activity and rehabilitation will occur. In years 3 and 4, mining activity and rehabilitation will occur and in year 5, only rehabilitation will occur. Although the application for renewal is for a 10 year term, the mining claim work program only describes the first 5 years of the permit.
- [11]The applicant says the mining will be carried out using an open cut (surface) method with a “Dozer Dresser DT Excavator 20T”.[9] The mineral will be recovered and separated by hand, without the use of chemicals.
- [12]The applicant intends to work 10 hours per week on the mining claim from April to October each year.
- [13]The applicant attached a sketch of MC300081 which marks the areas to be worked, the areas that have been worked, and the areas that have been rehabilitated.
The criteria
- [14]The assessment of compensation is not arbitrary, and it is not necessarily determined in the way that a commercial agreement might be.
- [15]
- the deprivation of possession of land – (which the landowner be physically deprived, will the deprivation be temporary or permanent?);
- the diminution of the value of the owner’s land (the diminished value of the property: will the value of Mount Margaret be devalued?);
- the diminished use of the land (will the applicant’s activities diminish the landholder’s enterprise by occupying and using the land?);
- any severance of the land from other parts;
- any surface rights of access; and
- all loss or expense that arises.
- [16]A landholder is also entitled to an additional amount to reflect the compulsory nature of the action taken, which shall not be less than 10% of the aggregate amount determined.[11]
The applicant’s contentions
- [17]The applicant says that opal mining occurs in higher elevations within the Bush Paddock, primarily above 200m. He makes the following comments about MC300081:
- MC300081 is characterised by rugged, rocky terrain unsuitable for cattle due to its lack of palatable vegetation;
- the existing vegetation, including bastard turpentine, mulga and gidgee, offers minimal nutritional value;
- rehabilitated mined areas have softer soils and changes Ph levels in soils, which promote plant growth;
- mining activities are limited to small areas (less than 0.25 hectares annually) due to very hard terrain and to extreme seasonal heat with less than 250mm annual rainfall.
- the Quilpie Shire Council has declared drought seasons for thirteen of the past eighteen years, further affecting the land’s usability for grazing.
- [18]As a result, the applicant says that mining has negligible effects on stock location, availability, stocking rates and land value. The applicant says that he has never seen cattle on MC300081. However, it may be that the lack of cattle is also caused by mining activity, infrastructure and the presence of people on MC300081.
- [19]The applicant additionally identifies improvements made by himself and opal miners to the land which have enhanced the efficiency and capacity of grazing operations at no cost to the landowner. Specifically, Mr Theuerkauf constructed an airstrip in 2013 with permission from the landowner, which he says facilitates efficient cattle mustering and is used annually (as recently as May 2024). A gully dam was built in the 1990s and desilted by Mr Theuerkauf in 2013 which he says provides additional water resources during droughts. Mr Theuerkauf also provides road maintenance by ensuring access through the Bush Paddock on Telephone Bore Road, particularly after rain during the mining season.
- [20]The applicant says that he has proposed compensation in the amount of $5 per hectare per year to the respondent as an incentive for early agreement. However, Usher Pastoral Company has not engaged in attempts to negotiation. The applicant submits that $2 per hectare is fair compensation due to the unsuitability of the terrain for livestock or grazing. The applicant offers to maintain Telephone Bore Road and the airstrip as in-kind contributions, ensuring vital access routes are kept in good condition. However, as I noted in Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23 at paragraph [26], the designation of Telephone Bore Road as a ‘road’ suggests that it is public land and not part of Mount Margaret Station.
Application of the statutory criteria
Will there be a deprivation of possession of the surface of the land? s 85(a)
- [21]The mining claim work program filed by the applicant states that he intends to work on 5% of the work permit per year over the next 5 years. The sketch of MC300081 indicates that only part of the mining claim permit will be used for mining opal. The landowner has not indicated, in filed material or in communications with the applicant, an intention or desire to access the parts of the mining claim area that will not be used for mining over the duration of the permit.
- [22]There is no evidence presented by the respondent as to whether or how much compensation should be payable for deprivation of possession of the land. As I said in Daunis v Usher Pastoral Company Pty Ltd [2023] QLC 24, I must rely on evidence to determine compensation. As there is no evidence that the respondent will be physically deprived of the land the subject of the mining claim, the relevant compensable impact is for a diminution of use of parts of the mining claim area as discussed below.
Will there be a diminution of the value of the land? s 85(5)(b)
- [23]The applicant filed with its compensation statement, photos of part of the rehabilitation area on the mining claim. The applicant appears to say that the photos show increased tree growth which has occurred because water can penetrate the softer soil after mining. This is not sufficient evidence to confirm, in my view, that the rehabilitation has caused the increased tree growth, however I accept that the photos demonstrate a history of attempted rehabilitation on the lease.
- [24]There is no evidence to support a claim that the value of Mount Margaret Station will be diminished as a result of the renewal of MC300081.
Will there be diminution of the use made or which may be made of the land? s 85(5)(c)
- [25]The respondent will not be permanently deprived of the land the subject of MC300081. There is no evidence that the productivity of the land will be diminished at all, or permanently. Therefore, compensation should be assessed under s 85(5)(c) for diminution of use.
- [26]The applicant says the shed constructed on MC300081, described at paragraph [9], is not a permanent structure presumably because he only intends for it to be occupied during the months he is working on this mining claim and his other tenements on Mount Margaret Station. However, in my view, the use of metal posts, concrete footings and colourbond steel for the structure suggest that it will remain on the mining claim for its term. It might also be assumed that there is additional supporting infrastructure for the temporary accommodation such as water storage or ablution facilities.
- [27]I note that section 81(1)(i) imposes a condition upon all mining claims that the holder shall not erect any permanent building or other structure whatever; and prior to the termination of the mining claim, for whatever cause, shall remove any building or structure erected by the holder and all mining equipment and plant.
- [28]I have formed the view that the whole of the land the subject of the MC will be unavailable for use, in particular the areas being actively mined and the areas used for and around the temporary accommodation and any supporting infrastructure.
- [29]MC300081 is a prescribed mining claim which allows the use of machinery for mining precious stones such as opal.[12] Although the applicant says he will recover and separate the mined opal by hand, he also says that the mining will be carried out using an open cut (surface) method with machinery as described at paragraph [11]. Machinery may also be used in the rehabilitation stages. The use of machinery as permitted by the mining claim, may create dust and noise which may further cause cattle to avoid the mining claim area.
- [30]That said, I accept the evidence filed by the applicant that the mining operations will have minimal impact on land availability for grazing, stocking rates of land value.[13]
- [31]As I said in Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23 at [39] in relation to land in the ‘Bush Paddock’ area of Mount Margaret Station, I take into account the fact that the land to be mined is of a lower quality than the best Mount Margaret Station land.
- [32]I note that the applicant’s description of the terrain of the land and its unsuitability for grazing is similar to the land the subject of Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23 in relation to MC300080. In that case, I determined that compensation for MC300080 should be $20.20 per annum representing the diminution of the use made or which may be made of the land, including 10% reflecting the compulsory nature of the mining claim.
- [33]To arrive at the figure of $20.20 per annum in Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23, I accepted the respondent’s submission that at sale Mount Margaret Station might achieve $80 per hectare. However, I also took into account that the land to be mined for MC300080 in the ‘Bush Paddock’ area was of a lower quality than the best Mount Margaret Station land. I therefore assessed loss on a ‘once only’ basis at 50% of the amount claimed by the respondent, which amounts to $40 per hectare. For a 10 year renewal term, this is $4 per hectare and as MC300080 was 4.59 hectares, this came to $18.36 per annum before including 10% to reflect the compulsory nature of the mining claim.
- [34]As the evidence before me suggests that the diminution of the use made or which may be made of the land is the same for MC300081 as MC300080, I determine the compensation amount to be $40 per hectare. For a 10 year renewal term, again this amounts to $4 per hectare; $480 for the full term of the renewal; or $48 per annum before including 10% to reflect the compulsory nature of the grant of the renewal of the mining claim.
Are there any surface rights of access?
- [35]
- [36]The applicant says that he ensures access through Bush Paddock on Telephone Bore Road, particularly after rain during the mining season. This suggests that the applicant primarily uses Telephone Bore Road to access MC300081. It also suggests that Telegraph Bore Road is a public road. The responsibility for the maintenance of public roads ordinarily falls to the local authority, not the adjoining landholder. Nevertheless, the applicant provided a photo of him using a tractor and grader blade to maintain Telephone Bore Road. I accept his statements that he has ensured upkeep of access and will continue to do so.
Additional amount to reflect the compulsory nature of the payment: s 85(6)(e)
- [37]10% is added to reflect the compulsory nature of the payment.
Conclusion
- [38]I have assessed total compensation for the renewal of MC300081 for the full 10 year term of the renewal to be $528 ($480 plus 10%).
Orders
- In respect of the application for renewal of MC300081 compensation is determined in the amount of Fifty-Two Dollars and Eighty Cents ($52.80) per annum representing the diminution of the use made or which may be made of the land including 10% reflecting the compulsory nature of the mining claim; and
- The applicant must pay the amount set out in order 1 to the respondent within one (1) month of the date of grant of the renewal of MC300081 by the Department of Resources, and then annually on the date of the grant of the renewal, unless otherwise agreed with the respondent that compensation for the full terms of renewal be paid upon grant.
Footnotes
[1]Mineral Resources Act 1999 (Qld) s 85 (‘MRA’).
[2]Land Court Rules 2022 s 36(1)(a).
[3]Theuerkauf v Usher Pastoral Company Pty Ltd [2023] QLC 23.
[4]Application supporting documents, Application for Renewal dated 25 September 2023.
[5]Public resource authority report, 4.
[6]Ibid.
[7]Mining claim work program, 7.
[8]Ibid, 2-3.
[9]Ibid, 3.
[10]MRA s 85(5).
[11]MRA ss 85(6)(e).
[12]MRA s 50.
[13]Applicant’s compensation statement filed 6 June 2024, 2.
[14]Resource authority public report, 4; Applicant’s compensation statement filed 6 June 2024, 4.
[15][41].