Vymetal v Inverardi[2024] QLC 31

LAND COURT OF QUEENSLAND

Background

2. [2]
   Lukas Vymetal has applied for the grant of mining claim MC300441 over an area of 0.9520ha on Bonny Glen Station. Bonny Glen Station is owned by the Gummi Junga Aboriginal Corporation (‘GJAC’). The applied for access to MC300441 is via a gazetted road through Old Maitland Station, and over approximately 270m of an internal Old Maitland Station track. Old Maitland Station is owned by Vic & Mary Inverardi.

3. [3]
   The Inverardis and GJAC objected to the application for MC300441. On 4 September 2024, I heard the objection application in Atherton. On 4 October 2024, I delivered a decision recommending that MC300441 be granted with the following conditions:^[2]

1. The holder of MC300441 must use existing access points, roads or tracks to enter the landholder’s land, unless alternative access is negotiated with the landholder;

2. The holder of MC300441 must use the landholder’s land in a way that minimises disturbance to people, livestock and property;

3. If in carrying out activities associated with MC300441, the holder of MC300441 becomes aware of any potential adverse impact, caused by the activities, on the landholder’s livestock or property, they must immediately notify the landholder of the potential impact;

4. The holder of MC300441 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder.

4. [4]
   Mr Vymetal has applied to the Land Court for a determination of compensation. No agreement has been reached with the respondents.

The Mining Claim

5. [5]
   The only compensable effect that the grant of the mining claim might have on Old Maitland is that caused by the use of the 270 metre access track referred to in paragraph [2] above.

6. [6]
   Mr Vymetal’s compensation statement is one paragraph:

“In matter of land compensation for access to the mining claim MC300441 my offer is as follows:

As access to my claim MC300441 is under 300m and using the existing road, my offer is to pay compensation for diminution of the use made or which may be made of the land, including administration cost and 10% GST to $5AUD per year”.

7. [7]
   Mr Inverardi’s response to the compensation statement does not address the matter of compensation. Rather, it revisits issues Mr Inverardi ventilated at the hearing of the objection concerning misuse of the locked boundary gate on the property; trespass; and disturbance to livestock.

8. [8]
   The Inverardis would prefer Mr Vymetal access his mining claim another way. They made suggestions in that regard at the hearing of the objection. I recommended conditions which go some way to addressing the Inverardis’ concerns. Mr Vymetal has not amended his application to propose any alternative access which would avoid Old Maitland.

9. [9]
   Overall, I have been provided with very little relevant evidence. The parties’ compensation statements do not expressly or substantively address the criteria for the determination of compensation in s 85(5) of the MRA, beyond Mr Vymetal’s statement that his offer of $5/year is for diminution of use of the land.

10. [10]
    I must nevertheless do my best to determine compensation with reference to the criteria in the MRA.

11. [11]
    There is no evidence before me to suggestion that there will be deprivation of possession of the surface of the land of the owner. The majority of the access through Old Maitland is on an existing gazetted road. It will not cause diminution of the value of the land or improvements thereon. There is no severance of the land.

12. [12]
    Compensation for surface rights of access and diminution of the use made of the land are the two relevant criteria.

13. [13]
    The Inverardis submit that traffic travelling through Old Maitland Station will impact their cattle breeding program. They have areas set aside for cows with baby calves to congregate on a daily basis to be fed with stockfeed. I accept that Mr Vymetal’s access through Old Maitland Station might cause some disturbance to the livestock. However, the majority of the access through Old Maitland Station is via a gazetted public road. There are other users of the road. Mr Vymetal cannot be held responsible for any disturbance to the cattle operations that occurs from use of the gazetted road.

14. [14]
    Compensation can be allowed for any disturbance arising from use of the 270m access track off the gazetted road. However, there is no evidence before me of the extent of livestock operations, if any, in that area. In the circumstances, I find that Mr Vymetal’s proposal of $5/year for the term of the mining claim, which is 10 years,^[3] is reasonable. I add 10% to the rate of $5/year to reflect the compulsory nature of the action.^[4] In total, compensation is $5.50/per year.

Orders

1. The applicant must pay to Vic & Mary Inverardi compensation in respect of MC300441 as follows:

1. Five dollars and fifty cents ($5.50) per annum;

2. The applicant must pay the amount set out in order 1(a) to Vic & Mary Inverardi within one (1) month of the grant of MC300441 by the Department of Natural Resources and Mines, Manufacturing and Regional and Rural Development and then annually on the day of the grant.