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Pickering v Chelsea on the Park Pty Ltd[2025] QLC 20

Pickering v Chelsea on the Park Pty Ltd[2025] QLC 20

LAND COURT OF QUEENSLAND

CITATION:

Pickering v Chelsea on the Park Pty Ltd [2025] QLC 20

PARTIES:

Rai Pickering

(applicant)

v

Chelsea on the Park Pty Ltd

(respondent)

FILE NO:

MRA029-24

PROCEEDING:

Determination of compensation payable for grant of mining lease

DELIVERED ON:

5 September 2025

DELIVERED AT:

Brisbane

HEARD ON:

18 June 2025 and 1 August 2025

HEARD AT:

Atherton and Brisbane

MEMBER:

JR McNamara

ORDERS:

In respect of the application for ML 100207, compensation is determined as follows:

  1. The applicant must pay the respondent Two Thousand, Nine Hundred and Thirty-Eight Dollars and Thirty-Five Cents ($2,938.35) representing the deprivation of possession of the total area of ML 100207, which amount is inclusive of the statutory 10% uplift;
  2. The applicant must pay the respondent Three Hundred and Seventy Dollars and Eighty-Eight Cents ($370.88) per annum for administrative expenses; and
  3. The applicant must pay the respondent an amount no greater than the lowest amount agreed to and paid by any of the miners on mining leases surrounding or near to ML 100207 who have entered into a compensation agreement with COTP, on invoice, for work completed around and/or within ML 100207 as part of the savanna burning project, but in any case an amount no greater than One Thousand, Four Hundred and Fifty Dollars ($1,450) in any year.
  4. The applicant must pay the amount set out in order 1 to the respondent within one (1) month of the date of the grant of ML 100207 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development.
  5. The applicant must pay the amount set out in order 2 to the respondent within one (1) month of the date of the grant of ML 100207 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development and then annually on the date of the grant of ML 100207 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development.
  6. The applicant must pay the amount determined in accordance with order 3 within 30 days of receipt of an itemised invoice.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicant miner applied for the grant of a mining lease on the respondent’s land – where the activities on the mining lease will involve gold mining – where the parties disagreed on the amount of compensation the applicant should pay the respondent – where the Court accepted the calculation of the rate per hectare of the deprivation of possession or diminution of use of the mining lease area calculated in other matters on the subject land – whether the applicant is required to compensate the respondent for weed inspections – whether the applicant is required to compensate the respondent for backburning – whether the applicant is required to compensate the respondent for water testing – whether the applicant is required to compensate the respondent for administrative costs – whether and if so, what compensation is payable under s 281 of the Mineral Resources Act 1989

Mineral Resources Act 1989 s 281, s 403

Guernier v Chelsea on the Park Pty Ltd [2021] QLC 13

Kelly v Chelsea on the Park Pty Ltd [2020] QLC 36

Re Pickering [2020] QLC 29

Salmon v Armstrong [2002] QLRT 54

Valantine v Henry [2018] QLC 21

APPEARANCES:

R Pickering, the applicant (self-represented)

DA Quayle (instructed by South Geldard Lawyers) for the respondent

  1. [1]
    Chelsea on the Park Pty Ltd (COTP) is the registered owner of Palmerville Station (Palmerville). Palmerville is a 134,000 ha 30 year rolling term leasehold property in the lower Cape York Peninsula. It comprises a mix of river/creek frontages, rising to an undulating ridge country and broken ranges. It is an operating grazing enterprise running about 5,000 head of grey Brahman cattle and an estimated 1,000 head of mixed clean-skin cattle.
  2. [2]
    As its name suggests Palmerville is traversed by the Palmer River and is fed by other creeks and streams including Dog Leg Creek. Roads, including Whites Creek-Maytown Road, Mulgrave-Palmerville Road and Palmerville-Laura Road provide access to Palmerville. 
  3. [3]
    Gold mining, exploration and fossicking has happened on and around the Palmer River for over 140 years. There are as many as 81 current mining leases on Palmerville alone, and 11 exploration tenements. The large Palmer Goldfield Resources Reserve[1] (the Resources Reserve) which is encased on three sides by Palmerville is also the subject of a significant number of mining and exploration tenements. The Resources Reserve also has attractions for tourists, in particular the remains of buildings and machinery from the 19th century “gold rush”.
  4. [4]
    There is currently no boundary fencing between Palmerville and the Resources Reserve.
  5. [5]
    Fossickers are welcomed onto Palmerville to camp and fossick in designated areas, subject to the agreement of COTP. By arrangement tourists can also visit, camp, fish and stay on the property in designated camping areas.
  6. [6]
    By commissioning annual savanna burning on Palmerville, COTP earn Australian Carbon Credit Units (ACCUs). ACCUs are monetised. The Western Yalanji Aboriginal Corporation (WYAC) through the Australian Carbon Foundation (ACF) is engaged by Diversified Agriculture (a wholly owned subsidiary of COTP) to carry out inspections, backburning and burning as part of a savanna burning project.[2] 

Hearings

  1. [7]
    On 18 and 19 June 2025 in Atherton I heard three mining compensation matters involving applicant miners and COTP. The application of Rai Pickering concerning ML 100207 was the first hearing on 18 June 2025. The other two applications were heard together on 19 June 2025. The applicants in those matters were Matthew Vaughan and Prospect Hill Mining and Exploration Pty Ltd (Prospect Hill). Mr Vaughan is the sole director of Prospect Hill. A separate decision concerning those applications will be delivered. 
  2. [8]
    There was significant commonality in the evidence and key aspects of the compensation sought by COTP. However, some evidence given in response to questions put to COTP Director, Mr Darren Pearson, by me in the Vaughan and Prospect Hill matters provided a more fulsome explanation of aspects of evidence concerning backburning. I formed the view that that evidence might be equally relevant to the Pickering matter. While the Vaughan and Prospect Hill parties had the opportunity to cross examine Mr Pearson in relation to this evidence, Mr Pickering had not.
  3. [9]
    Conscious of avoiding inconsistency in decisions I reconvened the hearings concerning the three matters on 1 August 2025 in Brisbane and recalled Mr Pearson to allow Mr Pickering or his agent to cross examine Mr Pearson in relation to this evidence, and for the Vaughan and Prospect Hill parties and Counsel for COTP to question Mr Pearson on matters arising from the cross examination. At the reconvened hearing Mr Pickering was represented by his agent Mr James Said. I address the evidence, including that given at the reconvened hearing, under the heading ‘backburning’ later in these reasons. 
  4. [10]
    Considerable material including compensation proposals were exchanged by the parties, before and after the filing of the originating application and leading up to the hearing. That resulted in some subject matter of claim being modified and some abandoned. In particular, COTP did not persist with a claim for an annual payment for lost ACCUs;[3] a claim based on the unavailability of the mining lease area for tourism purposes was not pursued; the cost of fencing the area of the mining lease was not pursued; legal fees arising from and in connection with the grant of the mining lease were not pursued; and, actual costs in relation to biosecurity inspections (as opposed to a fixed cost) were sought, and amounts sought for administrative costs were updated.
  5. [11]
    The subject matter of compensation upon which the hearing was focussed concerned: biosecurity, backburning, water testing, and administrative expenses. The calculation of compensation for the deprivation or diminution of the use of the mining lease area involved a consideration of the methodology (including the formula and values applied to necessary inputs) applied by the Land Court in other matters concerning Palmerville and small mining projects.

ML 100207

  1. [12]
    Rai Pickering applied for two mining leases, ML 100206 and ML 100207, on 18 April 2019. ML 100206 is on an area of the Resources Reserve while ML 100207 is on and wholly within Palmerville. 
  2. [13]
    Although COTP objected to the grant of ML 100207 it did not elect to be an “active party”[4] in the Land Court proceedings convened to consider the objection. Having heard the objection matters on 29 July 2020, on 7 August 2020 the Land Court recommended that both ML 100206 and ML 100207 be granted.[5] 
  3. [14]
    Compensation as between Mr Pickering and the owner of the Resources Reserve (the State) was apparently agreed, the mining lease was granted on 15 March 2023, and it (ML 100206) has since been sold.[6]
  4. [15]
    Despite an exchange of information and draft compensation agreements, and the significant passage of time, Mr Pickering and COTP were unable to resolve compensation in respect of ML 100207 which prevents the grant of that tenement.[7]  On 6 February 2024 Mr Pickering applied to the Land Court pursuant to s 281 of the Mineral Resources Act 1989 (MRA) for a determination of compensation in respect of ML 100207. That is what the 18 June 2025 hearing was about.

The term - ML 100207

  1. [16]
    The Notice for Mining Lease No 100207[8] in respect of the application lodged 18 April 2019 records that the term applied for is 10 years. In Re Pickering at [28]-[29] the hearing Member said:

"[28] Mr Pickering initially sought 10-year leases. While preparing material to support the application, Mr Pickering reassessed his proposed work program and applied for a further 15 years. I have examined Mr Pickering’s proposal. I am satisfied that proper development of the resources will require the full 25-year period requested.

Conclusion

[29] I recommend that the Minister grant the proposed MLA 100206 and MLA 100207, each for a term of 25 years.

Order

I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that MLA 100206 and MLA 100207 be granted.”[9] (citations omitted) 

  1. [17]
    The recommendation in the Order of the Land Court was that both mining leases be granted. I note that the Resource Authority Public Report for ML 100206 says that the grant date was 15 March 2023 and the term 10 years (not 25 years). This might foreshadow a likely 10-year term should ML 100207 be granted.
  2. [18]
    A condition in respect of both ML 100206 and ML 100207 (as disclosed in the Resource Authority Public Report) is that the holder must commence mining operations within two years of the grant date.

Proposed activities on ML 100207

  1. [19]
    In Mr Pickering’s compensation statement he says that the mining lease is over an area of 30.81 ha and is near other granted mining leases.[10] The surface area covers a portion of Dog Leg Creek and a small gold bearing hill. The “purposes applied for” are living quarters/camp, road access, tailings/settling dam, treatment plant/mill site and water supply. Although the accompanying environmental authority would allow disturbance of up to 10 ha at any one time, Mr Pickering says he intends to work a maximum of 2 ha at a time.
  2. [20]
    As recently as 3 May 2024[11] Mr Pickering said that of the 30.81 ha mining lease area there is a total of 2 ha of “workable alluvial wash”, the 13.6 ha hill containing gold resources, and the balance area allows for living quarters/camp, access, tailings dam, treatment plant and water supply.
  3. [21]
    Photographs attached to Mr Pickering’s compensation statement show the terrain.[12] The photos depict sparsely vegetated rough and stony ground. Mr Pickering says: “At this time, deprivation of the surface area is limited to the Landholder having to seek consent to enter the area of the granted tenure in accordance with section 403 of the MRA.”[13] I will address the relevance of this statement and s 403 later in these reasons. However, this statement and Mr Pickering’s proposed use of the mining lease area makes it clear that the entire 30.81 ha area of the mining lease will affect COTP’s use and enjoyment of the area during the term of the mining lease.

Compensation statements

  1. [22]
    In response to Court orders: the applicant’s compensation statement; the respondent’s response; the applicant’s reply; the applicant’s (draft) compensation agreement; the respondent’s amended response; the respondent’s submissions; the applicant’s response to those submissions; and a number of affidavits from the parties, were exchanged and filed.[14]
  2. [23]
    There are five issues over which the parties remained in dispute. They are the compensation payable to COTP pursuant to MRA s 281(3)(a)(i)-(iii) for the impact of the mining lease on COTP; and the costs COTP might incur in relation to biosecurity, backburning, water testing and for administrative activities to be undertaken.

Compensation for deprivation of possession or diminution of use – s 281(3)(a)(i)-(iii)

  1. [24]
    There is no dispute about the nature of the mining lease area. It is rough country, although the riparian areas are somewhat better from a pastoral perspective than the hilly regions.
  2. [25]
    Up until closing submissions at the 18 June 2025 hearing, Mr Pickering assessed compensation on the basis of unimproved land value per ha for the total area, together with a 10% uplift (per s 281(4)(e)). This was calculated to be a total of $590.72, based on a $17.43 per ha “current land valuation obtained from QldGlobe” for the full 10-year term.  
  3. [26]
    Although Mr Pickering says that cattle will be free to traverse and graze on the area of the mining lease (and noting that Mr Pickering will not permit the landowner to enter, even for mustering purposes) he accepted there will be total loss of the area to the landholder for the term of the mining lease. 
  4. [27]
    COTP, in its 28 January 2025 written submissions,[15] put forward two compensation scenarios: one of total loss (that is the full 30.81 ha of the mining lease); the other of total loss of the area to be mined (13.6 ha of the hill area + 2 ha of the alluvial area) and 20% loss of the remaining area (15.21 ha, the area for the mine infrastructure including the living quarters etc) at the rate determined in the Land Court cases: Kelly v Chelsea on the Park Pty Ltd[16] (Kelly) and Guernier v Chelsea on the Park Pty Ltd[17] (Guernier). Both cases concerned compensation for mining leases on Palmerville. The Kelly and Guernier determined “rate” was $86.70 per ha.
  5. [28]
    In closing oral submissions Counsel for COTP said that the unimproved land value as a basis for assessing compensation under these sections was disavowed in the Kelly and Guernier cases. Compensation was calculated and awarded in those cases having heard evidence from valuers informed by agronomists. It was acknowledged that the Court did not have the benefit of evidence of that kind in this case. The decisions are however reasonably contemporary having been delivered in 2020 and 2021. Counsel submitted that compensation should be awarded to COTP at the rate of $86.70 per ha for the total area of the mining lease.
  6. [29]
    In his closing oral submissions, Mr Pickering presented a new “proposal of compensation”.[18] Mr Pickering’s proposal is that compensation be determined at a rate of $86.70 per ha for an area of 10 ha (the disturbance area). In addition, Mr Pickering proposed the same rate per ha, $86.70, for the remaining 20.81 ha but discounted to 20%.
  7. [30]
    The maximum area of significant disturbance permitted at any one time under the terms of the Environmental Authority eligibility criteria and standard conditions is 10 ha, not the total disturbance area permitted on the mining lease.
  8. [31]
    Based on the material filed and the evidence at the hearing, including Mr Pickering’s intention to deny COTP access to the mining lease area during the term of the lease, I am of the view that compensation under this head of claim ought to be for the total loss of the 30.81 ha area of the mining lease, for the full term of the mining lease, on a rate per ha, as a one off payment. Although Mr Pickering says that he will not prevent stock from entering onto the mining lease area, given the nature of gold mining, the physical presence of miners, personnel and traffic movements through the area, and the noise and dust emitted from mining activities, it makes grazing on the area less likely.  

The rate per ha – the Kelly and Guernier decisions

  1. [32]
    As noted above, that rate per ha determined in both Kelly and Guernier for the purposes of determining compensation for the deprivation or diminution caused by the mining lease was $86.70 per ha.
  2. [33]
    The calculation was based on market value, not an unimproved valuation or Valuer-General issued valuation. 
  3. [34]
    In those cases valuers gave evidence regarding the most recent sale price of Palmerville, and then deducted the value of improvements, equipment and stock to reach a rate per ha.
  4. [35]
    While the valuers differed in their rate per ha calculation, the hearing member accepted a figure of $25 per ha. The hearing member expressed the view that that amount, $25 per ha, did not reflect the actual value of the mining lease land.
  5. [36]
    The valuers had accepted that land prices had increased since the Palmerville sale. The hearing member had to determine the factor of increase. 
  6. [37]
    The hearing member looked at the Valuer-General’s assessment of the neighbouring property (Hurricane). The stocking rate on Palmerville was at the time considerably lower than Hurricane, but was expected to rise. The hearing member determined that the Hurricane valuation was higher than the Palmerville valuation by a factor of 3.47. That factor was applied to the assessment of $25 per ha to determine a Palmerville rate of $86.70 per ha.
  7. [38]
    Noting that the parties at the conclusion of the hearing on 18 June 2025 were in agreement as to the amount per ha value of the mining lease area on Palmerville, in the absence of any better evidence, I accept $86.70 per ha as the appropriate rate for the purpose of determining compensation pursuant to s 281(3)(a)(i)-(iii) in respect of ML 100207. 

Section 403

  1. [39]
    I note at [21] above Mr Pickering’s statement that in accordance with s 403 of the MRA the landholder (COTP) would have to seek consent to enter the area of the granted mining lease. He also states that consent will not be given.
  2. [40]
    Mr Pickering is correct that on a literal reading of s 403, a landholder shall not enter, use or occupy land the subject of a mining lease without the consent of the holder of the mining lease.
  3. [41]
    The meaning and effect of s 403 has been considered by this Court on a number of occasions. The consistent view of the Court is that this section does not confer exclusive rights to possession upon the holder of a mining lease. Kingham (then DP of the Land and Resources Tribunal) in Salmon v Armstrong[19] said at [26]: “Section 403(1) has to be interpreted in the light of the purpose of the Act and of other relevant provisions, including s. 235” (citations omitted). Her Honour goes on to say that she did not accept that s 403 confers on the holder of the mining lease unfettered power to withhold consent. 
  4. [42]
    Member Smith in Valantine v Henry[20] at [54] said:

“The law as regards ss 235 and 403 of the MRA is in my mind clear. A ML does not grant a miner a right of exclusive possession. The landholder has a continuing right to access the land covered by the ML, provided they have the consent of the miner. The miner is not able to unreasonably withhold consent.”

  1. [43]
    While the Court has found that s 403 does not confer on the holder of a mining lease unfettered power to withhold consent, the limit of the power to withhold consent is not certain. ML 100207 will not be fenced. Cattle may roam. Active mining will happen in certain areas. It might seem unreasonable to withhold consent to a landholder to retrieve cattle from the area of the mining lease unless particular dangers associated with the mining program are present where and when access is sought.  It might be reasonable to withhold consent to a landholder to access areas of a mining lease for specific health and safety reasons, but unreasonable in the absence of those health and safety reasons for, for example, weed control. 
  2. [44]
    Whether s 403 is inconsistent with s 276(1)(e) which says a holder of a mining lease will not obstruct or interfere with any right of access a person has in respect of land without the prior approval of the Minister, hints that a miner could not refuse consent under s 403 without Ministerial approval. The question does not require an answer in this case. I am accepting for the purposes of the assessment of compensation (only) that the landholder will not have use of the entire area of the mining lease for its term.

Biosecurity

  1. [45]
    At the hearing it was agreed and accepted that whereas “biosecurity” might concern a broad range of issues, in the context of this case, it is about weeds. 
  2. [46]
    Mr Pickering says that biosecurity risks on Palmerville have been elevated since the property has been open to the public for: fossicking, metal detecting, camping, cars, trailers, caravans, quad bikes, and motor bikes; and as there are large sections of unfenced boundaries which allow cattle to traverse, potentially spreading weeds from neighbouring properties. COTP say that they have strict arrangements in place with visitors to Palmerville.
  3. [47]
    The position of COTP at the hearing was that Mr Pickering ought to meet the cost of an initial biosecurity inspection upon grant (actual cost) and two (2) inspections of the mining lease area per annum (actual cost) after the commencement of mining activities.
  4. [48]
    It is not disputed that COTP is subject to certain biosecurity obligations as set out in the 20 May 2025 affidavit of COTP Director, Darren Pearson.[21] Mr Pearson refers to the fact that COTP is a registered biosecurity entity, as is the property operator Diversified Agriculture (a wholly owned subsidiary of COTP) and as such is subject to the obligations imposed by the Biosecurity Act 2014 (Qld), the Biosecurity Regulation 2016 (Qld), and the Public Health Act 2005 (Qld).
  5. [49]
    When asked in cross examination how COTP was meeting its biosecurity obligations,[22] Mr Pearson referred to wash-down procedures for all tourists, rangers and guests who come to the property. He said that there was a “check-in” process. The system requires guests to take photographs (date stamped) of their vehicle, including the undercarriage being washed, before entering the property, and for heavy machinery washdown certificates are requested.[23] There is no washdown facility on Palmerville. Mr Pearson accepted that with multiple entrances to Palmerville “it becomes complicated” with trespassers and illegal activities.
  6. [50]
    It is both a statutory requirement and a mandatory condition of the Palmerville rolling term lease that the lessee must keep noxious plants on the land under control. Counsel for COTP said at the hearing that this does not mean eradicate them, or remove them, or prevent them ever recurring, but keep them under control. 
  7. [51]
    If the weeds are not “under control”, that is perhaps spreading or seeding, the condition would require something more than simply inspecting them. As noted below the miner’s obligation under the Environmental Authority is more specific, it is to prevent the spread of declared plants. The ‘action’ is to ensure vehicles and machinery are adequately cleaned.
  8. [52]
    Should the mining lease be granted, the holder (in this case Mr Pickering) will be subject to the conditions and obligations of Environmental Authority EA0002136.[24]   The conditions of approval for this environmental authority are the standard conditions.
  9. [53]
    Pursuant to the Environmental Authority: Eligibility criteria and standard conditions for mining lease activities—Version 2, Standard Condition A12 provides: The holder of the environmental authority must prevent the spread of declared plants by ensuring that all vehicles and machinery are adequately cleaned before taking the vehicles and machinery out of a declared plant area. 
  10. [54]
    However, Note 18 to the Condition says: Every precaution must be taken to ensure there is no dispersal of Parthenium weed or the seed of any other declared plant within the meaning of the Land Protection (Pest and Stock Route Management) Act 2002, as a result of mining or as a result of access to the area of the mining lease. 
  11. [55]
    Note 19 says: The Department of Agriculture and Fisheries provide Pest Fact sheets for declared plants in Queensland as well as clean down procedures for motor vehicles and machinery. For advice on declared plant areas contact the Department of Agriculture and Fisheries or your Local Government.
  12. [56]
    It is not disputed that there are existing weeds on Palmerville, and that there are weeds close to the area of ML 100207. It is also not in dispute that:

“Chelsea considers that having regard to its biosecurity obligations and the rolling term lease, it should conduct regular biosecurity inspections of the ML area. Chelsea will conduct those inspections.”[25] 

  1. [57]
    That does not represent acceptance by Mr Pickering regarding biosecurity inspections of the mining lease area by COTP. Mr Pickering says he has his own biosecurity plan although no documented plan was in evidence. As noted above the Environmental Authority Standard Condition A12 requires wash down before exiting a (any) declared plant area. Note 18 goes a little further saying every precaution must be taken to ensure there is no dispersal of Parthenium weed or other declared plants as a result of mining. This is perhaps consistent with the general biodiversity obligation under the Biosecurity Act 2014 (Qld). The general biodiversity obligation is that a person who deals with biosecurity matters and who ought reasonably to know that it poses or is likely to pose a biosecurity risk, has an obligation to take all reasonable and practical measures to prevent or minimise the biosecurity risk. 
  2. [58]
    The COTP Biosecurity Plan was exhibited to Mr Pearson’s affidavit.[26] It is a fairly “thin” document which is headed: “LPA On-Farm Biosecurity Plan template”. It is signed and dated 14 April 2020. The relevant part is Section 4: PESTS AND WEEDS.  The “plan” at section 4.1 poses the question: Are there documented feral-animal, wildlife and weed-control programs in operation and do they include monitoring and management activities? In the third column a “yes” box is ticked. Some generic actions appear in column 2 under the heading: “Recommended practices”. They (the recommended practices) are: “Document feral-animal, wildlife and weed-control plans as required. Engage with neighbours and regional feral-animal, wildlife and weed control groups to maximise the effectiveness of your control programs”.  
  3. [59]
    Completion of the template is intended “to reflect current farm biosecurity practices.”[27] While there is a “comments” column on the template, there are no comments entered nor any relevant “tools and resources” listed. I was not directed to any documented “weed-control plans”, weed-control programs, or weed-control “tools and resources”.
  4. [60]
    Nevertheless, Mr Pearson says that to comply with COTP’s biosecurity plan and lease conditions, COTP “must conduct regular inspections of the Mining Lease area for noxious weeds.”[28] Despite saying that there are to his knowledge “noxious weeds present on Palmerville Station including in the area of the Mining Lease”, Mr Pearson goes on to say that such an inspection would not occur in this way but for the mining lease. I find it difficult to reconcile this position. Were there to be no mining lease on the area surely it would risk offending the biosecurity plan and potentially breach a lease condition to not take weed control measures in a known infected area.
  5. [61]
    Mr Pickering has stated his intention to refuse entry to COTP without consent, for any purpose. In those circumstances it was suggested that COTP would conduct weed inspections remotely. However, a weed inspection without conducting weed control measures seems to be a hollow exercise. The biosecurity plan talks of “weed-control plans” not simply inspections.
  6. [62]
    In the Guernier case the Court had been furnished with an agronomy report, however the agronomists did not give oral evidence at the hearing. Their report stated what might seem obvious, that declared weeds require control and management strategies. The hearing member in that matter said at [17]: “They [the agronomists] say that the control program must include a simple half day inspection twice per year, once at the start of the wet season and once at the start of the dry season.” The best the hearing member could conclude was at [20]: “Presumably, they have good reasons for suggesting that both inspections are necessary.” I have less to work with here.
  7. [63]
    Mr Pickering says that he will take responsibility for weed control and management on the area of the mining lease. 
  8. [64]
    Despite the Land Court making an award of compensation for weed inspections in both Kelly and Guernier, and the questionable ability of COTP to undertake weed inspections and weed control activities once the mining lease is granted because of Mr Pickering’s intention to deny access to COTP for all purposes, I do not have sufficient evidence to order compensation for weed inspections in this case.   

Backburning

  1. [65]
    It is not disputed that ML 100207 is within an area that would (but for its grant) be subject to COTP’s savanna burning project. Nor is it disputed that COTP intend to carry out backburning around the boundary of ML 100207.[29] 
  2. [66]
    COTP say they should be compensated for the cost of backburning around ML 100207 (on invoice), however, they do not seek compensation for the loss of ACCUs, if any, as a result of the activities on ML 100207.
  3. [67]
    The basis upon which COTP say they should be compensated for backburning is the result of the additional expense incurred by the project because of the mining lease. COTP say that because of the mining lease additional cost and time is spent to backburn around it to protect life, property, plant and equipment (within the mining lease area). Mr Pearson in evidence described that COTP’s responsibility is to not destroy others’ property and manage the fire process.[30]
  4. [68]
    Mr Pickering says that he will conduct his own seasonal burning on the mining lease such that backburning around the mining lease is unnecessary because his person, property, plant and equipment is protected. He says that he will also be aware if and when burning is carried out near his mining lease at the direction of COTP because it is a condition of a fire permit to give notice to adjoining land holders.
  5. [69]
    Fundamentally, seasonal burning reduces fuel load and consequently wildfire risk which can otherwise cause significant physical damage to the property, and greater environmental harm. The principle, as I understand it, is that a greater volume of carbon is released into the atmosphere from wildfires than if seasonal burning controlled or limited wildfires. The reduction in the release of carbon has a value.
  6. [70]
    As noted earlier the WYAC is engaged by Diversified Agriculture (a wholly owned subsidiary of COTP) to carry out inspections, backburning and burning as part of a savanna burning project.[31] The work is carried out by WYAC Rangers. The ACF manage the work.[32]
  7. [71]
    In their 28 January 2025 submissions[33] COTP says that for the savanna burning activity ACF charges COTP $500 per day per ranger, and that eight rangers will “undertake backburning at the mining lease”. They say that backburning would be undertaken annually and that COTP estimates the cost of backburning at the mining lease to be $4,000, but that actual costs were to be paid on invoice. The cost of two rangers to undertake pre-backburning inspections would be an additional $1,000. The total therefore might be $5,000. 
  8. [72]
    In his 20 May 2025 affidavit Mr Pearson says (based on a 15 January 2025 letter to Mr Pearson from ACF) the daily rate for a ranger is now said to be $750, and the total cost for inspection and backburning is estimated to be $7,500 per annum. Why the 15 January 2025 ACF letter did not inform COTP’s 28 January 2025 submissions is not clear.
  9. [73]
    Both the submissions and Mr Pearson’s affidavits indicate that backburning will occur annually. The 20 May 2025 affidavit qualifies this statement slightly, saying that Mr Pickering should pay these costs only if and when COTP issues an invoice.
  10. [74]
    My understanding of the arrangements was clarified through questioning of Mr Pearson in the Vaughan and Prospect Hill matters heard on 19 June 2025, which followed the hearing of the Pickering matter.
  11. [75]
    At the reconvened hearing on 1 August 2025 the relevant passage of evidence from the Vaughan and Prospect Hill transcript was introduced to this matter.
  12. [76]
    What emerged from Mr Pearson’s evidence was that in addition to the ranger’s costs (estimated to be $7,500 per annum) would be the cost of a helicopter (presumably helicopter and pilot hire) estimated to be approximately $7,000. This means that the full cost for the backburning of a single mining lease would be in the order of $14,500 per annum.
  13. [77]
    In his evidence Mr Pearson qualified this by saying that if the exercise was split between the other holders of mining leases in the area the cost could be reduced. He is referring to a cost sharing exercise amongst holders of mining leases – an arrangement which he says some mining lease holders with whom COTP have signed compensation agreements have entered. In his evidence on 1 August 2025 Mr Pearson said: “we have agreements with all the surrounding [mining] leases. I think there’s nearly 10 of them that have all agreed to work with us in – in the compensatory grounds.”[34] He said that … “in our compensation agreements, the miners allow us to burn around specific elements.”[35] In context ‘elements’ means plant and equipment, for example a bulldozer or bobcat.     
  14. [78]
    The clauses of any compensation agreements concerning the savanna burning project with other miners on Palmerville were not in evidence.
  15. [79]
    The only (draft) compensation agreement in the filed material is an undated draft “Pickering and COTP” compensation agreement in tracked changes filed by Mr Pickering on 10 September 2024. It makes no reference to backburning – perhaps because the savanna burning project did not exist when the draft was first produced. 
  16. [80]
    The savanna burning project commenced with registration in 2023, however “2024 was the first year of the project awarding any result”. It is not clear what that means, but Mr Pearson did say that “burning” had occurred in 2025. 
  17. [81]
    Mr Pearson’s evidence was clear however that while some areas of Palmerville might be burned every three or four years, there would be “an asset protection burn” each year, unless there were no assets to protect, in which case a burn (if any) could go through an area when needed (possibly every three or four years) without the additional “asset protection” backburning cost.  

Conclusion - backburning

  1. [82]
    The respondent’s evidence generally was inadequate and incomplete. The only COTP witness was Mr Pearson. His affidavits annexed correspondence from a range of persons and organisations including some invoices issued to Diversified Agriculture from WYAC for ‘carbon burning assistance’ between 2023 and 2025.
  2. [83]
    There is, according to Mr Pearson, no contractual arrangement between WYAC and COTP or Diversified Agriculture. While WYAC invoice Diversified Agriculture directly, he said that COTP accept the hourly rates and workforce numbers for seasonal burning activity as determined by the ACF. The location and timing of seasonal burning might be agreed between COTP and WYAC – but seemingly not the budget. WYAC, not COTP, are responsible for obtaining any necessary permits.
  3. [84]
    The invoices annexed to Mr Pearson’s 20 May 2025 affidavit[36] contain little more information than stating that the amount claimed is a fee for carbon burning assistance including wages, superannuation, administration, food and fuel. The invoices contain only a total amount for fees, and a total amount for administration. There is no breakdown, no identification of the work conducted, when it was carried out, where it was carried out, the number of persons engaged in the work, whether helicopter services were used etc. Three invoices were issued on the same date, on the same invoice number 10634, but without explanation are impossible to reconcile.
  4. [85]
    I acknowledge the submission of Mr Pickering that should ML 100207 be granted, he would, subject to him (or the holder of the mining lease from time to time) holding and complying with all necessary fire licences and/or permits, conduct annual seasonal burning on ML 100207. 
  5. [86]
    In those circumstances, he submits that asset protection can be achieved without the need for backburning. 
  6. [87]
    I accept that COTP will incur cost and expense as a result of the grant of ML 100207 in obtaining Palmerville ACCUs through the savanna burning project. The compensable cost and expense is for the activities that, but for the grant of ML 100207, would not be required in order to obtain ACCUs on Palmerville. I accept that such a claim is compensable under s 281(3)(a)(vi) as a ‘loss or expense that arises’. The challenge is how that loss or expense is quantified.
  7. [88]
    I have no evidence to inform me of the agreed arrangements with other miners surrounding ML 100207 referred to in Mr Pearson’s evidence, nor the terms and conditions which might also have a bearing on compensation arising from the savanna burning. This claim for compensation in these proceedings only arose with the 28 January 2025 respondent’s amended response to compensation statement,[37] and COTP’s submissions filed the same day. 
  8. [89]
    I am assuming that the surrounding mining leases are of a scale and size similar to ML 100207. However, that might not be the case.
  9. [90]
    In the circumstances the compensation I award should be payable only in circumstances where the work is carried out in relation to a “job lot”, that is, all the mining leases surrounding and including ML 100207. The compensation payable in relation to ML 100207 will be no greater than the compensation to be paid by any of the ten miners “surrounding” ML 100207 who have entered into agreements with COTP in relation to the savanna burning project. If the amounts paid by those other miners is not apportioned equally as between them, the amount to be paid by Mr Pickering should be no greater than the lowest amount paid by a surrounding miner.  Any invoice issued to Mr Pickering must provide sufficient detail for him to establish and verify that fact. However, the maximum payable by the holder of ML 100207 in any one year will be no greater than $1,450.[38] 
  10. [91]
    It is incumbent on COTP, the WYAC and/or ACF to give adequate advance, necessary and reasonable notice of intended savanna burning in the area of ML 100207. Should Mr Pickering undertake “asset protection” burning on ML 100207 as he has indicated he must inform COTP of that fact and give adequate notice. He must hold the necessary licence or permit. Mr Pickering must be contactable and responsive to any notice provided to him by COTP and/or WYAC regarding savanna burning. Importantly, any asset protection burning carried out by Mr Pickering should not be a cause of delay to the savanna burning project, and equally COTP and WYAC need to understand whether backburning or simply asset protection burning is required.

Water testing

  1. [92]
    It is not disputed that COTP is concerned that, as ore is processed, contaminants may travel from ML 100207 to the Palmer River, posing a risk to barramundi and people who eat them, and cattle who drink from the water. 
  2. [93]
    To be clear, it is not accepted by Mr Pickering that any risk exists.
  3. [94]
    It is agreed that Mr Pickering will only use water in the working of his mining operation.
  4. [95]
    A claim for compensation for water testing was first documented in the COTP Amended Response to Compensation Statement filed 28 January 2025, together with the COTP submissions filed the same day.[39] 
  5. [96]
    The “Amended Response” document simply includes an asserted compensation liability for: “up to six water tests per annum after the commencement of the Mining Activities.”[40]
  6. [97]
    COTP address “Annual Water Tests” at paragraphs [79]-[92] of their written submissions. At [86] and [87] they say:

“Any contaminants that escape from the Mining Lease will travel down Dog Leg Creek, to the Palmer River and into the Water Hole via the underground flow of the Palmer River. That poses a risk to barramundi in the Water Hole and to the campers and tourists that fish in the Water Hole.”

“The Respondent intends to test the water in Dog Leg Creek downstream of the Mining Lease after mining operations have commenced to check for contaminants. That testing will be undertaken at regular intervals but no more than six times in each year. The frequency of the tests may dimmish if results show no impact to water quality.”[41]

  1. [98]
    At paragraph [88] they say that the respondent’s concerns about contamination were raised in its objection application for ML 100207: “The Court considered the possibility of contamination and decided that the possibility was not enough to recommend against the grant of the lease.” The footnote to this statement is: Re Pickering [2020] QLC 29 at [23]. Paragraph [23] in Re Pickering in fact says:

“Mr Saunders does not believe that either of the proposed leases will have an adverse environmental effect. Mr Saunders notes that water flows are seasonal and only occur during the wet season. He notes that the creek has already been mined with no surface water issues. He has recommended that Mr Pickering use additional bunds for water filtration and to slow water flow.” (citations omitted)

  1. [99]
    The respondent’s assertion is somewhat misleading. The passage in Re Pickering if anything suggests that despite historic mining there are no surface water issues. At [24] of Re Pickering then Member Stilgoe says: “… the possibility of environmental harm, without evidence or justification, is not enough for me to recommend against the grant of the leases” (emphasis in original).
  2. [100]
    The claim for the cost of water testing is repeated in the affidavit of Mr Pearson filed 20 May 2025. He expresses his “concern” about contaminants from the wet-processing (or mining operations generally) carried out by Mr Pickering.
  3. [101]
    The most recent affidavit of Mr Pearson was filed 13 June 2025,[42] two (2) working days before the hearing. Annexed to the affidavit is document DAP-01, an email from Kathryn Hughes dated 12 June 2025. Ms Hughes was not nominated as an expert witness nor a lay witness, she was not called by the respondent to appear at the hearing, she was not available to the applicant for cross examination, or to the Court to be questioned regarding her email. If this is, as Mr Pearson suggests an issue of considerable importance and risk to his business, it is surprising that no better evidence has been advanced in the five years since the Re Pickering decision concerning “the possibility of contamination”.
  4. [102]
    The highest point the evidence reaches is that contaminants, in particular arsenic, exist in the natural environment, and can be released by natural forces. COTP’s concern is that the prospect of them being released in greater quantities is higher when “rock is being broken”. 
  5. [103]
    In evidence Mr Pickering accepted that it was possible that contaminants are naturally occurring in the area.[43] He said: that he intends to “take the ore to a processing plant on the R16 … and have it processed there, so I don’t intend to process any ore … on site”; that in relation to contaminants that if they are already there “I’m not putting any more in”; that he is “not going to be crushing rocks and, especially, not doing it in the river”;[44] and that under the relevant legislation he cannot release tailings into a creek or river system.
  6. [104]
    In evidence Mr Pearson said that based on Ms Hughes email: “… as you excavate, you expose more material to oxidisation, and then, when the rains come, that oxidisation will, then, run into the creeks and rivers.”[45] I do not know if that is an accurate account of the physical and chemical reactions that follow excavation. The information in the email contains more scientific terms, but does not mention “oxidisation”. Nor does it provide any context to appreciate scale. It gives no information upon which danger or risk could be assessed – certainly by a lay person.  It refers to the processing of historical tailings – however, that is not a method of mining that Mr Pickering intends to undertake. 
  7. [105]
    In the penultimate paragraph of the email it says: “Testing of the target resources whether tailings or hard rock should be carried out to determine the potential risk to the environment of contaminants, such as arsenic, antimony, cadmium and the like, prior to reprocessing”. Again, reprocessing is not intended to be conducted on the mining lease. The quoted passage calls for “testing of target resources”, it does not refer to water testing. It speaks of “potential risk to the environment” similar to “the possibility of environmental harm” referred to by the hearing member in Re Pickering. 
  8. [106]
    I am in no better position than the member who in 2020 heard Re Pickering. I make no order for compensation for water testing.

Administrative costs

  1. [107]
    The claim made for administrative costs at the time of the hearing was for $370.88 together with GST pa, or $3708.80 for the ten-year term. 
  2. [108]
    In the Guernier matter, the claim for administrative costs was for $500 pa for processing compensation payments and an annual audit of compliance. The hearing member considered the claim to be ambit. At [27] of the Guernier decision it was said that the processing of annual payments should take minutes and monitoring compliance with the mining lease conditions and erosion on the track can happen on “its monthly visits to the area” – a reference to [33] where it is said “… Chelsea personnel will be in the area monthly” – which I understand to be in reference to checks on track maintenance. At [28] the hearing member determined that additional administration would take an extra two hours per annum and awarded 4 hours (2 persons, 2 hours) at $92.72 for a total $370.88 pa. The amount claimed in this matter.
  3. [109]
    In closing submissions Mr Pickering proposed the appropriate award for administrative costs to be $50 pa, a “one-off” payment of $500.
  4. [110]
    I agree with the comments made by the hearing member in Guernier that, broadly speaking, the additional administration time COTP will incur is minimal and the award reflects that. The amount of $370.88 pa (inclusive of GST) is appropriate compensation for administrative costs.

Conclusion

  1. [111]
    Mr Pickering must pay COTP compensation as follows:

Head of compensation

Amount ($)

Deprivation of possession of the surface of the land: s 281(3)(a)(i)

$2,671.23

Additional amount to reflect the compulsory nature of the payment: s 281(4)(e)

$267.12

All loss or expense that arises as a consequence of the grant or renewal of the mining lease: s 281(3)(a)(vi):

 

Biosecurity

$0

Backburning

An amount no greater than the lowest amount agreed to and paid by any of the miners on mining leases surrounding or near to ML 100207 who have entered into a compensation agreement with COTP, on invoice, for work completed around and/or within ML 100207 as part of the savanna burning project, but in any case an amount no greater than $1,450 in any year

Water testing

$0

Administrative costs

$370.88 per annum

Orders

In respect of the application for ML 100207, compensation is determined as follows:

  1. The applicant must pay the respondent Two Thousand, Nine Hundred and Thirty-Eight Dollars and Thirty-Five Cents ($2,938.35) representing the deprivation of possession of the total area of ML 100207, which amount is inclusive of the statutory 10% uplift;
  2. The applicant must pay the respondent Three Hundred and Seventy Dollars and Eighty-Eight Cents ($370.88) per annum for administrative expenses; and
  3. The applicant must pay the respondent an amount no greater than the lowest amount agreed to and paid by any of the miners on mining leases surrounding or near to ML 100207 who have entered into a compensation agreement with COTP, on invoice, for work completed around and/or within ML 100207 as part of the savanna burning project, but in any case an amount no greater than One Thousand, Four Hundred and Fifty Dollars ($1,450) in any year.
  4. The applicant must pay the amount set out in order 1 to the respondent within one (1) month of the date of the grant of ML 100207 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development.
  5. The applicant must pay the amount set out in order 2 to the respondent within one (1) month of the date of the grant of ML 100207 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development and then annually on the date of the grant of ML 100207 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development.
  6. The applicant must pay the amount determined in accordance with order 3 within 30 days of receipt of an itemised invoice.

Footnotes

[1]Publicly accessible information indicates the Resources Reserve to be approximately 16,000 ha in area. The Resources Reserve is managed by the Department of Environment, Tourism, Science and Innovation.

[2]Pursuant to the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth); Ex 20, List of matters not in dispute, paras 10-1.

[3]The former basis of claim was that the mining lease area would not be available for inclusion in the savanna burning project.

[4]Land Court of Queensland, Practice Direction 4 of 2018 – Procedure for Mining Objection Hearings.

[5]Re Pickering [2020] QLC 29.

[6]T 1-26, lines 22 to 23.

[7]Mineral Resources Act 1989 s 279.

[8]Ex 1, Originating Application filed 6 February 2024, page 7.

[9]Re Pickering [2020] QLC 29 [28]-[29].

[10]Ex 2, Applicant’s Compensation Statement filed 3 May 2024, page 1.

[11]Ibid.

[12]Ibid pages 2-5.

[13]Ibid page 6.

[14]Ex 2-19.

[15]Ex 7, Respondent’s submissions, para 19.

[16][2020] QLC 36.

[17][2021] QLC 13.

[18]T 1-97, lines 10 to 14.

[19][2002] QLRT 54.

[20][2018] QLC 21.

[21]Ex 17, Affidavit of D A Pearson filed 20 May 2025, para 22.

[22]T 1-58, lines 37 to 39.

[23]T 1-61, line 45 to line 46; T 1-62, line 1 to line 2.

[24]Ex 17, Affidavit of D A Pearson filed 20 May 2025, DAP-14.

[25]Ex 20, List of matters not in dispute, paras 16-7.

[26]Ex 17, Affidavit of D A Pearson filed 20 May 2025, DAP-06.

[27]Ibid page 51.

[28]Ibid page 10, paras 62-4.

[29]Ex 20, List of matters not in dispute, paras 18-9.

[30]T 1-65, lines 1 to 2.

[31]Pursuant to the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth); Ex 20, List of matters not in dispute, paras 10-1.

[32]Ex 17, Affidavit of D A Pearson filed 20 May 2025, para 84.

[33]Ex 7, Respondent’s submissions.

[34]T 1-11, lines 19 to 20.

[35]T 1-11, lines 41 to 42.

[36]Ex 17, Affidavit of D A Pearson filed 20 May 2025, DAP-11.

[37]Ex 6, Respondent’s amended response to compensation statement, para 19(b)(viii).

[38]One tenth of $14,500.

[39]Ex 6, Respondent’s amended response to compensation statement; Ex 7, Respondent’s submissions.

[40]Ex 6, page 4, para 19(b)(ix).

[41]Ex 7, page 9.

[42]Ex 19, Reply Affidavit of D A Pearson filed 13 June 2025.

[43]T 1-46, lines 24 to 29.

[44]T 1-47, lines 21 to 23.

[45]T 1-65, lines 14 to 17.

Close

Editorial Notes

  • Published Case Name:

    Pickering v Chelsea on the Park Pty Ltd

  • Shortened Case Name:

    Pickering v Chelsea on the Park Pty Ltd

  • MNC:

    [2025] QLC 20

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    05 Sep 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Guernier & Anor v Chelsea on the Park Pty Ltd [2021] QLC 13
2 citations
Jump To
Cite 1 - [2021] QLC 13
Cite 2 - [2021] QLC 13
Kelly v Chelsea on the Park Pty Ltd [2020] QLC 36
2 citations
Jump To
Cite 1 - [2020] QLC 36
Cite 2 - [2020] QLC 36
Re Pickering [2020] QLC 29
4 citations
Jump To
Cite 1 - [2020] QLC 29
Cite 2 - [2020] QLC 29
Cite 3 - [2020] QLC 29
Cite 4 - [2020] QLC 29
Salmon v Armstrong (2002) QLRT 54
2 citations
Jump To
Cite 1 - (2002) QLRT 54
Cite 2 - (2002) QLRT 54
Valantine v Henry [2018] QLC 21
2 citations
Jump To
Cite 1 - [2018] QLC 21
Cite 2 - [2018] QLC 21

Cases Citing

Case NameFull CitationFrequency
Vaughan v Chelsea on the Park Pty Ltd; Prospect Hill Mining and Exploration Pty Ltd v Chelsea on the Park Pty Ltd [2025] QLC 212 citations
1

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