Cross v Barrett [2020] QLC 6

LAND COURT OF QUEENSLAND CITATION: Cross v Barrett [2020] QLC 6 PARTIES: Peter Raymond Cross (applicant) v Rodney Keith Barrett (respondent) FILE NO: MRA082-19 DIVISION: General Division PROCEEDING: Determination of compensation payable for renewal of mining claim DELIVERED ON: 6 February 2020 DELIVERED AT: Brisbane HEARD ON: Submissions closed 20 December 2019 HEARD AT: Heard on the papers MEMBER: PG Stilgoe OAM ORDER: I determine compensation in respect of MC 70598 in the sum of Three Hundred and Sixty-Three Dollars ($363) per annum for the term of the renewal. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the parties were referred to the Court for a compensation determination for the term of the renewal of a mining claim – where the Court determined compensation on the basis of limited evidence – whether the evidence of a previous compensation agreement was instructive for determining the amount of compensation – whether an amount for the time the landholder required to inspect the property should be included in compensation determination Mineral Resources Act 1989 s 85, s 85A APPEARANCES: Not applicable -- 1 of 6 -- 2 [1] Rodney Barrett owns Lot 11 on CLM597, a cattle property located in The Gemfields. [2] Peter Cross holds Mining Claim 70598 on Lot 11, an area of 0.7 ha. He accesses his claim by a track from Graveshill Road. The part of the access track that crosses Lot 11 is 1.2 km long and 3 m wide, a total area of 0.51 ha. [3] Mr Cross wants to renew his mining claim for a further 10 years. [4] As the parties could not agree on what compensation was payable, the Department of Natural Resources, Mines and Energy referred this matter to the Court for a determination, pursuant to Mineral Resources Act 1989 (MRA) s 85A as in force at the date of the renewal application. [5] There is a long line of cases in which, faced with no evidence of loss and little engagement from the parties, the Land Court has simply applied a formula to the question of compensation; $10/ha for a mining lease or claim and $5/ha for access. Unfortunately, this approach may have created the impression that landowners are entitled to compensation simply for the presence of a mining lease or claim, in the form of a licence or rent. [6] Nothing could be further from the truth. To be entitled to compensation, a landowner must have either been deprived of possession of the surface of the land, suffered a diminution of the value of the land or improvements thereon, or incurred loss or expense as a consequence of the grant or renewal of the mining claim.1 If a landowner cannot show deprivation of possession, a diminution in value, or loss or expense, then the landowner is not entitled to compensation. [7] Mr Barrett submits that he should receive compensation of $2,500 per year. He justifies that amount by reference to: 1. The dust generated on the access road. 2. The presence of dogs chasing cattle from an adjacent dam that is only 100 m from the claim. 3. The fact that Mr Cross has built a “house” on the claim. 1 Mineral Resources Act 1989 s 85(7). -- 2 of 6 -- 3 4. The fact that the claim is of a compulsory nature. Mr Barrett has to install firebreaks and check who is entering and leaving his land. 5. The need for pest control. Dust [8] Mr Barrett submits that the access track is across a flat that powders up into a fine dust and spreads over the grass and the land. He says that the track should be graded to avoid erosion and he wants some money to do this work. [9] Mr Cross purchased the claim in 2017. He says that the track has not eroded and has never been graded since he purchased the claim. He states that there are washouts on the creek crossing which he repaired to enable water to flow. [10] Mr Barrett did not provide any evidence to support his claim. I do not know whether productivity in the area surrounding the track is diminished and, if so, by how much. I do not know the cost of the work Mr Barrett wants to undertake on the track. In the absence of that evidence, I am unable to settle any compensation for the effect of dust or to carry out roadworks. The dogs [11] Mr Barrett says that Mr Cross’s dogs are “very good” at chasing cattle away from an adjacent dam that is only 100 m from the claim. Mr Barrett says that while Mr Cross was working the claim, his cattle did not water at that small dam. [12] Mr Cross disputes Mr Barrett’s claim. He says that his dogs don’t chase cows and that the cows graze on the claim “without a care”. [13] As before, Mr Barrett has not quantified the effect of the dogs on his productivity. I do not know whether Mr Barrett has run fewer cattle as a consequence of the dogs or whether the cattle have less condition because they are not accessing convenient water. Unless Mr Barrett can point to a loss, I cannot give him compensation. The house [14] Mr Cross has erected a 6 x 6 m donga, a wooden frame with mud walls and an iron roof. It is a typical “miner’s hut” and clearly a temporary structure. It has an adjacent -- 3 of 6 -- 4 water tank and shower room, with a long drop some distance away. To the north- west, Mr Cross operates an up-and-over adjacent to his two shafts. Mr Barrett’s main complaint about the house is that it was erected without any local government permission and it appears to be a winter retreat. Neither of these complaints results in a loss to Mr Barrett. [15] From Mr Cross’s diagram,2 it seems to me that almost half of the claim is covered by infrastructure. While the infrastructure may be temporary, I am satisfied that its presence deprives Mr Barrett of possession of the surface of the land. That is something which should be the subject of compensation but, again, I have no way of calculating the value of the land. Given the relatively small amount (0.35 ha), I propose to settle a token sum of $50 per annum for deprivation of the surface of the land. Plant and animal pests on the land [16] Mr Barrett notes that The Gemfields “has every pest and pest animal in Queensland”. Mr Barrett’s property is very close to a public fossicking area and the problem of biosecurity has only recently been recognised. [17] Mr Cross states that he recognises his obligations for weed control and is acting accordingly. [18] A compensation decision is not the appropriate place to impose conditions to ensure biosecurity, or to refuse a mining claim because of biosecurity concerns. Further, given the many potential sources of pests, it is not appropriate to have Mr Cross pay for the eradication of these pests. The compulsory nature of the claim [19] There are two elements to Mr Barrett’s complaint about the compulsory nature of the claim. The first is that, because people can enter his land uninvited, he must spend time checking who is coming onto his land. He believes that he should check the claim every month and compensation should reflect that. 2 Mining Claim Work Program, filed 15 May 2019, 6. -- 4 of 6 -- 5 [20] In his mining claim work program, Mr Cross states that he will only be mining for eight months a year – from March to October. Therefore, the maximum number of checks Mr Barrett needs to do is eight. [21] It is reasonable to compensate Mr Barrett for the extra time and expense spent in checking that Mr Cross is complying with the conditions of his mining claim. Although Mr Barrett has, once again, declined to quantify the expense involved in these additional checks, I am prepared to settle an amount of $280 per annum (eight one-hour inspections per year at $35 per hour). [22] The second aspect of the compulsory nature of the claim is addressed by section 85(8)(e) of the MRA. I am obliged to determine an additional amount to reflect the compulsory nature of the claim, which shall be not less than 10% of the aggregate amount. Evidence of previous agreement [23] Mr Cross provided a copy of an agreement between Mr Barrett and the previous holder of MC 70598, Patrick Daniel McLoughlin. Under that agreement, Mr McLoughlin was to pay Mr Barrett $100 compensation for two years from 1 December 2016, for all mining activities arising out of MC 70598, including accessing water from the nearby dam. [24] Mr Cross says that, on the basis of that agreement, I should determine compensation at the sum of $150 per annum for the term of the renewal.3 [25] Mr Barrett says that I should not rely on that agreement at all, given that Mr McLoughlin was a friend from whom he had never asked for payment of the money under the agreement. [26] The agreement is not evidence of loss, it is only evidence that two people have reached an agreement. I will not rely on the agreement in determining the compensation payable. 3 Applicant’s Reply, filed 17 December 2019, 1. -- 5 of 6 -- 6 Conclusion [27] The compensation Mr Cross should pay to Mr Barrett is $330 per annum plus 10% to reflect the compulsory nature of the mining claim, giving a total of $363 per annum. Order: I determine compensation in respect of MC 70598 in the sum of Three Hundred and Sixty-Three Dollars ($363) per annum for the term of the renewal. -- 6 of 6 --