Corella Valley Corporation Pty Ltd v Campbell [2019] QLC 44

LAND COURT OF QUEENSLAND CITATION: Corella Valley Corporation Pty Ltd v Campbell [2019] QLC 44 PARTIES: Corella Valley Corporation Pty Ltd ACN 009 827 678 (applicant) v Ian Charles Campbell (respondent) FILE NOs: MRA264-18 MRA265-18 DIVISION: General Division PROCEEDING: Determination of compensation payable for renewal of mining lease DELIVERED ON: 15 November 2019 DELIVERED AT: In chambers HEARD ON: Submissions closed 14 October 2019 HEARD AT: Heard on the papers MEMBER: PG Stilgoe OAM ORDERS: 1. In respect of the application for renewal of ML 2701, compensation for access is determined at nil ($0). 2. In respect of the application for renewal of ML 90106, compensation for access is determined at nil ($0). CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where both parties were automatically referred to the Court after lapsing of period in relevant mining legislation – where a compensation determination was required for the renewal of mining leases – where neither mining lease was over the subject land – where compensation was for access only – where compensation was decided on little to no evidence – whether evidence of another compensation agreement was instructive -- 1 of 8 -- 2 Land Court Act 2000 s 7(a) Mineral Resources Act 1989 s 281(3) Fitzgerald v Struber & Anor [2019] QLC 6, considered Lavaring v Proctor [1994] QLC 28, considered MIM Holdings Limited and Brancote Mining Limited v Campbell, (Mining Warden’s Court of Queensland), Mining Warden Windridge, 11 April 1995, considered Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82, cited Unimin Australia Limited v Freeman [2007] QLC 76, considered APPEARANCES: G Knight (solicitor), P.M. Lee & Co Lawyers, for the applicant IC Campbell, the respondent (self-represented) [1] Corella Valley Corporation Pty Ltd has two mining leases in the Cloncurry area, ML 2701 and ML 90106. The leases are adjacent to each other. Corella applied for a renewal of the access to the mining leases for a period of two years commencing on 1 May 2018. [2] Ian Charles Campbell owns Lot 554 on SP 177589. Access to both mining leases runs through his land. The access track runs from the Barkly Highway on an un-gazetted track and links up with Fountain Springs Road, which is gazetted, before continuing onto the neighbouring property. The access track through Mr Campbell’s land is 6.4 km long and 20 m wide, a total of 12.8 ha. [3] The parties have not been able to agree what compensation Corella should pay Mr Campbell for the access track so the dispute has been referred to the Court for determination. [4] The matters I must consider when determining compensation are set out in s 281(3) of the Mineral Resources Act 1989. It is important to note that the Act links compensation to a loss by the owner of the land or an expense incurred by the landowner through the miner’s use of the land. Parties should not regard the compensation payable under section 281 as a license to operate, unconnected to loss. [5] Mr Campbell submits the access track results in diminution of his use of the land.1 Because the dust generated by traffic on the track makes the vegetation close to the 1 Mineral Resources Act 1989 s 281(3)(a)(iii). -- 2 of 8 -- 3 road unpalatable to stock. Mr Campbell claims loss of production over much more land than the 12.8 ha which is the subject of these compensation determinations. Mr Campbell claims an amount for the administrative time involved in the court process. He also claims GST on any amount determined by the Court. [6] These are the issues that are relevant to my determination: 1. what compensation Mr Campbell should receive; 2. the significance, if any, of other agreements reached in relation to this, or similar, land; 3. the impact, if any, of other miners or travellers using the access road; 4. Mr Campbell’s complaint that Corella has not complied with an agreement in the past; and 5. whether GST should be added to the amount determined by the Court. Compensation [7] Although the Land Court is not bound by the rules of evidence,2 and the Court is no stranger to deciding mining compensation in the absence of any material from the parties, the Court cannot craft a right to compensation from thin air. [8] Mr Campbell calculated compensation over 10.1 linear kilometres at $250 per kilometre. The figure of 10.1 km includes the length of both the gazetted and the un- gazetted road. Mr Campbell does not explain how he arrives at a figure of $250/km. Using that formula, Mr Campbell calculated an entitlement to $2500 per annum but he is prepared to reduce that figure to $1500 per annum in line with another agreement he has with a different miner over the same access. [9] Instead of evidence to support his claim, Mr Campbell provided a copy of a Warden’s determination dated 11 April 1995.3 Like the present case, Mr Campbell was the respondent landowner. Like the present case, Mr Campbell provided no valuation evidence. 2 Land Court Act s 7(a). 3 MIM Holdings Limited and Brancote Mining Limited v Campbell, (Mining Warden’s Court of Queensland), Mining Warden Windridge, 11 April 1995. -- 3 of 8 -- 4 [10] The Warden had to decide compensation payable for the renewal of a 20 year lease. The Warden noted there was no evidence that the value of the land would diminish or that there was any loss or expense arising from the loss of the land for the term of the renewal. He determined that the only head of compensation relevant was deprivation of possession of the surface of the land. [11] The access track is not fenced. The application for renewal is for a period of two years. In the circumstances, there is no basis for a finding that Mr Campbell has been deprived of possession of the surface of the land over which the access track passes and, therefore, no basis for adopting the Warden’s method of calculation of loss. [12] Mr Campbell says that dust and vegetation disturbance generated by the track use renders the vegetation unpalatable for a distance of 100 m on both sides of the road. Without supporting evidence, I am unable to accept that submission: 1. The track has been in use for many years; Mr Rush, a director of Corella, gave evidence that the mining leases had been held since the early 1970s4 and the access track was constructed between 1974 and 1976.5 Any initial effect on cattle behaviour must have dissipated by now. 2. This track is not extensively used. Corella submits that it will only be using the track a couple of times per month.6 3. Mr Rush’s video shows a narrow access track with reasonably vigorous vegetation on both sides. The access track is probably little wider than a conventional four-wheel-drive. There is no evidence of dust deposits on the surrounding vegetation, even close to the road. [13] Corella suggests that compensation should be assessed at $5 per hectare per year, based on decisions such as Fitzgerald v Struber.7 Compensation at that rate would amount to $41.25 per year, if I accept Corella’s submission that the access track is in fact 5.7 km long and 15 m wide, a total of 8.25 ha. As I have previously mentioned, the Struber case and other like cases are not based on any real evidence and rely on 4 Affidavit of Mr DC Rush para 2. 5 Ibid para 8. 6 Ibid para 13. 7 [2019] QLC 6 [16]. -- 4 of 8 -- 5 assessments made many years ago.8 However, in the absence of any credible evidence the court can achieve consistency, if not fairness, by following the precedent set in those cases.9 [14] The Court has previously accepted that the presence of miners on grazing country does impose some additional burden on the landowner.10 It is possible that Mr Campbell has suffered a loss because of this access track but he has provided me with no information that I can use to assess that loss. As I will not determine that Mr Campbell is entitled to payment for the mere presence of the access track, I determine the amount of compensation at nil. The relevance of other agreements [15] Both Corella and Mr Campbell have pointed to other agreements as forming the basis for my assessment of compensation. Agreements do not provide evidence of value; they provide evidence of what parties are willing to negotiate. If I have no information about the circumstances in which those agreements were negotiated, I am unable to find that they represented a bargain that satisfies the Spencer11 test. That another miner was prepared to pay considerably more does not mean that Corella is similarly obliged. That Corella was prepared to pay considerably more in a previous compensation agreement does not mean it is now bound to that figure. That Mr Campbell and other landowners were prepared to accept little or no compensation in the past does not mean that Mr Campbell must now be placed in the same position. [16] The fact that Mr Campbell was able to negotiate a better compensation deal demonstrates the advantages of alternative dispute resolution and the limitations of court determined compensation. The use of the track by others [17] Corella submits that, if an access track is used by multiple parties, including miners, charging each miner the full value of Mr Campbell’s losses is “doubling up”.12 8 Ibid [15]. 9 Unimin Australia Limited v Freeman [2007] QLC 76 [14]; Central Gold Mines Pty Ltd v Terry & Ors [2019] QLC 34 [33]-[34]. 10 Lavaring v Proctor [1994] QLC 28, 5. 11 Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82. 12 McKeon v Jersey Plains Pastoral Company [2014] QLC 45 [10]. -- 5 of 8 -- 6 [18] The access track is used by at least one other miner. It is available to the public as part of a mining heritage trail.13 [19] Corella is, therefore, not the only user of the access track. I agree with Corella’s submission that it should only be liable to compensate Mr Campbell for the proportion of loss attributable to its own operations. [20] I have no information about how often travellers access the mining heritage trail. I suspect it is not a major attraction given the condition of the road and the warnings posted at the entrance; nonetheless, there will be some hardy souls who undertake that trail each year. Given the lack of information about the public use of the track for the heritage trail, I decline to discount the amount payable by Corella for that use. [21] As there is another miner using the access track, and that miner’s use must contribute to the diminution of Mr Campbell’s use of the access track land, I cannot accept that Corella should bear the full amount of Mr Campbell’s loss. Indeed, in similar cases, where the track was used by “any number of persons who have leases, claims or prospecting” the Land and Resources Tribunal had declined to make any award for access.14 As it appears that Corella’s use of the track is comparable to the other miner’s use, Corella’s contribution to any loss should be no more than 50%. [22] Fifty percent of zero is, of course, zero. Mr Campbell’s administration costs [23] Mr Campbell points out that he is part of a family owned property running beef cattle, the family are not legal people, and that he has spent a considerable amount of time processing paperwork, attending to phone calls and other events in connection to mines, leases and agreements on his property. [24] Mr Campbell is entitled to compensation for all loss and expense that arises as a consequence of the renewal of the mining lease.15 However, the Court has construed that entitlement strictly so that it does not include a landholders’ costs in negotiating 13 Affidavit of Mr DC Rush attachment DCR-5. 14 See, for example, Broken River Mining Pty Ltd v Beattie [2007] QLRT 35 [11]. 15 Mineral Resources Act s281(3)(vi). -- 6 of 8 -- 7 with a miner.16 Mr Campbell is not entitled to compensation for his time in trying to agree compensation with Corella. [25] Even if I did have the power to compensate Mr Campbell on this basis, he has given me no guidance as to how that amount should be calculated. Previous non-compliance [26] As this Court has previously indicated, I have to calculate compensation by assuming that Corella will comply with its obligations.17 The Court cannot “punish” a miner for previous non-compliance by increasing the amount of compensation payable for renewed rights of access.18 GST [27] I note that neither the Land and Resources Tribunal nor the Land Court has a history of adding GST to compensation determinations.19 GST is payable on a taxable supply.20 Compensation paid under the Mineral Resources Act is not payment for a supply by Mr Campbell. It is payment for loss or damage he has incurred because of Corella’s mining operation. Therefore, GST would not be payable on any amount I determined. Conclusion [28] In the absence of any evidence to support a proper consideration of compensation, I have determined that the amount of compensation is nil. [29] Because this decision relates to two mining leases, there must be a decision about compensation for each of those leases. The orders will reflect that determination. Orders: 1. In respect of the application for renewal of ML 2701, compensation for access is determined at nil ($0). 16 Wills v Minerva Coal Pty Ltd (1998) 19 QLCR 297, 363. 17 Lavaring v Proctor [1994] QLC 28, 4-5. 18 Valantine v Henry [2018] QLC 21 [68]. 19 See, for example, Hennessy v Georgina Pastoral Company Ltd [2007] QLRT 108 [15]; Deimel v Cochrane & Anor [2014] QLC 8 [22]. 20 A New Tax System (Goods and Services Tax) Act 1999 (Cth) s 9-10(2). -- 7 of 8 -- 8 2. In respect of the application for renewal of ML 90106, compensation for access is determined at nil ($0). PG STILGOE OAM MEMBER OF THE LAND COURT -- 8 of 8 --