Donovan v Struber [2017] QLC 32

LAND COURT OF QUEENSLAND CITATION: Donovan v Struber & Anor [2017] QLC 32 PARTIES: Gary Awarua Donovan (applicant) v Stephen Roy Struber and Dianne Rose Wilson-Struber (respondents) FILE NO/s: MRA020-17 MRA021-17 DIVISION: General Division PROCEEDING: Determination of compensation for grant of mining leases. DELIVERED ON: 30 June 2017 DELIVERED AT: Brisbane HEARD ON: Submissions closed 8 June 2017. HEARD AT: Heard on the papers. JUDICIAL REGISTRAR: GJ Smith ORDER/S: 1. In respect of ML 20690 compensation is determined in the sum of $ 567.00 per annum. 2. In respect of ML 20691 compensation is determined in the sum of $ 578.00 per annum. 3. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1 and 2 within three months from notification of the issue of the mining leases by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining leases. -- 1 of 6 -- 2 CATCHWORDS: MINING LEASE – referral – grant – determination of compensation – compensation statement – use of Court judgments for determination purposes – Public Trustee of Queensland. Mineral Resources Act 1989, s 279, s 281 Public Trustee Act 1978, Part 7 Brown v Struber & Anor [2016] QLC 53 Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358 Fitzgerald & Ors v Struber & Anor [2009] QLC 76 GE Kelly v Struber & Anor [2012] QLC 74 Pavey & Anor v Struber & Anor [2016] QLC 79 Wills v Minerva Coal Pty Ltd (No.2) (1998) 19 QLCR 297 APPEARANCES: Not applicable. [1] On 9 February 2017 referrals by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) were received by the Land Court for the determination of compensation in respect of the grant of Mining Leases ML 20690 and ML 20691. Background [2] The applicant, Gary Awarua Donovan (the miner) seeks the grant of mining leases ML 20690 and ML 20691 and related access tracks on land described as Lot 14 on SP250040. This land is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners) and is known more commonly as Palmerville Station. [3] Palmerville Station is located in the Cook Shire Council local government area and is used for grazing purposes. The specific Land Court reference and tenure details are set out below: Reference Tenure ID Mining Area Access Area Term Lease Purpose MRA020-17 ML 20690 48.98 ha 4.86 ha 15 years Gold MRA021-17 ML 20691 49.88 ha 4.74 ha 15 years Gold -- 2 of 6 -- 3 [4] As the landowners are presently serving a term of imprisonment the referral documents from DNRM lists their address as: c/- The Queensland Public Trustee PO BOX 656 CAIRNS QLD 4870 Relevant Legislation [5] Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In this matter, no agreement has been lodged with DNRM and the matter has been referred to the Land Court for determination. [6] Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for: (i) deprivation of possession of the surface of land of the owner; (ii) diminution of the value of the land of the owner or any improvements thereon; (iii) diminution of the use made or which may be made of the land of the owner or any improvements thereon; (iv) severance of any part of the land from other parts thereof or from other land of the owner; (v) any surface rights of access; (vi) all loss or expense that arises; as a consequence of the grant or renewal of the mining lease. [7] Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows: (4) In assessing the amount of compensation payable under subsection (3)— … (e) an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, … shall be not less than 10% of the aggregate amount determined under subsection (3). [8] The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd (No.2)1 as follows: 1 (1998) 19 QLCR 297 page 315. -- 3 of 6 -- 4 “It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said: ‘The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation.’ Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.” The Conduct of the Proceedings and Evidence [9] A Deputy Registrar of the Land Court wrote to the parties on 6 April 2017 advising of a timetable for the delivery of materials and submissions in respect of each mining lease. [10] The miner forwarded to the Land Court registry a compensation statement and related submissions on 19 April 2017. The submission sets out the relevant details for each tenure and contends that only one amount of compensation should be assessed in respect of access given that the same road-access will provide access for both ML 20690 and ML 20691. The submission further notes that the subject land is used for low density grazing and suggest that mining areas be compensated at $10.00 per hectare per annum and access areas at $5.00 per hectare per annum in the basis of earlier determinations2 of this Court concerning Palmerville Station. [11] No compensation statement or associated submission has been provided by or on behalf of the landowners. Determination [12] In the absence of any materials whatsoever from the landowners and given that the assessment of compensation contended for by the miner is supported by recent Court judgments and uncontradicted by any expert or other evidence I intend (with one exception) to generally accept that miner’s suggested compensation. The 2 Brown v Struber & Anor [2016] QLC 53; Fitzgerald & Ors v Struber & Anor [2009] QLC 76; Pavey & Avor v Struber & Anor [2016] QLC 79. -- 4 of 6 -- 5 suggested amounts have been formulated on the basis of the determination in of Fitzgerald v Struber.3 As this assessment was based upon expert evidence received during a contested hearing it provides the most appropriate basis for the assessment of compensation given the materials before the Court. [13] The miner’s contention that I am not able to accept concerns the equal division of access compensation given that access to both ML 20690 and ML 20691 is largely provided via the same track by the one miner in respect of two leases, i.e. the contended amount of compensation, namely $5.00 per hectare per annum, should halved, save for a slightly additional access area to ML 20691. [14] The material before the Court does not allow me to conclude that the impacts flowing from the utilisation of the access tracks are neatly halved as a consequence of the tracks being utilised by the same miner to access both ML 20690 and ML 20691. The track in reality provides access to two separate leases upon which mining operations are able to occur regardless of the identity of the miner or miners involved. In the absence of clear evidence that these impacts are neatly halved I consider that the liberal estimate approach4 requires any doubts in respect of this aspect of the assessment to be resolved in favour of the claimant landowners.5 Accordingly, this assessment will be undertaken on the basis of compensation at $5.00 per hectare per annum in respect of access to each lease and $10.00 per hectare per annum in respect of mining areas. [15] The separate areas for mining and access will be rounded to the next full hectare for assessment purposes. The calculations for each lease are set out as follows: MRA020-17 re ML 20690 Area covered by mining lease – 49 ha @ $10 per ha = $ 490.00 per annum Area covered by mining access – 5 ha @ $5 per ha = $ 25.00 per annum add s 281(4)(e) re: compulsory nature of grant = $ 52.00 per annum Total = $ 567.00 per annum 3 Fitzgerald & Ors v Struber & Anor [2009] QLC 76. 4 Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358. 5 GE Kelly v Struber & Anor [2012] QLC 74 at [43]. -- 5 of 6 -- 6 MRA021-17 re ML 20691 Area covered by mining lease – 50 ha @ $ 10 per ha = $ 500.00 per annum Area covered by mining access – 5 ha @ $ 5 per ha = $ 25.00 per annum add s 281(4)(e) re: compulsory nature of grant = $ 53.00 per annum Total = $ 578.00 per annum [16] In light of the landowners present incarceration I will make a further order that the amounts of compensation for each lease be paid on their behalf to the Public Trustee of Queensland. 6 ORDERS 1. In respect of ML 20690 compensation is determined in the sum of $ 567.00 per annum per annum. 2. In respect of ML 20691 compensation is determined in the sum of $ 578.00 per annum per annum. 3. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1 and 2 within three months from notification of the issue of the mining leases by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining leases. GJ SMITH JUDICIAL REGISTRAR OF THE LAND COURT 6 Public Trustee Act 1978, Part 7. -- 6 of 6 --