Brown v Struber [2017] QLC 34

LAND COURT OF QUEENSLAND CITATION: Brown v Struber & Anor [2017] QLC 34 PARTIES: Stephen John Brown (applicant) v Stephen Roy Struber and Dianne Rose Wilson-Struber (respondents) FILE NO/s: MRA097-17 DIVISION: General Division PROCEEDING: Determination of compensation for grant of mining lease. 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 100088 compensation is determined in the sum of $121.00 per annum. 2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease. CATCHWORDS: MINING LEASE – referral – grant – determination of compensation – compensation statement – absence of expert evidence – use of Court judgments for determination purposes – Public Trustee of Queensland. -- 1 of 5 -- 2 Mineral Resources Act 1989, s 279, s 281 Public Trustee Act 1978, Part 7 Brown v Struber & Anor [2016] QLC 53 Brown v Struber & Anor [2016] QLC 54 Fitzgerald & Ors v Struber & Anor [2009] QLC 76 Fitzgerald v Struber & Anor [2016] QLC 6 Kelly v Struber & Anor [2016] QLC 7 Wills v Minerva Coal Pty Ltd (No.2) (1998) 19 QLCR 297 APPEARANCES: Not applicable. [1] These proceedings concern a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 281(1) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease ML 100088. Background [2] Stephen John Brown (the miner) seeks the grant of Mining Lease 100088 on land commonly known as Palmerville Station and more particularly described as Lot 14 on SP 250040. Palmerville Station is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). [3] The Mining Lease Area comprises of 6.936 ha together with an access track which covers an area of which covers 7.99 ha. The Court reference and the tenure details are set out below: Court Reference Tenure ID Mining Area Access Area Term Purpose MRA097-17 ML 100088 6.936 ha 7.99 ha 10 years Gold Relevant Legislation [4] 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. -- 2 of 5 -- 3 [1] 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. [5] 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). [6] The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd (No.2)1 as follows: “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.” 1 (1998) 19 QLCR 297 page 315. -- 3 of 5 -- 4 The Conduct of the Proceedings and Evidence [7] A Deputy Registrar of the Land Court wrote to the parties on 6 April 2017 to detail the Court process for the determination of compensation and to confirm dates for the filing of the evidence and materials that might be relied upon. [8] A compensation statement and related submissions were filed in the registry by the miner on 8 May 2017. No evidence or submissions have been filed by or on behalf of the landowners. [9] A summary of the submissions relied upon by the miners is set out as follows: i. Mining will be small scale with no greater than two employees. ii. Disturbance will be kept to 0.5 ha with progressive rehabilitation. iii. Current use is low intensity grazing with minimal carrying capacity. iv. Miner is conscious of avoiding interference with the business of the station and will respect the movement of cattle within mining and access areas. v. Suggests that compensation be assessed at $10.00 per hectare per annum in respect of mining areas and $5.00 per hectare per annum in respect of access areas on the basis of recent Land Court determinations2 and the earlier contested proceeding Fitzgerald & Anor v Struber & Anor [2009] QLC 76. Determination [10] In circumstances where no expert evidence has been filed by either party and no evidence whatsoever by the landowners, I consider the most appropriate approach is to rely on recent determinations of this Court made in relation to mining activities carried out within Palmerville Station. The recent determinations3 cited by the miner were all guided to some extent by the decision in Fitzgerald, a decision which resulted from a contested hearing involving expert evidence and inspection of Palmerville Station. It is on this basis that I am prepared to accept the rates of compensation contended for by the miner for the purposes of this determination. [11] For the purposes of assessment the access and mining areas have been rounded to the next full hectare. The calculations for each determination are set out as follows: 2 Brown v Struber & Anor [2016] QLC 53; Brown v Struber & Anor [2016] QLC 54; Fitzgerald v Struber & Anor [2016] QLC 6; Kelly v Struber & Anor [2016] QLC 7. 3 Ibid. -- 4 of 5 -- 5 MRA097-17 re ML 100088 Area covered by mining lease – 7 ha @ $ 10 per ha = $ 70.00 per annum Area covered by mining access – 8 ha @ $ 5 per ha = $ 40.00 per annum add s 281(4)(e) re: compulsory nature of grant = $ 11.00 per annum Total = $121.00 per annum [12] A period of imprisonment is currently being served by both landholders and as a result I intend to order that the compensation determined be paid to the Public Trustee of Queensland.4 ORDERS 1. In respect of ML 100088 compensation is determined in the sum of $121.00 per annum. 2. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amount set out in order 1 within three months from notification of the issue of the mining lease by the Department of Natural Resources and Mines and thereafter on the anniversary of the grant of the mining lease. GJ SMITH JUDICIAL REGISTRAR OF THE LAND COURT 4 Public Trustee Act 1978, Part 7. -- 5 of 5 --