Donovan v Struber [2017] QLC 27

LAND COURT OF QUEENSLAND CITATION: Donovan v Struber & Anor [2017] QLC 27 PARTIES: Gary Awarua Donovan (applicant) v Stephen Roy Struber and Dianne Rose Wilson-Struber (respondents) FILE NO/s: MRA1137-16 MRA1138-16 MRA1139-16 DIVISION: General Division PROCEEDING: Determination of compensation for grant of mining leases. DELIVERED ON: 7 June 2017 DELIVERED AT: Brisbane HEARD ON: Submissions closed 16 January 2017. HEARD AT: On the papers JUDICIAL REGISTRAR: GJ Smith ORDER/S: 1. In respect of ML 100084 compensation is determined in the sum of $281.00 per annum. 2. In respect of ML 100085 compensation is determined in the sum of $94.00 per annum. 3. In respect of ML 100087 compensation is determined in the sum of $237.00 per annum. 4. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1, 2 and 3 within three months from notification of the issue of the mining leases by the -- 1 of 6 -- 2 Department of Natural Resources and Mines and thereafter on the anniversary of the renewal of the mining leases. CATCHWORDS: MINING LEASE – referral – renewal – 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 Brown v Struber & Anor [2016] QLC 54 Fitzgerald & Ors v Struber & Anor [2009] QLC 76 Goldhound Pty Ltd v Struber & Anor [2016] QLC 65 Kelly v Struber & Anor [2016] QLC 7 Munro & Anor v Struber & Anor [2016] QLC 49 Wills v Minerva Coal Pty Ltd (No.2) (1998) 19 QLCR 297 APPEARANCES: Not applicable. [1] These proceedings concern referrals 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 Leases ML 100084, ML 100085 and ML 100087. Background [2] The applicant, Gary Awarua Donovan (the miner) seeks the grant of three mining leases and associated access tracks on land described as Lot 14 on SP250040. This land is more commonly known as Palmerville Station and is owned by the respondents Stephen Struber and Dianne Wilson-Struber (the landowners). Palmerville Station is located in the Cook Shire Council local government area and is used for grazing purposes. -- 2 of 6 -- 3 [3] The specific Land Court reference and tenure details are set out as follows: Court Reference Tenure ID Mining Area Access Area Term Lease Purpose MRA1137-16 ML 100084 20.08 ha 8.7 ha 18 years Silver Ore, Gold MRA1138-16 ML 100085 2.995 ha 10.3 ha 18 years Silver Ore, Gold MRA1139-16 ML 100087 16.61 ha 8.8 ha 18 years Gold [4] The landowners are currently serving a period of imprisonment and consequently the referral documents list the address for the respondents 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, -- 3 of 6 -- 4 ... 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: “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] On 11 November 2016, a Deputy Registrar of the Land Court wrote to the parties in respect of each mining lease setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No. 6 of 2015. [10] On 7 December 2016 a compensation statement and submissions were received by the Land Court registry on behalf of the applicant. A summary of the contentions made are set out as follows: i. the subject land’s present use is “low density grazing” and consists of rocky quartz outcrops with some steep gullies; ii. the three proposed mining leases are located in an area where numerous other mining leases are located; iii. the proposed access will follow existing tracks used by other miners; iv. the miner will not interfere with farming operations on station and understands the movement of any cattle within the mining and access areas; 1 (1998) 19 QLCR 297, page 315. -- 4 of 6 -- 5 v. that compensation be determined at an annual rate of $10.00 per hectare per annum in respect of mining areas and $5.00 per hectare per annum in respect of access areas; vi. Court determinations2 relating to compensation for mining leases in the vicinity of the subject leases support the suggested amounts of compensation. [11] The landowners filed no material or submission in reply to that provided by the miner. Determination [12] As there has been no valuation or other expert evidence before the Court and no material at all from the landowners, the assessment of compensation is, in my view, most accurately assisted by being guided by Land Court judgments from the Mareeba mining district which were based on expert evidence tested by cross examination, with full submissions and an inspection of Palmerville Station. One such judgment is Fitzgerald & Ors v Struber & Anor3 and involved Mr Struber and Mrs Wilson-Struber as respondents. The Court in Fitzgerald determined compensation at $10.00 per ha per annum for mining lease areas and $5.00 per ha per annum for access areas. [13] The Court judgments detailed in the miner’s submission have been guided by the basis of the Fitzgerald determination and I therefore consider those determinations also provide a proper foundation for the assessment of compensation for in respect of ML 100084, ML 100085 and ML 100087. [14] The relevant access and mining areas have been rounded to the next full hectare. The calculations for each determination are set out as follows: MRA1137-16 re ML 100084 Area covered by mining lease – 21 ha @ $10 per ha = $210.00 per annum Area covered by mining access – 9 ha @ $5 per ha = $45.00 per annum add s 281(4)(e) re: compulsory nature of grant = $26.00 per annum Total = $281.00 per annum 2 Brown v Struber & Anor [2016] QLC 53; Brown v Struber & Anor [2016] QLC 54; Kelly v Struber & Anor [2016] QLC 7; Goldhound Pty Ltd v Struber & Anor [2016] QLC 65; Munro & Anor v Struber & Anor [2016] QLC 49. 3 [2009] QLC 76. -- 5 of 6 -- 6 MRA1138-16 re ML 100085 Area covered by mining lease – 3 ha @ $10 per ha = $30.00 per annum Area covered by mining access – 11 ha @ $5 per ha = $55.00 per annum add s 281(4)(e) re: compulsory nature of grant = $9.00 per annum Total = $94.00 per annum MRA1139-16 re ML 100087 Area covered by mining lease – 17 ha @ $10 per ha = $170.00 per annum Area covered by mining access – 9 ha @ $5 per ha = $45.00 per annum add s 281(4)(e) re: compulsory nature of grant = $22.00 per annum Total = $237.00 per annum [15] The landowners are currently serving a period of imprisonment and as a result of this circumstance I order that the compensation determined be paid on their behalf to the Public Trustee of Queensland.4 ORDERS 1. In respect of ML 100084 compensation is determined in the sum of $281.00 per annum. 2. In respect of ML 100085 compensation is determined in the sum of $94.00 per annum. 3. In respect of ML 100087 compensation is determined in the sum of $237.00 per annum. 4. The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners the amounts set out in orders 1, 2 and 3 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 renewal of the mining leases. GJ SMITH JUDICIAL REGISTRAR OF THE LAND COURT 4 Refer to Public Trustee Act 1978, Part 7. -- 6 of 6 --