Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2015] QLC 30

LAND COURT OF QUEENSLAND CITATION: Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2015] QLC 30 PARTIES: Eacham Abrasive Blasting Pty Ltd (applicant) v Grant Henrik Gundersen and Laurelle Ursula Lorna Gundersen (respondents) FILE NO: MRA 074-15 DIVISION: General Division PROCEEDING: Determination of compensation for renewal of mining lease DELIVERED ON: 3 August 2015 DELIVERED AT: Brisbane HEARD ON: Submissions closed on 29 May 2015 HEARD AT: Heard on the papers MEMBER: G.J Smith, Judicial Registrar ORDERS: 1. Compensation is determined in the total sum of One Thousand and Five Hundred dollars ($1,500.00). 2. The miner is to pay compensation to the respondents in the amount set out in Order 1 hereof within three (3) months of the renewal of Mining Lease 20094 by the Department of Natural Resources and Mines. CATCHWORDS: MINING LEASE – determination of compensation - renewal - factors to be considered – limited material provided by either party. Mineral Resources Act 1989, ss 279, 279A, 281. Land Court Rules 2000, Rule 36A Unimin Australia Limited v Freeman [2007] QLC 76 Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38 -- 1 of 4 -- 2 Oosen v Emu Creek Bar-Barrum Aboriginal Corporation (2008) QLC 23 Re Fitzgerald & Anor (2009) QLC 15 Re Fitzgerald and Hughes (2009) QLC 73 Re Kimmoth & Poole (2009) QLC 117 Palmer Gold NQ Pty Ltd v Strathleven WAR(NQ) Pty Ltd [2014]QLC 42 APPEARANCES: Not applicable [1] This matter involves a referral to the Land Court pursuant to s 279A of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the renewal of a mining lease. Background [2] On 26 June 2013, Mr Michael Lindsay Scott applied for the renewal of Mining Lease 20094 over land located at Stannary Hills in the Mareeba District. The land is within the Mareeba Shire Council local government area. Further renewal is sought for a period of 16 years. The purpose of the proposed renewal is for the mining of tin. [3] Subsequent to Mr Scott’s renewal application Eacham Abrasive Blasting Pty Ltd acquired Mining Lease 20094 and is recorded as the holder of the lease as and from 31 October 2013. [4] Mining Lease 20094 is located on land owned by Grant Henrik Gundersen and Laurelle Ursula Lorna Gundersen and more particularly described as Lot 598 on OL 64 Occupation Licence 598. [5] Mapping data supplied by the Department of Natural Resources and Mines (DNRM) indicates that ML 20094 comprises an area of 7.95 ha which I will round to 8 ha for determination purposes. Access to the mining lease area is via a track approximately 300 m (rounded to 1 km). Material submitted on behalf of the miner suggests that the width of the access track is 5 m this will result in an access area of .5 ha [rounded to 1 Ha for assessment purposes]. Relevant Legislation [6] 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 the DNRM and the matter has been referred to the Land Court for determination. -- 2 of 4 -- 3 [7] 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. [8] 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).” The Conduct of the Proceedings and Evidence [9] On 25 March 2015, the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No.5 of 2013. On 21 April 2015 a submission on behalf of the applicant was received by the Land Court registry. An email which accompanied the submission advised that the submission had been served upon the respondents. [10] Paragraph 1.3 of the applicants submission contains the following contention: “It is submitted that an appropriate case to refer to is Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38, where the Land Court awarded a compensation rate of $10.00 per hectare”. [11] In the absence of valuation or other expert evidence and given that there is no submission to contrary I am prepared to adopt the case suggested by the applicant for the purposes of determination of compensation in the current proceedings. It is worth noting that the case is quite recent, concerns the renewal of a mining lease in the Mareeba District, and appears to involve the same parties as the current proceedings. In that determination Member Smith allowed the sum of $10 per hectare per annum for the area covered by mining and $5 per hectare per annum for access. -- 3 of 4 -- 4 Determination [12] After considering the limited material and the relevant Court determination cited above, and taking into account all heads of compensation set out in s 281(3) of the MRA, I assess compensation for Mining Lease 20094 at $10 per hectare per annum in respect of the relevant mining area and $5 per hectare per annum in respect of access. This results in a total annual amount of $80 per annum in respect of the mining area and $5 per annum in respect of access. [13] Applying these amounts over the term of the mining lease (i.e. 16 years) amounts to $1,360.00 for the total renewal period. Pursuant to Section 281(4)(e) of the MRA, I will add an additional sum of $140.00 to reflect the compulsory nature of the grant of the mining lease. [14] This results in total compensation of $1500.00 for the 16 year extension period of the mining lease. In light of the amount of compensation and given the duration of the lease I am not inclined to order that the compensation be paid in annual instalments throughout the extension period. Orders 1. Compensation is determined in the total sum of One Thousand and Five Hundred dollars ($1,500.00). 2. The miner is to pay compensation to the respondent in the amount set out in Order 1 hereof within three (3) months of the issue of Mining Lease 20094 by the Department of Natural Resources and Mines. G.J. SMITH JUDICIAL REGISTRAR -- 4 of 4 --