ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4 (2015) 212 LGERA 342; (2015) 36 QLCR 318

LAND APPEAL COURT OF QUEENSLAND CITATION: ERO Georgetown Gold Operations Pty Ltd v Henry [2015] QLAC 4 PARTIES: ERO GEORGETOWN GOLD OPERATIONS PTY LTD (appellant) v THOMAS PETER HENRY (respondent) FILE NO/S: LAC003-15 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal from the Land Court of Queensland ORIGINATING COURT: Land Court DELIVERED ON: 27 November 2015 DELIVERED AT: Brisbane HEARING DATE: 16 November 2015 THE COURT: Peter Lyons J WL Cochrane, Member of the Land Court WA Isdale, Member of the Land Court ORDER: Appeal dismissed. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – MATERIAL CHANGE IN CIRCUMSTANCES FOR THE MINING LEASE – where the appellant held a mining lease over land leased by the respondent – where the mining lease was renewed in 2002 to 2011 and a related compensation agreement was entered into (2002 Compensation Agreement) – where the 2002 Compensation Agreement included a condition that the roads in the area of the mining operation would be maintained in good order – where the respondent applied for a further renewal on 1 November 2010, and the parties entered into a mining compensation agreement with respect to the proposed renewal on 23 March 2012 – where in September 2013 the appellant constructed a fence with a locked gate across an area of land on which there was then a constructed road (the Formation) – where, from the early 1990s, the local government has maintained a constructed road on the Formation “to a good standard” – where there -- 1 of 22 -- 2 was no suggestion that persons using the Formation thought it necessary to seek the permission of the lessee of the land which accommodates the Formation – whether the Land Court erred in deciding to amend the compensation payable with respect to the mining lease on the basis that the appellant’s construction of a fence across the Formation was a material change in circumstances for the mining lease for the purposes of s 283B(1)(b) – whether, for s 283B(1)(b)’s purposes, the change in circumstances must have “as its object or purpose the mining lease itself” – whether the appellant’s fencing off of the Formation was within the parties’ contemplation when they entered into the 2002 Compensation Agreement Acts Interpretation Act 1954 (Qld), s 14. Land Act 1994 (Qld), s 93, s 94, s 95, s 96, s 97 Local Government Act 2009 (Qld), s 59, s 60 Mineral Resources Act 1989 (Qld), s 276, s 279, s 281, s 282, s 283B Property Law Act 1974 (Qld), s 198A American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; [1981] HCA 65, cited. Folkestone Corporation v Brockman [1914] AC 338, cited. Hicks & Anor v Graham & Anor [2004] QLRT 47, cited. Mann v Brody (1885) 10 AC 378, cited. Newington v Windeyer (1985) 3 NSWLR 555; (1985) LGRA 289, cited. R v Petrie (1855) 4 E & B 737; [1855] EngR 38, cited. Turner v Walsh (1881) 6 AC 636, discussed. COUNSEL: R I M Lilley QC with J K Carter for the appellant E J Morzone for the respondent SOLICITORS: Miller Harris Lawyers for the appellant Emanate Legal for the respondent [1] THE COURT: In September 2013, the appellant (ERO) constructed a fence with a locked gate across an area of land on which there was then a constructed road (the area of land is referred to as the Formation). The respondent (Mr Henry) alleged that this was a “material change in circumstances for the mining lease” for an area which included the fence and the road, for the purposes of s 283B of the Mineral Resources Act 1989 (Qld) (MRA), with the consequence that the Land Court might amend compensation payable by the appellant to the respondent under a compensation agreement made between the appellant and the respondent. The Land Court so held. It ordered additional compensation to Mr Henry in the sum of $41,861.72. The appellant contends that the Land Court Member erred in a number of respects, including in finding that there had been a material change of circumstances. -- 2 of 22 -- 3 General background [2] Mr Henry is the registered lessee of a property known as Flat Creek Station, located approximately 50 kilometres south west of Georgetown. [3] The Formation crosses the northern boundary of Flat Creek Station, towards its eastern end, then passing through an adjoining property to the north (referred to as the Delaney Holding). It then connects to Forsayth Road. The Formation has provided access from Flat Creek Station to Georgetown. [4] In the latter part of the 19th Century gold was discovered in the vicinity of the Gilbert River, which is the western boundary of Flat Creek Station1. The Green Hills mineral field was declared on 23 April 18962. An associated town called MacDonald Town was established, and surveyed in 18963. An 1896 survey plan for MacDonald Town showed a road or track travelling in a north easterly direction as leading to Georgetown4. [5] In 1919, Mr John R Shield carried out a survey of a road, following a track that had developed through the south-eastern corner of the Delaney Holding5. Its relationship to the Formation is discussed later. [6] A 1968 plan prepared by the Survey Office showed the Delaney Holding, with a road through its south-eastern corner, identified as “FIVE CHAIN ROAD”6. The location of the road appears consistent with the 1919 survey. The plan appears to have been intended to identify the Delaney Holding. Beneath the identification of that property at the foot of this plan, appear the words “EX ROAD”. A 1983 Department of Mines map also showed a road or track through the Delaney Holding in this location7. [7] Aerial photography from 1972 examined by Mr Kerry Smith, a surveyor who gave evidence, showed what might have been vehicular tracks in this vicinity8. Topographic maps based on aerial photography of the same year also depicted a vehicular track in a similar location to the Formation through the Delaney Holding9. [8] Mr Henry gave evidence, accepted by the learned Member10, that he had used a track along the land referred to as the Formation since the 1970s, though it would appear the alignment of the track at that time did not entirely coincide with the Formation11. In the early 1980s, Mr Henry’s brothers made some improvements to the track. In 1982 the improved track was used to bring in materials to Flat Creek Station. It was also used in 1984 by neighbours to transport a water tank. By about this time, it was of a standard that could be used for trucking cattle to and from Flat Creek Station12. The road 1 See Record Volume (R) 4/651; compare R 1/169. 2 R 5/809; Reasons for Judgment of the Land Court dated 13 May 2015 (RJ) [9]. 3 R 5/809; R 4/651; R 5/831. 4 R 5/831. 5 R 5/888, 890, 923, 953-960. 6 R 4/755. 7 RJ [23], R 5/832; see also Exhibit 38, R 6/1135. 8 RJ [28]. 9 RJ [25]. 10 RJ [34], [40], [42]. 11 R 1/22 (lines 20-22). 12 R 1/25-26. -- 3 of 22 -- 4 formation, more or less in a position of the Formation, was then being graded and maintained by various miners13. [9] From the early 1990s, the local government (Etheridge Shire Council) has maintained the constructed road on the Formation “to a good standard”14. It would appear that in about May 1996, the Council graded and widened a part of the road or track on the Formation; and in 2012, the Council widened the formed area, re-formed it, and built concrete causeways.15 The Formation does not coincide with the 1919 road survey. In the relevant part of ML 30124 it was found to be “quite close to, but outside of” the surveyed area16. By reference to scaled plans, the learned Member found the two to be separated by a distance of six metres, where they were closest17. [10] In about 1997, the respondent decided to establish a camping ground on Flat Creek Station. He wrote to the Department of Natural Resources, and by letter of 15 November 1999 received notice of ministerial approval “to conduct a low key tourism” on the Station18. He also obtained a development permit from the Council as a result of an approval of 14 August 2000 to conduct a camping ground on the property19. An annexure, apparently to the planning application, identified the location of the camping ground as 2.5 kilometres “from the existing council maintained road that services the Flat Creek homestead”20. A sketch plan apparently associated with the approval showed the location of the camping ground at MacDonald Town, the location of the Station, and a link between the proposed camping ground and what appears to be a hand-drawn sketch of the Formation21. The Station’s website identifies what is offered at the camping ground, with driving directions from Georgetown shown as along the Forsayth Road, then onto a gravel road, no doubt the Formation22. Mining lease history [11] Part of the land subject to ML 30124 was at one time subject to ML 341123. In January 1992, Mr Stewart Smith applied for ML 30074, which related to the land which had been the subject of ML 341124. It became necessary to make separate applications for parts of this land, which Mr Smith did, resulting in the grants of MLs 30074 (over a reduced area), 30076 and 3008225. On 11 November 1993, Mr Smith lodged an application to consolidate these mining leases. This was successful, resulting in the grant of ML 30124, commencing on 1 May 1994, with an expiry date on 31 October 200226. 13 RJ [39]. 14 RJ [41]. 15 R 4/622-623. 16 RJ [35]. 17 RJ [36]. 18 R 5/815. 19 See R 5/820; 811. 20 R 5/814. 21 R 5/816. 22 R 5/810; 2/309. 23 RJ [12]. 24 RJ [13]. 25 RJ [13]. 26 RJ [14]. -- 4 of 22 -- 5 [12] ML 30124 was renewed from 1 November 2002 to 30 April 2011 (2002 renewal). On 24 November 2002, Mr Smith and the respondent had entered into a compensation agreement under s 279 of the MRA. This agreement related to the 2002 renewal. The agreement included a condition that roads in the area of the mining operation would be maintained in good order27. [13] On 24 September 2003, ML 30124 was transferred from Mr Smith to the appellant (then named Douglas Resources Pty Ltd)28. [14] On 1 November 2010, the appellant applied for a further renewal of ML 3012429. On 23 March 2012, the appellant and the respondent entered into a mining compensation agreement under s 279 of the MRA. It related to the (then proposed) renewal of the mining lease30. [15] The appellant’s application to renew ML 30124 was granted on 29 May 201431. The decision to grant the renewal of ML 30124 was subject to a number of conditions32. Condition 1 required there be no surface disturbance on the constructed portion of Flat Creek Road, as constructed and maintained by the Etheridge Shire Council, unless an alternate access has been constructed to allow continued public access to all persons using the road.33 [16] On 8 December 2011 there was a directions hearing in relation to, it would seem, compensation relating to the appellant’s application to renew ML 3012434. At that hearing, the appellant’s representative said, “We will not mine on the road. We will not mine close to the road that would affect the road in any way. I’m afraid I think it’s simply not an issue.”35 Statutory context for proceedings in Land Court [17] Under the MRA as it stood from 20 June 2002, provision was made for an application to renew a mining lease. However, the further term could not include a period that was not covered by an agreement as to, or determination of, compensation, pursuant to ss 279, 281 or 282 of the MRA36. Consistently, s 279(1) provided that a mining lease should not be renewed unless compensation was determined, either by agreement, or by determination of the Tribunal, between the applicant for the renewal, and any person who is the owner of land the surface of which was the subject of the application, or a person who is the owner of any surface access to the mining lease land. Such an agreement was required to be in writing, and filed in the Office of the Mining Registrar37. 27 R 1/178-180. 28 RJ [17]. 29 RJ [16]. 30 See R 1/184. 31 RJ [16]. 32 RJ [16]. 33 See R 4/695 34 Transcript of Proceedings 16 November 2015 (T) 1-53. 35 R 2/282. 36 See s 286(3) of the MRA. 37 See s 279(3). -- 5 of 22 -- 6 [18] By November 2010, when the appellant applied to renew ML 30124, there had been some changes to these provisions, though the changes were not material. Section 286 still made provision for an application for renewal of a mining lease. However, s 286A(3) was the provision that limited the term of the renewal to a period for which compensation had been agreed, or determined under ss 279, 281 or 28238. Section 279(1) prohibited the renewal of a mining lease unless compensation had been determined, whether by agreement, or by determination of the Land Court, between the applicant and each person who was the owner of the land the surface of which is the subject of the application, or who was the owner of any surface access to the mining lease land. [19] In September 2013 when the fence was constructed, s 283B of the MRA was in the following terms39: “283B Review of compensation by Land Court (1) This section applies if — (a) compensation has been agreed under section 279 or 280 or determined under section 281 or 282 for a mining lease (the original compensation); and (b) there has, since the agreement or determination, been a material change in circumstances for the mining lease. Example of a material change in circumstances— a different mining method that changes the impact of mining operations under the lease (2) The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation. (3) Sections 281(3) to (7), 282 and 282A apply, with necessary changes, to the review as if it were an application under section 281(1). (4) The Land Court may, after conducting the review, decide to confirm the original compensation or amend it in a way the Land Court considers appropriate. (5) However, before making the decision, the Land Court must have regard to— (a) the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and 38 See Mineral Resources Act 1989 (Qld), reprint 1H reprinted as in force on 1 September 2010, s 286A(3). 39 See Mineral Resources Act 1989 (Qld), reprint 14 May 2013 rv* current as at 14 May 2013. -- 6 of 22 -- 7 (b) whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and (c) any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined. (6) If the decision is to amend the original compensation, the original compensation, as amended under the decision, is for this Act, other than this section, taken to be the original compensation.” [20] The application which led to the proceeding in the Land Court was brought under s 283B of the MRA. However, as the Reasons for Judgment of the Land Court disclose, the respondent also sought relief under s 363, being damages40. That section was as follows: “363 Substantive jurisdiction (1) The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining. (2) Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to— (a) the right to possession of or other interest or share in any mining claim, exploration permit, mineral development licence or mining lease; and (b) the rights and entitlements to minerals mined under any mining tenement or other authority granted under this Act or any other Act relating to mining and to the products of mining; and (c) the area, dimensions and boundaries of land (including the surface area of land) the subject of a mining tenement; and (d) any encroachment or trespass upon or interference with or damage to land the subject of a prospecting permit, mining claim, exploration permit, mineral development licence, mining lease or other authority granted under this Act or the buildings, plant, machinery or equipment thereon; and (e) any matter arising between applicants or holders in relation to prospecting, exploring or mining, or arising between applicants or holders and owners of land in relation to prospecting, exploring or mining; and 40 RJ [5]. -- 7 of 22 -- 8 (ea) any dispute or other matter arising between persons identified in native title protection conditions as an explorer or as a native title party, if the conditions— (i) under section 25AA, are included in the conditions imposed on a prospecting permit; or (ii) under section 141AA, are included in the conditions determined for an exploration permit; or (iii) under section 194AAA, are included in the conditions determined for a mineral development licence; and (f) any determination or review of compensation as provided for under this Act or any other Act relating to mining; and (g) the enforcement of any agreement or determination as to compensation under this Act or any other Act relating to mining; and (h) any assessment of damage, injury or loss arising from activities purported to have been carried on under the authority of this Act or any other Act relating to mining; and (i) any application required by this Act or any Act relating to mining to be made or heard in the Land Court. (3) The Land Court also has jurisdiction to hear and determine actions, suits and proceedings with respect to any demand for debt or damages arising out of or made in respect of— (a) the carrying on of prospecting, exploring or mining; (b) any agreement relating to prospecting, exploring or mining. (4) This section does not confer jurisdiction on the Land Court in relation to the recovery of wages or amounts owing under an industrial award or agreement.” [21] When ML 30124 expired on 30 April 2011, s 286C provided as follows41: “286C Continuation of lease while application being dealt with (1) Subsection (2) applies if— (a) a properly made application for renewal of a mining lease is not withdrawn, refused or granted before the lease’s expiry day ends; and (b) after the expiry day, the holder— 41 See Mineral Resources Act 1989 (Qld) reprint 12B, reprinted as in force on 4 April 2011. -- 8 of 22 -- 9 (i) continues to pay rental on the lease and other amounts required to be paid under this Act; and (ii) otherwise complies with this Act and the lease conditions. (2) The lease continues in force subject to the rights, entitlements and obligations in effect immediately before the end of the expiry day until the application is withdrawn, refused or granted.” [22] On the hearing of the appeal, it was common ground that when the fence was constructed in September 2013, the appellant had the rights conferred by the extension of ML 30124 in 2002, for which the Compensation Agreement was the 2002 agreement. Further statutory context [23] Notwithstanding that many of the relevant events occurred well in the past, this appeal has been conducted by reference to the provisions of the Local Government Act 2009 (Qld) (LGA) and the Land Act 1994 (Qld) as those Acts stood at 1 January 2015. The principal provisions from the LGA are the following: “Part 3 Roads and other infrastructure Division 1 Roads 59 What this division is about (1) This division is about roads. (2) A road is— (a) an area of land that is dedicated to public use as a road; or (b) an area of land that— (i) is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; and (ii) is open to, or used by, the public; or (c) a footpath or bicycle path; or (d) a bridge, culvert, ford, tunnel or viaduct. (3) However, a road does not include— (a) a State-controlled road; or (b) a public thoroughfare easement. 60 Control of roads (1) A local government has control of all roads in its local government area. (2) This control includes being able to— -- 9 of 22 -- 10 (a) survey and resurvey roads; and (b) construct, maintain and improve roads; and (c) approve the naming and numbering of private roads; and (d) name and number other roads; and (e) make a local law to regulate the use of roads, including— (i) the movement of traffic on roads, subject to the Transport Operations (Road Use Management) Act 1995; and (ii) the parking of vehicles on roads, subject to the Transport Operations (Road Use Management) Act 1995 (including the maximum time that a vehicle may be parked in a designated rest area that adjoins a road, for example); and (iii) by imposing obligations on the owner of land that adjoins a road (including an obligation to fence the land to prevent animals going on the road, for example); and (f) make a local law to regulate the construction, maintenance and use of— (i) public utilities along, in, over or under roads; and (ii) ancillary works and encroachments along, in, over or under roads; and (g) realign a road in order to widen the road; and (h) acquire land for use as a road. (3) Nothing in subsection (1) makes a local government liable for the construction, maintenance or improvement of a private road. (4) A private road is a road over land that is owned by a person who may lawfully exclude other persons from using the road.” [24] It may be noted that the Local Government Act 1993 (Qld) included a definition of “road” in similar language to s 5942; and a provision in similar terms to s 60 of the LGA43. [25] The provisions of the Land Act of principal relevance are the following “Part 2 Roads Division 1 Dedicating and opening roads 93 Meaning of road 42 See s 3 of the Local Government Act 1993. 43 See s 901 of the Local Government Act 1993. -- 10 of 22 -- 11 (1) A road means an area of land, whether surveyed or unsurveyed— (a) dedicated, notified or declared to be a road for public use; or (b) taken under an Act, for the purpose of a road for public use. (2) The term includes— (a) a street, esplanade, reserve for esplanade, highway, pathway, thoroughfare, track or stock route; and (b) a bridge, causeway, culvert or other works in, on, over or under a road; and (c) any part of a road. 94 Dedication of road (1) The Minister may dedicate unallocated State land as a road for public use. (2) A person may apply for the dedication of land as a road for public use. (3) The Minister may dedicate land as a road for public use without receiving any application under subsection (2). (4) Land may be dedicated as a road for public use by the registration of a dedication notice or a plan of subdivision. (5) On the day the dedication notice or plan of subdivision is registered— (a) the dedication of the land as a road for public use takes effect; and (b) the land is opened for public use as a road. 95 Roads vest in the State The land in all roads dedicated and opened for public use under the following Acts vests in, or remains vested in, the State— (a) this Act, or an Act repealed by this Act or repealed by the repealed Act; (b) the Land Title Act 1994. 96 Roads in existing leases are dedicated (1) If a road is shown on an existing lease or an existing lease mentions a plan and the plan shows a road is excluded from the lease, the road is taken to have been always dedicated as a road and open for public use. -- 11 of 22 -- 12 (2) If the width of the road is not shown on the lease or plan, the width is taken to be 60m. (3) If a better description of the location of a road becomes available, the Minister, by gazette notice, may declare the location of the road is amended by the description stated in the notice. 97 Clarification of road status If there is doubt about whether or not land has been dedicated and opened for public use as a road, the Minister may refer the issue to the court for a decision.” [26] The appellant also placed reliance on s 198A of the Property Law Act 1974 (Qld) (PLA), which is as follows “198A Prescriptive right of way not acquired by user (1) User after the commencement of this Act of a way over land shall not of itself be sufficient evidence of an easement of way or a right of way having been acquired by prescription or by the fiction of a lost grant. (2) If at any time it is established that an easement of way or right of way over land existed at the commencement of this Act, the existence and continuance of the easement or right shall not be affected by subsection (1). (3) For the purpose of establishing the existence at the commencement of this Act of an easement of way or right of way over land user after such commencement of a way over that land shall be disregarded.” Reasons for Judgment of Land Court [27] After dealing with background matters, generally recorded earlier in these reasons, the learned Member considered the legal status of the Formation. He referred to a submission that long continued use of a way by the public might amount to an implied dedication44. He noted the limited evidence of use, concluding that continued use by the public could be more directly established from the 1970s, and certainly from the time the Formation was maintained by the Council45. He observed that “the facts of this case do not necessarily meet that test”46. [28] The learned Member also concluded that there was nothing in the evidence to show that the Formation, in the vicinity of ML 30124, had been dedicated for the purposes of s 94 44 RJ [44]. 45 RJ [45]. 46 RJ [45]. -- 12 of 22 -- 13 of the Land Act47. That would appear to be a reference to the invocation of the statutory procedures for dedication of a road. [29] The learned Member then considered whether the Formation was a road, as defined by s 59 of the LGA. He concluded that it was an area of land that is developed for, or has as one of its main uses, the driving or riding of motor vehicles48; it is used by the public49; and it was open to the public50. The learned Member thus concluded that it was a road for the purposes of s 59 of the LGA. [30] The learned Member then considered whether the Formation was a right of access of the kind referred to in s 276(1)(d) of the MRA. Given that the land was a road as defined in s 59 of the LGA, the learned Member concluded that it was such a right of access51. [31] The learned Member then considered s 283B of the MRA. He adopted propositions from Hicks & Anor v Graham & Anor52, one of which was that a “jurisdictional fact” necessary for a review by the Land Court of compensation under that provision was whether there had been a material change in circumstances for the mining lease53. The learned Member concluded that the interference by the appellant with the respondent’s right of access was such a material change of circumstances54. [32] The learned Member recorded the submissions for the respondent that obstructing and mining a public right of way would give rise to a claim under s 363 of the MRA; or alternatively, that the obstruction and mining of the Formation “clearly constituted a material change in circumstances for the mining lease under both the 2002 Compensation Agreement and the 2012 Compensation Agreement”55. [33] The learned Member concluded that the condition in the 2002 Compensation Agreement relating to the maintaining of roads applied to the Formation56. In any event, the mining lease which was renewed in 2014 contained the condition specified in s 276(1)(d) of the MRA, so that the fact that there was not a similar condition in the 2012 Compensation Agreement did not matter57. Under either agreement, the respondent expected his and the public, right of access would remain or an alternative would be provided. The appellant’s interference with access was a fundamental change in the circumstances for ML 3012458. [34] The learned Member then went on to determine compensation. He subsequently stated that if he was in error in concluding that compensation could be reviewed under s 283B of the MRA, the respondent was entitled to damages under s 363 of the MRA, in the same amount, save for the additional ten per cent under s 281(4)(e) of the MRA59. 47 RJ [49]. 48 RJ [55]. 49 RJ [56]. 50 RJ [57]. 51 RJ [62]. 52 [2004] QLRT 47. 53 RJ [71] 54 RJ [79]. 55 RJ [77]. 56 RJ [106]. 57 RJ [107]. 58 RJ [109]. 59 See RJ [155], [167]. -- 13 of 22 -- 14 Submissions on appeal [35] It was submitted that the learned Member erred in that he did not determine that the change in circumstance was “for the mining lease”60. In this context, the word “for” should be construed to mean “with the object or purpose of”, so that the change must have “as its object or purpose the mining lease itself”61. [36] The learned Member did not conclude that the Formation was a road at common law arising from implied dedication62. It would be erroneous to reach that conclusion by reference to evidence of the existence and use of the surveyed road, being land which was separated from the Formation63. If the surveyed road might be regarded as dedicated, that was not relevant to the status of the Formation64. Dedication of the Formation, for the purposes of the common law relating to highways, had not been established. By reference to Newington v Windeyer65, it was submitted that mere evidence of continual use even for a very long period may not be sufficient to establish an implied dedication, as it may simply demonstrate continual trespassing66. The maintenance of the Formation by the Council was relevant only to acceptance by the public of the dedication of the land, but was not itself evidence of dedication. [37] It was orally submitted by reference to s 3 of the LGA that a purpose of that Act was to provide for the nature and extent of the powers of a local government67. The definition found in s 59 of that Act was simply to determine land in respect of which a local authority had particular powers; but did not mean that land which came within the definition was a road for other purposes. Although s 74 of the LGA required the Council to keep a map of every road in its area, and a register showing particulars of each such road, there was no evidence that the Formation was recorded in such a map or register. The learned Member erred in concluding the Formation had, as one of its main uses, the driving or riding of motor vehicles; and in concluding that the formation was an area of land that was “open to, or used by, the public”68. The fact that it came within the definition did not give the respondent a right of access over it69. In oral submissions it was clarified that the real contention was that the Formation was not open to, or used by, the public; rather it was open to, and used by, licencees and invitees of Flat Creek Station70. [38] It was submitted that the provisions of s 276(1)(d) of the MRA were irrelevant to the question whether there had been a material change of circumstances for the mining lease71. Further the respondent did not demonstrate that he had a right of access. 60 Appellant’s Outline of Submissions dated 2 October 2015 (AOS) at [13]. 61 AOS at [15]. 62 AOS at [29]. 63 AOS at [31] and oral submissions. 64 AOS at [32]-[33]. 65 (1985) 3 NSWLR 555 at 559. 66 AOS at [42](c). 67 T 1-36-37. 68 AOS at [56]. 69 See AOS at [51]-[57]. 70 T 1-39 to 40. 71 AOS at [58]-[60]. -- 14 of 22 -- 15 [39] It was submitted for the appellant that because the respondent had no right of access over the Formation, then no relief by way of damages was available under s 363 of the MRA72. [40] For the respondent, it was submitted that the learned Member correctly found that the Formation had been the subject of an implied dedication at common law, from long continued use73. The fact that the Council had maintained the Formation supported that conclusion74. The learned Member correctly found that the Formation was a road as defined in s 59 of the LGA, with the result that the Council controlled its use75. [41] It was submitted that the learned Member’s critical finding was that there had been a material change in circumstances for the mining lease76. The legal status of the Formation was not critical to that finding77. Interference with the Formation was not within the mining operations which had been the subject of the parties’ agreement as to compensation78. The condition of the 2002 Compensation Agreement, relating to maintaining roads in good order, demonstrated that. Before the parties entered into the 2012 Compensation Agreement, the appellant’s representative had stated to the Land Court that the road would not be mined, or affected in any way. The conduct of the appellant in closing off the Formation was a material change in circumstances, regardless of the legal status of the Formation79. It was submitted that the change was “for the mining lease”. It was an operational change, analogous to the example given in s 283B. The evidence demonstrated that mining operations occurred on the Formation80. [42] In Submissions in Reply81 it was submitted that evidence of use since 1975 could not be relied upon, by reference to s 198A of the PLA82. The expression “right of access” found in s 276(1)(d) of the MRA did not include the right to use a road, or a right of way; rather it was limited to a right of access “in respect of the area of the mining lease”83. It was orally submitted that a right of access would permit entry to and departure from the area the subject of a mining lease; but not passage through it. There was no material change in circumstance, because the respondent had no right which could be maintained84. It was orally submitted that there had been no material change in circumstances, because the mining lease authorised mining activities on the road. The “change in circumstances” qualification [43] It is convenient to commence by a reference to the context in which s 283B(1)(b) of the MRA occurs. It follows shortly after s 279, which prevents the grant or renewal of a mining lease, unless compensation has been determined or agreed; and ss 281 and 282, 72 AOS at [61]-[62]. 73 Respondent’s Outline of Submissions dated 23 October 2015 (ROS) at [5]-[7]. 74 ROS at [7]. 75 ROS at [8]-[9]. 76 ROS at [10]. 77 ROS at [10]. 78 ROS at [11]. 79 ROS at [11]-[14]. 80 ROS at [20]. 81 Appellant’s Submissions in Reply dated 6 November 2015 (ASIR). 82 ASIR at [1]-[5]. 83 ASIR at [6]-[7]. 84 ASIR at [8]-[11]. -- 15 of 22 -- 16 which make provision for the determination of compensation by the Land Court85, and a subsequent appeal, in the absence of such agreement. It is immediately preceded by s 283A which permits the parties, by agreement, to amend an earlier agreement for, or Land Court determination of, compensation. Section 286, which appears a little later, again has the effect that a mining lease cannot be renewed for a period for which compensation has not been determined or agreed. This context strongly suggests that the circumstances referred to in s 283B(1)(b) are those related to the identification of compensation. That is consistent with the evident purpose of s 283B, which is to confer on the Land Court jurisdiction to review compensation, at some time after it was originally determined, by the Land Court, or agreed. [44] It is self-evident from the language of s 283B(1)(b), that a comparison between two sets of circumstances is required. One set, inevitably, comprises the circumstance at the time when compensation was originally agreed or determined. Plainly enough, the second is that prevailing when it is alleged that the circumstances have changed. The expression “a material change in circumstances for the mining lease” might be further analysed in a number of ways. It is enough to note that the condition is satisfied when there is a material difference between the circumstances for the mining lease when the compensation was originally agreed or determined, and the circumstances for the mining lease at the date when the change is said to have occurred, the change relating to circumstances relevant to the agreement about or determination of compensation. [45] The appellant’s submissions do not properly acknowledge the range of meanings of the word “for”. They include “with regard or respect to” and “as affecting the interests or circumstances of”86. No doubt the word is used to identify a connection between the change of circumstances, and the mining lease. Given the context earlier referred to, it is unlikely that that connexion was intended to be narrowly defined. Moreover, the definition for which the appellant contends, being “with the object or purpose of”, does not sit comfortably with the use of the word in the statutory provision. The appellant’s submission should be rejected. [46] It does not seem correct to say that the provision is limited to a change in circumstances relating to the mining lease, considered as a grant of rights87. The example given in s 283B (which forms part of the MRA88) shows that it extends to changes in the way the rights are exercised, such as operational changes; and to the effects of those changes, no doubt on the person entitled to compensation. If the statutory provision should be construed as meaning that it is necessary to show a change in circumstances relating to the exercise of the rights conferred by the mining lease, the evidence would appear to demonstrate that. Despite invitation, the appellant did not identify evidence of the reasons for the construction of the fence across the Formation. Its principal gave evidence that the fencing was done because the resource which it is mining extends into the Formation, and the fence was constructed for this reason, and to ensure the safety of the appellant’s operations89. This evidence is consistent with photographic evidence, which shows the fence initially constructed across the Formation. It is instructive to consider the historical sequence of photographs in relation to the construction of the 85 At an earlier time compensation was determined by the Tribunal, but for convenience, reference will only be made to the Land Court in this context. 86 See the Macquarie Dictionary, 3rd Edition, definitions 8 and 23. 87 See s 235 of the MRA. 88 See s 14(3) of the Acts Interpretation Act 1954 (Qld). 89 R 4/623, 627. -- 16 of 22 -- 17 fence, which commenced with a notice that the formation was not a public road; and that it would “shortly be obstructed and rendered impassable by mining works and operating mining machinery”90; followed by the construction of the fence91; with what appear to be mining operations subsequently carried out behind it92. [47] It follows that the erection of the fence and gate across the Formation, as well as the subsequent mining operations on the Formation, were “for the mining lease”. Material change in circumstances and the 2002 Compensation Agreement [48] As in the Land Court, the respondent submitted that the question whether there had been a material change in circumstances for the mining lease could be determined by reference to the provisions of the 2002 Compensation Agreement. Reliance was placed on the conditions relating to the maintenance of roads. Reference was also made to the fact that in that agreement, compensation was determined at the rate of $10 per hectare for the area mined each year. Compensation fixed in that manner was unlikely to reflect the effect of the loss of access. [49] For the appellant it was submitted that the 2002 Compensation Agreement was irrelevant to the question whether there had been a change in circumstances. The roads referred to were bush tracks, and not the Formation. [50] The submissions for the respondent should be accepted. The method by which compensation was calculated applied uniformly across the land the subject of ML 30124. It is likely to reflect the effect of its loss of use as a grazing area, rather than the far more significant effects of the loss of access across the Formation. [51] The condition relating to the maintenance of roads carries with it the implication that the parties expected that road access would be maintained during the period of the lease. The unanticipated fencing of the Formation, and the disturbance to it, were not within the contemplation of the parties when they entered into the 2002 Compensation Agreement. That fencing was plainly a material change in circumstances for the mining lease. [52] The appellant’s submissions refer to evidence to the effect that the reference to roads in the condition of the Compensation Agreement was a reference to bush tracks. The appellant did not identify that evidence. It would be inconsistent with the finding of the learned Member that the roads referred to included the Formation93, assuming it to be relevant. Moreover, it would be a surprising outcome if the condition related to bush tracks of lesser significance to the respondent, but did not extend to the principal access road to Flat Creek Station. [53] The conclusion, based on the consideration of the 2002 Compensation Agreement, that there has been a material change in circumstances for the mining lease, is sufficient to dispose of the appeal. However, it is appropriate to give some consideration to the other matters addressed in the submissions. For reasons which will appear, it is not intended to determine the appeal by reference to them. 90 R 4/701-702. 91 R 4/764. 92 R 2/343-354. 93 RJ [106]. -- 17 of 22 -- 18 A road under the LGA [54] For the appellant it was submitted that it was an error to conclude that the Formation was a road under s 59 of the LGA, because it has been maintained by the local government. The conduct of the Council assumed, rather than demonstrated, satisfaction of the definition. The evidence did not demonstrate prior public use of this land; rather it demonstrated use by invitees and licences of Flat Creek Station. [55] Reference should be made to the oral evidence of the respondent. It was to the effect that this was the way by which he, members of his family, and members of the public had had access to Flat Creek Station from the 1970s94. The learned Member accepted the evidence of the respondent. That evidence provided a sufficient basis for the finding that the Formation was used by members of the public. [56] The fact that the Council has maintained the road since about the early 1990s is consistent with its use by members of the public. To that extent, it supports the conclusion of the learned Member. The Council’s letter of 9 August 2013 to the appellant95 is similarly consistent with use of what is now the Formation by members of the public, prior to the commencement of Council works there. [57] The appellant submitted that in fact the persons referred to in the letter from the Council and indeed in the evidence of the respondent were invitees or licensees of the respondent. That submission misses the point. While it may in one sense be correct to characterise persons using the Formation in that way, the characterisation is relevant to the capacity in which they are present on Flat Creek Station. The question in the present case, however, is the capacity in which they travelled on the Formation, through the Delaney Holding. In respect of that land, they can only be described as present on it as members of the public. [58] It follows that the learned Member was correct to find that the Formation was used by the public. [59] There was ultimately no challenge to the proposition that the Formation is developed for the driving or riding of motor vehicles. That would appear to be the very point of the work done by the Council. Accordingly, it follows that the land satisfies the definition of “road” under s 59 of the LGA. [60] It is apparent from the evidence of the respondent that the Council has maintained the Formation, permitting its use by members of the public, from a date well before the 2002 renewal. That conclusion is confirmed by the letter of Etheridge Shire Council of 9 August 201396, correctly read. It is confirmed by the evidence of Mr TJ Smith, the principal of the appellant, of the circumstances in which signs came to be placed by the appellant in the vicinity of the Formation, and the fence and gate subsequently erected97. [61] In general, where a person who controls land makes the land available for the use of another in a particular way, there is a sense in which it can be said that that other has a right to use that land. 94 R 1/155, 41. 95 R 5/995. 96 R 5/995. 97 R 4/627, 701-702. -- 18 of 22 -- 19 [62] In the evidence the Delaney Holding is identified as Lot 5119 on PH 597 and was said to be a “State lease under the Lands Act 1994”98 (though it would appear that the lease was originally granted on 1 July 196899). Thus the Delaney Holding is land which would formerly have been referred to as Crown land, and under the Land Act 1994, would be described as “unallocated State land”100. The provisions of similar legislation dealing with such land had been regarded as a code101. In those circumstances, a question arises as to the application of s 60 of the LGA. In the present case, no examination has been given to the consequences of the fact that the Delaney Holding is the subject of a lease, now under the Land Act 1994; and of the interaction of the provisions of that legislation with the LGA. It is therefore not appropriate to determine the effect of s 60 in respect of the Delaney Holding. [63] Moreover, a decision that the Formation was a road for the purpose of the LGA may well be a determination of its status. Such a judgment would arguably be a judgment in rem, and thus binding not only on the parties to this appeal, but also on the lessee of the Delaney Holding, the State, and the local government102. Since these parties have not been heard, it would be inappropriate to reach a final conclusion on this question. Was the Formation a road under the general law? [64] Notwithstanding the submission for the appellant, it is reasonably clear that the learned Member found that a road or track in the general vicinity of the Formation had been used by members of the public since the 1890s; that its location was (at least in general terms) coincident with the Formation since the early 1970s103; and on balance his Honour appears to have found there was an implied dedication of that land. [65] For the reasons already given, it is not appropriate in this case to determine whether the Formation is a road under the general law. In addition, this question would make it necessary to determine whether s 198A of the PLA affects the general law relating to highways and road, a matter about which there were no detailed submissions. Accordingly, it is not proposed to reach a final conclusion on this question. Nevertheless, it seems appropriate to deal with some of the matters argued on this appeal. [66] The appellant relied upon statements of McHugh JA in Newington v Windeyer104. Relevantly, his Honour there acknowledged that dedication to the public may be presumed from uninterrupted user of land as road by the public; but warned that care must be taken to distinguish evidence of user, from which dedication might be inferred, from evidence of continual use amounting to a trespass. His Honour gave no indication as to how, in practice, the two situations were to be distinguished. 98 R 5/886, 925. 99 R 5/925. 100 See MacDonald, McCrimmon Wallace and Weir, Real Property Law in Queensland (4th ed) [2.290]. 101 See Boge, Property Law and Practice Queensland, Thompson Lawbook Co, L 1.5 and cases there cited; see also American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, at 684-685. 102 See Handley, Spencer Bower and Handley Res Judicata (4th ed) LexisNexis 2009 para 10.24, and cases there cited. 103 See RJ [39], [35], [40] and [41]. 104 (1985) 3 NSWLR 555 at 559. -- 19 of 22 -- 20 [67] For the first proposition McHugh JA cited two cases, Turner v Walsh105 and Folkestone Corporation v Brockman106. [68] In Turner, the Privy Council endorsed the direction to the jury given by the Judge at first instance. It was that, from evidence of continuous user of land as a road by the public over a period of 40 years, the jury might presume a dedication of the land as a road. [69] In Brockman, both Lord Kinnear and Lord Atkinson pointed out that the primary question is whether the landowner intended to dedicate the land as a highway. Their Lordships both cited with approval a passage from the judgment of Lord Blackburn in Mann v Brody107, as follows: “… where there has been evidence of a user by the public so long and in such manner that the owner of the fee, whoever he was, must have been aware that the public were acting under the belief that the way had been dedicated, and has taken no steps to disabuse them of that belief, it is not conclusive evidence, but evidence on which those who have to find that fact may find that there was a dedication by the owner, whoever he was.” [70] In Brockman, Lord Atkinson extensively discussed earlier authorities. His Lordship rejected the proposition that evidence of long user gave rise to a rebuttable presumption of law that the owner had intended to dedicate the land as highway108. The authorities discussed by his Lordship, however, demonstrate that evidence of user, even for a period of some nine years109, can be a sufficient basis for a finding of implied dedication; and the cases generally demonstrate that the implication was, as a matter of fact, drawn. [71] McHugh JA did not cite any authority for his second proposition, though it is self- evidently correct. [72] One basis for distinguishing the two situations as referred to by McHugh JA is apparent from Mann. An intention to dedicate is to be inferred where use by members of the public is such that the owner of the land must have been aware of it, and that the members of the public were using the land as if they had the right to do so; and the owner has taken no steps to disabuse the members of the public of that belief. If, on the other hand, the owner of the land was unaware of the use of the land, then it would seem that such use amounted to a trespass. [73] In the present case, in the early 1970s, there is some evidence of prior use. The ongoing use thereafter, of which the respondent gave evidence, as well as the use of the land by miners, with the result that a track or path became relatively fixed, is likely to have been known to the owner of the Delaney Holding from a reasonably early time after the respondent commenced to use this access, particularly because of its connection with Forsayth Road. Such use for a period of the order of 20 years up to the time when the local government carried out work on the Formation is such that it must, at some point 105 (1881) 6 App Cas 636 at 639, 641. 106 [1914] AC 338, at 352, 362. 107 (1885) 10 App Cas 378, at 386. 108 See Brockman at 368. 109 R v Petrie 4 E & B 737, cited in Brockman at 365. -- 20 of 22 -- 21 in this period, have been known to the lessee of the Delaney Holding. There is no suggestion that persons using this land thought it necessary to seek the permission of the lessee, or anyone else; nor that the lessee did anything to suggest that such use was by way of trespass, or was authorised by licence only. The proper conclusion to be drawn from the evidence, as a matter of fact, is that the conduct of the lessee would amount to an implied dedication of the land which constitutes the Formation, accepted by the public. [74] Beyond that, the construction and maintenance of the Formation by the local government provides support for this conclusion. It has been said that the fact that a way is maintained and repaired at the public expense raises a presumption that the public have a right over it, and supports the presumption arising from public user110. That would seem to be so, notwithstanding the power conferred by s 60, as, at least in the present case, this power is dependent upon the fact of public user. Again, the lessee must have known of the Council works; and there is no suggestion that he protested on the basis that such use was not use by members of the public. [75] It was accepted in oral submissions for the appellant that the conduct of the Council at least amounted to acceptance on behalf of the public, if implied dedication were established. [76] It would follow that, if the general law principles were applicable, then it should be found that the Formation is a public road. Relief under s 363? [77] The respondent’s written submissions in the Land Court only very briefly articulated the basis on which he claimed relief under s 363 of the Land Act111. It was there submitted that he had a right of action, on the basis that a public right of way existed over the Formation, and he had suffered damage by reason of the appellant’s interference with it. The appellant’s submissions on appeal appeared to accept that s 363 permits the bringing of such a claim, though it was contended that the respondent had failed to establish a right of access, and accordingly the determination of the Land Court could not be sustained on this basis112. The respondent’s written submissions did not deal with this question. [78] Because this appeal can be determined without deciding whether there is a public (or other) right to use the Formation, it is unnecessary to determine this question. Conclusion [79] The appellant has failed to demonstrate that the learned Member erred in holding that there had been a material change of circumstances in relation to ML 30124, as a result of the appellant’s establishment of the fence and gate across the Formation, and its subsequent activities with respect to it. The appeal should be dismissed. 110 See Pratt and Mackenzie’s Law of Highways (21st ed) Butterworth 1967 at p 40. 111 See R 6/1163 at [12]; 1165 at [20]. 112 AOS at [62]. -- 21 of 22 -- 22 PETER LYONS J WL COCHRANE MEMBER OF THE LAND COURT WA ISDALE MEMBER OF THE LAND COURT -- 22 of 22 --