Crossland v Struber & Anor [2008] QLC 100

LAND COURT OF QUEENSLAND CITATION: Crossland v Struber & Anor [2008] QLC 100 PARTIES: Paul Edwin Crossland (applicant) v Stephen Roy Struber and Dianne Wilson-Struber (respondents) FILE NO: MLC00026/2008 PROCEEDING: Application to determine compensation DELIVERED ON: 23 May 2008 Revised 16 July 2008 DELIVERED AT: Brisbane MEMBER: Mr FW Windridge, Judicial Registrar ORDERS: 1. Compensation determined at $1 as a nominal order. 2. Such compensation in the sum of $1 be paid by the miner to the landowner within 30 days of notification of the grant of the mining lease 3. Recommended that due to non compliance by the current lessees, Palmerville Holding be acquired by the State of Queensland and included in the Palmer River Resources Reserve for mining purposes to be administered by the Trustees of the current Reserve, with all stock and improvements being removed. 4. A copy of this decision be forwarded to the Hon the Minister for Mines and Energy by the Registrar of the Land Court of Queensland for consideration. CATCHWORDS: Compensation – mining lease – stream bed – grazing property-acquisition for non compliance with MRA Mineral Resources Act 1989, s. 281 Smith v Cameron [1986-1987] 11 QLCR 64 Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139 Mitchell v Oakhill and Mitchell (10 March 1998) unreported -- 1 of 5 -- 2 APPEARANCES: Not applicable - Heard on the Papers [1] This is an application under section 281 of the Mineral Resources Act 1989 (MRA) for the determination of compensation for the effect upon the respondent landowners (Struber and Wilson-Struber) of the proposed grant of the applicant’s Mining Lease no. 20485 in the Mareeba District. [2] The lease is located on Lot 2 on CP910619 for mining and access. The actual area of the lease is 4.7321 ha. [3] The parties have been unable to resolve the issue of compensation, and the matter has been referred to the Land Court for determination. Whilst it is within the power of the parties to come to agreement on any issues, the power of the Court is limited to s. 281 of the MRA. [4] The Land Court has given directions in relation to submissions, and this matter has been dealt with on the papers. The landowner has not lodged a submission. It is not the function of the Court to seek or provide evidence for any party. The applicant miner has lodged a short written submission in which he refers to a number of matters, in particular his numerous attempts to reach a satisfactory arrangement with the landowner. These attempts were ignored or rebuffed. It is not the function of the Court to go on a hunt for evidence to justify any determination when that evidence is not supplied for consideration. I have access to the original recommendation dated 20 February [Re Crossland [2008] QLC 0045]. For the purpose of accuracy, I have referred to that document when necessary. No site visit has been conducted although a general inspection of the area will be conducted in 2008 or 2009 when climatic conditions are favourable. The miner seeks an initial term of 17 years. Given the area involved and the method of operations, this appears to be a long term, but the term may be justified if the lease is used for future reserves. Compensation [5] Relevantly, s. 281(3)(a) requires the Court to settle the amount of compensation an owner of land is entitled to as compensation for: -- 2 of 5 -- 3 “(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”. [6] 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).” [7] The matters which must be considered by the Court are set forth in s. 281(3) of the Act. Although s. 281 sets out the matters to be considered, it does not define any method of assessment. Whilst the Court is only bound by the relevant legislation (ie s. 281), the following past appeal cases offer some guidance as to methodology to be used in arriving at a determination. In Smith v Cameron [1986-1987] 11 QLCR 64, the Land Court held at p. 74… “The section in my option merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.” [8] In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p. 146 said: “the method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.” [9] In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, The President of the Land Court, referring to s. 281(3) of the Mineral Resources Act, found: “the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.: -- 3 of 5 -- 4 [10] In this instance, I have no evidence of the area of land contained in the lease that is within the banks of any stream, but given that this is an alluvial operation, it may be safely assumed that areas of disturbance will be confined to the stream bed. [11] There is no evidence of the dimensions of access. [12] Deprivation of possession: Technically, grant of the lease does in law deprive the owner of the use of that surface area that is within the lease boundary. Apart from taking water or exercising the right to depasture stock (if pasture does exist), the surface of the stream bed is of little use by the landowner of the adjoining land. [13] Diminution of value: There is no valuation evidence to consider. It is difficult to find any significant reduction of value if a periodical alluvial operation is conducted in the stream bed. [14] Diminution of use: There is no evidence of diminution of use. Again, if alluvial ground in the stream bed is being worked, there is little diminution of use by the landowner. [15] Severance: There is no evidence that the grant of this lease will cause severance of one part of the property from any other part of the property. I make the assumption that the plan of operations restricts the mining operation to the alluvium confined by the stream banks. [16] Surface rights of access: There is no evidence of any loss of land in the surface right of way. [17] Loss or expense: There is no evidence of any other loss or expense that will occur because of the grant of the lease. [18] Additional 10%: In respect of s. 238(4) (e), no submissions were made. There does not appear to be any reason or special circumstance why the premium should be increased, and therefore no more than the statutory 10% should be added to the general award. In view of the order I propose, this aspect need not be considered. -- 4 of 5 -- 5 Determination [19] The landowner has not responded in any meaningful way despite genuine attempts of the miner to reach an outcome. The landowner has ignored the directions issued by the Court and must suffer the consequences that follow that course of action. In my opinion, there will be a negligible effect, if any at all, on the management of the pastoral holding. Principally, only the alluvial material in the stream bed will be disturbed. This disturbance will be minimised and returned to natural contours as soon as the stream suffers flooding. I am not satisfied that any award other than a nominal award is justified, given the lack of valuation evidence. Submissions and statements from other miners’ who attempt to resolve compensation issues with the landowners is to the effect that compensation cheques are not banked and money orders are never negotiated. A nominal award is warranted in this instance in view of the landowner’s obstructionist attitude to negotiations and Court orders. Having regard to the foregoing, I determine compensation at the rate of $1 for a term of 17 years is an appropriate nominal award. [20] There was no submission in relation to the times, terms and manner of payment from the landowner. The miner’s submissions and offer was entirely appropriate. I direct that total compensation in the sum of $1 be paid to the respondent landowners within 30 days of notification of grant of the lease by the Registrar. [21] It is recommended that the State of Queensland acquire the property and merge the area into the Palmer River Resources Reserve to be placed under the administration of the current Trustees of the Reserve. It is further ordered that a copy of this determination be forwarded to the Honourable the Minister for Mines and Energy by the Registrar of the Land Court of Queensland for his consideration. Addendum: This determination revised on 16 July 2008 by the insertion of the words “Recommended that” in clause 3 of the Orders to reflect the intent of clause 21 of the determination. FW WINDRIDGE JUDICIAL REGISTRAR -- 5 of 5 --