B & R Mining Pty Ltd v Martyr & Anor [2008] QLC 39

LAND COURT OF QUEENSLAND CITATION: B & R Mining Pty Ltd v Martyr & Anor [2008] QLC 39 PARTIES: In the matter of Mining Lease 95005 – Application by B & R Mining Pty Ltd for determination of compensation payable to Graham J Martyr (First Respondent) and Jock C Logan & Janice L Logan (Second Respondents) FILE NO: MLC00186/2007 PROCEEDING: Application for determination of compensation DELIVERED ON: 8 February 2008 DELIVERED AT: Brisbane MEMBER: Mr BR O’Connor, Judicial Registrar ORDER/S: 1. In relation to the Mayneside part of the lease, I determine compensation under s.281 at Fifty Five Dollars ($55). 2. I direct that the miner pay the total compensation in the sum of Fifty five dollars ($55) to the landowner within 3 months of notification of the renewal of the mining lease by the Mining Registrar. 3. In relation to the Occupation Licence part of the lease, I determine the compensation under s.281 at One Thousand Two Hundred Dollars ($1200). 4. I direct that the miner pay compensation in the sum of One Hundred and Twenty Dollars ($120) to the licence holders within 3 months of notification of the renewal of the mining lease by the Mining Registrar. A further sum of One Hundred and Twenty Dollars ($120)/annum shall be paid in each following year before the anniversary of the date of lease renewal. CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, ss 279, 281 Smith v Cameron [1986-87] 11 QLCR 64 -- 1 of 5 -- 2 Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139 Mitchell v Oakhill and Mitchell (10.03.98) unreported COUNSEL: Not applicable - Heard on the papers Background [1] The applicant B & R Mining Pty Ltd (the miner) seeks the renewal of Mining Lease 7470 in the Winton District. The application for renewal for a term of 10 years was lodged at the office of the Mining Registrar Winton on 30 April 2007. The lease is granted for the purpose of mining for opal. [2] Part of the lease is located on Mayneside Holding ( .826ha – rounded to 1ha) and part on Occupation Licence 363 (21.753ha – rounded to 22ha). Grazing operations are conducted on both the holding (owned by the first respondent) and the Occupation Licence (owned by the second respondent). The Act [3] Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Mining Registrar and the matter has been referred to the Court for determination. [4] 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. The following Land Court case reports may offer some guidance in determining the approach to be adopted. In Smith v Cameron (1986) 11 QLCR 64, the Land Court held at p.74… “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. 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.” -- 2 of 5 -- 3 [5] 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.” [6] In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the President of the Land Court, referring to section 281(3) of the 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.” The evidence [7] Neither party sought to appear before the Court nor lodge written submissions although given the opportunity to do so. This matter has been dealt with on the papers. Some documentation in relation to factual matters was provided by the Mining Registrar. Where necessary, I have referred to these documents for the purpose of accuracy. [8] There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination. Due to the small area involved, the cost of a valuation would far outweigh any award for compensation. Due to the small area involved, co-use or co-occupation would not be feasible, and the land owner has notionally lost the use of the lease area of 10ha for the term of the lease. [9] Prior determinations and agreements for leases and claims in the Winton and Quilpie area range from about $5/ha/year to $15/ha/ year. [10] In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of s.281 of the Act. -- 3 of 5 -- 4 Access [11] From details provided in the copy of the application for renewal, it appears access is through the same property. There are no details of this access or the effect it will have on the operations of the landowners. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. In the absence of any evidence, I make no award for access. Quantum [12] In making this determination I take into account that the only other viable use of the land is low intensity grazing. I consider mining operations on a lease of this size would have no measurable effect on the operations conducted on the property for at least half a year, probably longer. There would be some minor effect which would include the noise of machinery and the movement of people and vehicles on or about the lease area and along the access road. There is no evidence of severance of one part of the property from any other part and I make no allowance for injurious affection for the balance of the property. [13] Having regard to all the circumstances, I consider that the following award will satisfy the requirements of s.281 for the term of the renewed lease for the limited purposes authorised by the grant of the lease. Drawing on the limited evidence that is available, I determine compensation under Part 7 of the Act, to satisfy all heads of compensation set forth in ss.3 of s.281 of the Act shall be the sum of $5/annum/ha for the term of the renewal. The compensation award for the Mayneside part of the lease is $50. I further award the sum of $5 under s.281(4)(e) to reflect the compulsory nature of the action taken under this part, making a total award for the Mayneside part at $55. In relation to the Occupation Licence part of the lease, the compensation is $1100. I further award the sum of $110 under s.281(4)9e) to reflect the compulsory nature of the actions taken under this part, making the total award of $1210 rounded to $1200. Terms of payment [14] In relation to the terms, conditions and times when payments should be made, I take into account the quantum of the order, the size of the lease and the term of the renewed lease. In these circumstances, I order that the miner pay total -- 4 of 5 -- 5 compensation to the current landowners of Mayneside in the sum of $55 within a period of 3 months from notification of renewal of the mining lease by the Mining Registrar. I further order the miner pay total compensation to the current owners of the occupation Licence in the sum of $120/annum for the term of the lease, the first of these payments to be made within a period of 3 months from the notification of the renewal of the mining lease by the Mining Registrar. Subsequent annual payments are to be made by the anniversary of the lease renewal. BR O’CONNOR JUDICIAL REGISTRAR -- 5 of 5 --