Dempster & Anor v Martyr [2007] QLRT 69

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Dempster & Anor v Martyr [2007] QLRT 69 PARTIES: In the matter of Mining Lease 95087. Application by Ian Gilbert Dempster and Sidney Douglas Cuddy for determination of compensation payable to Graham J Martyr FILE NO: MLC9/07 PROCEEDING: Application for determination of compensation DELIVERED ON: 17 May 2007 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Windridge MR ORDER/S: 1. I determine compensation under s. 281 in the sum of $60.00 (at [13]) 2. I direct that the miner pay compensation in the sum of $60.00 to the current landowner Graham J Martyr within 2 months of notification of renewal of the mining lease by the Mining Registrar. (at [14]) CATCHWORDS: MINING LEASE RENEWAL – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, ss 279, 281 Shaw v Heritage Holdings Pty Ltd [1992] 14 QLCR 139 Smith v Cameron [1986] 11 QLCR 64 Mitchell v Oakhill and Mitchell (10.03.98) unreported COUNSEL: N/A SOLICITORS: N/A Background [1] The applicants Ian Gilbert Dempster and Sidney Douglas Cuddy (the miners) seek the renewal of Mining Lease 95087 in the Winton Mining District. The lease was initially granted for a period of 10 years from 1 November 1993, and expires, unless renewed, on 31 October 2003. The application for a renewal for a further term of 10 -- 1 of 4 -- years was lodged at the office of the Mining Registrar Winton in October 2003 (the actual date is unclear). The renewed term is to commence on and from 1 November 2003. The material for determination of compensation was referred to the Tribunal on 8 January 2007. The delay of three years is not explained. [2] The lease is located on Lot 2 on RK5, Parish of Rosebrook, County of Rosebrook, being part of Mayneside Holding in the Winton Mining District. Access is through the same property. The lease is over an area of 0.6017 hectares and is granted for the purpose of mining for opal. I round off the area to 1 hectare. 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 Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Tribunal. In this instance, no agreement has been lodged with the Registrar and the matter has been referred to the Tribunal for determination. [4] The matters which must be considered by the Tribunal are set forth in section 281(3) of the Act. Although section 281 sets out the matters to be considered, it does not define any method of assessment. Whilst the Tribunal is only bound by its own legislation, the following past appeal cases offer some guidance as to the methodology that might be used in arriving at a determination of compensation. 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.” [5] In Shaw v Heritage Holdings Pty Ltd (1992) 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 Tribunal and this matter has been dealt with on the papers as filed. 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. It is not the function of the Tribunal to conduct a hunt for evidence on behalf of either party. Therefore the matter has been dealt with on the documents filed which include the application for renewal and the public lease report issued by the Mining Registrar. -- 2 of 4 -- [8] There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination. The owner has notionally lost the use of the lease area for the term of the renewal. [9] Prior determinations and agreements for leases and claims in the Winton area range from about $3.00 to $5.00 per hectare per year, subject to the nature of the land in the surface area. The landowner submits that he is prepared to continue with the current quantum of awards determined for that area. I note that this is a renewal and therefore presume that a prior award or agreement existed for the previous term. [10] In summary, there was no detailed valuation evidence called to support any claim under any other head of compensation other than the submissions from the parties, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of section 281 of the Act. Access [11] From details provided in the copy of the application for renewal, it appears access is through the same property. There are a number of other leases in the area, and access is usually a track that is used by any number of other persons having exploration tenure or mining tenure in the area. There are no specific details of the access or the effect it has on the property. Absent those details, I consider that any allowance for access can be covered by the general award in these circumstances. Quantum [12] In making this determination I take into account that the only other viable use of the land is low intensity grazing if pasture is available. The lease has been in existence for 10 years, and is to be renewed for a period of 10 years. I consider mining operations on this lease of this size would have no measurable effect on the operations conducted on the property. 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 if the lease is being actively worked. There is no evidence of severance of one part of the property from any other part and I make no allowance for injurious affection of the balance of the property. [13] Having regard to all the circumstances, I consider that the following award will satisfy the requirements of section 281 for the term of the renewed lease for the limited purposes authorised by the renewal of the lease.1 Drawing on the limited evidence that is available, I determine reasonable value to be $5.00 per hectare, based on previous determinations in this area. I make no award for access. The aggregate total of these awards is $50.00.2 I further award the sum of $5.00 under section 281(4) (e) to reflect the compulsory nature of the action taken under this part. Total award is $55.00. I round off the award to $60.00. 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 period of renewal. 1 Shaw v Heritage Holdings Pty Ltd [1992 [14] QLCR 139. 2 Mitchell v Oakhill and Mitchell (10.03.98 unreported. -- 3 of 4 -- In these circumstances, I order that the miner pay compensation to the current landowner in the sum of $60.00 within a period of (2) months from notification of renewal of the mining lease by the Mining Registrar. -- 4 of 4 --