Cotterill v Queensland Rail [2007] QLRT 67

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Cotterill & Queensland Rail [2007] QLRT 67 PARTIES: In the matter of Mining Lease 4899 – Application by Jennie Cassandra Cotterill for determination of compensation payable to Queensland Rail FILE NO/S: MLC80/06 PROCEEDING: Application to determine compensation DELIVERED ON: 1 May 2007 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Windridge MR ORDER/S: 1. Compensation determined at $10.00. (at [18]) 2. Such compensation to be paid by the miner to the landowner within 30 days of notification of the renewal of the mining lease. (at [18]) 3. A copy of this determination be provided to the Hon. The Minister for Mines and Energy by the Registrar of the Land and Resources Tribunal. CATCHWORDS: COMPENSATION ––ACCESS ONLY – RAILWAY CROSSING – Mineral Resources Act 1989, s. 281 Mining Right of Way Act (RSBC 1996) Chapter 294 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 COUNSEL: N/A SOLICITORS: N/A Background [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 -- 1 of 4 -- (Queensland Rail) of the renewal of the applicant’s mining lease number 4899 in the Mareeba Mining District. [2] The lease and access to the lease is located in Lot 3 on SP139719, Parish of Brook lands and County Lynd. It appears that part of the access road crosses a railway line under the control of Queensland Rail, being part of Lot 1061, on SP139719. The matter for consideration here is the access route that transverses the railway line in Lot 1061. Despite numerous requests from the Mining Registrar, there appears to have been no meaningful response from Queensland Rail to progress the issue to finalisation. [3] The parties have been unable to resolve the issue of compensation, and the matter has been referred to the Tribunal for determination. Whilst it is within the power of the parties to come to agreement on any issues, the power of the Tribunal is limited to Section 281. [4] The Tribunal has given directions in relation to time frames for submissions, and this matter has been dealt with on the papers. Neither the miner nor the landowner has lodged any written submission . I have referred to some documents supplied by the Registrar namely a copy of the application for renewal and the mining lease Public Report for the purpose of accuracy where necessary. No site visit has been conducted. The renewal is for a period of five (5) years and will take effect from 30 April 2005. Compensation [5] Relevantly, section 281(3)(a) requires the Tribunal to settle the amount of compensation an owner of land is entitled to as 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”. [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 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 -- 2 of 4 -- legislation, the following past appeal cases offer some guidance to methodology. 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 section 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. [10] Deprivation of possession: The matter under consideration is that part of the access road that traverses Lot 1061 on SP102243. There is no deprivation of possession. [11] Diminution of value: There is no valuation evidence to consider. It is difficult to find any significant reduction of value for an access road that is used by other persons from time to time. [12] Diminution of use: There is no evidence of diminution of use. [13] Severance: The renewal of the lease and that part of the nominated access route that traverses Lot 1061 will not cause severance of one part of the property from any other part of the property. [14] Surface rights of access: This is the only issue to be decided here. There is no detail of the length or width of the access route through Lot 1061. I assess loss of access to be of nominal effect. [15] Loss or expense: There is no evidence of any other loss or expense that will occur because of the renewal of the lease. [16] 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. Determination [17] There will be a negligible effect, if any at all, on the management of Lot 1061. I am not satisfied that any award other than a nominal award is justified. I take into -- 3 of 4 -- account that no part of the mining lease is located on this lot. I note that under the Mining Right of Way Act (RSBC 1996), no compensation for access is payable, the right to mine giving a common law right of access to the mining tenement. Having regard to the foregoing, I determine compensation as follows at the rate of $1.00 per year for a renewed term of 5 years (a) Access (s.281 (3)(v) 5.00 (b) Additional 10% (s.281(4)(e)) 0.50 Total $5.50 [18] I round off the sum due and payable to $10.00. There was no submission in relation to the times, terms and manner of payment. Due to the small quantum involved, I consider that payment of compensation should be in full and made within 30 days of notification of renewal of the lease by the Registrar. [19] The processing of this renewal application has taken some time, and the miner has probably been put to some disadvantage by the lack of response by Queensland Rail. . [20] It is recommended that the Honourable the Minister for Mines and Energy give some consideration to the adoption of legislation similar to the Mining Right of Way Act (RSBC 19996) when amendments to the Mineral Resources Act 1989 are being considered. There would be considerable savings in time, money and resources to the parties, the Department and this Tribunal if appropriate amendments were made in relation to access provisions. -- 4 of 4 --