B & R Mining Pty Ltd v Martyr [2007] QLRT 37

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: B & R Mining Pty Ltd v G.J. Martyr [2007] QLRT 37 PARTIES: In the matter of Mining Lease 95221 – Application by B & R Mining Pty Ltd for determination of compensation payable to Graham J. Martyr FILE NO: MLC227/06 PROCEEDING: Application for determination of compensation DELIVERED ON: 27 February 2007 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Windridge MR ORDER/S: 1. I determine total compensation under section 281 in the sum of $110.00. (at [13]) 2. I direct that the miner pay the total compensation in the sum of $110.00 to the landowner within 2 months of notification of the renewal of the mining lease by the Mining Registrar. (at [14]) CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, ss 279, 281 Smith v Cameron [1986-87] 11 QLCR 64 Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139 Mitchell v Oakhill and Mitchell (10.03.98) unreported COUNSEL: N/A Background [1] The applicant B & R Mining Pty Ltd (the miner) seeks the renewal of Mining Lease 95221 in the Winton District. The application for renewal for a term of 5 years was lodged at the office of the Mining Registrar Winton on 23 June 2006. The lease is granted for the purpose of mining for opal. [2] The lease is located on Lot 2 on RK5, being part of Mayneside Holding. Access is through the same property. A grazing operation is conducted on the property. The -- 1 of 3 -- lease is over an area of 3.588ha. For the purpose of this determination, I round off the area to 4ha. 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 Tribunal. In this instance, no agreement has been lodged with the Mining 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. 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.” [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 Tribunal and this matter has been dealt with on the papers. Neither party filed statements or other supporting material. 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 Tribunal 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 landowner has notionally lost the use of the lease area of 4ha for the term of the lease. -- 2 of 3 -- [9] Prior determinations and agreements for leases and claims in the Winton and Quilpie area range from about $5.00 per hectare per year to $15.00 per hectare per 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 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 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. 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 section 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 subsection 3 of section 281 of the Act shall be the sum of $5.00 per annum per hectare for the term of the renewal. The compensation award is $100.00. I further award the sum of $10.00 under section 281(4)(e) to reflect the compulsory nature of the action taken under this part, making a total award of $110.00. 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 term of the lease. In these circumstances, I order that the miner pay total compensation to the current landowners in the sum of $110.00 within a period of (2) months from notification of renewal of the mining lease by the Mining Registrar. -- 3 of 3 --