Connolly v McDonald [2007] QLRT 20

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Connolly v McDonald [2007] QLRT 20 PARTIES: In the matter of Mining Lease 95209. Application by Brian Malcolm Connolly for determination of compensation payable to Robert John McDonald FILE NO: MLC170/06 PROCEEDING: Application for determination of compensation DELIVERED ON: 19 January 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 $1300.00 (at [13]) 2. I direct that the miner pay the total compensation in the sum of $1300.00 to the current landowner within 3 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 Smith v Cameron [1986] 11 QLCR 64 Shaw v Heritage Holdings Pty Ltd [1992] 14 QLCR 139 Mitchell v Oakhill and Mitchell (10.03.98) unreported COUNSEL: N/A SOLICITORS: N/A Background [1] The applicant Brian Malcolm Connolly (the miner) seeks the renewal of Mining Lease 95209 in the Winton District. The lease was initially granted for a period of 10 years from 1 June 1996, and expires on 31 May 2006. The application for a renewal for a further term of 10 years was lodged at the office of the Mining Registrar Winton on 2 May 2006. The renewed term is to commence on and from 1 June 2006. -- 1 of 4 -- [2] The lease is located on Lot 1 on BB8, Parish of Blackrock, County of Mayne, being part of Timbula Holding in the Winton District. Access is through the same property. The lease is over an area of 20.7 hectares and is granted for the purpose of mining for gypsum/anhydrite. I round off the area to 20 hectares. 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. Each party filed letters which referred mainly to the state of the access road and maintenance (or lack of maintenance) of that road. 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. [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, -- 2 of 4 -- 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 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. [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 partly through the same property. The landholder in his letter has raised the issue of maintenance of the road, and the effect that bull dust can have on the transport of stock out of the area. The miner has in response indicated that he will in the near future, as soon as weather conditions are favourable, take steps to improve the road surface of the access track. That is not a commitment that can be enforced in this determination, but the landowner has recourse to an award for damages in another jurisdiction if the issue is not resolved. I take into account the length of the access road and the effect that lack of maintenance of the road can have on the landowners operations. Whilst in many similar cases a nominal award is made, I consider the circumstances in this instance warrant a more favourable assessment for the landowner, and I award a sum of $200.00 in relation access to the lease, noting that the term of the renewal is not of a short duration. 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 some time. 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. 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 hectare per year for the term of the renewal on the area of 20 hectares. I award the additional sum of $200.00 for access. The aggregate total of these awards is $1200.00. I further award the sum of $120.00 under section 281(4) (e) to reflect the compulsory nature of the action taken under this part. I round off compensation due and payable to the sum of $1300.00 -- 3 of 4 -- 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. In these circumstances, I order that the miner pay total compensation to the current landowner in the sum of $1300.00 within a period of (3) months from notification of renewal of the mining lease by the Mining Registrar. -- 4 of 4 --