Bookhall Mining Company Pty Ltd v Ihle [2007] QLRT 12

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Bookhall Mining Company Pty Ltd & Beth Margaret and Raymond James Ihle [2007] QLRT 12 PARTIES: Re Bookall Mining Company Pty Ltd (Applicant) and Beth Margaret Ihle and Raymond James Ihle (Respondents) FILE NO/S: MLC196/06 PROCEEDING: Application to determine compensation DELIVERED ON: 17 January 2007 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Windridge MR ORDER/S: 1. Compensation determined at $300.00. (at [17]) 2. Such compensation to be paid by the miner to the landowner within 60 days of the renewal of the mining lease. (at [18]) CATCHWORDS: COMPENSATION – RENEWAL OF MINING LEASE – STREAM BED – GRAZING PROPERTY – OWNER Mineral Resources Act 1989, s. 281 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: David Anthony Solicitors for Applicant 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 of the renewal of the applicant’s mining lease number 4326 in the Mareeba District. -- 1 of 4 -- [2] The lease is located in California Creek being Lot 480 on OL 427 and is confined to the stream bed. Access is through the same land. The lease was originally granted for a term of 21 years, such term commencing on 1 June 1985. The applicant now seeks a renewal of the lease for a term of 10 years, commencing from 1 June 2006. The purpose of the lease is to extract alluvial tin from the stream bed, and any tungsten, wolfram and scheelite recovered in that mining operation. The area of the lease is 8.19 hectares, and the lease footprint basically follows the stream bed. I round off the area to 9.00 hectares for convenience and ease of calculation. [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 submissions, and this matter has been dealt with on the papers. The landowner has lodged a submission. The applicant miner has lodged a submission through their solicitors. I have referred to that material in making this determination. I have also referred to some documents supplied by the Registrar namely a copy of the renewal application and the mining lease Report for the purpose of accuracy where necessary. No site visit has been conducted. 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. In Smith v Cameron [1986-1987] 11 QLCR 64, the Land Court held at p. 74… -- 2 of 4 -- “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: Technically, grant of the lease does in law deprive the owner of the use of that surface area that is within the lease boundary. [11] Diminution of value: There is no valuation evidence to consider. It is difficult to find any significant reduction of value if a periodical alluvial operation is conducted in the stream bed. [12] Diminution of use: There is no evidence of diminution of use. Again, if alluvial ground in the stream bed is being worked, there is little diminution of use by the landowner. [13] Severance: The renewal of the lease will not cause severance of one part of the property from any other part of the property. The plan of operations would have the effect of restricting the mining operation to the alluvium confined by the stream banks. [14] Surface rights of access: There is no evidence of any loss of land by Ihle in the surface right of way. Access to the lease is through the same land from my understanding of the material supplied. I assess loss of access for the landowner Ihle as nil. [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. -- 3 of 4 -- Determination [17] There will be a negligible effect, if any at all, on the management of the pastoral holding. Principally, only the alluvial material in the stream bed will be disturbed. This disturbance will be minimised and returned to natural contours as soon as the stream suffers flooding. I am not satisfied that any award other than a nominal award is justified. While the rate per hectare may appear to be low, I take into account that only the stream alluvium is to be mined and processed. Payment of the compensation in advance does give some advantage to the landowner and removes the need to follow up late yearly payments. Should the lease be terminated before expiration of the full term, the landowner has the financial benefit of some overpayment. Having regard to the foregoing, I determine compensation as follows at the rate of $3.00 per hectare per year for a term of 10 years. (a) Deprivation of possession (s.281(3)(a)(i)) $270.00 (b) Additional 10% (s.281(4)(e)) 27.00 Total $297.00 [18] I round off the sum due and payable to $300.00. 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 60 days of notification of renewal of the lease by the Registrar. -- 4 of 4 --