Angela Mining Pty Ltd v Philipson & Anor [2006] QLRT 109

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Angela Mining Pty Ltd v Philipson & Anor [2006] QLRT 109 PARTIES: In the matter of Mining Lease 10019 - Application by Angela Mining Pty Ltd for variation of access and compensation thereon FILE NO: VOA 17/06 PROCEEDING: Application for variation of access DELIVERED ON: 25 September 2006 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Smith DP ORDER/S: 1. I give consent to the proposed variation. (at [11]) 2. I award the amount of $100.00 under s. 281(3) and s. 281(4)(e). (at [11]) 3. I direct that the miner pay total compensation in the sum of $100.00 to the current landowners within 2 months of notification by the Mining Registrar of variation of access to ML 10019. (at [12]) CATCHWORDS: MINING LEASE – VARIATION OF ACCESS – OBJECTION – COMPENSATION Mineral Resources Act 1989, s. 317 Land and Resources Tribunal Act 1999 s. 41(2) 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 Angela Mining Pty Ltd & Philipson [2004] QLRT 150 COUNSEL: A.M. West for the Applicant SOLICITORS: Dale and Fallu Solicitors for the Applicant Mrs L. Philipson (self represented) for herself and Mr R. Philipson -- 1 of 4 -- Background [1] The applicant Angela Mining Pty Ltd holds Mining Lease 10019 in the Charters Towers District. The applicant has applied for a further mining lease (ML 10291) which adjoins ML 10019 on three sides. On 25 September 2006, a recommendation was made that ML 10291 be granted.1 The applicant seeks a variation of its nominated access to ML 10019 which will also serve as access to the new application area. The current lease (ML 10019) has recently been renewed for a period of 10 years and the issue of compensation under s. 281 of the Mineral Resources Act 1989 (the Act) for loss of surface area and access was dealt with in Angela Mining Pty Ltd & Philipson [2004] QLRT 150 on 10 December 2004 by President Koppenol of the Tribunal. In dealing with access to ML10019 as part of the compensation issue, the President awarded the sum of $100.00. This amount was included in the aggregate award, and is to be paid by yearly instalments. [2] The mining lease is located on a property known as “Cornelia Station” located east of Pentland and north of the Flinders Highway. The landowners conduct a grazing operation on the property. Access is off a public road. The miners seek to vary the nominated access. The new access will be approximately 5.7 kilometres long and up to 30 metres wide. There are a number of advantages to the miner. The landowner objects to the variation, giving a number of reasons in an undated letter to the Mining Registrar at Charters Towers. The matters to be determined are therefore should the old access be varied to the new route chosen, and if so, the amount of compensation to be paid for the land lost to that new access. [3] Although the decisions in these matters have been allocated to a standard panel of myself, Mining Referee Windridge and Mr R. Wright, the final decision is required to be made by myself alone.2 The Act [4] Section 317 subsection (5) of the Act provides that the Tribunal shall hear any application for variation of access and where consent is given, the amount of compensation to be paid for that access. The Tribunal heard oral evidence in Charters Towers on 18 – 21 May 2004 (with respect to ML 10291) on this issue. A site visit was conducted. [5] The matters relating to compensation which must be considered by the Tribunal are set forth in s. 281(3) of the Act. Although s. 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.” 1 [2006] QLRT 108. 2 See Land and Resources Tribunal Act 1999 s. 41(2). -- 2 of 4 -- [6] 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.” [7] In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the President of the Land Court, referring to s. 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 [8] There was no formal valuation evidence to consider therefore the Tribunal does not have that assistance in arriving at a determination. It is not the role of the Tribunal to conduct a hunt for evidence. The Tribunal has to determine the issue on the material presented to it. [9] In the absence of detailed valuation evidence I adopt the analysis of the legislative provisions, compensation principles and methodology as applied in Lowe & Anor v Struber & Anor [2005] QLRT 33. [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 s. 281 of the Act. Determination and Quantum [11] Having regard to all the circumstances relating to the application and the concerns raised by the landholder, I consider that on balance the new access route proposed by the applicant miner should be adopted, particularly in light of the recommendation with respect to ML 10291, and I order accordingly. Applying Mitchell v Oakhill supra, I consider that the following award will satisfy the requirements of s. 281 for the term of the renewed lease for the limited purposes authorised by the renewal of the lease over the new access route. Drawing on the 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 s. 281 of the Act shall be the sum of $20.00 per year for the term of the renewal. I further award the sum of $20.00 under s. 281(4)(e) to reflect the compulsory nature of the action taken under this part. I note that the order of the President on 10 December 2004 included the sum of $100.00 for access. This sum is incorporated in a general compensation order in respect of ML 10019. Taking account of this payment, I reduce the compensation for the variation of access to $11.00 per year (inclusive of the solatium under s. 281(4)(e)). Given that ML 10019 is part way through its current term, for simplicity I round the compensation payable with respect to the variation of access up to $100.00 for the remainder of the term. -- 3 of 4 -- Terms of payment [12] In relation to the terms, conditions and times when payments should be made, I take into account the quantum of the order and the period of renewal. In these circumstances, I order that the miner pay compensation to the current landowners in the sum of $100.00 within a period of 2 months from notification by the Mining Registrar of variation of access to ML 10019. Postscript [13] It would be remiss of me not to acknowledge the valued assistance of Mining Referee Windridge in compiling the first written draft of this decision. -- 4 of 4 --